The Competitiveness of Nations
in a Global Knowledge-Based Economy
June 2004
David Lange
Reimagining the Public Domain
Law & Contemporary Problems
66, Winter/Spring 2003, 463-483
Copyright in this work is hereby
disclaimed and abandoned.
This article is also available at
http://www.law.duke.edu/journals/66LCPLange
Index
HHC: index and titling added
In a paper included among this collection of works from the
“But what does this mean?” Boyle asks. “What is the nature of these ‘individual
rights in the public domain?’ Who holds them? Indeed, what is the public domain?”
These are fair questions. I
cannot respond to them fully, for the fact is that I have never tried to define
the public domain, not even for myself. [4]
Boyle’s paper gains a portion of
its power and its appeal from his own contemplation of these questions, but in
the end I think he would agree that even he has succeeded only in approaching a
number of definitions.
In its usage to date, the term “public domain” is elastic and inexact. A definition can be but one of many definitions, each surely a function of perspective and agenda, more or less as Boyle suggests. His own perspective, one in which he sees the expansion of intellectual property rights as “a second enclosure movement” reminiscent of the English land enclosure movement of the Nineteenth Century, is intriguing. From this perspective, the public domain is perhaps most usefully seen as a commons, set off against the fences that delimit the interests of individual rights holders. I have no important quarrel with this perspective, and indeed think it enormously useful for many purposes - among
*
Professor of Law,
Portions
of this essay draw upon earlier works and presentations by the author. Special
thanks to N. Gregson Davis, Chair of the Department
of Classical Studies at
Rubenfeld and Lois Wasoff
for ideas, suggestions, reactions, comments, and criticism.
1. David Lange, Recognizing
the Public Domain, 44 LAW & CONTEMP. PROBS. 147 (Autumn 1981)
[hereinafter Lange, Recognizing the Public Domain].
2.
James Boyle, The Second Enclosure
Movement and the Construction of the Public Domain, 66 LAW & CONTEMP.
PROBS. 33, 59 (Winter/Spring 2003).
Jamie also kindly acknowledges me as a friend and colleague, an
acknowledgment I warmly reciprocate.
3.
Lange, Recognizing the Public Domain,
supra note 1, at 147-50.
4.
A more comprehensive effort at definition will be reflected in a book by
Jennifer Anderson and me (Reading the Public Domain), now under contract with
The Stanford University Press and due
for
delivery in 2004. The copyright in that
book will be held by The Stanford Press.
463
them, for the purposes of imagining a “politics of the
commons” while addressing common interests in cyberspace, two important areas of
inquiry in which Boyle’s own scholarly agenda particularly lies.
[5]
But this public domain is not my public domain. More precisely, it is not the public domain that matters to me most. And I have thought that perhaps it would be appropriate to say a bit more fully what I had in mind when I wrote my essay some twenty years ago. This is, I think, only the second occasion when I have attempted to do so publicly, [6] and it will certainly be the first in which I try in addition to bring my thinking from that time into some degree of harmony with my thinking today. Not that such an exercise will matter to posterity. But Boyle does raise the question of meaning in general, and I suppose that I, like others, am free to respond to the question in particular.
Sometime late in the middle nineteen-seventies a graduate of the Duke
Law School, Edward Rubin
[7], then a
distinguished practitioner in Los Angeles specializing in motion picture
transaction law, invited me to join him and a number of others in organizing
what became the American Bar Association’s Forum Committee on the Entertainment
and Sports Industries. In 1979, the
Forum Committee gave its inaugural symposium on issues affecting entertainment
law. The symposium was held in
5.
See Boyle, supra note 2. Jamie’s work is always more textured and
sophisticated than a brief account of it can accommodate. But as I intend neither a critical response
to, nor an adequate appreciation of, this excellent essay I shall count upon
the reader to be forewarned, and Jamie to be forgiving, of such lapses as I may
be guilty of in my attempt to summarize it here.
6.
The first (and, at most, partial) occasion was my Donald Brace Memorial Lecture
to the Copyright Society of America in 1992. That lecture was subsequently published as
David Lange, Copyright and the Constitution in the Age of Intellectual
Property, 1 J. INTELL. PROP. L. 119 (1993). The narrative in this part of my present essay
draws upon events partially recalled and described in the Brace Lecture, though
I did not truly attempt there what I intend to try here.
7.
Class of 1936
8.
Lugosi v. Universal Pictures, 172 U.S.P.Q. 541 (Cal.
App. Super. 1972), rev’d, 70
9.
Guglielmi v. Spelling-Goldberg Prods.,
25
10.
