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>> 2000 Town Meetings >> Chicago
Why the Public Domain Is Not
Diane M. Zorich
Just a Mickey Mouse Issue
Comments prepared for the
NINCH Copyright Town Meeting on the Public Domain
Held at the Chicago Historical Society, January 11, 2000
© 2000 Diane M. Zorich
Let me begin with Mickey Mouse. As advocates for the public domain
like to mention, Mickey Mouse, that beloved American icon, was due to
come into the public domain in the year 2004. With the passage of the
recent Copyright Term Extension Act, this event has now been pushed
to the year 2024.
If Mickey Mouse has become a "poster rodent" for public domain
advocates, it's probably because his delayed entry into the public
domain focuses our attention on some important issues I would like to
talk about, namely: 1) what is the public
domain, 2) what is its value,
3) how is it eroding and what does this
erosion mean for those who work in the cultural heritage sector?
Before I begin, the usual full disclosures: I'm not an attorney;
rather, I'm a museum professional, with over a decade of experience
working in museums and related organizations. (I currently work as a
consultant for cultural heritage organizations.) My thoughts about
the public domain reflect all the concerns I have from a museum
professional's perspective, as well as all the biases that
A second disclosure: I'm a firm advocate for the public domain. I
wish I could say it was because I am an altruistic person, but the
truth is less lofty: The fact is, I am an ardent appropriator. I use
ideas, facts, processes proposed or exposed by others all the time,
and I want to be able to continue doing so. But I am the first to
admit that this advocacy often runs right in the face of my work in
the museum profession. Museums, like many cultural organizations, are
both rightsholders and users, and in this dual role they have an
interesting balance they must sustain, which I hope we will discuss
Let me start with the primary question I was asked to talk about
What is the Public
Until I was asked to speak here on the topic, I thought I could
answer this question off the top of my head. But as I was pondering
the issue and preparing for this meeting, the concept became
increasingly muddled in my mind. I started with, to quote Justice
Potter Stewart, an "I know it when I see it" sensibility, but now
feel more like that phrase in the Joni Mitchell song "you don't know
what you've got 'til it's gone".
So I decided to look up some definitions, and I found that they
run the gamut from philosophical and poetic to curt and succinct. In
the former category is copyright historians Ray
Patterson and Stanley Lindberg's definition of the public domain
as a concept based on the belief that there are certain materials in
the world not subject to private ownership such as air, sunlight,
stars, ideas, words, cultural heritage, etc.
 The latter category of definitions are more
terse and are usually expressed by lawyers: sentiments such as "the
public domain is whatever is left over when copyright expires, is
lost, or never existed." I myself take a rather broad working
definition: the public domain refers to all entities, information,
and creative works that are available for use by anyone for any
reason without restriction.
What kinds of materials do you find in the public domain?
This question also yields a variety of answers. Briefly they can
be categorized into four areas:
1. Items thought to intrinsically belong to
everyone and which can't be copyrighted.
Included in this category are entities such as facts, numbers,
ideas, short phrases, blank forms, processes, and titles. While it is
true that some of these items cannot be copyrighted, they are
increasingly being teased out of the public domain by other
intellectual property regimes, most notably trademark and patent.
I'll talk more about this later.
2. Government documents and publications.
We have, as a matter of public policy, decided that work produced
by the Federal government or its agents are in the public domain,
which is why we can use federal documents without restriction. So if
you want to, you can take the Constitution, the Declaration of
Independence, even the copyright statute and set it to rap musicÉ.
3. Formerly copyrighted works.
There are three ways works fall out of copyright and into the
public domain. First there are works which have lost their copyright.
