One result of the radical expansion of copyright is increased focus on the public domain. In the last 30 years we have seen the elimination of the renewal and notice requirements which had done yeoman's work, and the exponential expansion in term, which created tens of millions of orphans. The public domain ain't what it used to be. Regrettably, part of the scholarly focus on the public domain is nostalgic, a look at what the Amazon rain forest had been before much of it was destroyed. And like the Amazon rain forest, calls for for a re-invigorated public domain ignore the harsh reality on the ground: due to treaty obligations alone, the U.S. cannot reimpose formalities or diminish the term of protection. The formerly vibrant public domain will never return.
Into this depressing state of affairs comes an amazing 724-page scholarly treatment of the subject by Californian Stephen Fishman called "Copyright and the Public Domain." The book, due out in March, is published by Law Journal Press (www.lawcatalog.com). Mr. Fishman had previously written on the issue for laypeople "The Public Domain: How to Find and Use Copyright-Free Writings, Music, Art & More." (I had used a picture of the cover in this blog back in the days when I was attempting to make wry transformative comments via my profile picture, but I gave that up when not everyone got the point, so I gave that effort up as distracting, although it did confirm my view that we are in an era when all uses are regarded as infringing.)
Mr. Fishman's new book is a very different type of work. For starters, there has never been such a comprehensive look at the public domain. The excellent footnotes reveal a depth of research that would make the book worthwhile for them alone, but their principal purpose is to serve a text that is at once richly insightful and readable. The book begins where it should, with a discourse on the varied ways the term "public domain" has been employed (including outside of copyright). Within copyright law, we have: (1) works that were under copyright, but are no longer. Here some reasons for the lack of current protection: expiration of term, forfeiture of protection for failure to comply with formalities, lack of originality (a vast topic of its own), lack of fixation, lack of national eligibility, lack of protection as a governmental work, exclusion from protection (e.g, typeface), lack of separability in the case of the design of useful article, and abandonment. This final point finally receives the treatment it is due in chapter 6; there is no excuse (if there ever was) for relying on Nimmer's strange views on the subject.
Mr. Fishman also points out -- and covers in great detail -- that the concept of the public domain refers not just to entire works that aren't protected, but also to constituent elements of works that are; given the Amazon rain forest problem noted above, this aspect of the public domain is our last real sanctuary, and he covers it thoroughly in chapter 7. There are also many helpful practical sections, such as chapter 11 (researching copyright renewals), as well as charts on duration (3:04).
Here is a list of the chapters:
1. Introduction to the public domain
2. Works not entitled to protection
3. Works whose copyright protection has expired
4. Copyright forfeiture
6. Copyright Abandonment
7. Public domain elements in copyrighted works
8. Copyrights restored from the public domain
9. New works created from the public domain
10. The public domain outside the United States
11. Researching copyright renewals
12. Non-copyright restrictions on use of public domain materials
Paradoxically, the shrunken public domain has only increased its importance, and therefore the importance of Mr. Fishman's exhaustive treatment. Bravo.