Paul J. Heald, professor of law at the University of Illinois Urbana-Champaign, discusses his new paper “Do Bad Things Happen When Works Enter the Public Domain? Empirical Tests of Copyright Term Extension.”
The international debate over copyright term extension for existing works turns on the validity of three empirical assertions about what happens to works when they fall into the public domain. Heald discusses a study he carried out with Christopher Buccafusco that found that all three assertions are suspect. In the study, they show that audio books made from public domain bestsellers are significantly more available than those made from copyrighted bestsellers. They also demonstrate that recordings of public domain and copyrighted books are of equal quality.
Since copyrighted works will once again begin to fall into the public domain starting in 2018, Heald says, it’s likely that content owners will ask Congress for yet another term extension. He argues that his empirical findings suggest it should not be granted.
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Last week, I had the pleasure of discussing net neutrality with James Boyle, a Duke Law Professor and the co-founder of the Center for the Study of the Public Domain, and Paul Jones, the director of ibiblio, on WUNC’s The State of Things radio program. Our hour-long discussion touched on a number of important tech policy topics, and I highly recommend giving the show a listen (download the MP3 here) if you’re interested in hearing the insights of two very thoughtful scholars and critics of cyber-libertarianism.
I’m a big admirer of Boyle and Jones, who’ve both done a lot of excellent work studying copyright and public domain in the information age. While I don’t share their views on the merits of net neutrality regulation — or, perhaps, of government regulation in general — there’s much common ground between us on many issues, including intellectual property, free speech, and government surveillance.
For folks who don’t want to spend an hour listening to our discussion, I’ve typed up a brief summary of the questions we attempted to tackle in our discussion and the various arguments we raised. My apologies if I’ve mischaracterized any arguments or statements — if you want to know what was actually said, go listen to the whole interview!
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The grandly-named Public Domain Archive, evidently a production of Osaka-based Digirock, Inc., offers a few MP3s of classical music and historical speeches. Thanks to a suggestion from Tyler Cowen, I’m enjoying a 1942 recording of Beethoven’s 9th even as I type. Am I breaking the law in so doing? The copyright notice posted on the Public Domain Archive, while quite charming, hardly reassures:
To the People
In japan, All files open to the public on this site are certainly lawful.
But, if you do not live in Japan, You might do not have to use files.
You should check the law of your country.
As proves too often true for works, like this 1942 recording, that fall under the aegis of the 1909 Copyright Act, it is not easy to figure out if the underylying work enjoys any claim to protection under U.S. law. Perhaps, after all, it was not published with the proper formalities, here, and thus fell into the public domain.
In this case, though, it looks like we can dodge those complications. U.S. copyright law affords exclusive rights only to copying, creation of derivative works, public distribution, public performance, and public display.
See 17 USC § 106. So long as I listen to a MP3 solely via streaming, without saving a copy, it is hard to see how I’ve violated any of those rights. Perhaps Digirock, Inc. has violated U.S. law by offering me the MP3, but that is no concern of mine (and probably not much of a concern to Digirock, Inc.).
That legal scenario suggests an interesting conclusion: an offshore copyright-free zone—one set up by intellectual pirates or in a stubbornly independent country—might give U.S. residents ample, free, and legal access to all sorts of copyrighted works—even ones protected under U.S. law.
[Crossposted at Agoraphilia and The Technology Liberation Front.]
Thanks to comments on my earlier post, Copyright Duration and the Mickey Mouse Curve, I’ve been encouraged to reflect on what would happen if, in fact, Steamboat Willie had fallen into the public domain. Could we then reuse Mickey Mouse, the star of that show, without facing any liability to the Walt Disney Company? I drafted this answer for my book, Intellectual Privilege (here edited for blogging):
Scholars have made surprisingly strong arguments that
Steamboat Willie, a cartoon that the Walt Disney Company cites as establishing its copyright rights in Mickey Mouse, has fallen into the public domain. As a thought experiment, let us assume the truth of that claim. What would happen if Walt Disney Company—if, indeed, nobody—held a copyright in Steamboat Willie? Certainly, each of use would by default enjoy complete freedom to copy, distribute, display, or perform the cartoon, because the expiration of the work’s copyright would also end the exclusive rights of the Walt Disney Company and its assigns the exercise those statutory privileges. So, too, would we escape copyright’s limitations on making derivative versions of Steamboat Willie—versions that might show Mickey standing at a lectern rather than at a pilot’s wheel, for instance, or have him expounding on copyright law.
The Walt Disney Company would retain its copyrights in later, plumper versions of the Mickey Mouse, of course. Contemporary artists wanting to reinterpret the character free from the company’s veto would thus have to draw inspiration primarily from the earlier, skinnier, version. Given that the characters would share a common ancestor, however, even mice derived solely from
Steamboat Willie would often strongly resemble the modern-day Mickey Mouse.
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