Before 1978, works that were published without a valid copyright
notice could lose their copyright protection. (As an related aside,
an Arizona State University law student has argued that Mickey Mouse
falls into this category because Walt Disney failed to attach the
proper copyright notice to the earliest version of this venerable
mouse. ) Second, there are
works whose copyrights were not renewed. Under earlier versions of
copyright law, copyright owners had to renew their works if they
wished to enjoy additional years of protection offered under the
statute. Filmmaker Frank Capra's movie, It's a Wonderful Life,
fell out of copyright for failure to renew. And finally, there
are those works whose copyright term has expired, i.e., the work's
statutory term of protection (now the "life of the author plus 70
years for most works) has ended and the work enters the public
4. Works "granted" to the public domain.
These are copyrightable works whose creators freely place the
works in the public domain. There is some debate about whether a
creator can legally place his/her own work in the public domain. Some
argue that since there is no statutory regulations for doing so, what
a creator is actually doing is simply granting an implicit "all
rights" license to everyone. Whatever legal viewpoint is argued, the
result is the same -- the work is made available for use by all
Let me shift for a second to public domain's historical context in
the U.S. How did the concept even arise?
The framers of the Constitution made copyright law federal --
i.e., they granted Congress the power to promote the "progress of
science and the useful arts" and specifically stated that Congress
can secure "for limited times" exclusive rights to creators for their
respective writings or discoveries. It is important to remember that
the notion of copyright was being developing in the U.S. at the time
of the Enlightenment, when the nurturing and fostering of ideas was
held in great esteem. Thomas Jefferson expressed the sentiments of
many at the time when he stated that the products of human creativity
"cannot, in nature, be a subject of property." Nonetheless he and the
other Founding Fathers acknowledged that fostering these sentiments
about the public good would require some incentives for creators.
The result is what intellectual property attorney
Michael Shapiro has called the "cultural
bargain," a belief that "our copyright law is based on the conviction
that encouraging individual creativity by personal gain is the best
way to advance the public welfare." In
effect, creators must have an incentive to create, to produce new
works that will enrich society. This incentive is the finite monopoly
they are granted on the use of the works. However the Founding
Fathers did not feel this monopoly could go on forever; if it did,
creative works would never be available to society at large.
So copyright evolved in this country with its core philosophy
being a balance of often opposing views: the balance between the
economic rights of the creator and the public good.
What is the Value of
the Public Domain?
Let me turn now to the value of the public domain in more concrete
terms. We all base our creative works upon the earlier work of others
- earlier knowledge, inventions, technologies. The richer our public
domain, the more creative works we have available to us without
restriction, the more "fodder" we have as a society for the creation
of new works. The public domain is, in a very real sense, the
catalyst for creativity and innovation. A wellspring. Where would
Disney be without the Brothers Grimm, Victor Hugo, Hans Christian
Anderson, Kipling, or classical mythology? (It would be short a
couple of animated features.) Where would Aaron Copland have been
without American folk songs? Picasso without African art? Even
Duchamp without his urinal? Public domain appropriators, one and all.
There is another type of value associated with the public domain
-- good old monetary value. Simply stated, works in the public domain
cost less. The reason you can purchase The Iliad for a song is
because no one owns it. No royalty costs need to be figured into the
replication costs. Just as copyright offers an incentive to creators,
so too the public domain, with its low costs, offer creators an
economic incentive of a sort. It offers cheap content -- to be used,
reformulated, recast in any way you want. West Side Story
emerges from Shakespeare's Romeo and Juliet; Amadeus
emerges from the music of Mozart and Salieri. I also suspect we
underestimate another roundabout way that the public domain offers an
economic incentive for creativity: When a publisher's best selling
work (or a film studio's most famous mouse) enters the public domain,
the publisher or film studio has to go shopping around for new
creative work, or develop its own creative work to continue to
generate the revenues it lost.
