Public Domain & Copyright Reform

May 9, 2005 9:22 PM

I was having an argument with a friend, and he stumped me with a question that I never even considered: "Why is the public domain so good?" I always accepted that, like puppies being cute and Bush being dumb, it just is. What are some concrete examples why it's so good?
posted by keswick to law & government (43 comments total)

Recipies, folk tales, and blues music are always the top three things I talk about when I talk about how things can flourish in the public domain. Here's the Creative Commons quote from the PD article on Wikipedia

"Public access to literature, art, music, and film is essential to preserving and building on our cultural heritage. Many of the most important works of American culture have drawn upon the creative potential of the public domain. Frank Capra's It's a Wonderful Life is a classic example of a film that did not enjoy popular success until it entered the public domain. Other icons such as Snow White, Pinocchio, Santa Claus and Uncle Sam grew out of public domain figures."

posted by jessamyn at 9:27 PM on May 9, 2005

Think of the public domain as your community's copyright and patent holdings. You can't charge other people for them, but you can use them as you wish in furthering the development of your society.

Without the public domain, every single thing you do requires payment to *someone*. This chokes development.

The funny thing is, copyright and patents exist specifically to encourage development of IP (ultimately) *for* the public domain. If someone thinks there is no value in the public domain, they should also believe there is no value in copyrights or patents.
posted by krisjohn at 9:42 PM on May 9, 2005

You could also try making your friend justify why copyrights are a good thing.

Their initial justification was to promote the creation of new works--- which makes things like retroactive copyright extensions utterly baffling. A second justification is that they are a property right that derives from the fact of authorship: authors own their brain-babies. Which makes the fact that copyrights can be sold to someone who is not the author, and even outlive the author, hard to explain. The current thinking among copyright extremists is that they are a property right like any other. Like a piece of land, they are bought and sold on the market, and never should become unowned, never pass into the public domain. It is unclear how such a system benefits anyone other than copyright holders (who are not authors).

Anyway, your initial unquestioning acceptance of the public domain is right. The public domain is the state of nature. Copyrights are the invention. Copyrights are what needs to be justified, not the public domain. Copyrights are as much a human invention, and thus contingent upon human needs, as the steam engine.
posted by yesno at 9:59 PM on May 9, 2005

"It is unclear how such a system benefits anyone other than copyright holders (who are not authors)."

It is unclear how the hardware store downtown (founded 50 years ago, founder deceased) benefits anyone other than the guy who now runs it. My neighbor lives rents out a house his grandparents built in 1920 -- how is that fair? Why isn't it someone else's turn to "use" the house?
posted by words1 at 10:16 PM on May 9, 2005

words1, nice try. In building said house, your grandparents likely used methods of constuction freely available to them, and not closely guarded intellectual property secrets.
posted by pmbuko at 10:28 PM on May 9, 2005

Concrete examples of why PD is good are simple. Just thinking of stuff offhand, in a world with eternal copyright:

The Narnia books would be sued out of print by whoever owned the copyright on the Bible. Lord of the Rings would be sued out of print by whoever owned the copyrights to the relevant pieces of Germanic/proto-British mythology Tolkien drew from. Forbidden Planet would be sued out of print by whoever owned the copyright to The Tempest. Hyperion and The Fall of Hyperion would be sued out of print twice by whoever owned the copyrights to Chaucer and Keats.

Public domain is our common cultural history that it doesn't make any sense to say that anyone owns. It's the literary, musical, and now film toys that everyone gets to play with to build the things that will be the beloved public-domain items 500 years from now.
posted by ROU_Xenophobe at 10:37 PM on May 9, 2005

You can make a decent product with less wasted resources if you don't have to re-invent the wheel for legal reasons. Eg Disney makes a lot of money from the public domain, their most profitable products are those based on public domain property, because they can cash in on our cultural heritage. It is within Disney's power to make their own original characters and stories, (and they often do so) but they don't seem to do so well (financially) as formulas that have already stood the test of time.

