Saturday, January 12, 2013

The Beatles and the public domain

I've more than once dipped into the well of the public domain, both for inspiration and for resources necessary to get the job done.  And I'm hardly the biggest beneficiary, with Les Mis taking in $16 million at the box office this past weekend.  The Walt Disney Company, still making bank from the brow-sweat of the Brothers Grimm and Hans Christian Andersen, has built from that base a presence in every aspect of media.

In fact, it's the total absence of mention of The Mouse that makes David Patrick Stearns' piece in the Philadelphia Inquirer analyzing the facts behind the Beatles' Love Me Do falling into the public domain under European copyright law all the more remarkable.  While citing an entity nearly as terrible and durable (Keith Richards), he mentions almost nothing of the massive media companies that have laid siege to the public domain.

It's an odd omission, as Stearns makes his case for why pop music is somehow different, and thus should be granted longer copyright protection.  He admits that learning that Love Me Do falling off the 50-year cliff into the EU's public domain makes him feel old.  Having spent some supermarket time listening to New Order's Love Vigilantes I can certainly sympathize.  But interestingly, he fails to make the case that since people are generally living longer, copyright terms should be extended so that creators could still enjoy the fruits of their labors in their lifetimes.

Stearns' further efforts to carve out a "just-so" justification for tacking another couple of decades onto the EU's copyright term serve to further illuminate the elephant in the corner:

"If there's one thing your generation gave us," a young guy on South Street said recently while blasting the Rolling Stones on his car radio, "it's great music and great weed." It helps that the music continues to be prevalent on radio, not to mention the sound system at your gym.
First, kid, that's two things, not one.  Might want to cut back on that weed.  But I digress.

So the nostalgia factor among the old, and the cool factor among the young.  All of that adds up to a powerful financial incentive for the keepers of modern media from allowing any intellectual property that remains within living memory from falling into the public domain.

To review, giving the simplified version: Copyright exists so that creators may enjoy the fruits of their labors without fear of theft while contributing to the larger culture. By the time it expired under the original rules, creators had ample opportunity to use their creations in order to secure a profit for themselves and hopefully their heirs.  Then, upon expiration of copyright, the work enters the public domain, becoming public property for the rest of us to use as we see fit.  This system has allowed us to build further upon prior creations, giving us Les Miserables (adapted for stage and screen from Victor Hugo's novel), the movie Forbidden Planet (a reinterpretation of Shakespeare's The Tempest), and Pride, Prejudice, and Zombies (which is quite frankly hilarious), just to scratch the surface.

All of this changed with The Sonny Bono Act of 1996, which did to American copyrights what Stearns seems to be hoping will happen to those in Europe: Tacked a couple of decades onto the period in which a work may be held in copyright.  Prompted, not so much by creators as our undying corporate "persons" that control the lion's share of modern popular culture, the Bono Act ensures that nothing, not one single work, will enter the public domain until 2019.

That's still one Presidential and three Congressional elections away, by the way.  That amounts to plenty of time for the same actors behind the Bono Act to kick the football further down the field.

Just to give an idea of what's staying behind the corporate paywall, so to speak, Duke University School of Law's Center for the Study of the Public Domain posts a yearly summary of what would have entered the public domain this year.  You'll recall I mentioned Forbidden Planet.  The page also mentions that, while that movie is likely to remain once its copyright term does expire, lesser known films are likely to be lost entirely before archivists get a hold of them.  And thus more pieces of our history are lost.

And I don't doubt for one second that the players behind the Bono Act are lining up for another kick, fueled no doubt by last year's Eldred vs. Ashcroft Supreme Court decision that not only reinforced the Bono Act but also gave Congress the unprecedented right to remove public domain status from any work as they see fit.

Anyone who appreciates the treasure that is the public domain finds this alarming.  But, conditioned as we are as a society to only value what's shiny and new, those who do treasure it seem few and far between.

And with cheerleaders like Stearns helping to convince the public that any extension is inevitable and necessary, we may soon find the lid on that treasure chest being closed and locked, permanently.

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