Tuesday, March 10, 2009

Robbing from the Public Domain

[I wrote this letter in response to an article in the Oklahoma Observer that advocated for the further extension of our copyright and common domain laws in the name of "helping out the artists."]

Robbing from the Public Domain

Kudos to the Observer for bringing much needed attention to the plight of the modern artist in your recent article, "Change the Law" (Vol 39, No.21) advocating the extension of intellectual copyright terms in the United States . As a writer and composer, I would benefit directly from the extension of these terms and so, it stands to reason, should be in favor of such a move by the Federal Government. It may surprise you to discover that I, like many artists in a variety of creative fields, am vehemently opposed to any further extension of these protections beyond what we are currently afforded.

As noted in the article, the original framers of the Constitution placed a very narrow window of fourteen years for an artist, with the option to renew for fourteen more if the author were still alive, to retain exclusive rights to their work before it entered the public domain. The assertion made by the article that they offered such seemingly meager provisions for artists because the issue affected such a small percentage of the working population ignores the obvious importance of the issue, addressed, as it was, within a year after the ratification of the Constitution itself. Neither was the span of time afforded a number chosen at random or without consideration. James Madison sponsored an act in the Virginia House of Delegates in 1785 securing similar rights for the span of twenty-one years. So, why, when introduced on a federal level, did we see this span decrease?

The historical record shows that there were those among the Founding Fathers who had reservations about extending the notion of inheritable property from the physical to the intellectual at all. In an 1813 letter to Isaac McPherson, Thomas Jefferson enunciated this position eloquently, saying

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it…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."

Any artist unwilling to concede that ideas are drawn from a common space and then individualized in the execution of that idea is either delusional or lying. Indeed, the entire process of gaining the skills/craft necessary to be an artist is constituted of vicious copyright infraction after copyright infraction. Painters copy the work of earlier masters. Composers study (often meaning they learn and perform) the works of other musicians and composers, blending and borrowing along the way to create something new. Before we are writers, video game designers, or sculptors, we are readers, players, and admirers of the arts. Without the first, there is nothing to follow.

And so, we are fortunate that the Founding Fathers saw fit to invest in a body of art common to all the people of the United States, the Public Domain. I was frankly baffled by the Observer’s cavalier preparedness to sacrifice the Public Domain in the interest of passing the cultural wealth of the people on to the estates of the artist who, under our current laws, will have been dead for at least seventy years by the time these proposed term extensions would benefit anyone. We can measure the value of this bounty by the most casual examination of the ideas it holds even under our bloated current policy; like Christmas Carols, Uncle Sam, Santa Claus, "Amazing Grace," "Happy Birthday," or The Bible. Truly, how many of these indispensable cultural objects would anyone prefer to pay for with each usage so that the distant descendants of the artists responsible might live a little easier?

There are further arguments that can be presented to bolster the case for aggressively defending the public domain. If our concern is that we will be depriving artists of their due rewards for a lifetime of hard work, we could remedy this lingering sense of social culpability in his assured poverty by adequately funding the arts in our public schools. We could invest in more publicly funded venues for artistic expression and adult-education programs aimed at educating the people in the value of their cultural heritage, whether as Oklahomans or citizens of the United States. There is no end to the list of things that we could do to improve the lot of our artists when it will directly benefit them the most, namely, while said artist is living.

Furthermore, it is not the individual artist but the corporate entity that benefits most from a further extension of our current terms. Under Article 1, Section 8, Clause 8 of the Constitution, an artist is granted copyright protection for a maximum of twenty eight years from initial publication. As a nation, we waited one hundred nineteen years before extending that privilege to a maximum of fifty-six years from initial publication. This adjustment, in the Copyright Act of 1909, made no meaningful distinction between the rights of individual owners and the corporate interests that might feasibly control them.

The twentieth century, in contrast, saw a concentration of intellectual property accumulate under corporate control on a scale unprecedented in American history. Our current system was first molded in 1976 to suit corporate interests by dramatically extending the copyright protection to an individual for fifty years after his or her death. It also established separate protections for corporations who owned content created under work-for-hire contracts at seventy-five years. These laws were substantively amended, once again, in 1998 under the terms of the Sonny Bono Copyright Extension Act or, as it is sometimes known, The Mickey Mouse Protection Act. Under our current statutes, inheritors continue to benefit from individually-owned works for seventy years after the death of the author. Corporations now enjoy exclusive control of work-for-hire creations for one hundred twenty (!) years after creation, or ninety-five years after initial publication, whichever span of time is the shortest.

In my opinion, this is the cultural equivalent of egregious deficient spending to promote corporate interests over that of the public. Extending the current limits does absolutely nothing to improve the lot of artists while they are alive. The contour of the last one hundred years suggests, however, that changes in Constitutional Copyright Law have served, regardless of the aims under which they were originally conceived, to transfer a wealth that was intended by the framers of the Constitution to serve the public good into the hands of coporate interests. Where this trend will eventually terminate is a matter yet unresolved; but the words of former California senator Mary Bono upon the passage of the aforementioned Bono Act of 1998 provide us with an ominous note on which to end:

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


  1. Love this post on so many levels. If only we paid our art teachers like we do our football and baseball coaches and players....

  2. Julie,

    It's been a really long time since we were a nation taking its duties of educating the young seriously. As long as it remains more profitable to incarcerate a citizen than it is to educate them, I'm not holding my breath for a sea change.

    Thanks for your contribution!