It’s kind of strange, but as a free-software programmer, I work in the world of copyright. Instead of selling wafers of plastic that happen to have instructions embedded in them, I rely on copyright to make sure that what comes out of the tapping of my keyboard is used in ways that I want. I give away the source code to be used all alike by Fortune 100 companies and basement hackers and school kids in the heart of Africa, but everything I write is copyrighted.

Property rights are pretty obvious and are as such well understood in most places. If you grow a pear tree, the tree and its fruit are yours. Property rights exist only in the context of other people; it makes no sense to assert rights if you’re the only person on a desert island. Property is a societal contract that attempts to keep use of something in the hands of the one who fabricated it. We may trade it for time or we may shift it in and out of symbols like money, but the use and value is still (for the most part) preserved.

But, what about ideas? If I invent a recipe for pear pies and teach you how to make them, I lose nothing (except exclusivity). There’s (almost) no cost to sharing an idea. Free flow of ideas immeasurably helps our tribes grow.

The US’s patent system and its copyright system are separate, but similar. In the patent system, society makes the deal that if an inventor creates something new, then in exchange for detailing it in public form, society will guarantee exclusive usage of it for some limited number of years. After the term expires, anyone at all may take the details and use them. Ownership of that idea falls from the domain of the inventor into the domain of the public. Copyright is similar. A writer gets exclusive ownership over the contents of the work for some number of years. These terms are supposed to be incentive for creators to produce new work.

Section 8 of first Article of the US Constitution says what congress has the power to do:

… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

It’s because of this that we can print the complete writings of Thomas Paine, and put on plays of William Shakespeare, and play piano concertos of Sergei Rachmaninoff — all without finding who owns them and begging for permission. Such works were guaranteed legal protection for some number of years, and then they fall into the public domain. No one owns “Macbeth”.

But, unfortunately, the words “limited time” has lately failed to mean anything. Enter stage left: Disney.

In the US, the term of copyright protection was 56 years until the 1976 Copyright Act, whereupon it was extended to the remaining lifetime of the author plus 50 years. Then, as Mickey Mouse’s copyright was due to expire in the year 2000, Disney paired with congressman Sonny Bono and passed the Copyright Term Extension Act, which makes the new terms lifetime plus 70 years (or total of 95 years for a corporation). Quoting Wikipedia,

Under this Act, additional works made in 1923 or afterwards that were still copyrighted in 1998 will not enter the public domain until 2019 or afterwards (depending on the date of the product) unless the owner of the copyright releases them into the public domain prior to that or if the copyright gets extended again.

The public domain is now effectively strangled. The tail that followed us in time, marking where works become usable by all of us, suddenly grew much longer. Those works, that could go into the public domain and serve as inspiration and fertiliser for new works, are now locked up for even more time. Managers of estates of long-dead creators are the major lobbyists to keep the public domain from growing. Mary Bono, spoke about her husband after his death:

Actually, Sonny wanted the term of copyright protection to last forever. I am informed by [Congressional staff] that such a change would violate the Constitution. … As you know, there is also [Motion Picture Association of America president] Jack Valenti’s proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.

This is especially shameful and ironic considering how much of those very same people relied on a rich and vibrant public domain. Disney, for example, didn’t invent “Cinderella” or “Snow White” — those came from the public domain. The copyright to the book “The Jungle Book” expired and Disney could then make the book into a movie.

Works of art that are woven deep in to the fabric of our lives from long ago should fall into the public domain so they can be performed, and used, and extended or rebuilt any way we like. The wellspring of the public domain feeds new arts, and we should never staunch its flow. The public domain should kept rich and replenished with works that fall out of contemporary attention and into history — if it’s not then we face the prospect of a barren landscape with no materials to use to build new art. By locking up our past, we sterilize our future.

Millions of works from the last century are integral to our lives and culture, but descendents of the authors unnaturally extend their legal control. The next time you’re in a restaurant and you hear some stupid tune instead of “Happy Birthday to You”, think long and hard about why the copyright on that song now isn’t due to expire until the year 2030 (and can’t be performed in public without a license). Consider that when you want to show your grandchildren or great-grandchildren “Song of the South”, even though it will be ancient by then, you probably won’t be able to. Our culture should not be locked away by people or organizations whose only virtue or claim on it is ancestoral.

10 Sep 2007, 18:28 #