I want to question the public domain of works that were subject to copyright upon publication but no longer are due to expiration of the term of copyright. Public Domain Day celebrates such works no longer subject to the private censorship regime as of January 1 each year, and mourns the lack of such work in some jurisdictions such as the United States (none 1999-2019, unless another retroactive extension pushes the date back further).
- Copyright is unjust. Works created under that regime are tainted. Extreme position: the disappearing of works subject to copyright is a good, for those works are toxic for having been created under the unjust regime. Compare with born free works, initially released under a free/open license (i.e., creators substantially opted out of regime). Even born free works were created in the context of an unjust regime but we have to start somewhere.
- Born free works are a start at re-shaping the knowledge economy away from dependence on the unjust regime, a re-shaping which is necessary to transfer prestige and power away from industries and works dependent upon the unjust regime and towards commons-based production. Works falling out of copyright due to expiration do not tilt the knowledge economy toward commons-based production. Worse, copyright-expired works distract from the urgent need to produce cultural relevance for born free works.
- Celebrating works falling out of copyright celebrates the terrible "bargain" of subjecting knowledge to property regimes (harming freedom, equality, and security) in order to incent the over-production of spectacle. Compare with born free works, which provide evidence of the non-necessity of subjecting knowledge to freedom infringing regimes.
Note the title of this post starts with “question” rather than “against” – my aim is not really to claim that copyright mitigation through measures such as limited terms of restriction is bad (as noted above, such a claim really would be extreme, in the sense of being very difficult to justify) but to encourage prioritization of systematic repair through commons-based production. There are many (but not nearly enough) people with commitments to copyright mitigations, limited terms in particular, and use of term expired works even more particularly. Further, there presumably will be some attempt at further retroactive extension in the U.S. before 2019, and though I will probably complain about non-visionary rear guard actions, I don’t doubt that stopping bad developments such as further retroactive extension is in the short term relatively easy and should be done.
Thus this “questioning” leads me to merely want:
- Copyright mitigations to be useful for commons-based production (limited terms are such; contrast with many mitigations which make using works possibly subject to copyright somewhat less costly but not in a way which is useful for commons-based production).
- Commons-based production efforts to actually take advantage of newly unrestricted works to a greater extent than freedom infringing industries do. Wikimedia projects (especially Wikisource and Wikimedia Commons, with cultural relevance via Wikipedia) do an excellent job, but meeting this very tall order probably requires many additional hugely successful initiatives that are able to create cultural relevance for free works, including works falling into the public domain and works building on such.
- Making repair part of knowledge policy discourse, at least on the part of liberalizing reformers: a debate about mitigation or opposition to expansion is always an opportunity to position and advocate for repair; that is favoring commons-based production. This could lead to contemplation of what I'd consider a genuine political bargain: allow works subject to copyright to remain so but favor commons-based production for new works.
Originally posted to my personal blog (with a bit of cruft, removed above) for reasons of tradition.