But economic arguements are really missing the point when it comes to public domain. Economics is merely one means to an end, not the end itself. The end is a raising of society's standard of living, and non-monetary ways of doing this are just as valid as money-based ways. The public domain raises the standard of living directly, by greasing the spread of cultural works and entertainment, and therefore it is as inherently good as economics.

Asking why a healthy public domain is good is like asking why healthy economics are good - because it makes possible the further raising of the standard of living in that society.

If your friend is the type that thinks orchestra and ballet should be shut down because they pull in less money than they cost to have (ie thinks a free market is the end, not the means), then this reasoning will not sway him/her.
posted by -harlequin- at 10:55 PM on May 9, 2005

Addentum: Of course, if your friend thinks the free market is all important, then IP restrictions - being a significant artifical distortion of the free market - couldn't be seen as good.
posted by -harlequin- at 11:00 PM on May 9, 2005

Well, public domain is the default state. The things now called "intellectual property" are a massive social engineering experiment, a government subsidy of certain activities (the useful arts and sciences). This is good to a certain extent --- I believe that IP can and does further the arts and sciences --- but it can also be overextended, which is what I think is happening lately. Just as I believe a certain amount of taxation is necessary to support the government functions I want, but I don't want all tax rates to go to 100%, I likewise think that a certain amount of IP protection is good, but it should not be all-enveloping.
posted by hattifattener at 11:19 PM on May 9, 2005

To repeat a good illustration: Disney was able to borrow liberally from the Brothers' Grimm. However, today one is on legal thin ice when borrowing from Disney. Home come that is?
posted by fatllama at 11:38 PM on May 9, 2005

Without public domain, creativity is limited to what is completely original work of a person, or the watered-down synthesis of what a corporation creates.

The former has trouble in that most things have had at least somewhat similar creative ideas done before. If anyone who ripped off Tolkien wasn't allowed to create their work, I'd dare say the fantasy section at the bookstore wouldn't take up a full foot of a single shelf.

The public domain is good because it allows people who cannot afford to purchase copyrights the freedom to use basic ideas to create further innovation.
posted by Saydur at 11:56 PM on May 9, 2005

You know a question is good when it pushes you from lurker to poster...

Copyright is crucial to (our) society, because it ensures that those who create a work can be compensated for that work. Public domain is crucial to (again, our) society because it ensures that at some point, ideas can be expanded upon and elaborated upon, utilized by many more minds than just the original copyright holder. Copyright and public domain are both human inventions.

I think Krisjohn's analysis misses out on the much more important reason for copyright. I don't write so that sometime after my death my works can enter the public domain. I write so that I can make my living, and I can't do that without copyright. Yesno, if I can't sell my copyright to other people, then my copyright has only the purpose of keeping someone else from using it. I don't sell the physical thing that I write -- I sell the copyright to the work. ROU, even if the bible were copyrighted, the Narnia books are still allowed. You can't copyright ideas, only the execution of the ideas. Proving copyright infringement (with stories, at least, which is where my expertise lies) is quite a bit harder than you think. All those fantasy books that appear to be based on Tolkein's works draw on his ideas and themes, but don't infringe. Tolkein's books aren't in the public domain, by the way.

With regards to Disney, actually, fatllama, you can borrow from Disney as long as you do it intelligently. Would you like to write a story about a young fish trapped in an aquarium while his daddy fish braves the high seas to find him and bring him home? Go for it. As long as you find a new way of telling the story, and don't use the same characters as Disney, you're home free. That's essentially the same thing that Disney did with all those classic stories they turned into movies. The executions of the stories are copyrighted, but not the overall themes.

The reason this doesn't happen that often is that the marketplace will smell a rat quickly enough. Originality (again, of the way you express a story) is very rare, highly prized, and hence highly compensated.