So there's a delicate interplay at work between copyright and the
public domain which is much like a feedback system. Like all feedback
systems, balance is important. And the balance in our copyright
system between a creator's need for an economic return on his/her
efforts, and society's need for free exchange of information, is
shifting. The economic aspect of the copyright equation - giving
creators a limited monopoly on their works-- is receiving increasing
emphasis at the expense of the other end of the equation -- the
In other words, the feedback system is being threatened and the
public domain is eroding because of these threats: works are not
going in as fast nor as often, and more frighteningly, some public
domain works are actually falling back into copyright. What is
tilting the balance? What is eroding the public domain? I'd like to
briefly discuss six factors that are taking their toll.
What is Eroding the
1. Term Extension
First, we have the various revisions to Copyright law which have
extended the duration of copyright. Duration is important because it
is the de facto demarcation line between individual property rights
and the public domain.
In the first Copyright Act of 1790, copyright term was set at 14
years with a possibility of extension for another 14 years. With this
short duration, chances were good that the public would see a healthy
influx of works into the public domain during their lifetimes. But
since that time the copyright statute has been revised, extending the
duration steadily over time. With the most recent revision, the 1998
Sonny Bono Copyright Term Extension Act, we now have a copyright term
of 95 years. The result is that only those of us with the
constitution of Methuselah are likely see a work created during our
lifetime actually enter the public domain in our lifetime.
2. The 1998 Copyright Term Extension Act
A second and related factor tilting the balance is that the 1998
Copyright Term Extension Act
text of the Act] has effectively put a 20-year moratorium on new
works that can enter the public domain. Prior to the implementation
of this legislation, works published in 1923 were next in line for
entry into the public domain. Their entry has now been delayed until
January of 2019 because the Act extended their copyright protection
another 20 years. The only exception to this moratorium (which I will
talk about shortly) is unpublished historical works. But for all
essential purposes, the public domain is entering a 20-year drought.
3. Unpublished Historical Works
A third factor to consider is the peculiar position that the law
and its revisions have put cultural organizations into regarding
unpublished historical works such as manuscripts, diaries, letters,
personal papers. The 1976 Copyright Act gives these materials federal
protection, even old works (like the letters of George Washington)
which you and I would intuitively believe are in the public domain.
These types of unpublished historical works will enter the public
domain on January 2003 if they are not published prior to that date.
If they are published prior to this date, they are protected, under
the new Term Extension Act, until 2047. Now here's a dilemma for
cultural organizations to consider. Should these organizations, who
often hold a wealth of unpublished papers in our archives, hold off
on publishing these materials until January 2003 so they can enter
the public domain? But what if your organization wants to use the
materials in a way which could be construed as being "published" --
e.g., an exhibition catalogue, a public program, a Web site? Clearly
there are ethical and policy issues involved here, in addition to the
copyright issues. Cultural repositories will have to carefully
consider and plan how their historical documents are to be used, for
their own actions may result in delaying entry of materials into the
4. Uruguay Round Agreements Act
Another factor that contributes to the shrinking public domain is
the Uruguay Round
Agreements Act (URAA), an enormously complicated international
agreement (which implemented, among other things, the General
Agreement on Tariffs and Trade (GATT) and the World Trade
Organization.) Intellectual property issues are among the many items
the Act addresses, in particular copyright restoration. The Act
restores copyright in foreign works that had entered the public
domain in the U.S. (because of their failure to comply with certain
requirements of U.S. copyright law.)
If you find term extension threatening because it slows the entry
of works into the public domain, consider that the URAA actually
removes works from the public domain. This is a frightening thought,
and a scary precedent. For cultural organizations, you can imagine
the nightmare scenarios this presents. Works they considered public
domain -- and used freely as a result -- are now protected by
copyright and their usage must cease or comply with the copyright
What are some of the public domain properties that have had their
copyright restored thus far under this Act? I looked at the Copyright
Office's Web site, where the "notices of intent to enforce" copyright
under this Act are published. With just a very cursory look, I noted
works by writer Doris Lessing; by the documentary film maker Leni
Riefenstahl, including her famous "Triumph of the Will" with its
oft-shown footage of Hitler and the Nazi rally in Nuremberg; several
hundred works (in all media) by Pablo Picasso; works by writer J.R.R.
