How Do You Know The Public Domain Is In Trouble? It Requires A 52-Page Handbook To Determine If Something Is Public Domain

from the not-how-it's-supposed-to-work dept

We’re obviously big supporters of the public domain here at Techdirt, and frankly, believe that many more works should be in the public domain. In fact, we treat our own articles, written by staffers here, to be public domain, even though there’s no official legal mechanism to officially put them in the public domain. We can only proactively state that we will treat them as such. And, of course, thanks to the switch from “opt-in” copyright to “everything eligible is automatically covered by copyright” in 1976, combined with ever-farther-reaching copyright term extension, nothing has officially entered the public domain in the US in ages. In the past, I’ve often relied on the handy website set up by my alma mater, Cornell, in trying to determine what is and what is not in the public domain, but that’s somewhat limited. So it’s great to see that the folks over at the Samuelson Clinic at Berkeley have developed a detailed handbook to determine what is in the public domain, which comes complete with this handy-dandy (if not altogether simple) graphic:

The handbook itself (embedded below, based on their Creative Commons license — which I’ll note, is not CC’s CC0 public domain dedication) is 52 pages going into detail explaining some of the details and nuances of the graphic. It’s actually quite handy in many ways, but it still seems… wrong that the public domain should ever need a 52-page handbook just to figure out if a work is or is not actually in the public domain. It really seems to drive home just how much we’ve sidelined the public domain and created permission culture instead. Oh, and, you’ll note that for stuff published after January 1, 2003, the only way for anything to actually go into the public domain… is for the copyright to expire (in other words, no real way to put these works into the public domain).

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Comments on “How Do You Know The Public Domain Is In Trouble? It Requires A 52-Page Handbook To Determine If Something Is Public Domain”

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Anonymous Coward says:

Fuck ’em. This document shouldn’t have needed to be made.

Here’s a short guide to how the public domain should work:

1) Was it copyrighted before 1976? If yes, then it should be public domain now.
2) Was it copyrighted before 1923? If yes, then it should be public domain now.
3) can the creator be traced? If no, then the work should be in the public domain now.

Anything else is theft.

Anonymous Coward says:

Re: Re: Re:

I do not agree with #5.

#4 is okay 15 years is more than enough time for creators to benefit from their copyrights, however I do not care if it was registered or not.

If you can reasonably prove that you are the creator and and the date of creation then you deserve your copyright registered or not.

All too often requiring a bureaucratic process to be protected in the first place leaves you less protected as an end result. So within the first few years I am okay with reasonably strong copyright protections and deference to creators, however I do not agree with those lasting anywhere past a decade or two at absolute most.

Anonymous Coward says:

Re: Re: Re:2 Re:

The Authors name being on the cover or somewhere on/in the work should be good enough for that.

Orphan Work problem is a fabricated problem. They should immediately become Public Works. It was understandable back in the day when you could not travel or communicate quickly about things, but now… it should be clear. Make yourself available to claim your works or forfeit them to Public Domain.

Yes registering with LOC should be a good start, but should not be required or the only method to protect your works.

In most cases it is very easy to tell when someone plagiarized something because the flow, order, and style of the document will remain identical so even changing several of the words is not enough to mask plagiarism.

John Fenderson (profile) says:

Re: Re: Re:3 Re:

“The Authors name being on the cover or somewhere on/in the work should be good enough for that.”

It’s not, because that’s not enough information. Registration would allow people to actually find the current copyright holder (who may not be the author or the original copyright holder), how to contact them, and when the copyright period began.

Chris-Mouse (profile) says:

Re: Re: Re:3 Re:

The Authors name being on the cover or somewhere on/in the work should be good enough for that.

An elderly author writes a novel. Knowing he is not likely to live long enough to benefit from the term of copyright, he sells the rights to Company A. At some time after the death of the author, Company A goes bankrupt. Company B picks up the rights as part of the bankruptcy auction.

At some point after all this, you decide to make a movie of the book. Knowing only the name of the author, how would you figure out who to license the rights from?

V says:

Re: Re: Re:5 Re:

I have one word for you : Pseudonyms

There are many works, especially from the 1930s – 1950s that were published under a pseudonym and the actual author is unknown or lost/forgotten. This is particularly problematic for genre works such as science fiction and romance that were considered low value entertainment.

Mason Wheeler (profile) says:

Re: Re: Re:6 Re:

And this is why registering copyrights is important.

If you write something for commercial purposes (with the intent of making money) there needs to be some way to determine who to give the money to. If not, it should be assumed to be abandoned property.

