Who's Afraid of the Public Domain?

by Peter Saint-Andre

Version:	1.3
First Published:	2006-11-26
Last Updated:	2008-08-28

Introduction

You know who you are. You like to write, compose, draw, paint, sculpt, photograph, perform, or engage in some other creative activity. You are what I call a creative individual.

Most people make five assumptions about creative individuals:

Creative individuals would not produce their works without the possibility of making money from them.
Creative individuals are endowed with the inalienable right to control who may copy or modify those works, since without that "copyright" they would not be able to make money from their creative output.
Copyright is a straightforward extension of physical property rights and therefore a creative work is a form of intellectual property.
To protect the rights of creative individuals, governments may legitimately prevent others from copying or modifying creative works.
It is only government-enforced copyright that keeps a creative work safe from the ravages of violation and abuse; when it is no longer so protected, it lapses into a fearsome state of desuetude and disregard called the public domain.

These assumptions seem as natural as the air we breathe. I know, because I made them, too. My creative activities -- writing, composing, and the like -- are a large part of who I am, and I didn't want others to profit from or modify my works. Yet slowly but surely I began to question those assumptions. Eventually I overcame completely my fear of the public domain, but only after a great deal of reading and thinking about the history of copyright law, the nature of creative products, and the implications of our ongoing technology revolutions [1]. Although I place all of my personal works [2] in the public domain, I know that the decision to do so is not easy. I've written this essay to share my conclusions so that you can at least appreciate the importance of the public domain to the future of our culture. If you decide to place your works in the public domain, so much the better.

Wherein We Meet the Muse

OK, enough about me. Let's talk about you.

Why do you create? Think back to when you first played an instrument or picked up a pen. Was your fascination with your favorite creative endeavor driven by the desire for money? I doubt it. First of all, there are plenty of easier ways to make money than by penning poems, composing music, writing essays, or blogging -- selling insurance comes to mind. I bet you create because you take great pleasure in the activity itself, because you feel an inner compulsion to create, or simply because you can't help it: it feels as if you were you were born that way and you can't imagine life without your favorite creative activity. The ancients had a name for this non-monetary source of inspiration: The Muse.

That's not to say you don't also have more temporal motivations; but in my experience those motivations are seldom primary, in large part because of the sheer dedication to your craft that is needed (often from an early age) to truly excel in creative production. The drive to create comes first, and only later do you discover that as a result of creation can come fame, fortune, power, and prestige. Indeed, I would hazard that most creative individuals never seek to make a living from their creative output; granted, such individuals are typically the equivalent of Sunday composers, but even some well-known writers and composers (such as William Carlos Williams and Charles Ives) have made their living in other professions and have pursued their creative endeavors on the side. (I, too, have followed this path, which is one reason why I have been so open to questioning copyright -- I never expected to make money from my creative endeavors in the first place.)

Production and Publication

Creative individuals don't merely produce works; they also publish them. In the original sense of "making public", publishing can take many forms: a book, a manuscript, a recording, a recitation, a performance, a transformation into another medium. Some results of publication are physical objects, and some physical objects can be more or less easily copied (compare a single poem to a long novel; compare that novel to a larger-than life statue). Other instances of making public are experiential processes, which given the current state of technology cannot be fully captured in a physical object since they require the human presence of both producer and consumer (musical performances, poetry readings, theater plays, and the like); here, part of the attraction is precisely the human element that cannot be duplicated outside the time and place of performance.

Thus the fact that a work has been made public does not imply that it is amenable to copying. What determines whether a work can be copied is technology. Prior to the development of writing, a poem or myth could be "copied" only by memorizing it, thus enabling one to recite it at will. Prior to the invention of movable type, a written work could be copied (at least during the European Middle Ages) only by visiting a scriptorium in which the work resided and laboriously copying out the manuscript by hand. Prior to the invention of digital storage, retrieval, and publishing (especially the Internet), the ability to copy large texts, images, and audio and video recordings was effectively limited to large-scale publishing and media companies; now that ability is distributed across the world. Although today we are accustomed to live audio and video recordings, we know that they are but a pale reflection of being there (those who experience a concert or recitation or play don't feel cheated by the existence of a recording, since it is not a faithful copy of the original experience); thus the livelihood of performing artists, motivational speakers, and other experience-makers is not yet threatened by the ability to make copies.

Since the march of technological progress cannot be stopped, you may need to think creatively about cashing in on your creative activities (if indeed you want to). While I discuss some suggestions for doing so at the end of this essay, my point now is only that the current state of technology has a major impact on how you can make money from what you create.

Technology also has an impact on the ability of others to modify your works. As most creative individuals do, you probably have something of a parental attitude toward your creations. You may worry more about someone modifying your works than about someone copying your works. For instance, if you write a song or create an image, you don't want someone else to palm it off as their own. Yet here publication is your friend. If you publish early and publish often (especially on the Internet with its "way back machines" and ubiquitous search engines), it becomes more difficult for someone else to claim that they created what you did. With effectively the whole world watching, plagiarism is hard to pull off (as many college students have discovered to their chagrin).

What is Properly Property

Do you own what you've created? It's a tempting thought. After all, you brought it into being. If the analogy of parenthood is appropriate, think of it this way: do parents own their children? Well, no. They have a special interest in their children, but they don't own or even, after a certain amount of time, control or influence them. Children eventually lead separate lives, and so do creative works. This becomes painfully clear when you die. Shakespeare, Beethoven, and other famous creators no longer exercise any control over their works (their heirs might like to, but that's another matter).

In this way, children and creative works are unlike physical property. The house I own today could be maintained, improved upon, transferred, and re-sold to the end of time, all the while being privately owned. By contrast, when I publish ("make public") a poem on my website, in a way it immediately becomes public property, since anyone could memorize it, recite it, write it down on a slip of paper, copy it to an e-reader, cache it on their hard drive, or otherwise "inhabit" it without harming me in the least.

