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4/3/01Besser--Public Domain, ARLIS 20011
Disappearing PublicSpaces: A Metaphor for the Disappearing Public Domain
ARLIS Los Angeles 4/3/01
Howard BesserAssociate Professor
UCLA School of Education & Information
http://www.gseis.ucla.edu/~howard/
4/3/01Besser--Public Domain, ARLIS 20012
The Disappearing Public Domain-
• Very short history of Public Spaces and how they’ve started to disappear
• The erosion of the public domain
• The meaning for Art & Creativity
4/3/01Besser--Public Domain, ARLIS 20013
Very short history of Public Spaces
• The Agora
• The Commons
• Europeans settling America
4/3/01Besser--Public Domain, ARLIS 20014
Public Spaces are rapidly disappearing in the late 20th Century-
4/3/01Besser--Public Domain, ARLIS 20015
Bath bathrooms circa 1650
4/3/01Besser--Public Domain, ARLIS 20016
Paddington Station
4/3/01Besser--Public Domain, ARLIS 20017
Public Spaces are rapidly disappearing in the late 20th Century
• No more privacy in public spaces-
• The rise of pseudo-public spaces
• Broadcasting
• The erosion of the public domain-
4/3/01Besser--Public Domain, ARLIS 20018
Street-cams
4/3/01Besser--Public Domain, ARLIS 20019
3 blocks of NYC
Map compiled by Matt McCourt and Carl Dahlman, Department of Geography, University of Kentucky
4/3/01Besser--Public Domain, ARLIS 200110
Enemy of the State
4/3/01Besser--Public Domain, ARLIS 200111
Conversation at Westwood Farmers Market
4/3/01Besser--Public Domain, ARLIS 200112
Public Spaces are rapidly disappearing in the late 20th Century
• No more privacy in public spaces
• The rise of pseudo-public spaces-
• Broadcasting
• The erosion of the public domain-
4/3/01Besser--Public Domain, ARLIS 200113
Public Space is no longer public
Private Property. Permission Private Property. Permission to pass revocable at any time.to pass revocable at any time.
4/3/01Besser--Public Domain, ARLIS 200114
Beverly Center Mall
4/3/01Besser--Public Domain, ARLIS 200115
Wisconsin Mall
4/3/01Besser--Public Domain, ARLIS 200116
Bookstores replace Libraries
4/3/01Besser--Public Domain, ARLIS 200117
Westwood Farmers Market
4/3/01Besser--Public Domain, ARLIS 200118
Public Spaces are rapidly disappearing in the late 20th Century
• No more privacy in public spaces
• The rise of pseudo-public spaces
• Broadcasting-
• The erosion of the public domain-
4/3/01Besser--Public Domain, ARLIS 200119
Static Over Low-Powered RadioNYT Editorial, 3/31/00
4/3/01Besser--Public Domain, ARLIS 200120
The erosion of the public domain-
• What is it?
• What threatens it?
• Why should we care?
4/3/01Besser--Public Domain, ARLIS 200121
What is Copyright About?
• The Congress shall have power ...to provide for the ... general welfare of the United States 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;
-US Constitution, Article 1, Section 8 (underlining added)
• (exclusive control) Incentivizing creators to create more• (limited time) Establishing a vast and rich public domain for
use as new creative materials, as well as for public edification and appreciation
4/3/01Besser--Public Domain, ARLIS 200122
What is Copyright?
• Copyright is a delicate balance btwn users and creators, but is supposed to be clearly oriented towards the public good
• Copyright is NOT an unlimited Economic Right• Copyright is really a temporary monopoly right
granted to creators in order to fulfill the societal need to increase creativity
• The Copyright monopoly is temporary, then works become freely available for all purposes
4/3/01Besser--Public Domain, ARLIS 200123
What’s part of Public Domain?
