4/3/01Besser--Public Domain, ARLIS 2001 1 Disappearing PublicSpaces: A Metaphor for the Disappearing...

4/3/01Besser--Public Domain, ARLIS 20011

Disappearing PublicSpaces: A Metaphor for the Disappearing Public Domain

ARLIS Los Angeles 4/3/01

Howard BesserAssociate Professor

UCLA School of Education & Information

http://www.gseis.ucla.edu/~howard/


The Disappearing Public Domain-

• Very short history of Public Spaces and how they’ve started to disappear

• The erosion of the public domain

• The meaning for Art & Creativity


Very short history of Public Spaces

• The Agora

• The Commons

• Europeans settling America


Public Spaces are rapidly disappearing in the late 20th Century-


Bath bathrooms circa 1650


Paddington Station


Public Spaces are rapidly disappearing in the late 20th Century

• No more privacy in public spaces-

• The rise of pseudo-public spaces

• Broadcasting

• The erosion of the public domain-


Street-cams


3 blocks of NYC

Map compiled by Matt McCourt and Carl Dahlman, Department of Geography, University of Kentucky


Enemy of the State


Conversation at Westwood Farmers Market



• No more privacy in public spaces

• The rise of pseudo-public spaces-

• Broadcasting



Public Space is no longer public

Private Property. Permission Private Property. Permission to pass revocable at any time.to pass revocable at any time.


Beverly Center Mall


Wisconsin Mall


Bookstores replace Libraries


Westwood Farmers Market



• No more privacy in public spaces

• The rise of pseudo-public spaces

• Broadcasting-



Static Over Low-Powered RadioNYT Editorial, 3/31/00


The erosion of the public domain-

• What is it?

• What threatens it?

• Why should we care?


What is Copyright About?

• The Congress shall have power ...to provide for the ... general welfare of the United States To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

-US Constitution, Article 1, Section 8 (underlining added)

• (exclusive control) Incentivizing creators to create more• (limited time) Establishing a vast and rich public domain for

use as new creative materials, as well as for public edification and appreciation


What is Copyright?

• Copyright is a delicate balance btwn users and creators, but is supposed to be clearly oriented towards the public good

• Copyright is NOT an unlimited Economic Right• Copyright is really a temporary monopoly right

granted to creators in order to fulfill the societal need to increase creativity

• The Copyright monopoly is temporary, then works become freely available for all purposes


What’s part of Public Domain?

Still is• Air• Sunlight• Numbers• God• Ideas & Facts**

Was• Water• Land


Lawyers defining the Public Domain

• "things in the public domain can be appropriated by anyone without liability for infringement" (Black's, 1996)

• “the law’s primary safeguard of the raw material that makes authorship possible” (Litman, 1989)

• “a commons that includes those aspects of copyrighted works which copyright does not protect"” (Litman, 1990)

• the converse of property rights in information where the government prohibits certain uses or communications of information to all people but the owner; the public domain “is the range of uses privileged to all” (Benkler, 1999)

• “the ultimate source of all new works (because nothing is ever wholly new in and of itself)” (Karjala, 1998)

• “copyright’s raison d’etre is to benefit the public by encouraging the production and dissemination of new copyrighted works” (Kreiss, 1995)


A simpler description

• resources freely available for all members of society to do whatever they want with them

• no permissions or fees required

• no tracking of what you read or use


Importance of Public Domain

• Common Heritage (philosophical)

• New Knowledge incorporates Old (progress)

• Derivative Works rely upon pre-existing Works (creativity)

• Social Commentary (free speech)


What threatens it?-

• An aggressive Content Industry

• Term extension

• Returning out-of-copyright works back to copyright

• Mickey Mouse

• Licensing

• Other forms of Contract Laws


Pat Schroeder's New Chapter: The Former Congresswoman Is Battling For

America's Publishers --Washington Post, 2/7/01

• ...Schroeder is president of the Washington- and New York-based Association of American Publishers, sponsor of the event. Like a nurturing shepherd, she moves gently among her flock. But when she talks about threats to the group, she stiffens her back.

• And who, you might be wondering, is giving Schroeder and her publishers such a fright?

• Librarians, of course.

• No joke. Of all the dangerous and dot-complex problems that American publishers face in the near future -- economic downturns, competition for leisure time, piracy -- perhaps the most explosive one could be libraries. Publishers and librarians are squaring off for a battle royal over the way electronic books and journals are lent out from libraries and over what constitutes fair use of written material.

• Grossly oversimplified: Publishers want to charge people to read material; librarians want to give it away.

• "We," says Schroeder, "have a very serious issue with librarians."


