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Fencing Off the Public Domain
By Brad King |
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2:00 a.m. Oct. 9, 2002 PDT The story of Snow White has traveled the globe for centuries.
The many faces of Snow White exist in part due to a legal concept called the "public domain," which allows artists to use and borrow from creative works -- from ancient Greek poetry to Shakespeare's plays to Mozart's sonatas -- either because there were no copyrights in place when the works were created or because the copyrights have since expired. The realm of the public domain is a big thinker's sandbox, a place where ideas and thoughts lie around waiting to be used by a new generation. There's no charge for entering, and no charge for taking an idea out to use for an individual's particular creative purposes. "The way our culture works is not through inventing something truly new, but by recycling a few themes in ways that are insightful, given changing times and the ways we relate to each other," said Chris Sprigman, an intellectual property lawyer based in Washington, D.C. "Think Romeo and Juliet. That was Shakespeare reworking (The Tragicall History of) Romeus and Juliet, and that was reworked later on as West Side Story. We have a habit that we take great works and we riff on them." Before a work ends up in the public domain its use is governed by copyright law, which gives the creator control over his or her ideas and works for a limited time. Many believe that having a robust public domain is among the most important aspects of a rich and diverse culture, but some also fear that individuals' access to this resource is being seriously eroded. Congress has continually extended the length of time that a copyright remains in force. Today, corporations receive 95 years of protection, while individuals get protection for their lifetime plus another 70 years. The Supreme Court is currently listening to arguments that will determine whether the Copyright Term Extension Act of 1998, which extended current and future copyrights by 20 years, is constitutional. Despite its importance, the public domain itself has no official keeper. Instead, works move from the copyright protections of companies and individuals into this public space with little fanfare. With few exceptions, copyright protection automatically kicks in once something is written down or recorded. That said, it's often difficult to judge exactly when something becomes part of the public domain. "The copyright office isn't like the patent office, which must decide which patents and trademarks will go to companies," said Walter McDonough, general counsel for the Future of Music Coalition, a nonprofit group monitoring the major record labels. "The patent office grants rights, but the copyright office records what has been done. Since the patent office grants rights, they keep records for when those rights expire." Patents have a 20-year time limit, and are closely monitored by the U.S. Patent and Trademark Office. Copyright owners don't have a central headquarters that monitors the public domain. Individuals can pay a fee to have copyright office staff determine if certain works have fallen into the public domain, but record searches aren't necessarily conclusive. The absence of information on a work doesn't mean it's unprotected. Before 1978, for example, unpublished works didn't have to be registered in order to be protected under common law. Two organizations -- the Internet Archive and the Creative Commons -- want to build systems that remove some of the red tape for people searching for works in the public domain. The Creative Commons, a nonprofit organization, is currently developing copyright licenses that allow creators to open up their works to the public more quickly than conventional copyright law allows, while retaining certain rights over the protected work or idea. "We are working on creating public licenses that promote certain freedoms, but that still come with caveats like giving credit (to authors) or keeping people from generating income without getting permission from the creator," said Glen Otis Brown, executive director of Creative Commons. "It's a cheap, easy way for people to fine tune their rights or give them up entirely."
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