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

On 05/16/2000, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
>
> On Wed, 10 May 2000 Tyler Ochoa <tochoa[_at_]LAW.WHITTIER.EDU> wrote:
> >
> > On 05/09/2000, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
> > >
> > > On Sat, 6 May 2000, Lance Purple <lpurple[_at_]netcom.com> wrote:
> > > >
> > > > On Fri, 5 May 2000, Jon Noring <noring[_at_]netcom.com> wrote:
> > > > >
> > > > > On another mailing list a very pointed question was asked, the
> > > > > gist of the question being "why is the Public Domain necessary
> > > > > -- what's wrong with perpetual copyright terms?"
> > > >
> > > > Because it would likely have stopped Shakespeare, Walt Disney,
> > > > Andrew Lloyd Weber, and countless other artists from creating
> > > > their most popular works:
> > >
> > > That is assuming they were too lazy to obtain the usual permissions
> > > where needed and to pay appropriate fees and royalties.
> >
> > Wrong, wrong, wrong. YOU are assuming that copyright owners will
> > always give permission where there is money to be made. The contrary
> > assumption that Mr. Purple (and other public domain proponents) make
> > is that people will NOT always give permission, even if there is money
> > to be made. The public domain is about freedom to copy and create new
> > works, not about laziness.
>
> Not so. The right to withhold permission should be honored by any
> artist worthy of the name. If the expense and effort required to
> obtain permission are not worth while, then we might wonder whether
> the quest has any merit at all.

I've long ago given up trying to change Albert's mind on this point [nothing wrong with that; he is entitled to his opnion], but since there are others out there who might be more receptive to the public domain side of the debate, I'll respond as follows:

It is only since the 1800s or so that that "originality" in an artist became so highly prized. Prior to that, "copying" or creating new versions of older works, was considered the height of artistic expression. As Benjamin Kaplan stated in his classic work, An Unhurried View of Copyright (1966):

   "From the classical writers, as expounded by critics of the Italian    and French Rennaissance, the Elizabethans had received the notion    that artistic excellence lay in imitating the best works of the    past, not in attempting free invention... What was required of    an author was to give the old materials an expression compatible    with his own time. To be sure, servile imitation was not admired.    The author must select and reinterpret; here lay the improvement    which was uniquely his... Still, in the final count, imitation    was essential; innovation was dangerous. The classical doctrine    of imitation, as well as imitative practice in and out of    conformity with the classical ideal, persisted long after    Elizabethan times."

That is exactly what Shakespeare did in borrowing familiar plots of the day. Even Albert cannot deny that Shakespeare is "an artist worthy of the name"'; and he freely borrowed from others in a manner that in today's climate would be called plagiarism or piracy; and he never had to pay a penny of royalties to anybody.

The effort and expense may be prohibitive; but that is only one reason supporting the public domain. The other is that freedom demands that some copying be permitted. Authors often suppress derivative works for non-economic reasons, but because they simply don't like the view being expressed by the second author. In a society that values free speech, there is a need for doctrines which permit copying: the idea/expression dichotomy, the fair use doctrine, and the public domain. The question is how to balance this need against the need for copyright. Reasonable people may differ on how the balance should be struck; but no reasonable person denies the need for balancing [i.e., demands perpetual copyright.]

> Copying is not creativity. No artist or writer has a mandate to
> create derivatives.

I disagree. Some copying is the very essence of creativity. See above.

> The considerable output of creative work based on others' art --
> whether it be mega-million-dollar movies or hip-hop tracks loaded
> with samples -- have permission.

The vast majority of new works do have permission; primarily because it is often cheaper to obtain permission than to risk one's business on the uncertainties of the fair use doctrine. I don't have a problem with this; the vast majority of new creative work is created or published by large companies, who can afford to pay royalties to use contributions. But there is no way to empirically measure how much creative work is being lost to the uncertainties of fair use.

The permission model also arises because it is in the interest of large multi-media conglomerates to scratch each others' backs. You pay permission for my works, I'll pay for yours. Those large companies also have huge departments devoted to nothing but securing permissions. As long as you like what they're producing, there's nothing wrong with that model. But if you value the work of the individual, you have to wonder how an individual can afford to navigate the complex maze of copyright to secure permissions. The short answer is: they can't. Hence, large conglomerates can effectively freeze competition from individuals out of the market, even in the Internet age.

> I have a very strong feeling that Andrew Lloyd Weber and Disney had
> the rights where they needed them to create "their most popular works."

Often they did not; many of their works are based on public domain material, with no royalties to the originator of the story.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Wed May 17 2000 - 23:22:18 GMT