A shrinking Public Domain hurts open education

We let Public Domain Day sneak by without comment only because we didn’t want to spoil a perfectly good New Year’s Day; Monday, however, is a perfectly good day to be spoiled with disappointments.

Public Domain Day isn’t exactly a real holiday, but it is a real day, January 1st of every year, marking which cultural works enter the public domain and which could have but won’t.

Let’s get this quote from the Public Domain Day page at Duke University’s Center for the Study of the Public Domain out of the way: “Once again, no published works are entering the public domain in the United States this year.” (This excludes creators marking their own works as CC0 in an attempt to release them into the public domain, something “difficult if not impossible” to legally accomplish.

What could have entered the public domain in the United States, under previously existing copyright terms, includes literature such as William Burroughs’ The Naked Lunch, Ian Fleming’s Goldfinger, and Strunk & White’s The Elements of Style; films such as Ben-HurNorth by Northwest, and Journey to the Center of the Earth; and music such as the album Kind of Blue and the original lyrics and score to The Sound of Music.

Under earlier copyright law, folks in the United States would have been freely able, for the past several days, to create new culture built upon these seminal works. As it is, none of these works will enter the public domain until 2055 (assuming, of course, that copyright terms aren’t extended retroactively again).

We should definitely say, just for the record, that we don’t just respect copyright, we love it. Copyright helps create incentive to build new culture, including educational materials. We have drawn on the wealth of such materials on the Web, virtually all of them protected by copyright, to create our free and open online courses. We link to materials that creators share on the Web and seek permission for what is not openly shared; we look for materials offered under licenses like those in the Creative Commons suite. We commission materials and then share them back with the world under CC’s open licenses. Of our materials, a precious few are in the public domain, and we’re grateful for those, too.

Unfortunately, not everyone knows about Creative Commons licenses, even those who might otherwise be willing to share their materials with others. Not everyone is savvy enough or motivated enough to put their materials on the Internet. Not everyone is even around to give others permission to use their creations, leading to so-called orphan works.

To be clear, the people who created the music, film, and literature above did not know that their works would be locked away until 2055. They expected, rather, a span of copyright protection shorter by nearly half…or even more. The existing protection was incentive enough to create outstanding works of art.

But really, why do we care? As we mentioned above, almost everything we include in our courses is under copyright protection and we get along pretty well. How would more works being in the public domain measurably benefit us or our students? For one, we could have spent a lot less time and energy and money protecting the integrity of our courses through sending out thousands of requests to host copyrighted materials (i.e. keep copies on our own servers to avoid link rot) or to clarify licensing. We could have spent a lot less time and energy and money meticulously tracking down and recording copyright dates and licensing and specific attributions. We could have created much more cohesive course experiences by freely combining materials.

We could even have created very different kinds of courses.

Different how? Well, qualitatively, with a much larger share of materials in the public domain, we could more easily make courses and learning materials just…more interesting. In classrooms everywhere, teachers routinely mix in cartoons, pictures, songs, and videos as bits of decoration to make learning a bit brighter, a bit more fun. Yes, we could mix in a bunch of CC licensed content, but have you ever tried mixing different licenses? In many cases, those teachers are protected by the doctrine of Fair Use, which is harder for us to hide behind since we operate online, publicly, and internationally. But asserting fair use is risky for anyone because the rules are murky and, ultimately, get decided in a courtroom — that is, someone claims fair use, a copyright owner sues, and a court decides who’s right…after the legal teams have collected their fees, of course. Often enough, those same teachers trying to brighten their students’ days and expand engagement are actually simply breaking federal law. Whoops!

Quantitatively, we could have done so much more with our English Literature discipline (now mostly inactive legacy courses, in part because of a lack of open materials). To do literature classes, you have to give people something to read; we were largely limited to pre-1923 materials and the last 100 years’ worth of literature was effectively barred away. There are some great books and poems that are available under Creative Commons license or otherwise shared openly on the Web (and the good folks at Unglue.it and others are working hard to expand the set of open literature), but it isn’t enough to hang a set of literature courses on; we wouldn’t be able to teach most of the authors that have shaped 20th Century literature.

A similar argument applies to our Art History courses and to our planned-but-abandoned Music courses — we basically couldn’t teach Jazz, Blues, R&B, Country, or Rock ‘n’ Roll, to say nothing of Rap, Hip Hop, Punk, and Grunge (even recordings of Classical era works that were used in openly-licensed Yale lectures we linked to in our old MUS101 course fell victim to copyright takedown notices under DMCA).

In fact, every single one of our disciplines would have benefitted from a ready supply of public domain works. In late 2014, we announced the retiring of our Legacy courses, over 200 courses that we could no longer actively support. The major problem? Constant “link rot”, including great swaths of content that would suddenly disappear from the Web. Had we been able to link to public domain lectures, essays, texts, and problem sets, we could have built these courses to be robust and evergreen from day one.