In the end, copyright exists to allow for an author to retain the rights to do with his work as he sees fit, and the public domain exists to allow the society to expand upon that work.
posted by incessant at 12:33 AM on May 10, 2005

Copyright and public domain are both human inventions.

How so? The latter is only recognized as distinct when the former exists.
posted by Gyan at 12:39 AM on May 10, 2005

Copyright and public domain are both human inventions.

How so? The latter is only recognized as distinct when the former exists.

Public domain and copyright can't exist without each other. If copyright (a human invention) ceases, then public domain as a concept is unnessary. The notion of a public domain assumes a private domain. Hence, I'd argue that public domain is a human invention as well. This, however, is an argument that's slightly semantic and vaguely philosophical. Arthur, fetch me my Wittgenstein!
posted by incessant at 12:51 AM on May 10, 2005

Public domain is for the young slacker who thinks that all the world should be free for him to use, rape, and exploit for his own desires. Copyrights are for the older, wiser man, who needs protections to keep all the ideas he stole when he was young.
posted by crunchland at 2:41 AM on May 10, 2005

incessant:
No, it's not essentially the same thing Disney did. Disney took the characters, by name and description, the story, etc. They blended it with songs, voices, animation, etc. If you tried to make a children's picturebook about a clownfish called Nemo, you'd be sued to smithereens despite the media, depictions, and story being original.

(And of course, the reality today is that even if you're not infringing, big fish will stamp you out with lawsuits anyway - lawsuits they likely couldn't win if you could afford to risk fighting them, but you can't, so you lose by default. But that's another topic).

As yesno pointed out, if the reason for copyright is to make a living from your book (which it wasn't in the USA), then some modern current copyright laws don't make sense. So I think a distinction needs to be made between arguing for the concept of having a public and private domain system (which seems quite sensible, for all the reasons you put forward, and others), and supporting the actual copyright laws currently in place (most noteably driven by the USA), which are becoming progressively more and more unhinged and extremist, and working to the detriment of their ostensive purpose.

Similarly, I think the concept of the public domain is sensible, but the actual public domain we have has been rendered largely useless to me by our laws. Most media is not classics that have multiple print runs, most media turns to dust and is lost forever before anyone is allowed to duplicate it for preservation for eventual public domain use.
posted by -harlequin- at 3:25 AM on May 10, 2005

Several years ago I was doing antarctic research, and was looking to compile a history of the McMurdue station and it's researchers. There are MANY sources for information, ranging from newspaper articles to journals to personal memoirs. Most of the larger sources, e.g. newspapers, are easily contacted for permissions etc. I found that many of the photographs etc. I was most interested in using were poorly attributed, and even if attributed, the was often considerable confusion regarding whom should be be contacted. For example, if a researcher takes a number of photos of his living quarters, while working for a university, and funded my multiple partners, who owns the copyright to the photo? Can I use it, 50 years later, to illustrate poorly documented historical details, or will the third-cousin of the current owner of one of the groups funding the original expidition sue me?

The lawyers I contacted assured me that there was no legally-safe way to handle such questions, and strongly advised I abandon all hope of documenting a facinating piece of history, due to our idiotic "intellectual property" laws. Not having a desire to be sued, I took their advice and abandoned the project.

From here.
posted by rafter at 3:44 AM on May 10, 2005

Why public domain is good:
- allows for free movement of information
- allows for economies of scale and scope in terms of knowledge production
-> more information circulating, better anticipations of future developments in knowledge production, may spur further inventions and innovations.