Still is• Air• Sunlight• Numbers• God• Ideas & Facts**
Was• Water• Land
4/3/01Besser--Public Domain, ARLIS 200124
Lawyers defining the Public Domain
• "things in the public domain can be appropriated by anyone without liability for infringement" (Black's, 1996)
• “the law’s primary safeguard of the raw material that makes authorship possible” (Litman, 1989)
• “a commons that includes those aspects of copyrighted works which copyright does not protect"” (Litman, 1990)
• the converse of property rights in information where the government prohibits certain uses or communications of information to all people but the owner; the public domain “is the range of uses privileged to all” (Benkler, 1999)
• “the ultimate source of all new works (because nothing is ever wholly new in and of itself)” (Karjala, 1998)
• “copyright’s raison d’etre is to benefit the public by encouraging the production and dissemination of new copyrighted works” (Kreiss, 1995)
4/3/01Besser--Public Domain, ARLIS 200125
A simpler description
• resources freely available for all members of society to do whatever they want with them
• no permissions or fees required
• no tracking of what you read or use
4/3/01Besser--Public Domain, ARLIS 200126
Importance of Public Domain
• Common Heritage (philosophical)
• New Knowledge incorporates Old (progress)
• Derivative Works rely upon pre-existing Works (creativity)
• Social Commentary (free speech)
4/3/01Besser--Public Domain, ARLIS 200127
What threatens it?-
• An aggressive Content Industry
• Term extension
• Returning out-of-copyright works back to copyright
• Mickey Mouse
• Licensing
• Other forms of Contract Laws
4/3/01Besser--Public Domain, ARLIS 200128
Pat Schroeder's New Chapter: The Former Congresswoman Is Battling For
America's Publishers --Washington Post, 2/7/01
• ...Schroeder is president of the Washington- and New York-based Association of American Publishers, sponsor of the event. Like a nurturing shepherd, she moves gently among her flock. But when she talks about threats to the group, she stiffens her back.
• And who, you might be wondering, is giving Schroeder and her publishers such a fright?
• Librarians, of course.
• No joke. Of all the dangerous and dot-complex problems that American publishers face in the near future -- economic downturns, competition for leisure time, piracy -- perhaps the most explosive one could be libraries. Publishers and librarians are squaring off for a battle royal over the way electronic books and journals are lent out from libraries and over what constitutes fair use of written material.
• Grossly oversimplified: Publishers want to charge people to read material; librarians want to give it away.
• "We," says Schroeder, "have a very serious issue with librarians."
4/3/01Besser--Public Domain, ARLIS 200129
Time before works enter public domain
Law Duration1709 British 14 years
1790 US 14+14 years
1909 US 28+28 years
1976 US 75 years
1998 US 95 years
1998 US life+70 years
4/3/01Besser--Public Domain, ARLIS 200130
Lengthier Copyright Means
Date Term
Published 1923-63 67 years if renewed
Published 1964-77 28+67 years
Created before 1/1/78 Life+70 years or-12/31/02 if not published
-12/31/47 if published before end of 2002
whichever is greaterCreated after 1/1/78 Life+70 years (95/120
years corporate)
4/3/01Besser--Public Domain, ARLIS 200131
Works that should have already entered the Public Domain (but didn't)
• Virginia Woolf: Jacob's Room
• Film -- Sherlock Jr.
• F. Scott Fitzgerald: Hot and Cold Blood and Invasion of the Sanctuary
• Zane Grey: Code of the West, Steelhead, Tappan's Burro,The Vanishing American, and Down into the Desert
• Ben Hecht: Fingers at the Window
• Rudyard Kipling: Independence and London Stone
• P.G. Wodehouse: Jeeves, First Aid for Dora Heart of a Goof, Leave It to Psmith, Magic Plus Fours, No Wedding Bells for Him,The Return Of Battling Billson, Rollo Podmarsh Comes To, Ukridge Rounds A Nasty Corner, and Chester Forgets Himself
4/3/01Besser--Public Domain, ARLIS 200132
Works that should have entered the Public Domain in the next
few years (but won't)
• Irving Berlin: Blue Skies (2002)• Harry Woods: When the Red, Red Robin Comes
Bob, Bob Bobbin' Along (2002)• Oscar Hammerstein II and Jerome Kern: Ol' Man
River and Showboat (2003)• Mickey Mouse (2004)
4/3/01Besser--Public Domain, ARLIS 200133
Copyrighting Facts:Proposed Database Extraction legislation
• No requirement that the DB contain any original content (can copyright facts, government information, etc., taking these out of the Public Domain)
• DB owner given recourse, even if they didn’t suffer harm
• Implications on:– Transformative uses
– Uses other than those intended by the compiler (citation analysis)
– Copyrighting court decisions
4/3/01Besser--Public Domain, ARLIS 200134
NRC analysis of Coble Bill• reduce the amount of data that can be obtained, particularly from the private
sector or public-private partnerships, an increasingly important source of data;
• increase the cost of obtaining data, particularly from database owners with a monopoly on the data;
• restrict access to data for at least 15 years from the time the data was created;
• discourage the transformation of existing databases into new ones, creating artificial gaps in data availability;
• prevent the use of data for purposes other than than which it was collected, minimizing the scientific and societal value of original data; and
• increase restrictions on the use of compilations of all kinds, including works of authorship (e.g. collection of articles) not normally considered to be databases”
Linn, 2000
4/3/01Besser--Public Domain, ARLIS 200135
Fair Use is Disappearing
• Criminalizing Fair Use
• Copyrighting DB contents in perpetituity
• Proposed Legislation (USCITA, etc.)