Making sure that information that gets shared stays available is one of the promises of open educational resources (OER) and open content in general, and a big reason why we are enthusiasts of the “Open Movement” in general. Avoiding the wild goose chase of finding and fixing broken links and mangled content is a major reason that we swore off including any new content in courses that isn’t explicitly under an open license.

Certainly, the Web is full of people who don’t play by the rules, in large part because they don’t even know or understand the rules. Mostly, those people don’t get in much trouble. Imagine if we had taken that route! With bold and brazen disregard for the niceties of copyright law, we could have built wonderful new creations open to all — courses that, in all likelihood, would have expanded the market for their constituent works rather than robbed creators of livelihood and incentive to innovate. Alas, we play by the rules and sometimes that means we play to lose. We don’t regret doing right by creators who are still capitalizing on their work but in marking Public Domain Day, we think both of what is (which is still pretty darn good) and especially of what might have been.

Image: denvit via Pixabay | CC0

This post has been edited from the original for clarity, grammar, punctuation, typos…etc.

Top Comments

  1. It is difficult to see how extending the copyright period (as happened here in the UK in 2014) from 50 to 70 years after the author's death would have a significant effect on the decision to produce a work--especially when the change was retrospective. Wearing my cynical hat, I would guess that the real beneficiaries are the commercial organisations to whom copyright is frequently sold or assigned and who have an ongoing financial interest in the works long after the demise of the original author.

    To be honest, I think that 'Public Domain' is almost a lost cause and we might all be better to focus our attentions on driving the message of open licensing.

  2. A very clarifying text. It is no wonder that in a world based on money everybody protects their interests, and by this the perceived nobility of educators of prestigious institutions, the very image of the teacher itself, is put into question, and is, a bit shamefully, corrupted. How much respect does a teacher deserve when his primary motivation for teaching is money? How hard it must be to be an idealist in this climate! The few remaining must find themselves bound by financially driven rulesets and globally enforced regulations. And so knowledge becomes nothing more than what it is not meant to be: a commodity. A mere item to buy in the Walmart. But then, at a price most of us cannot afford, which maintains its high standard, like an expensive watch or a tailormade suit. Such a deceptive respectability! Thank God for open education such as Saylor, which gives the educative establishment a chance to save face. Too little, too late, I guess. The idealists stand alone.

  3. sean says:

    But still standing, at least!

    It is a curious thing when absurdities are both apparent and disagreeable but seemingly indissoluble, and societies choose instead to live with them.

    Blame is commonly placed, in the US at least, at the feet of Mickey Mouse, which is to say the massive entertainment company that employs him. The story is more complex, I'm sure. I'm just glad that the "Happy Birthday Song" has finally, probably, been acknowledged to be out of copyright.

    I agree that the notion of a public domain is muddled, at best, just like the notion of a physical Commons became. I wonder if the abstractness of "public domain" -- it is almost a sort of negative space -- makes it more difficult to protect or to deem worthy of protection. Just the act of fixing something in place makes it hard to consider it as something truly common to all. A case in point is 1:1 representations of a public domain object -- if I take a photograph of a Vermeer painting in which I seek to represent the painting as objectively as possible, is my photograph automatically under copyright or is it an object in the public domain? Some art museums assert rights over their digital images of objects in their collection for which copyright has expired (or try to assert rights over others' digital images of their collection). Other art museums use the CC0 tool or another Creative Commons license to indicate that they may own the object but have no wish to control the uncopyrighted content thereof.

    Some good, recent news on the topic of digital representations of public domain objects: the New York Public Library has 180,000 high-res images of out of copyright items in their collections free to use without restriction: http://linkis.com/edublogs.org/3W2LN (hat tip to @Jeff_Davidson for sharing this with me).

  4. Copyright law is a nightmare, not least because it varies so much between countries and between different media. Films, for example, enjoy protection here in the UK for 70 years after the death of the last surviving of the principal director, the author of the screenplay, the author of the dialogue, or the composer of the film's music. I can't see any obvious reason why this should be different from television programmes which have a simple 50 year copyright from the date of production (or first transmission if that is later)--incidentally, by my calculations that means the first years of Doctor Who are now out of copyright!

    Photographs and (I think) digital representations of paintings or other two dimensional artworks are not protected by copyright (in the UK) if they were produced after 1995 (when EU regulations meant UK law had to change) but are protected if the images were produced earlier--which gives the odd position that older works have copyright while more recent don't.

    There was an interesting report published last year by the Intellectual Property Office here in the UK (a government agency) looking at the public domain--its scope, uses and commercial value. While the full 81 pages might be a bit much, there are some interesting statistics, for example, the report values the public domain images used on Wikipedia at around $200 million per year (based on the cost of licensing comparable images). The report makes a fairly liberal interpretation of 'public domain' including works offered under fully unrestricted open licences as well as those out of copyright.

  5. There are pdf files for Naked Lunch and Junky, but I can't find for Cities of the Red Night

Continue the discussion discourse.saylor.org