Why patents/copyright is good:
- incites companies/people to invent/innovate with the promise that their discovery is truly theirs to sell, rent, and in general, make money.
- allows companies to mortgage their knowledge production in view of further development (pharmaceuticals pay for spending billions over decades by inciting capitalists to invest, based on the assumption this medication and others will provide for a good return).
-> creates climate of fierce competition to "be the first" to patent, incites further innovations/inventions (although due to lack of a public domain type of openness, these inventions could very well be redundant).
posted by ruelle at 3:45 AM on May 10, 2005

you can borrow from Disney as long as you do it intelligently. Would you like to write a story about a young fish trapped in an aquarium while his daddy fish braves the high seas to find him and bring him home? Go for it. As long as you find a new way of telling the story, and don't use the same characters as Disney, you're home free.

False. Disney is very agressive in suing anyone who produces a work with even a passing similarity to their copyrighted works. For an independent creator, the risk is too great to take. No publishing company or IP lawyer would touch the story you describe.

That's essentially the same thing that Disney did with all those classic stories they turned into movies.

Also false. Disney used characters that at the time were in the public domain, but if today's copyright laws had been in effect then, Disney could not have created his works.

That's the fundamental benefit of the public domain: it provides a cultural basis that can be used to create new works. That cultural basis stimulates people to create.

If most of the impact of a work comes from the fact that it is created from scratch, with no reference to what came before, then copyright provides a powerful incentive to create: the author (and his grandchildren) get to prevent anyone else from using what he creates.

But if most of the impact of a work comes from building on the work of others, then copyright provides a powerful disincentive to create.

Culture and technology have evolved a lot since the time of Disney. Most literature and music has always drawn on previous work. Until recently, that public domain work was known as the "classics", and included almost all of Western literature and music. ROU_Xenophobe provides some good examples of works that could not exist without building on those public domain classics.

Changes to copyright laws have practically eliminated that public domain. The pace of production has increased so much in the last 100 years that the ratio of copyrighted works to public domain works has been reversed. Today, creators need to spend time and energy making sure that they are not quoting anything. Since almost all our current cultural references are owned by someone, quoting something familiar to the audience is prohibited without the approval of the original creator's heirs. Sampling as a mode of creation is prohibited for anyone not planning to sell several million records.

Stealing is an important part of culture not just because previous works are good enough to be worth stealing. Previous works resonate with people. The public domain provides a common cultural vocabulary. Today, that cultural vocabulary is only available to those who have the backing of a large corporation that can afford to pay the fees. Individual creators are stifled.

A good example of this is that the song "Happy Birthday to You" is owned by Time-Warner. An independent filmmaker cannot create an authentic scene that includes a birthday party without paying a license fee that he cannot afford.

It's reasonable to argue that society benefits when a creator can profit from his work. But once a reasonable period of time has elapsed, society benefits more when those works pass into the public domain and can be freely used by others to create new works. Imagine the creativity that would be possible if Bugs Bunny, Snow White and the Seven Dwarves, or the great songs of the 1950s and 1960s were available for people to use. Putting old works in the public domain stimulates culture more than allowing them to be controlled indefinitely by corporations.

If you're interested in this, Lawrence Lessig's Free Culture is a must-read.
posted by fuzz at 3:45 AM on May 10, 2005

This is a subject I'm quite knowledgeable about and absurdly passionate on, but I'll try and keep it to just examples since that is what you asked for. I'll stick to cultural works and not things like patents, but I'm happy to provide examples. The short is that public domain is critical because it provides cultural elements for free reperforming and for the basis of new cultural works. We always stand on the shoulders of those before us. No public domain pretends otherwise.

Cultural work to build on:
Copyright is both long and powerful so finding contemporary examples isn't as easy.

*Disney (and cinema of the early 20th century is a great example of incorporating older stories): Little Red Riding Hood, Jack and the Beanstalk, Cinderella, Puss In Boots, Alice In Wonderland, Peter Pan, Mother Goose, Santa's Workshop, on and on.

*Alice in Wonderland, Swiss Family Robinson, Treasure Island, Shakespeare's works are great examples of a stories that are continually reused, reimagined, and retold. Movies, books, video games, cartoons, etc.

*The USA patriotic song America (My Country, 'Tis of Thee') is ripped from the British national anthem.

