Re: public domain question

On Fri, 31 Mar 2000, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> Suppose, for example, that during the lifetime of the copyright of
> a copyrighted musical work (a symphony, say), the publisher does not
> sell any reproductions of the score; it only rents them. [This is
> a common practice.] After the copyright expires, the publisher
> continues to rent the score; but only to people who are willing to
> sign an agreement that they will not reproduce it.

The same effect might be achieved (though with less chance of success) by setting the term of copyright so long that by the time it expired only scarce, delicate copies of a work survived in private collections and university rare-book rooms.

> By conceiving the public domain as common ownership, instead of the
> absence of ownerhship, it makes it much clearer that what the publisher
> is doing is violating "my" ownership rights in the work, instead of
> merely taking advantage of the absence of ownership. That is one reason
> I prefer the common ownership analogy: everyone owns the work, instead
> of no one.

I think the analogy of "public domain" in which the works in which copyright has expired are compared to public lands, is a good one (within limits, like all analogies) because it illustrates this aspect of copyright clearly. Something like this may have been operating in the minds of the 9th circuit's judges when they ruled that a Three Stooges film clip was not a trademark. (Comedy III Productions v. New Line Cinema, 9th Circuit, 98-55301, Jan 11. 2000. Judge O'Scanlain wrote, in passing, "we all own it now", referring to the film clip.

It is also possible to assert the public's right to copy (and its implied right to access on reasonable terms) without reference to the concept of "ownership". Since the purpose of copyright is "to promote progress", then allowing contract law (or some other area of law) full power completely to destroy this policy would be self-defeating. Partly for this reason at the 9th circuit refused to allow trademark law to override the public's right to copy functional designs (Leatherman Tool Group, Inc. v. Cooper Industries, 9th Circuit, 98-35147, 98-35415, Dec. 17, 1999.) This was also another part of the reasoning in Comedy III Productions. "If material covered by copyright law has passed into the public domain, it cannot then be protected by the Lanham Act without rendering the Copyright Act a nullity." Maybe someday the courts will look past the act to the constitution, making this not simply statutory, but consititutional logic.

I am not foolish enough to hope that this tendency will not sometimes by contradicted by other courts and in othter cases. Even the 9th circuit has rendered some goofy decisions: White v. Samsung, (expanding the right of publicity to absurd scope) and the Twin Books "Bambi" decision (the U.S. copyright clock for a foreign-published work doesn't start ticking on the first foreign publication, even for the content of that first edition.) But the tendency to find that the public has a right to copy (and, we may suppose, a reasonable right of access to works that are kept in public places, such as libraries and museums) is an existing tendency, with its own strength and potential for being developed.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Sat Apr 01 2000 - 20:35:12 GMT