On the other hand, if you write something anonymously (not the same thing as pseudonymously) it’s assumed that your intent was not to make money on it.

I don’t see what the problem is that you’re trying to raise here.

Anonymous Coward says:

Re: Re: Re:3 Re:

Copyright doesn’t just cover text, but lots of other things, like photographs and illustrations.

Professional illustrators are among the groups most opposed to an Orphan Works bill. They tend to see it as a legal mechanism for less-than-ethical publishers to steal their work, and because of what they do, don’t see orphan works as a real problem. (I’ve tried explaining the issue to a few such folk, they’re pretty myopic on the issue.)

Anonymous Coward says:

Re: Re:

It will easily get very emotional when a stupid and misplaced word like theft is used by either side in a debate on this subject. I would say that the exact years for the reforms should be completely irrelevant for the determination of rightholders. Just cutting in 1976 or 1923 is arbitrary and very rough on the people actually relying on use of the system as it was intended (however few they may be!).

When that is said, the systems around determination of holders of different rights and determination of what constitutes implementations of “no permission required uses”, under which de minimus and public domain are, is very problematic.

Copyright is merely a tool used to ensure investors a better chance of profit and the author some sort of control over the work. To hell with users of the work. They are all pirates and hypocrites, anyway! Why make a law easy to understand when the uncertainty in it can be used as a tool to secure far more control than intended?

Anonymous Coward says:

Re: Re: Re:

Please give a valid reason why something from before Sonny-Bono (which was applied retroactively, see the infographic in the article) should still be protected under copyright laws.

In addition, the reason that I have chosen those two years in particular is because those were two of the key years in the expansion of copyright as a legalism.

I’m of the opinion that laws should be simple, clear and concise in areas such as IP, in order to eliminate as much confusion as possible. Hence, “X+Y renewal, you must register with the Copyright Office” makes sense. Sonny-Bono Extension Act does not.

Anonymous Coward says:

And some wonder why people don't respect copyright

For how awfully bad patents are (copyrights lock down a particular expression of an idea; patents lock down the idea itself), they are better than copyright in one aspect: they expire.

For patents, you know that after at most 20 years the idea can be used. For copyright, even after a huge amount of years (over 100 years in many cases, and it retroactively grows all the time) the expression still can’t be used.

Given that the world’s culture and science grows by “standing on the shoulders of giants”, not being able to build upon an idea or expression is really bad.

Nate (profile) says:

“we treat our own articles, written by staffers here, to be public domain”

I’m not sure you legally have the right to do that, not when the article includes quoted text. While fair use gives you the right to quote text from other sources, it doesn’t enable you to attach a new license to the quoted text.

For example, Techdirt’s deal with the service is arguably copyright infringement, and the idea that you release articles under a CC0 license is similarly suspect.

Or am I wrong?

P.S. I don’t mean to beat up on Techdirt, but this post seemed like a good time to bring up a point that has been puzzling me for a few months now.

Nate (profile) says:

Re: Re: Re:

We’re discussing different things. You are talking distribution of copies, while I am talking about Techdirt negotiating a license with third parties.

One is covered under fair use but I’m not sure the other is covered as well.

Fair use only covers use; it does not transfer control of a copyrighted work. And if techdirt does not control a quote then they cannot license that quote to third parties.

Anonymous Coward says:

Re: Re: Re: Re:

By saying they are treating it as public domain means you don’t need a license. Copyright holder must file a claim of infringement, not a copsarealwaysright badge holder.

In other words, if you repost this entire article, I cannot charge you with infringement, only techdirt can, and since they are treating it as public domain, they won’t either.

Josh in CharlotteNC (profile) says:

Re: Re: Re:5 Re:

Your original comment makes no sense.

We’re not talking about control of, or transfer of, or any kind of license to a copyrighted quote.

Techdirt doesn’t need control of or a license to use a quote under fair use. Therefore, copying an article that contains a fair use quote would not need any kind of license from the original quote maker.

Again, I ask, how can copying an article that contains a fair use quote NOT cover that same quote under fair use? If you can give even a remotely plausible reason or situation, then do so.

Michael (profile) says:

Re: Re: Re: Re:

The use of a quote in a news article has been generally accepted as transformative under the fair use test.

The article is adding commentary to the original and they serve a different purpose.

A transformative use gets an entirely new copyright. This is also why you can take something out of the public domain and incorporate it into another work and end up with a copyright on the entire new work.

A new work that is not tied to a license on a work it was built upon can be licensed (or given away) without being impacted by the work it was built upon. Since fair use is an explicit lack of a license, there is nothing to tie up an article that quotes a work in a way that is fair use.