There are many many examples, especially in music, art, and literature. I realize I could go on for pages if you are looking for notable direct derivative works or successful retellings.

There are very strong propositions about the destructiveness of stopping material from entering the public domain. A small number of examples:
Education/History
*Teaching history and culture becomes increasingly prohibitive. If you or I wanted to put an online (wiki) educational piece educating on The British Invasion, Blues, Post Modern movement, etc it would be either expensive or impossible.
*Direct retelling of history citing news articles, photographs, etc falls under the same costs.
Preservation
*Older works tend to evaporate since their owners have long since forgotten about them, died, moved on to other things, etc by the time copyright has expired.

I'm going to stop there. Please indicate more detail on the types of examples you are looking for or the arguments you are presented.
posted by rudyfink at 3:50 AM on May 10, 2005

ROU, even if the bible were copyrighted, the Narnia books are still allowed. You can't copyright ideas, only the execution of the ideas. Proving copyright infringement (with stories, at least, which is where my expertise lies) is quite a bit harder than you think.

Is it still hard when Lewis is on record as saying that he's recapitulating the Bible, and that Aslan isn't merely a symbol of Christ but is Christ? Or when Tolkien is on record as saying that part of his project is to construct a mythology for Britain out of bits and pieces of other mythologies? When the creators of Forbidden Planet readily acknowledge that they're telling The Tempest with an SF spin? When the authors in question freely admit in public on numerous occasions that they were stealing from the original sources?

And as harlequin notes, the danger is not that they would prove infringement and win a suit; the danger is merely that their case would be not-crazy-enough to remain in court for a while and cost the newer author his life savings defending himself, so he capitulates in advance.
posted by ROU_Xenophobe at 6:25 AM on May 10, 2005

Everything we create is built on what has come before. If we lock up everything that has come before, what will we build on? See Spider Robinson's "Melancholy Elephants" for a more convincing take on this argument.

And as for the public domain, your copyrighted work ends up there because you owe the public. They paid for the systems that protected it while is was copyrighted. Once your term of control is over, it belongs to the public. Copyright is NOT a natural right. It is an artificial right created to spur creation and innovation.
posted by cosmicbandito at 6:54 AM on May 10, 2005

My favorite example of how the PD is messed up was mentioned by fuzz above, Happy Birthday. It's probably the people I associate with, but I have yet to hear an argument that that song is any less of our shared culture than Paul Bunyan or Johnny Appleseed. How can we create art that reflects life when we can't include that in a birthday celebration?
posted by revgeorge at 6:59 AM on May 10, 2005

But don't you see? That copyright spawned the creation of all different songs because places like Bennegins and TGIFridays were unable to take the easy way out and use the tired, old Happy Birthday ditty. Granted, most of the variations are crap, but they are novel. Hooray for creativity!
posted by crunchland at 7:10 AM on May 10, 2005

Unless I am mistaken, all the core protocols of the Internet (TCP/IP, POP3, FTP, HTTP, etc) are in the public domain. You want to write an implementation of any of those? Knock yourself out. That implementation is copyrighted, of course, but other people can write their own to compete with you (and in some cases, it's pretty trivial to do so).

As we've seen, the Internet has been pretty successful. In the early 90s, everyone was talking about the "Information Superhighway" that we knew was going to happen in some form or another. We didn't know what form it would take--it was hardly a sure thing that it would turn out to be the same Internet that had been burbling along since 1970. A number of cable companies sunk millions of dollars into trials of proprietary systems that went nowhere, and in retrospect, would have been vastly inferior in most respects to the Internet we have today.

