Friday, February 22, 2008

Steve Fishman's Public Domain Book

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 ( 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
5. Publication
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.


Unknown said...

I miss those "wry transformative comments."

William Patry said...

Chuck, me too; they were fun to do. There are also bots that track down every use and accuse you of being a war criminal, so it became too much of a hassle.

Anonymous said...

I'm off to order a copy of that book. Thanks for pointing it out for us!

Andrew Oh-Willeke said...

We could replant the rainforest.

If we want to restore the public domain, the easiest way to begin is to use the power of eminent domain to buy it back for the public.

While this seems daunting, one can imagine a valuation being done on the per capita fair market value of each person's unpublished works, followed by a settlement a la the digital TV conversion buy out or the excize tax refund or the current economic recovery check whereby anyone accepting the check would surrender their copyrights to the public domain.

The private sector could simply send offers en masse to registered copyright holders to buy them out for the benefit of the public domain for a small sum, perhaps $100 each, and reclaim a great many of the de facto worthless registrations.

With perhaps 95% of unpublished works and a meaningful percentage of registered copyrights repurchased for the public domain for nominal costs, individualized appraisals of copyrights with real value could be made, and while it would be more expensive, a fair share of those could be purcahsed back as well.

It would be an expensive one time venture, but it would also restore something approximating the pre-1976 act status quo.

Anonymous said...

Well, you're wrong about the public domain never returning to its full vibrancy. All we have to do is to withdraw from the idiotic treaties that helped get us into this mess. Given that there are ever-increasing calls for terms shorter than life+50, and that alone requires withdrawing from Berne and TRIPS, there is actually a good chance that this will happen in our lifetime. Berne was a stupid idea, joining it even more so (after we'd successfully shown how pointless it is), and the various maximalists were for having become so greedy that they finally awoke the sleeping dragon that is the public. It's like early 1942 in the Pacific just now, but in time the maximalists will lose the fight.

William Patry said...

Dear Anon, you are certainly correct about what would be required, although I would add breaking lots of bilateral treaties in addition to the 1996 WIPO treaties, TRIPs, and Berne. May we all live long enough to see that happen.

Anonymous said...

Would federal preemption extend to abandonment, requiring the development of a federal common law; or would we end up with 50 different regimes, and a daunting choice of law issue at the outset of every case?

Anonymous said...

Would federal preemption extend to abandonment, requiring the development of a federal common law; or would we end up with 50 different regimes, and a daunting choice of law issue at the outset of every case?

Anonymous said...

Re: Other bilateral treaties, it is my understanding that we were usually the ones who insisted upon those provisions. (E.g. the recent treaty with Australia) Where that's the case, I doubt that the other side would be terribly upset if we could mutually agree to wipe out that provision and keep the rest of the treaty.

William Patry said...

John, I am not sure I understand the question. If we assume a work was subject to (federal) copyright, but the copyright owner chose to abandon the copyright, then yes any efforts by states to protect that work would be preempted. This has been the case from the beginning in the analagous situation where an author chose not to affix a copyright notice to a work where such a work was required.

William Patry said...

Re Anonymous, true enough; point well taken.

Peter said...

I don't know if I would clasify this as a "wry transformative," but I think it is Onion-quality humor:

Duke University Purchases the Public Domain

Charles L. RIddle said...

I came across the book in a Federal District Court library yesterday. I'm going to try to get a copy for the office. It is a great tool for quickly evaluating a copyright claim against your client.