Thomas Jefferson captured this concept as follows:

He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

A Monopoly by Any Other Name

Jefferson went on to write:

Society may give an exclusive right to the profits arising from them [i.e., inventions], as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body.

Notice that the "right" to the profits arising from an idea is granted by society. It is not a natural right, since natural rights never expire (e.g., the right of someone to own my house does not expire but instead is passed on through transfer or sale). So unless you believe in perpetual limits over who may copy or modify your works, you cannot maintain that copyright is a right at all. In fact copyright is a government-granted privilege of monopoly power over making copies and modifications to a work. Sure, if you are a Sunday composer or a small-time blogger then it's a minor monopoly, but it's a monopoly nonetheless. I don't know about you, but I don't particularly want to be a monopolist of any kind.

A Fearsome Desuetude

When the government-granted privilege of monopoly power that we call copyright expires, your work passes into the public domain. It sounds like a horrible fate, doesn't it? Once your work is in the public domain, anyone can copy it or modify it without your approval.

Yet the public domain is nothing to fear. The works of Homer, Sophocles, Confucius, Plato, Aristotle, Dante, Shakespeare, Galileo, Newton, Bach, Beethoven, and other creative giants are all in the public domain. Their works are revered, not reviled. Sure, the fact that the Fifth Symphony is in the public domain enabled Chuck Berry to write "Roll Over Beethoven"; but far from defiling Beethoven's good name, Berry's song indicates the level of respect that we still have for Beethoven's works. I bet you'd love it for your works to be similarly known and respected two hundred years from now (what creative individual wouldn't?).

But certain commercial interests, such as the large media companies, do think that the public domain is a fate worse than death for their creative products (in fact, copyright was developed not to protect the creative interests of authors but to protect the commercial interests of printers and publishers [3]). That's why those media companies have bought off the American Congress to continually extend the length of their monopoly privileges. For example, if you're a 30-year-old American today and you live to age 90, your copyrighted work won't pass into the public domain until 2136 -- unless of course the Congress extends the copyright terms again, which it is very likely to do when the earliest Mickey Mouse films are once again due to enter the public domain.

Because of that corporate influence over the copyright laws (at least in America), you face a choice: accept that your works will never pass into the public domain, or willingly place them there. You can place your works into the public domain immediately (as I have done) or specify in your will that your works shall pass into the public domain upon your death. I find it simpler to place my works in the public domain as soon as I publish them, but only you can decide the best course of action for your own works.

Thinking Creatively about the Creative Life

At this point you may be wondering: am I crazy? Have I willingly given up all possibility of benefiting from my creative activities?

Well, not so fast. Just because my works are in the public domain doesn't mean that I couldn't sell them in certain forms. I could publish physical books containing my writings (yes, some folks still buy books), perhaps autographing them to give them unique value. I could give readings of my poems. I could perform my songs in concert. I could sell T-shirts and calendars and other paraphernalia. I could give seminars on blogging or songwriting. In short, I could sell objects and experiences for which there is demand even if my words and music are in the public domain (no comparison of stature intended, but people do it with Shakespeare and Beethoven, so why not with me?).

I freely grant that in some situations and domains it might be more difficult for individuals to cash in on their creations. If you're a non-performing composer or a mute poet, you can't give performances -- though you could teach, write instructional manuals, sell merchandise, and find a collaborator to present your authorized performances. And placing your works in the public domain means that anyone can publish or perform them without compensating you (one solution, used by J.R.R. Tolkien in response to unauthorized copies of The Lord of the Rings in America, was to ask his readers to purchase the book only from his authorized publisher -- which happened to be great publicity! [4]).

The state of technology for the last 500 years has made the creative life relatively easier for you if you're a writer or composer (out with fickle patrons, in with the buying public), and for the last 100 years if you're an actor or musical performer. Yet technology moves on, introducing new challenges and new opportunities.

One of those challenges is the impending death of copyright (or at least the ability to enforce copyright without seriously invading the privacy of those who enjoy your works). Why try to forestall the inevitable when instead you can place your works in the public domain? [5] Personally I think that you're up to the challenge and that you can apply your considerable creativity to the task of successfully living the creative life without the coercive safety net of a government-granted monopoly over copying and modifying your works. It might be difficult, but no one ever said the creative life was easy. That's why being a creative person is such a badge of honor. And it's a lot more fun than selling insurance, isn't it?

Notes

[1] Some history of my reflections on the topic can be found at my blog. A great resource for thinking about copyright is QuestionCopyright.org.

[2] By "personal works" I mean all the works that I publish at my personal Internet domains (ismbook.com, monadnock.net, and stpeter.im). By day I mainly write Internet protocol specifications for the XMPP Standards Foundation, whose documents are published under the Creative Commons Attribution License; I also write specifications for the Internet Engineering Task Force, articles for professional journals, books for technical publishers, and whitepapers for my employer, but unfortunately the publication policies of these entities are not as liberal as I would prefer.

[3] For details, see The Promise of a Post-Copyright World by Karl Fogel.

[4] For details, see Intellectual Property and Middle-Earth by Milton Batiste.

[5] For information about methods for placing your works in the public domain, visit Creative Commons, specifically their public domain license and their public domain dedication form.

Revision History

1.3 (2008-08-28): Corrected several errors and updated several links.

1.2 (2007-05-23). Added links to my blog and to QuestionCopyright.org.

1.1 (2006-12-30). Added footnotes regarding my personal works and regarding methods for placing works in the public domain.

1.0 (2006-11-26): Initial version

Peter Saint-Andre > Writings > Essays