Protocols are specifications. Not all specifications are in the public domain. MP3, MPEG-4, GIF (originally), and IEEE1394 are all licensed formats. Obviously MP3 has done pretty well, but I get the impression that's mostly because Fraunhofer has been lax about enforcing its IP rights. For years, GIF was treated as if it were PD; then Compuserve came along and said "Oh yeah, we own that." This created a bunch of problems for authors of graphics software, and directly spurred the creation of the PNG format, which is public. Developers have been slow on the uptake with MPEG-4 because of the "patent pool"--basically, a bunch of different parties all own some IP involved in the spec, and they had to sort out how they'd be compensated for use of it before anybody could use it. (Admittedly, open codecs like OGG Vorbis haven't taken off like wildfire, either.)
posted by adamrice at 7:24 AM on May 10, 2005

adamrice, this is somewhat off topic, but it wasn't Compuserve that said they owned GIF, it was a company called Unisys. In fact, after Compuserve used the LZW compression system, Unisys informed Compuserve that Unisys had a patent on it. So Compuserve first tried to get a license for itself and then it tried to secure licensing for everyone. Your main point still stands; just don't blame Compuserve. (See here and here.)
posted by skynxnex at 7:40 AM on May 10, 2005

I write so that I can make my living, and I can't do that without copyright.

Don't be silly. The first may be true, but the second certainly isn't. That's like saying that PepsiCo could never make money selling water if free water was available out of any tap. That's like saying that pay TV is never going to be viable when somebody can just turn on their TV and get free programs out of the air. In short, it's an overly rigid and extremely modern world view with a very short memory and a surprising lack of creativity.

To further answer the original questioner though, in addition to having works available to build and extend the culture, it's also important to remember that MOST works cease to be economically viable pretty quickly. We would lose access to those works entirely since it's not cost effective for the rights holder to maintain it, and it's frequently impossible for archivists working to serve the public good or other authors looking to license the content to track down the current rights holders.
posted by willnot at 7:40 AM on May 10, 2005

I believe that intelligent use of copyright protects the creators of content. Western writer Louis Lamour's early work went into the public domain, and it was crummy and expensive for him to see a publisher making money from his work with no payment to him.

The current pro-business, pro-corporate enviornment is favoring the owners of content to a pretty absurd degree. Disney has sued a high school for putting on a play about Cinderella. Sorry, I don't have a citation. The penalties for file-sharing and DRM violations are draconian, and getting more so. Music companies, in particular, have made a practice of locking up rights and not necessarily compensating artists. This contributes to the disregard that many people feel for the copyright system.

Computers and the internet have made the duplication and transmssion of Intellectual Property/Content trvial. The horse is out of the barn, and it's going to take some time for this to shake out and a balance to be reached. Itunes, the new napster and other music services are a great start. Sooner or later, the music companies will see that lots of people will pay .25 or .50 for an older song by a less-popular artist, 2.50 for some new, must-have tune, and so on.

I won't pay 1.00 per song for music that I have on old vinyl, or something I just want to listen to once or twice, i.e., I won't pay a lot for a little music, but I'll cheerfully pay a little bit for a lot of music. When the music companies figure that out and make their backlists available, it will be great.

You already see musicians making their music available. The new paradigm will come from artists and users. The big copyright holders will be too afraid of losing revenues to innovate.
posted by theora55 at 8:54 AM on May 10, 2005

I write so that I can make my living, and I can't do that without copyright.

Don't be silly. The first may be true, but the second certainly isn't.

Oy. Once again, I don't sell the physical writing, I sell the copyright to the writing. That's one way writers make money. Although thank you for telling me I'm overly rigid with a very short memory and a surprising lack of creativity, willnot.
posted by incessant at 9:12 AM on May 10, 2005

Two more easy examples (quite similar to points of rudyfink):

(1) Those $1 Dover Classics books, almost exclusively comprised of public domain literature. When I was in college, I bought and read a ton of those. The public domain substantially lowers the price of access to great works.