Now, the big IF in that entire situation is if the original use of the quote is considered fair. Since fair use is a defense, you cannot actually be 100% sure it is fair use until the use has actually been tested in court. I suppose it could create a big mess if someone quoted a work in an article, allowed the article to be copied freely, and then a court determined that the quote was not fair use, but I think that situation is pretty unlikely to happen here on TechDirt.

Anonymous Coward says:

Re: Re: Re:2 Re:

Since fair use is a defense, you cannot actually be 100% sure it is fair use until the use has actually been tested in court.

Actually fair use is a right, the problem is that the legal system is biased toward those with money. This means that big companies can abuse the law to block fair use by threatening to impose costs on other parties.

John Fenderson (profile) says:

Re: Re:

“I’m not sure you legally have the right to do that, not when the article includes quoted text”

Since you can’t actually place anything in the public domain in the first place, this is a moot point. However, the inclusion of quoted text doesn’t mean you don’t hold the copyright to the article. You do. You just don’t have the copyright to the text you quoted. It is entirely permissible to say that you won’t enforce that copyright.

Tim Griffiths (profile) says:

Re: Re:

There are two sets of copyright here, the one on the original article and the one on the original text in the Techdirt article. Techdirt can use the quoted text because it’s very likely that the fair use test would mean that the copyright on the original article does not apply to it’s use in this way.

That means that to replicate the Techdirt article in full you only need Techdirts permission because the quotes remain a fair use of the original article. Or to put it another way Tehcdirt isn’t allowing you to use the quotes of the original article freely, fair use laws are. You can not, for example, copy and past the quoted text out of the Techdirt article and then publish them without comment as at that point you are no longer fairly using those quotes and the owner of the original articles copyright has standing to sue you for infringement.

It’s not where you get the quotes from original article that matter, it’s how they are used… and if you use them in exactly the same way as Techdirt you’ll have a very good fair use defence.

Whatever says:

52 pages

It only takes 52 pages when a group of lawyers and tenured professors get together and get wordy. It seems to help to pad things out with colorful graphics, info charts, and “tidbits”.

The law is always complicated, no matter how much you wish it wasn’t. I suspect you could write 52 pages (in this type) explaining jay walking laws in the US.

PaulT (profile) says:

Re: 52 pages

“I suspect you could write 52 pages (in this type) explaining jay walking laws in the US.”

Indeed. So, what are you trying to say? Are you claiming that copyright isn’t convoluted at all and it’s only the people who wrote this handbook who are making things too complicated? Or, are you saying that jaywalking laws in the US are just as arcane and screwed up as copyright?

Josh in CharlotteNC (profile) says:

Re: 52 pages

“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” -James Madison

Laws do not need to be complicated. Case law does not need to be complicated. Complicated laws are only a benefit to lawyers and others who make their living as a direct result (judges, politicians, lobbyists). When tax law is complicated, accountants and tax lawyers are more valuable, but that added cost slows down innovation, business, and regular tax payers.

It is both a detriment to society and to the rule of law itself when laws are so complicated that they cannot be easily understood.

Anonymous Coward says:

Re: 52 pages

And others have described the process in somewhere below 10 pages, even though that didn’t cover all aspects of the situation. In this case, the complications from each change of the law is cumulative and as soon as we start to make distinctions between several different types of copyrights we get into quite the mess. Add an international dimension and we are having an inhumane amount of copyrights not to mention precedences (these problems particularly relate to the internet).

Copyright is unnecessarily complicated since it dictates specific maximum contracts in too many areas. Focusing on fleshing out the minimum side of contracts (Ie. fair use and de minimus) or even better, restructuring the law to make it simpler for the intermediate users in terms of sub-licensing and rebroadcasting would be a blessing.

The 52 pages doesn’t seem to mean anything in particular. But the precission needed to explain the details in the specific paper should make it apparent that this is not comparable to jay walking or most other user-targeted laws.

Tice with a J (profile) says:

This ought to be ridiculously simple

To determine whether or not something is “public domain” (that is, in the control of the public), we should only have to ask two questions:

1. Is it private? – In other words, is this information that shouldn’t be made public, and/or has the originator of this information taken steps to keep it private? Passwords, trade secrets, and (some) nude photos fall in this category.

2. Is it an identifier? – In other words, is this information that people use to specifically identify someone or something, such that your using it could create confusion or outright deception? Names, trademarks and trade dress fall in this category. See also: passing off.

You will notice that neither of these cover copyright and patent. That’s because the concepts are inherently incoherent. Making something public – in other words, publishing it – and then asking everyone to treat is as private is a dumb idea, and humanity should have given up on the concept centuries ago.

