Without the rich resources of this commons, much of Hollywood and Silicon Valley would not exist. This is because the public domain provides the building blocks of creativity. Igor Stravinsky proclaimed: “Lesser artists borrow, great artists steal.” It makes up much of our cultural history, which we can’t help drawing from, referencing and critiquing.
Yet the commons does not have a corporate lobby to protect it because it is a free resource. In Justice Louis Brandeis’ view, it is like the air we breathe, yet with even fewer actors advocating for it. There is no Environmental Protection Agency for the public domain.
In fact, the commons is endangered by Hollywood and Silicon Valley’s profit-driven mentality that desires to control markets, including artistic expression. While incentives such as copyright are critical to making capitalism function, they can easily go too far, generating negative consequences. Within the artistic space, this has happened because of corporations’ desire for ever greater legal control over their creations.
The public domain has been in retreat for decades due to the increasing restrictiveness of copyright. Previously, copyright was a tool that professional artists could opt to use for a modest period, which allowed most works to be open to all. Now, almost everything is automatically locked up for close to a century or more — specifically, until 70 years after the death of an author or 95 years after a work of corporate authorship has been published.
Copyright laws once required an author to register a work to gain copyright protection — something that, on average, a mere 3 percent of authors bothered to do. Now, copyright automatically attaches to new expressive works without the need to register. So kids’ scribbles on their bedroom walls are potentially legally protected, as are tens of billions of emails and lines of software code.
But if copyright legally protects almost all expressive work, then borrowing becomes more legally perilous, especially because fair use has no bright-line rules as to how much or what you can safely sample. Further, if artists are hesitant to borrow from existing art, such works may more easily become lost portions of our cultural heritage. Thus, too much copyright law is stifling the very art it was intended to foster and protect.
Currently, the enfeebled public domain lives in the ether. It needs to have its profile raised by giving it a physical, unofficial capital where the commons could be celebrated. Tying the commons to an urban center would enable public-domain advocates to use the publicity tactics that L.A. has successfully used to encourage film and television.
If Austin, Miami or Portland adopted the mantel of the commons, it could reimagine quirky and ingenious ideas from existing cultural centers. The city could build an equivalent of Hollywood’s 45-foot-tall, 350-foot-long sign or create its own Times Square or Piccadilly Circus, displaying public domain art. The metropolis could construct a public domain amphitheater or a public domain museum with a sculpture park. It could even fund an annual public domain awards ceremony in addition to promoting the existing Public Domain Day, which celebrates the annual expiration of copyrights. More whimsically, the city could place commons stars on sidewalks to honor the names and works of artists who have significantly contributed to the public domain.
To be clear, these initiatives would not dramatically strengthen the public domain overnight. Yet there is a reason why pharmaceutical companies spend more on advertising than on research and development: Publicity works. Also, more substantive projects, as described below, could be taken up by the city to assist the public domain.
Many cities have implemented Richard Florida’s argument that the cultivation of a creative class provides benefits to a city beyond simply increasing funding to the arts. Yet it has been an implicit assumption that the creations of such artistic émigrés would be copyright-protected. By deciding to adopt the public domain, a city would not only be a selfless champion for the commons, it also would benefit from increased tourism and the creation of a critical mass of expertise, which would have positive spillover effects. More creative individuals receptive to advancing the public domain would be drawn to the same location, and their interaction would spark new ideas.
To get started, the city could help attract artists with a desire to strengthen the commons by establishing festivals and offering grants to create new artwork in the public domain (a simple Creative Commons license does the legal trick). It could entice activists wanting to create new public domain organizations by providing them with a municipal building that could be shared by numerous nonprofits working to sustain the commons. The city could even lure startups that utilize the public domain in product development and hence have an incentive to see the commons prosper.
These artists, activists and businesspeople in turn could encourage the local government to build greater infrastructure for the commons, such as public domain research centers at local universities. They could also urge the federal government to devote more resources to cultivating the public domain.
Wouldn’t it be nice to see cities offer a fraction of the benefits that they use to entice Amazon and other corporations to enrich our cultural commons instead of stockholders and CEOs?
Martin Skladany is a professor of intellectual property at Penn State University’s Dickinson Law. His most recent book is Copyright’s Arc.
Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
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