By George Howard

Overview

“Public Domain” is one of those phrases that is tossed around a lot in the music business, but, I fear, frequently misunderstood.  It applies to works that have fallen out of copyright.  This article discusses why and when a work goes into the public domain, and raises the question as to the validity (or lack thereof) of this concept.


Intellectual Property and the Public Domain

As we have discussed in prior articles, when an author fixes an original work in a tangible form, he or she is immediately granted six exclusive rights.  Similarly, when an individual or firm is granted a trademark or patent, the holder of either, like the holder of a copyright, has a limited duration monopoly.  Copyright, trademark, and patent are all elements of Intellectual Property (IP), and, as with real property (i.e. real estate, etc.), the owner of the IP has certain exclusive rights.

Unlike real property, however, copyright and patent rights eventually become non-exclusive, and fall into the public domain (trademark, if adequately protected and used, like real property, has no such expiration).

Patents expire after twenty years. Upon expiration, the invention falls into the public domain.  This is why, for instance, you will see so-called generic prescription drugs appear on the market (at a much reduced price) after the patents for brand-specific drugs have fallen into the PD.

For copyright, there are two terms to be aware of with respect to when a copyrighted work falls into the PD.  The first relates to copyrights held by individuals.  In these cases, the copyright for the work held by the individual falls into the PD seventy years after the death of the last-living author of the work (so long as the work was published since 1978) in the US.  That is, if a copyright is a joint work, the term lasts seventy years from the death of the co-writer who lived the longest.  The second relates to copyrights created by corporations and/or works made for hire and/or anonymous works.  In the US, these copyrights have a term of ninety-five years from publication or 120 years from creation, whichever is shorter.  All signatories to the Berne Convention, which strove to unify copyright protection across countries agree to some exclusive duration prior to works falling into the PD.  The duration varies from country to country. A complete list can be found here.

Thus, whether a work was created by an individual or a firm, it will eventually enter the public domain.  At which point, all of the exclusive rights that the creator enjoyed while the work was under copyright expire, and the work can be used, in any fashion, by whomever sees fit to do so without risk of reprisal for infringement.

Arguments for and Against the Public Domain

The question that should arise at this point is, “Why is there a PD, and/or why isn’t everything in the PD?”  Copyright, generally, and the PD specifically have been the focus of much scrutiny as new technologies have emerged to not only allow for easy file sharing, but also for easy collaboration (mash ups, remixes, etc.).  Current copyright law disallows the creation of derivative works (mash ups, remixes, etc.) unless the copyright holder of the original work gives permission.  Of course, if a work is in the PD, it can be remixed and mashed up with impunity.  These re-workings of copyright serve as a decent entrée into what appears to be at the root of the two competing points of view with respect to public domain.

Those in favor of terms of exclusivity for the creator of works tend to take the stance that these works are valuable, and that they, the creator/owner of the work/copyright, should benefit financially should these works be exploited.  Additionally, they feel that they should be able to take legal action, based on their exclusive rights, should someone infringe upon their copyright.  For example, if someone does a re-mix of one of their copyrighted works without getting their permission/negotiating a deal, the holder of the copyright should be able to sue in order to stop the infringer from exploiting the work, and/or be awarded damages.

Those in favor of works either falling into the PD more rapidly or not being protected by copyright at all feel that the exclusivity of copyright does not promote innovation.  There are varying degrees of reform along the spectrum put forth by those who oppose the current exclusive terms on copyright.  Some, like Lawrence Lessig, have proposed a so-called Creative Commons license that allows for creators to opt out of some or all of the exclusive rights that one attains upon creating an original work and fixing it in a tangible form.  Others in the so-called “copy left” camp create a sort of licensing dynamic, in which works (often computer programs/source code) are intended to adhere to a freely distributable paradigm; often under the GNU General Public License.

Conclusion

The issue tends to boil down to those who feel that their works should be protected so that they (the creator/copyright holder) can be rewarded for their work and investment and those who feel that doing so (i.e. protecting the works) diminishes the likelihood of innovation and collaboration.

This tension tends to get exacerbated when large corporations lobby successfully to extend copyright duration, such as the Copyright Term Extension Act of 1998, which is occasionally referred to as the “Mickey Mouse Protection Act.”

Of course, there are now countless examples of holders of copyright giving, for instance, digital versions of their works away, and attempting to monetize other versions of the same work.  For instance, The Cluetrain Manifesto (which you should read) can be read and downloaded for free online, but you can also buy the book itself.  Similarly, artists are constantly giving away music (either for an email, or, as I’ve suggested, by taking a cue from the social entrepreneurship paradigm of “buy one, give one free,” or in many other ways) in the hopes that doing so will increase awareness of their work, and that this will ultimately drive revenue.

It’s important to note that the examples above require a copyright system to be in place in order for those who hold the copyright to attempt to leverage their opting out of the system to a degree.

In any case, it’s a fascinating time to wrestle with copyright, and undeniably we will continue to do so as technologies evolve.

Give us your opinions on whether or not you feel copyright should grant an author exclusivity, and, if so, how long?

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George Howard is the former president of Rykodisc. He currently advises numerous entertainment and non-entertainment firms and individuals. Additionally, he is the Executive Editor of Artists House Music and is a Professor and Executive in Residence in the college of Business Administration at Loyola, New Orleans. He is most easily found on Twitter at: twitter.com/gah650

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