See also:

zip says:

Digiview DVDs - and a potantial fatal mistake

About 10 years ago, all the discount stores such as Wal-Mart, Target, and Dollar Tree were flooded with stacks of DVDs selling for the (at the time) shockingly low price of one dollar. Many remain unsold today. These were movies, made-for-TV movies, and TV show pilots, ranging in age from the 1920s through the mid-1970s. Many DVDs had two movies on a single DVD.

Due to the age and/or obscurity of the titles, and the extremely-poor video quality of these Chinese-made DVDs, I always assumed that these were bootleg copies of public-domain content — films that in the pre-VCR era had become commercially worthless, and therefore no one even bothered to renew their copyrights. These DVDs were sold nationwide, in major outlets, so unlike like some flea-market bootlegger, I assumed that they had good legal advice about copyright issues.

And as that copyright flow chart would predict, 1978 seemed to be the cutoff year for these “public domain” DVD releases. Most of them, anyway. However, one I noticed that slipped through was Concrete Cowboys, with a 1979 copyright date — and therefore, no copyright renewal requirement. So it would have been under (automatic) copyright.

A big -and potentially very expensive– case of “OOPS!” perhaps? Unless Digiview owned the copyright (which I doubt) that could add up to some major copyright infringement. At $150,000 per copy in “statutory damages” per DMCA requirements — the cost of that mistake could be enormous. Potentially far more money than Concrete Cowboys ever made legitimately.

jupiterkansas (profile) says:

Re: Digiview DVDs - and a potantial fatal mistake

There are five companies listed as managing DVD rights to that TV movie, and it’s very likely it was sold as part of a bulk package for discount sales. I’ll bet that not all of the films in that bin were public domain.

But the thing about copyright infringement is that it doesn’t really matter until the copyright holder cares enough to try and stop it.

duffmeister (profile) says:

Putting something into the public domain ...

I need to talk to an IP lawyer about my idea to put something into the public domain.

My first thought is that since an unclear/unenforceable copyright notice can render something into the public domain do we make a fund to cover the registration of intentionally unclear copyrights so that it by default becomes public domain?

So I think we can label all of the copyright holders as authors who died long ago.

This post is copyright Adam ~6400BC, W.Shakespeare 1615, and Ben Franklin 1785.

I wonder how that would work to “secure” the public domain for a work.

teka says:

Re: Putting something into the public domain ...

Bad documentation does not put something into the public domain, it would simply stain the work with a huge cloud of uncertainty and toxic doubt.

Far from being freely used by everyone it would more likely be freely used by a tiny, tiny minority while being shunned by everyone with enough money to worry about being sued.

Barry Gold (profile) says:

creative commons

While it’s true that there is currently no mechanism for placing something in the public domain(*), you can get a very similar effect by attaching the CC-BY license to it:

Creative Commons with Attribution

Meaning anybody is free to do anything they want with it, as long as they say they got it from you.

(*) Before 1978, you could publish the work without a copyright notice. Or you could place a specific declaration: “copyright abandoned” on the work. Now it appears that the courts will not (necessarily) recognize even an explicit declaration of abandonment.

anonymous says:

The law is complicated, therefore bad!

You know they have whole casebooks to understand how laws work? They even have a school for it!

Get over it. Also, you embedded the manual wrong – there are several conditions to the licensing of the material under Section 3(1)(A), such as indicating that it is a public license, which you neglected to mention. A public license, which, by the way, could never work without having copyright laws in place.

Barry Gold (profile) says:

Creative Commons

How about this simplification of the Creative Commons license:

This (book/artwork/webpage/…) is made available to everyone under the following license:

You are free to copy and/or redistribute the (…) in any medium or format. You are free to adapt, remix, transform, and/or build upon the (…) for any purpose, including commercial use. This license is irrevocable once accepted by using any of the rights granted, provided that you credit (my name) for the use of the work. The credit may be given in any reasonable manner.

That provides a universal license. I would even leave out the requirement for credit to get the full equivalent of public domain, but I included it because I think that giving credit will provide the necessary “consideration” (quid pro quo = something for something) necessary to make a binding contract.

NOTE: I am not a lawyer. I am not guaranteeing that the above will work.

Anonymous Coward says:

There’s a critique of this post on Devlin Hartline’s copyright law blog. He engages in some roundabout ad hominem before finally getting to the point, which is that Mike embedded the handbook without honoring the terms of its CC-BY-ND license—i.e., Mike failed to identify or link to the license itself. Hartline then says this is troubling because…reasons.

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