Tolkien, including "The Hobbit"; literally hundreds of foreign films;
and alas, the rock group "Cream's" goodbye concert film footage.
5. Commodification of Culture
Let me bring up another threat to the public domain. Thus far I've
talked about threats that are legislative in nature. But I think
there are societal factors as well. More and more our society
perceives and treats culture as a commodity, with ownership and
economic aspects associated with commodities. For example, a cottage
industry has cropped up around the works of Monet and his fellow
Impressionists, fueled in large measure by museums capitalizing on
the popularity of these artists in their museums stores and
catalogues. And we all recognize that characters in children's books,
movies, and television shows have become commodities to be purchased
in various forms and media. (Can you think of a single children's
character that doesn't have a product tie-in?) There are a lot of
reasons why culture is increasingly commodified, but surely one of
the prevailing ones is that as we become less reliant on industrial
output we become more dependent on our intangible assets -- i.e., our
intellectual property and not our physical property. What is the
effect of this on our perceptions of the public domain? If we
increasingly treat our intangible assets as commodities, how does
that skew our sense of importance and entitlement to a public domain?
6. Expansion of Other Intellectual Property
A sixth factor that is cutting into, if not exactly eroding, the
public domain, is the increasing use of other intellectual property
regimes -- particularly trademark and patent -- to offer a measure of
intellectual property protection to phrases, processes, and even
ideas that we associate solidly with the public domain. For example,
about a year ago, The New York Times had an article
about the New York City skyline being trademarked
. (It seems that slowly, one by one, major
buildings and landmarks of the city are applying for and receiving
trademark status: the Chrysler Building Spire is trademarked, as is
the Stock Exchange building, and Rockefeller Center has applied for
trademark of its center building, its skating rink, Prometheus and
Atlas.) Now trademark does not grant an exclusive monopoly on use;
instead, it grants the trademark holder the right to use the
trademarked item as a means of distinguishing its goods or services
in a commercial marketplace. So you can freely use the Chrysler
building spire as a source of inspiration for a work, just don't use
it as your company logo, or in the example the Times offers,
as a design on a popular line of dishware.
Patents are also pushing into the terrain of what was considered
intuitively "the public domain". Hundreds of sequences of the human
genome have been patented by individuals and commercial entities.
(While these patents won't deprive you of your right to own your
genes, they do prevent you from developing and selling commercial
products based on the patented sequence.) And you may have heard
about Amazon.com patenting their "one click" concept which allows
customers to initiate a purchase with (literally) one click of their
mouse button. My personal nominee for a chutzpah award goes to a
Web-based company who, last February, filed a patent for downloading
files on the Web. My point here is that increasingly we see ideas,
processes, and even natural phenomena being patented. Patents like
these, referred to as "soft" patents, don't cover a physical
invention -- which is what patent law was initially set up to do.
They are pushing the envelope of this particular legal regime. But
just as importantly, they are pushing into what has heretofore been
considered some of the most sacred cows of the public domain.
There are other significant factors that affect the public domain,
such as privacy and publicity laws, encryption technologies,
anticircumvention legislation, etc., which I hope others will touch
on today. I do hope that the thoughts I've discussed -- what the
public domain is, its value, and the threats to it, -- provide some
basic background for consideration and discussion as we move through
today's Town Meeting. Thank you.
1. L. Ray Patterson and
Stanley W. Lindberg. The Nature of Copyright: A Law of User's
Rights. (Athens: University of Georgia Press, 1991).
2. Lauren Vanpelt.
Mouse: A Truly Public Character." Spring 1999.
3. Michael Shapiro. "Not
Control: Progress." Museum News 76, no. 5 (September/October
4. Dunlap, David W. (1998)
"What Next? A Fee for Looking?" The New York Times. Thursday,
August 27, 1998. Section B1, B8.