• The 1998 Digital Millenium Copyright Act
• The 1998 Sony Bono Term Extension Act
4/3/01Besser--Public Domain, ARLIS 200136
Economics and Contract Laws preempting long-standing rights
Moving long-standing common-law or constitutional rights into the arena of person-to-person business transactions, where these rights no longer apply– extending reach beyond “first sale” to control Use
– shrink-wraps eliminating any negotiating power (UCITA)– shrink-wraps and technological protection don’t allow for fair use
exemptions
– licensing curtailing fair use
– Privacy invasions to prove licensing compliance
4/3/01Besser--Public Domain, ARLIS 200137
Further commodification of information
• Dismantlement of the public sphere in general
• Attempts to turn everything into a commodity (even things that don’t really behave like commodities)
4/3/01Besser--Public Domain, ARLIS 200138
Why does any of this matter?
• Derivative works
• Postmodernism
• Diminishment of exploration and experimentation
• Public discourse
• Democratic values (anyone can be a creator)
4/3/01Besser--Public Domain, ARLIS 200139
Laws designed for the content industry do not really protect Art
• Art does not follow “normal” business models
• Art is about aesthetics, ideas, perceptions (and only marginally about entertainment)
• Money is not the primary incentive
• Art builds upon prior art-
4/3/01Besser--Public Domain, ARLIS 200140
Art builds upon prior Worksnew works involve repurposing old
• Collage
• Pop
• Postmodern
• Sampling
• Shakespeare
4/3/01Besser--Public Domain, ARLIS 200141
Recent changes are reducing the tools artists used to create new art
based on old
• Lengthening copyright terms
• Shrinking public domain
• Technical protections that prevent one from accessing content that one may legally be able to fairly use-
4/3/01Besser--Public Domain, ARLIS 200142
Anti-Circumvention & Rule-Making (1/3)
• Perfectly legal activities (fair use) may be rendered impossible without circumventing technical protection mechanisms
• DMCA makes circumvention of these protection mechanisms illegal
4/3/01Besser--Public Domain, ARLIS 200143
Anti-Circumvention & Rule-Making (2/3)
• DMCA compromise required Rulemaking by Lof C as to which circumvention measures should be allowed
– Concern from library and other communities that circumventing protection mechanisms to engage in perfectly legal acts (like fair use and preservation) would make them subject to criminal penalties
• House Bill Section 1201(a).– No person shall circumvent a technological protection measure that effectively controls
access to a work protected under this title.
• “While sounding innocuous, what the provision does is create a brand new and unlimited right to control access to copyrighted works. If enacted into law, this new right could bypass the carefully crafted balance between exclusive rights of ownership and public access to works for educational, scholarly, and scientific purposes, which has been part of copyright law for the entire 20th Century. In short, it could eliminate fair use from copyright law.” (John Hammer, National Humanities Alliance, 6/5/98)
4/3/01Besser--Public Domain, ARLIS 200144
Use of IP Laws to inhibit free speech and stifle creativity
• E-Toy• Leonardo Finance vs
Leonardo Arts• Jeff Koons case• Barbie• Scientology vs.