Time before works enter public domain

Law Duration1709 British 14 years

1790 US 14+14 years

1909 US 28+28 years

1976 US 75 years

1998 US 95 years

1998 US life+70 years


Lengthier Copyright Means

Date Term

Published 1923-63 67 years if renewed

Published 1964-77 28+67 years

Created before 1/1/78 Life+70 years or-12/31/02 if not published

-12/31/47 if published before end of 2002

whichever is greaterCreated after 1/1/78 Life+70 years (95/120

years corporate)


Works that should have already entered the Public Domain (but didn't)

• Virginia Woolf: Jacob's Room

• Film -- Sherlock Jr.

• F. Scott Fitzgerald: Hot and Cold Blood and Invasion of the Sanctuary

• Zane Grey: Code of the West, Steelhead, Tappan's Burro,The Vanishing American, and Down into the Desert

• Ben Hecht: Fingers at the Window

• Rudyard Kipling: Independence and London Stone

• P.G. Wodehouse: Jeeves, First Aid for Dora Heart of a Goof, Leave It to Psmith, Magic Plus Fours, No Wedding Bells for Him,The Return Of Battling Billson, Rollo Podmarsh Comes To, Ukridge Rounds A Nasty Corner, and Chester Forgets Himself


Works that should have entered the Public Domain in the next

few years (but won't)

• Irving Berlin: Blue Skies (2002)• Harry Woods: When the Red, Red Robin Comes

Bob, Bob Bobbin' Along (2002)• Oscar Hammerstein II and Jerome Kern: Ol' Man

River and Showboat (2003)• Mickey Mouse (2004)


Copyrighting Facts:Proposed Database Extraction legislation

• No requirement that the DB contain any original content (can copyright facts, government information, etc., taking these out of the Public Domain)

• DB owner given recourse, even if they didn’t suffer harm

• Implications on:– Transformative uses

– Uses other than those intended by the compiler (citation analysis)

– Copyrighting court decisions


NRC analysis of Coble Bill• reduce the amount of data that can be obtained, particularly from the private

sector or public-private partnerships, an increasingly important source of data;

• increase the cost of obtaining data, particularly from database owners with a monopoly on the data;

• restrict access to data for at least 15 years from the time the data was created;

• discourage the transformation of existing databases into new ones, creating artificial gaps in data availability;

• prevent the use of data for purposes other than than which it was collected, minimizing the scientific and societal value of original data; and

• increase restrictions on the use of compilations of all kinds, including works of authorship (e.g. collection of articles) not normally considered to be databases”

Linn, 2000


Fair Use is Disappearing

• Criminalizing Fair Use

• Copyrighting DB contents in perpetituity

• Proposed Legislation (USCITA, etc.)

• The 1998 Digital Millenium Copyright Act

• The 1998 Sony Bono Term Extension Act


Economics and Contract Laws preempting long-standing rights

Moving long-standing common-law or constitutional rights into the arena of person-to-person business transactions, where these rights no longer apply– extending reach beyond “first sale” to control Use

– shrink-wraps eliminating any negotiating power (UCITA)– shrink-wraps and technological protection don’t allow for fair use

exemptions

– licensing curtailing fair use

– Privacy invasions to prove licensing compliance


Further commodification of information

• Dismantlement of the public sphere in general

• Attempts to turn everything into a commodity (even things that don’t really behave like commodities)


Why does any of this matter?

• Derivative works

• Postmodernism

• Diminishment of exploration and experimentation

• Public discourse

• Democratic values (anyone can be a creator)


Laws designed for the content industry do not really protect Art

• Art does not follow “normal” business models

• Art is about aesthetics, ideas, perceptions (and only marginally about entertainment)

• Money is not the primary incentive

• Art builds upon prior art-


Art builds upon prior Worksnew works involve repurposing old

• Collage

• Pop

• Postmodern

• Sampling

• Shakespeare


Recent changes are reducing the tools artists used to create new art

based on old

• Lengthening copyright terms

• Shrinking public domain

• Technical protections that prevent one from accessing content that one may legally be able to fairly use-


Anti-Circumvention & Rule-Making (1/3)

• Perfectly legal activities (fair use) may be rendered impossible without circumventing technical protection mechanisms

• DMCA makes circumvention of these protection mechanisms illegal



• DMCA compromise required Rulemaking by Lof C as to which circumvention measures should be allowed

– Concern from library and other communities that circumventing protection mechanisms to engage in perfectly legal acts (like fair use and preservation) would make them subject to criminal penalties

• House Bill Section 1201(a).– No person shall circumvent a technological protection measure that effectively controls

access to a work protected under this title.