(2) Avoidance of a clearance maze. The older a work (and the more globalized our society), the more likely a work's copyright ownership has changed hands. A professor I had in college wanted to publish a photograph he saw in a newspaper from the 20s or 30s. The paper was out of business, though, so he had to follow a maze through a number of corporations, successors, etc. until he found the rightsholder. He paid $75 or so (not much) but spent hours and hours trying to find the copyright owner. Imagine if copyrights were extended indefinitely; use of older works would become absurdly difficult because copyright ownership would have to be traced back to the creation date.
posted by AgentRocket at 9:27 AM on May 10, 2005

Because the public can do anything they want with it, and creative freedom is good?
posted by Tuwa at 10:33 AM on May 10, 2005

Well, public domain is the default state. The things now called "intellectual property" are a massive social engineering experiment, a government subsidy of certain activities (the useful arts and sciences).

This is the way it is in our society, under our laws, definitely, as we have a tradition of oral storytelling etc. that goes into prehistory, before anyone realized that they could own the stories.

A case can be made for the moral right of a creator to own what he creates. In this scenario, each creator has a de facto monopoly on his work, and the role of the law becomes the prevention of his abuse of this monopoly, where "abuse" could be broadly defined as impairing the creation of other equally valuable work. I feel that in many ways this is a more natural way to look at intellectual property, rather than seeing copyright as a right granted to people by the government. Governments should not grant rights, they should protect them.
posted by kindall at 10:50 AM on May 10, 2005

Kindall, the problem with that argument is that ideas cannot be "owned". Books, movies, poems, paintings....all can be copied and transmitted to multiple users without losing their meaning.
As Jefferson put it:

no one possesses the less because everyone possesses the whole of it. He who receives an idea from me receives [it] without lessening [me], as he who lights his [candle] at mine receives light without darkening me.


Copyright is not intended to protect anybody. It's only intent is to "promote science and the useful arts" by giving content creators an incentive to get off their ass and create. The real reason we're having problems now is that people have to come to think that ideas can be owned. If you have an idea and you want to capitalize on it, go ahead. But you can't expect to own that idea. You can borrow it from the public for a while, but in exchange for the protection of copyright law, them public is going to own that idea eventually.
posted by cosmicbandito at 11:07 AM on May 10, 2005

Rights clearance can be a huge inhibitor to new business though. Apparently one of the major reasons we don't have TV over IP yet is rights management of the background music! Who owns the digital broadacst rights to a sixties pop song? That's not clear in a lot of cases. What rights apply to TV over the internet?

So right there, IP problems are inhibiting a potentially huge market Tivo, NetFlix among others are champing to develop.
posted by bonehead at 11:27 AM on May 10, 2005

There are lot of issues which are at stake here. One is our concept of The Artist who is sort of like God and creates a world out of nothing (or out of the depths of his soul).

This was not the idea the founders had, because this Artist-as-God thing came out of romanticism, and they were purely enlightenment guys, and it's very easy to see through a scientific paradigm how every accomplishment draws on others.

But of course this works in art too. No one is really original. Sometimes their sources are obvious, like Disney creating animated works based on tales that had been told for centuries by Hessian housewives, each one of whom took a story they knew and adapted it to her own purposes. Even when they're more "original" they have to draw on certain shared cultural knowledge or they just wouldn't speak to us. So it's kind of silly to say you "own" this creation if it's just an idea built on other people's ideas.

The reason why copyright was included in the constitution is that creating and inventing take a lot of time and effort, and people are more likely to put forth this time and effort if they have the ability to profit from it by saying that you can only have access to this new idea by adhering to the author's rules (i.e. by paying him)
posted by dagnyscott at 12:04 PM on May 10, 2005

Dagnyscott,

I felt I should add the critically important part of why IP rights are in the constitution. Society benefits from intellectual creations (Shakespeare, light bulbs, "Wang Dang Doodle"), but is harmed by their restricted flow. The pact is the "limited" word in the constitution's clause. Society provides an incentive for creation that is a limited monopoly (bad) so that the idea will become available to the public for free (good).
posted by rudyfink at 1:53 PM on May 10, 2005

incessant: Copyright and public domain are both human inventions.

