Conference report: A Grand Re-Opening of the Public Domain

On January 25 I attended an event celebrating the “re-opening” of the public domain in the United States. January 1, 2019 marked the end of the 1998 Copyright Term Extension Act, a law which froze copyright for published works at 1923. The meeting was co-hosted by the Internet Archive and Creative Commons, two organizations that are allied in promoting the benefits of providing open access to creative and other works.

Though the event was a celebration it’s important to note that the copyright term in the US was rather shamefully on ice for 20 years. No new published works came into the public domain during that time. The event was very focused on the circumstances of US copyright law. I was disappointed that there was scant mention of Fair Use or orphan works. However, a “re-opening” the public domain provided more than enough to talk about and indeed, to celebrate.

If you have been to an event at the San Francisco-based Internet Archive, you know that the building is a former Christian Science Church. What I didn’t know is that the church was built in 1923, which made it an even more appropriate location. IA staff and others dressed in period costume. Contributing to the festive feel, a band played tunes from 1923 (now in the public domain) like “Yes, We Have No Bananas.”

Although the event featured many wonderful speakers, I’m going to pull out just a few highlights.

A panel comprised of speakers from the Duke Law School Center for the Study of the Public Domain (Jennifer Jenkins, Jamie Boyle, and Michael Wolfe) provided an overview of copyright and the public domain. Works in the public domain allow for more scholarship, and creative reuse. When books enter the public domain they are more likely to survive, and can be transformed into other formats such as braille and audio. Michael Wolfe shared some examples of works that have not survived expiration of their copyright. This is particularly true for frail materials such as film. 1923 was the heyday of silent films, and Wolfe shared highlights from an illustrative report by the Library of Congress. The authors found that 75% of films from this period have been lost. Some of that loss is attributed to natural causes but other works were willfully destroyed. But you don’t have to go back to the 1920s to find examples of loss because of restrictions on copying and reproduction. For example, there is no known recording of Super Bowl  I (at the time, video tape was expensive and networks routinely reused tape). Sci-fi fans may be appalled to find out that the first six years of Dr Who, 97 episodes are completely missing. This is actually pretty good for television shows of this era – because of the large and active Dr Who fan base, materials have been saved that otherwise would not have been. Jamie Boyle called on attendees to stand up for the public domain as a shared public good, like the environment. In case you haven’t seen it, the Center’s website features Public Domain Day web pages (updated annually) which celebrate what might have been if not for the extension and the 1976 Copyright Act which changed the overall architecture of copyright.

In a departure from the day’s focus on the United States, Ben Vershbow (Wikimedia Foundation, Director Community Programs) spoke about the complexity of what constitutes the public domain in an international context. Ben illustrated that complexity in the context of struggles Wikimedia volunteer contributors face when trying to make sense of copyright in order to facilitate truly global reuse.

Larry Lessig, known as one of the founders of the Creative Commons spoke about how the origins of the Creative Commons were in the outcome of Eldred v. Ashcroft (a challenge to the Copyright Term Extension Act). Lessig, who has written and spoken about “remix” culture used an example of a scene from the movie the Breakfast Club overdubbed with the song Lisztomania by the band Phoenix. Lessig has for many years used this as an example of a remix that went viral (if you want to see examples, knock yourself out by searching “Brat Pack Mashup” which will get you the original and also hundreds of tribute remixes from all over the globe). One of these many examples from Boston University features a young Alexandria Ocasio-Cortez, now serving in the US Congress. Lessig is heartened that people like Ocasio-Cortez are now rising to positions of power – here is an example of someone who understands remix and reuse culture to her core. Lessig also spoke movingly about his long time association with technologist and activist Aaron Swartz. He credits Swartz (who also worked for the Internet Archive as the first director of the Open Library) with helping him pivot to work against political corruption.

Ryan Merkley (CEO Creative Commons) talked about scaling through collaboration (stay tuned for his his forthcoming podcast about collaboration, called Plays Well With Others). Merkley asked the audience to consider what happens when you move the commons to the center of the model as opposed to having it as a nice add on, and highlighted the recent acquisition of photo sharing service Flickr by SmugMug. SmugMug has vowed to keep CC licensing front and center in Flickr and is developing their business model accordingly. Jane Park (director of product and research at Creative Commons) talked about a revamped CC Search which is coming out soon, based on interviews and other research conducted over a two year period. (You can refer to a summary of their research findings.)

Brewster Kahle (founder and “digital librarian,” Internet Archive) gave a round up of activities at IA, emphasizing that the organization has been shifting to new sources of funding. He spent a fair amount of time talking about Controlled Digital Lending and the type of analysis that IA is doing (in concert with others) around out of print books (in order to digitize and make them available). IA is also investing in the digitization of pre-1972 out of print sound recordings, as well as providing a backup of Creative Commons images and videos on Flickr. He also described an experimental plug-in for Wikipedia English called “LLEO” (Lets Link Everything Open). The prototype turns ISBNs in Wikipedia into links to the Open Library; users who click through can borrow digitized versions of books on the Open Library platform.

Amy Mason (accessibility technology specialist, Lighthouse for the Blind) addressed the needs of the visually impaired community. Amy spoke about the power of text formats and what they allow in terms of accessibility: magnification, speech, translation to Braille, narrated text (via platforms like LibriVox). She also pointed to efforts to make visual culture more consumable to the visually impaired, highlighting two projects, 3DPhotoWorks (a “network of museums, science centers and learning institutions willing to provide their blind visitors with visual information”) and YouDescribe (audio description for YouTube videos). Amy praised the virtues of public domain and openly licensed materials because they can be adapted in a variety of ways that aid in spreading “inspiration, history, and knowledge.”

Paul Soulellis (artist, RISD faculty member and “in residence” at IA) spoke about the public domain through a lens of investigating what is missing from normative narratives (stories of minority or underrepresented communities, gay and queer people). In his work he has taken the time to look through the mass of things coming into the public domain and has identified material that has been unnoticed, under amplified, missing, or even erased. He encourages “slowing material down so you can take a closer look.”

Fans of Cory Doctorow will be interested in his closing keynote, in which he characterized restrictions on reuse (and intimidation tactics employed to prevent even fair reuse of materials) as a grift or a con. [Link to full audio and video]

If this summary leaves you wanting more, the entire event is available on the YouTube for you to enjoy.