CREATION – the act of
bringing something into existence is universally recognised
and valued by every civilisation throughout the
history of Mankind. This is further amplified in our present Information Age
with knowledge-based industries requiring continuous creations of the
mind.
But creativity is like
the goose that lays the golden egg. It must be looked after carefully and
provided with adequate nourishment to ensure productivity. In the context of
creating intellectual property (IP), relevant materials must be made available
to serve as the base for creating new works.
Lawrence Lessig (www.CreativeCommons.org), probably the most famous law professor
in the
“It is where, for example,
all the works of Shakespeare are, and essentially where all works published
before 1923 are. Anyone is free to use those works without asking the
permission of anyone. The public domain is important because it frees creators
to build upon and cultivate our past without unnecessary or harmful
restrictions.”
Unfortunately, the public
domain has steadily contracted over the last few decades. In the
And it might get worse in
the near future should the big corporations persuade US Congress to pass yet
another extension to further prolong their business advantage at the expense of
public interest.
Lessig, who is also a board member of
the Free Software Foundation (FSF.org),
was one of the lawyers who represented programmer Eric Eldred in challenging
the legality of the Sonny Bono Act. He had spent six months preparing for the
US Supreme Court hearing.
Protection period
On
The “intellectual
property tyrants” with their valuable copyrights, patents and trademarks look
set to rule for life. The New York Times mournfully declared: “That
grand experiment that we call 'the public domain' is over.”
But Lessig
was not about to watch the public domain wilt and crumble just yet. The phase
of aggression in challenging the government and the corporations, and the
conflicts in court was over. They had lost. It was time to start a new phase
that stresses instead on being proactive.
Lessig is aware of one important thing
from the whole episode: The corporations and heirs are only interested in
keeping their own economically valuable copyrights and have no concern about
the fate of the other copyrights, which form the vast majority of works being
locked out unnecessarily. They are extremely selfish but they are not against
the public domain either when their interests are not threatened.
Lessig has put aside the bitter
disappointments of the past and set his sights on productive and achievable
targets. He is now with a motley coalition of persons and groups comprising
librarians, archivists, bloggers, musicians,
programmers, economists, lawyers and citizens at eldred.cc.
One of their current
projects is to help move works that have no continuing commercial value into
the public domain to help offset the damage of the Sonny Bono Act. And they
intend to do this by getting a specific piece of legislation passed – The
Public Domain Enhancement Act.
Basically, it involves
the payment of a tiny fee of US$1 (RM3.80) per year for an owner who wants to
renew his copyright upon 50 years of its publication (not life + 50).
The work is forfeited into the public domain if the fee is not paid for three
consecutive years. It is estimated that only 2% of the works from 1923 to 1942
(the 20 years affected by the Sonny Bono Act) have any economic value.
The economically valuable
works will certainly be renewed. However, many owners will not do so despite
receiving reminders on the matter. It is an indication that they, by default,
are not against these works being put into the public domain.
If the proposal is
adopted as outlined, the group estimates that over 90% of the copyrighted works
between 1923 and 1952 will be in the public domain within three years!
Who's property
However, not everyone has a benign view of the public domain. Some see it as a
tragedy since it is antithetical to the capitalist right of owning property.
Copyright, they say, is the kind of power that works in the interest of the
author, who is also an entrepreneur. And this is fair and square for copyright
provides the mechanism for the author to derive rewards and compensation for
his hard work in creating.
This is the view of
people like the late Sonny Bono, who was also a music composer and half of the
early 1970s “Sonny & Cher” duet before being
elected to the US House of Representatives. His widow Mary Bono, who replaced
him as representative, had made public speeches in Congress in favour of a permanent copyright protection regime – the
public domain's worst nightmare.
Marilyn Bergman, who is
president of the American Society of Composers, Authors and Publishers (ASCAP) is understandably also a strong supporter of the 1998
Sonny Bono Act. Bergman was the co-author of The Way We Were, a song made
famous by singer Barbra Streisand.
“Why can't I pass on the
fruit of my works to my grandchild? My songs too ... (just) like my house and
other valuables? This is a property issue,” she insisted.
Dennis Karjala, a law professor with the
Others have since
followed Karjala and Lessig;
the most notable being Peter Jaszi, Mary Brandt
Jensen, Jessica Litman, David Lange and Tyler Ochoa.
They have published books, essays and articles on intellectual property,
copyright law and the public domain to help create better public understanding
of an arcane and complex subject.
The opposition
In January 1998, Karjala drafted the self-explanatory
Opposing Copyright Extension statement that analysed
all the issues and arguments for the proposed act. It was signed by 59 other
law professors throughout the
It failed to change the
course of events, as was seen in October that year. However, it is highly influential
in other circles and is regarded as one of the most important documents ever
produced for the public domain's cause. Karjala is
not a close observer of the technology world as Lessig
but he reflected a point that accurately covers software development too:
“There is real cultural
and economic value in allowing works to become part of the common heritage, so
that other creative authors have the chance to build on those common
elements.”
This is in perfect
harmony and totally aligns with Richard Stallman's philosophy when he started
FSF and the GNU Project (www.gnu.org)
in 1984. The master hacker had talked about “free software” and other
revolutionary concepts but was brushed off by many as being a “leftist loony,”
“a communist” and “unrealistic.”
Stallman, in fact, was
only reusing the successful method employed by Sir Isaac Newton who had
explained: “If I have seen farther than others, it is because I was standing on
the shoulders of giants.”
And suddenly
This philosophy of
reusing and improving is sensible, logical and prudent and it comes with