Re: benefits of the public domain and limited copyright terms?

On 5/10/2000, Anthony McCann <anthony.mccann[_at_]ul.ie> wrote:
>
> On Tue, 9 May 2000, Dodi Schultz <schultz[_at_]compuserve.com> wrote:
> >
> > On Mon, 08 May 2000, Anthony McCann <anthony.mccann[_at_]ul.ie> wrote:
> > >
> > > I am of the opinion that the conceptualisation of public domain
> > > may be causing as many problems as the conceptualisation of
> > > copyright. Both work on a premise of more or less 'frictionless
> > > space', something which is a consequence of market economics.
> > > Public domain, especially when equated with 'traditional', also
> > > feeds on the idea of Open Access, which traditional cultures
> > > most definitely aren't.
> >
> > You may be saying something interesting. Can you rephrase that in
> > straightforward English, with reference to copyright laws?
>
> I'm not sure how to take the reference to straightforward English,
> but I can elaborate a little more.
>
> Referring it to copyright laws is a bit of a problem as it is more
> a question of the silences in copyright law and its associated
> discourses, not what is there.
>
> Frictionless space refers to the way in which the market (the
> invisible hand), copyright (the invisible author), and public domain
> (which is where exactly?) are applied as universal concepts which
> are separated from any sort of relational understanding of space.
> This is mainly because all of the above are based on premises which
> stem from epistemological dichotomies of mind and body which privilege
> the mind side of things. For an interesting analysis of law and space
> see (Blomley, Nicholas K. 1994 Law, Space, and the Geographies of
> Power. New York and London: The Guilford Press). Space and, most
> importantly, relational space, is often the forgotten ingredient in
> law and science in so far as it is based on mind-dominated formulations.
> Once laws or rules are established as truths that apply to all then
> they do not acknowledge the localisation of knowledges or practices,
> except in relation to those laws or rules.
>
> Once we identify some'thing' as having 'entered' the 'public domain'
> it enters the realm of free-for-all, or Open Access property. Nothing
> with people in the mix is truly open access. By designating certain
> things as Open Access we remove all opportunity for those things to
> act as the focus for the accumulation of CULTURAL capital (status,
> reputation etc.), because the relational dimension is stripped away
> (apparently). Relationships create friction, and require us to
> negotiate our way through life. 'Universal' laws work in frictionless
> arenas that do not acknowledge the complexities of life.
>
> I'm still working on all of this stuff, and as I said, I haven't
> actually gone near public domain in my work yet. Will be on the road
> as of tomorrow and will not be able to respond in great detail.

I think Anthony McCann exhibits a fundamental misunderstanding of public domain in his two notes to this thread -- insisting on using the spacial metaphor to define the PD. In contrast, I believe that public domain is mostly a set of extra-legal concepts, visions actually, that represent in their manifestations and in the metaphors used to describe them, different political and economic agendas. There is not one public domain but several and the metaphor of space is just one of the several that people use.

In my recent talk about the public domain given at the NINCH Copyright Town Meeting that took place in early April at the Visual Resources Association convention in San Francisco, I set up several of these public domain metaphors and then discussed what happens when they begin to conflict with each other. In the second part of the paper I survey some of the difficulties encountered when attempting to develop a database of public domain images. While defining the complex boundaries of copyright law (a metaphor) is certainly difficult, running a project that must negotiate through the different metaphorical manifestations of the Public Domain is most problematic.

My paper is available as this URL:

   http://www.pipeline.com/~rabaron/VRA-TM-SF-PublicDomain.htm

Note that this paper is written for a nontechnical audience and that I am not an attorney.

Robert Baron
rabaron[_at_]pipeline.com