THE PUBLIC DOMAIN
monopolies. T ese together, he complained, destroyed the free market in books and were thus injurious to learning. Without any competition, printing in London was “very bad and yet ... very dear”, controlled by “a lazy, ignorant” press that did little more than assure the Mother Church that she’d never be “disturbed in her opinions”.
Locke never questioned the idea that publishers should have copyrights; rather, he worried about their longevity. It certainly made no sense for any printer to have a corner on the work of Cicero, say, written a good 1,700 years ago. As for the publishers of modern authors, Locke proposed that the law “limit their property to a certain number of years aſt er the death of the author, or the fi rst printing of the book, as, suppose, 50 or 70 years”.
T e founding generation in the US was direct heir to this British distaste for print monopolies. As the Constitution was being written, T omas Jeff erson wrote to James Madison to say the Bill of Rights ought to forbid “even ... limited monopolies” outright, their benefi t being “too doubtful to be opposed to that of their general suppression”. Madison disagreed but even so, when revisiting the subject late in life, he advised that “Monopolies ... ought to be granted with caution, and guarded with strictness against abuse.” Noting that the Constitution had in fact allowed monopolies for “the authors of Books and of useful inventions”, he nonetheless underscored the Constitution’s demand that the grant be “limited”. “A temporary monopoly ... ought to be temporary ... Perpetual monopolies of every sort are forbidden ... by the genius of free governments.”
Since its beginnings in the US and elsewhere, then, copyright law has always limited the privileges it settles on authors. By so doing it simultaneously secures two good, but potentially confl icting, ends. Most obvious and commendable, authors get ownership of their work and thus entry into the market and freedom from patronage. Less obvious, perhaps, but equally commendable, the limit on ownership gives birth to the public domain, that vast realm of expression to which we all have equal access.
“T e ancients,” wrote Henry Fielding, “may be considered as a rich Common, where every
“IT HAS ALWAYS BEEN A BIT OF A MYSTERY HOW WE ARE TO CATEGORISE THE PUBLIC DOMAIN. IS IT SOMETHING THE PUBLIC ‘OWNS’, AND IF SO, IN WHAT SENSE?”
and creative practices, it revived the problem that Locke and America’s founders worried about centuries ago. It is ever the case that monopolies can as easily be used to suppress as to encourage both speech and trade.
Person who hath the smallest tenement in Parnassus hath a free right to fatten his Muse.” Limited term copyright smartly enlarges that common so that all muses may browse closer to us in time. It gives all citizens fuller access to their inheritance.
T at said, cases still arise in which the confl ict between private control and public access must be revisited. How it would be settled in the Golan case was hard to predict last October, though it could at least be noted that the court had, in the past, regularly taken the side of access. “T e primary goal of copyright is not to reward authors,” Justice Sandra Day O’Connor once wrote, but rather to promote the progress of knowledge. Justice William Rehnquist made a similar point in words echoing Jeff erson and Madison: “We have oſt en recognized the monopoly privileges that Congress has authorized ... are limited in nature and must ultimately serve the public good ...”
Congress has, typically, not shared that recognition, invariably extending existing monopolies when petitioned by rights holders. T e law being challenged in Golan was largely the fruit of lobbying by US copyright-based industries. Soſt ware, fi lm, television, movie, and recording companies petitioned Congress with the long-term goal of getting other nations to restore the copyrights of US works that had fallen into the public domain abroad. Having no control over foreign law, however, the somewhat wishful strategy was to restore the copyrights of foreign authors in the US, in the hope that other nations would reciprocate.
In giving these industries what they wanted, Congress not only unsettled established business
26 World Intellectual Property Review March/April 2012
To give just a few of many recent examples: during the 2008 Presidential campaign, Fox News demanded that John McCain remove his YouTube commercials because they infringed Fox’s copyrights; the estate of poet Countee Cullen refused to let Poet Laureate Robert Pinsky use Cullen’s work in a documentary aſt er learning that the context hinted at Cullen’s homosexuality; the Church of Scientology has regularly sought to silence critics with claims that they infringe the church’s copyrights, such as when they sued T e Washington Post in 1995 for quoting church documents.
It is true that in such cases US copyright’s ‘fair use’ doctrine off ers a way for users to defend themselves, and fair use should certainly be more widely claimed. At the same time, few speakers have the time or money to engage in litigation. A recent fair use case brought against the estate of James Joyce took years to resolve and cost almost a quarter of a million dollars. Even when a use is patently fair, most speakers will fall silent when threatened with a lawsuit; unless, of course, what they use lies in the public domain.
Fair use, the Supreme Court has said, is one of the “traditional First Amendment safeguards”— so it is, but the strongest safeguard of all is the bright line drawn by the limited term.
T at bright line was originally drawn to harmonise with several others. Samuel Johnson’s 1755 Dictionary, the one that the Founders would have known, illustrates its defi nition of “limited” with the phrase “limited monarchy” and, in so doing, reminds us that limiting monopolies was a key way in which British jurists checked the powers of their king. Transported to the American context, then, the limit of copyright should be understood as one way in which the framers checked the powers of Congress and squared copyright with the First Amendment’s prohibition on laws “abridging the freedom of speech”.
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