Netcom• Fans sites (Star Trek,
Harry Potter)
• 2 Live Crew• Negativland and U2• Contract with America• Snow White & AIDS• Disney and Dan
O’Neil• The Rio player
4/3/01Besser--Public Domain, ARLIS 200145
Dangers• Eliminating a public domain of information• Controlling social/political commentary, satire,
creation of new derivative works/recombinant works• Criminalizing acts that might possibly impede digital
commerce• Making sure that the Internet is used only for info
consumption, not production• Controlling access to older info (controlling history)
4/3/01Besser--Public Domain, ARLIS 200146
Disappearing PublicSpaces: A Metaphor for the Disappearing Public Domain
• http://www.gseis.ucla.edu/~howard/Copyright/
• http://books.nap.edu/html/digital_dilemma/• http://www.dfc.org• http://www.pdos.lcs.mit.edu/~cananian/UCITA/• http://www.badsoftware.com/
• Lee Felsenstein, 'The Commons of Information,' Dr. Dobb's Journal, May 1993
4/3/01Besser--Public Domain, ARLIS 200147
Anti-Circumvention & Rule-Making (3/3)
• On 10/28/00, Lof C ruled that the following should be exempted until 10/28/03:– Compilations consisting of lists of websites blocked by filtering software
applications; and
– Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsolescence.
• Immediate responses of outrage from librarians, consumer protection groups, digital divide groups, etc.-
4/3/01Besser--Public Domain, ARLIS 200148
Outrage at Anti-Circumvention Rulemaking DecisionDigital Future Coalition 10/26/00 press release
• “Unfortunately, today’s decision took 70 pages to essentially say that few persons may ever circumvent a technological protection measure — even to gain access to a work solely for legitimate noncommercial purposes.”
• “Once again, content owners have successfully promoted their own narrow financial interests over the broader public interest in preserving consumer access to literary, scientific, and other works,”
• “deep disappointment that content owners effectively had been given a green light to use technological protection measures to lock up access to copyrighted works.”
4/3/01Besser--Public Domain, ARLIS 200149
Outrage at Anti-Circumvention Rulemaking Decision
American Library Assn ALAWON 9:85, October 26, 2000
• “The Librarian of Congress James Billington has ruled against the American public and library users by negating fair use in the digital arena..”
• “Because of this decision users of digital information will have fewer rights and opportunities than users of print information. In fact, the pay-for-use scenario that librarians have feared appears to have now become a reality with this rule.”
• "The Copyright Office has issued a misguided ruling taking away from students, researchers, teachers and librarians the long standing basic right of ‘fair use’ to our Nation's digital resources," said Nancy Kranich, ALA president. "All library users will be impacted."
4/3/01Besser--Public Domain, ARLIS 200150
Outrage at Anti-Circumvention Rulemaking Decision
Congressman Rick Boucher October 27, 2000 press release
• “I regret the decision of the Librarian of Congress, acting upon the recommendation of the Register of Copyrights, to reject the recommendations of the Administration, concerned Members of Congress, universities and libraries in announcing a decision that does not protect traditional fair use rights. This disappointing decision has moved our Nation one step closer to a "pay-per-use" society that threatens to advance the narrow interests of copyright owners over the broader public interest of information consumers.”
• “In crafting section 1201(a)(1) of the Digital Millennium Copyright Act, Congress sought to preserve the principle of "fair use" that has served our Nation so well for more than a century. Unfortunately, based on the advice of the Register of Copyrights, the Librarian of Congress today announced his decision to limit the ability of ordinary consumers in most cases to circumvent electronic security measures for the purpose of exercising their non-infringing fair use rights. Consequently, any person who circumvents a technological protection measure to gain access to information to which he has a fair use right will be guilty of a crime. ”
4/3/01Besser--Public Domain, ARLIS 200151
Concern prior to Anti-Circumvention Rulemaking Decision
US Dept of Commerce National Telecommunications and Information Administration (NTIA) 9/29/00 letter to Copyright Office from Gregory L. Rohde
• “NTIA believes that implementation of far-reaching access control technologies without carefully drawn exemptions would not only invert 200 years of judicial interpretation regarding the scope of protections given to copyright holders, but also eviscerate individual scholarship and the notion of free inquiry. NTIA’s immediate concern is the very one envisioned by the Commerce Committee when it warned of the development of a legal framework that would inexorably create a pay-per-use society.”
4/3/01Besser--Public Domain, ARLIS 200152
Selected public interest points from Digital Dilemma
• Provision needs to be made for traditional entities to preserve works in digital form
• Legislation criminalizing circumvention of protection mechanisms is far to broad and harsh
• Technological protection methods may prove useful but have their limits
• New Business Models show great promise for solving the problems
• Not all classes of works need the same treatment• We need reliable research on the economic impact of copying
4/3/01Besser--Public Domain, ARLIS 200153