Me: How so? The latter is only recognized as distinct when the former exists.

incessant: Public domain and copyright can't exist without each other. If copyright (a human invention) ceases, then public domain as a concept is unnessary. The notion of a public domain assumes a private domain. Hence, I'd argue that public domain is a human invention as well. This, however, is an argument that's slightly semantic and vaguely philosophical.

You just expanded my reply, without adding any new information. The recognition of the concept of public domain, requires a constrast, and hence is an invention but the property of public domain isn't. Whereas the property of copyright is an invention, not just its recognition as a concept.
posted by Gyan at 2:44 PM on May 10, 2005

the problem with that argument is that ideas cannot be "owned".

According to our current laws, yes. That doesn't change one's moral rights to what one makes, of course, which is the point I'm making. Nor does quoting Jefferson. You're simply explaining how things work in our society, which, as I said, is one way, and there is another way to look at it.

Books, movies, poems, paintings....all can be copied and transmitted to multiple users without losing their meaning.

And yet, no matter how many times I copy a Beatles song, somehow I still didn't create it, and so it cotinues to remain not mine. Funny how that works.
posted by kindall at 4:33 PM on May 10, 2005

Kindall,
agreed, ideas can have a creator or originator. But being the creator of an idea and having the "moral right" to control that idea are two different things. There is no morality involved. If we respected everyone's "moral right" to the ideas they created, we'd be in a world of hurt. Basic human nature is to be greedy and milk every bit of personal gain possible out of any given situation. Are you in favor of a creator controlling any and all uses of their work from here to eternity? That way lies madness.

I think our main disagreement is over the concept of ownership. It's really more a creator vs. controller thing...
While there may be other ways of doing things, our copyright and patent law provide a nice balance (when they aren't extended beyong all reasonable lengths of time by a Disney-owned congress)
posted by cosmicbandito at 5:27 PM on May 10, 2005

I write so that I can make my living, and I can't do that without copyright.

I don't sell the physical writing, I sell the copyright to the writing. That's one way writers make money.

But you do realise it's not the only way writers make money - that it's perfectly possible to make a living selling writing in a world without copyrights, and that there would still be commerical demand for commissioned writers and their original texts in such a world?
(You gave the impression you don't realise this)

Some writers of pulp romance novels, on the other hand, might have to find a more productive way to add to society's wealth, rather than waste society's resources re-inventing the wheel, but that can only be a good thing :)
posted by -harlequin- at 5:34 PM on May 10, 2005

If we respected everyone's "moral right" to the ideas they created, we'd be in a world of hurt.

Which is why I said in such a world, it would have to be treated as a monopoly situation -- you wouldn't be allowed to abuse your monopoly by, say, unreasonably preventing your work from becoming part of the larger culture. The sort of behavior that annoys us when engaged in by Disney, Unisys (LZW patent), SCO, etc. would almost certainly be considered abuse of monopoly under such a system.

I'm not entirely making this up by any means -- Google for "droits moral." Although moral rights as practiced in Europe (mostly France but also Germany to some extent) don't go so far as to cover actual ownership, they could have, and I think it would have resulted in a more rational system of intellectual property if we'd gone that way, instead of enshrining in our Constitution the idea that all creative works actually belong to the public but that we will magnaminously "grant" the creator the right to profit from it. As if he should need any such right! It's a reversal from intellectual property traditions and in fact how we have treated all kinds of property for a long, long time.
posted by kindall at 6:07 PM on May 10, 2005

As if he should need any such right!

By which I mean, he doesn't need it because he already has it.
posted by kindall at 6:08 PM on May 10, 2005

thanks kindall! I'd never come across the concept your're talking about before....I'm googleing "droits moral" now
posted by cosmicbandito at 9:54 PM on May 10, 2005