• “While sounding innocuous, what the provision does is create a brand new and unlimited right to control access to copyrighted works. If enacted into law, this new right could bypass the carefully crafted balance between exclusive rights of ownership and public access to works for educational, scholarly, and scientific purposes, which has been part of copyright law for the entire 20th Century. In short, it could eliminate fair use from copyright law.” (John Hammer, National Humanities Alliance, 6/5/98)


Use of IP Laws to inhibit free speech and stifle creativity

• E-Toy• Leonardo Finance vs

Leonardo Arts• Jeff Koons case• Barbie• Scientology vs.

Netcom• Fans sites (Star Trek,

Harry Potter)

• 2 Live Crew• Negativland and U2• Contract with America• Snow White & AIDS• Disney and Dan

O’Neil• The Rio player


Dangers• Eliminating a public domain of information• Controlling social/political commentary, satire,

creation of new derivative works/recombinant works• Criminalizing acts that might possibly impede digital

commerce• Making sure that the Internet is used only for info

consumption, not production• Controlling access to older info (controlling history)


Disappearing PublicSpaces: A Metaphor for the Disappearing Public Domain

• http://www.gseis.ucla.edu/~howard/Copyright/

• http://books.nap.edu/html/digital_dilemma/• http://www.dfc.org• http://www.pdos.lcs.mit.edu/~cananian/UCITA/• http://www.badsoftware.com/

• Lee Felsenstein, 'The Commons of Information,' Dr. Dobb's Journal, May 1993



• On 10/28/00, Lof C ruled that the following should be exempted until 10/28/03:– Compilations consisting of lists of websites blocked by filtering software

applications; and

– Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsolescence.

• Immediate responses of outrage from librarians, consumer protection groups, digital divide groups, etc.-


Outrage at Anti-Circumvention Rulemaking DecisionDigital Future Coalition 10/26/00 press release

• “Unfortunately, today’s decision took 70 pages to essentially say that few persons may ever circumvent a technological protection measure — even to gain access to a work solely for legitimate noncommercial purposes.”

• “Once again, content owners have successfully promoted their own narrow financial interests over the broader public interest in preserving consumer access to literary, scientific, and other works,”

• “deep disappointment that content owners effectively had been given a green light to use technological protection measures to lock up access to copyrighted works.”


Outrage at Anti-Circumvention Rulemaking Decision

American Library Assn ALAWON 9:85, October 26, 2000

• “The Librarian of Congress James Billington has ruled against the American public and library users by negating fair use in the digital arena..”

• “Because of this decision users of digital information will have fewer rights and opportunities than users of print information. In fact, the pay-for-use scenario that librarians have feared appears to have now become a reality with this rule.”

• "The Copyright Office has issued a misguided ruling taking away from students, researchers, teachers and librarians the long standing basic right of ‘fair use’ to our Nation's digital resources," said Nancy Kranich, ALA president. "All library users will be impacted."


Outrage at Anti-Circumvention Rulemaking Decision

Congressman Rick Boucher October 27, 2000 press release

• “I regret the decision of the Librarian of Congress, acting upon the recommendation of the Register of Copyrights, to reject the recommendations of the Administration, concerned Members of Congress, universities and libraries in announcing a decision that does not protect traditional fair use rights. This disappointing decision has moved our Nation one step closer to a "pay-per-use" society that threatens to advance the narrow interests of copyright owners over the broader public interest of information consumers.”

• “In crafting section 1201(a)(1) of the Digital Millennium Copyright Act, Congress sought to preserve the principle of "fair use" that has served our Nation so well for more than a century. Unfortunately, based on the advice of the Register of Copyrights, the Librarian of Congress today announced his decision to limit the ability of ordinary consumers in most cases to circumvent electronic security measures for the purpose of exercising their non-infringing fair use rights. Consequently, any person who circumvents a technological protection measure to gain access to information to which he has a fair use right will be guilty of a crime. ”


Concern prior to Anti-Circumvention Rulemaking Decision

US Dept of Commerce National Telecommunications and Information Administration (NTIA) 9/29/00 letter to Copyright Office from Gregory L. Rohde

• “NTIA believes that implementation of far-reaching access control technologies without carefully drawn exemptions would not only invert 200 years of judicial interpretation regarding the scope of protections given to copyright holders, but also eviscerate individual scholarship and the notion of free inquiry. NTIA’s immediate concern is the very one envisioned by the Commerce Committee when it warned of the development of a legal framework that would inexorably create a pay-per-use society.”


Selected public interest points from Digital Dilemma

• Provision needs to be made for traditional entities to preserve works in digital form

• Legislation criminalizing circumvention of protection mechanisms is far to broad and harsh

• Technological protection methods may prove useful but have their limits

• New Business Models show great promise for solving the problems

• Not all classes of works need the same treatment• We need reliable research on the economic impact of copying

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