I shall not detail the underlying issues in these cases. They were finally resolved at the end of 1979
when the California Supreme Court held that publicity rights did not descend as
such in Califor- [nia. That holding
has since been supplanted by statute. For an article summarizing the publicity
rights questions at the time (and particularly the question of descendibility), see Peter L. Felcher
& Edward L. Rubin, Privacy, Publicity, and the Portrayal of Real People
by the Media, 88 YALE L.J. 1577 (1979). For a more recent (and approving) appraisal of
publicity rights, see Roberta Rosenthal Kwall, Fame,
73 IND. L.J. 1 (1997).]
HHC: [bracketed] displayed on p.465 of original
464
But when the hour for my lecture at last arrived, and I had scarcely
begun to speak, I was confronted by a barrage of challenging questions, angry
and distressed in tone and nature, the gist of which was that this new right of
publicity threatened the questioners’ ability to create new works. I could see why. Among the members of my audience, in addition
to the lawyers whose presence I had expected, were screenwriters from the
Hollywood community, to whom publicity was not just an intriguing new interest
the law might or might not appropriately choose to recognize in one fashion or
another, but rather an expansion of private rights in intellectual property
that would correspondingly diminish the writers’ ability to borrow freely from
lives whose dramatic value could mean the difference between a salable script
and just another bootless Pitch From Hell. In effect, or so it seemed, the law of
publicity was dispossessing individual creators in order to benefit the
interests of celebrities, or, even more remarkable, their estates and heirs,
since many of the celebrities themselves were long since dead.
I confronted an epiphany in the course of that lecture, one whose
dimensions were not clear to me, but whose power to grip my imagination and to
excite my passions I could neither deny nor resist. Though it would take another two years to
translate these emotions and the resulting insights into a published essay, I
knew that I would never again confront intellectual property without thinking
about its capacity to encroach upon the public domain - and about the costs to
the creative imagination of that encroachment - in a new and far darker way
than I had done before.
I say “the public domain,” and here I must acknowledge the first
transformation in my thinking as I confronted what had happened in LA:
Like others at the time I suppose I had thought of the public domain mainly as whatever was left over after intellectual property had finished satisfying its appetite. [11] Now I saw that the public domain demanded recognition as an affirmative entity, conferring its own protection (which I imagined as in the
11.
I am uncertain as to the origins of the “feeding” metaphor. I believe it to be
in rather common use today, but was it then?
I do not think so. At the time, I
noted that:
Remarkably little direct attention has been paid to the
public domain in recent years; there seem to have been no extended treatments
of the subject in its own terms... The
prevailing view probably was expressed by the writer who observed that “as the
phrase ‘in the public domain’ has generally been used in the cases, it is much
less an empirical datum than simply the reflection of an ultimate legal
conclusion.” Stern, A
Reexamination of Preemption of State Trade Secret Law After Kewanee, 42
GEO. WASH. L. REV. 927, 967 n.184 (1974). Compare Krasilovsky,
Observations on Public Domain, 14 BULL. CR. SOC. 205, 205 (1967) (“Public
domain in the fields of literature, drama, music and art is the other side of
the coin of copyright. It is best defined
in negative terms. It lacks the private
property element granted under copyright in that there is no legal right to
exclude others from enjoying it and is ‘free as the air to common use.’” ).
Lange, Recognizing the Public Domain, supra
note 1, at 150-53 n.20.
465 Index
nature of rights) upon individual creators; this would be
necessary if creativity itself was to survive the tendency toward expansionism
that seemed to be burgeoning everywhere among the intellectual property
doctrines. In that sense, my perspective
was the perspective of creative artists (in Hollywood and elsewhere), to whom
intellectual property was not necessarily an incentive or an inducement or an
encouragement to create, but rather always a potential impediment to
creativity, and on occasion a real and powerful disincentive to the very
activity intellectual property was meant to bring about. An opposing concept was required, a concept to
be set in affirmative opposition to intellectual property. Of course one might invent a term to fit that
need, but it seemed to me that existing terminology would do nicely. As I envisioned my project, the public domain
would be pressed into service beyond its accustomed role. No longer a lesser neighborhood on the wrong
side of the tracks, it would serve as a recognizable place of refuge for
creative endeavor in its own right.
An atavistic restlessness was companion to my thoughts. I remember particularly that scenes from Singin’ in the Rain flooded my imagination as
I reflected on what it means to be creative - a meaning I thought perfectly
captured in Gene Kelly and Cyd Charisse’s
transcendent production number from that film, Gotta Dance! And here was a subtle point: I was concerned
not merely with the very public, formal, organized creativity of Hollywood
(though certainly that had brought me to this work); what moved me no less was
a concern for those who, like the character Kelly portrayed in that sequence,
might be driven by pure need toward transient episodes of creative expression
neither intended nor likely to find any public outlet.
I would say then, first, in response to Boyle’s inquiry after meaning, that for me recognizing the public domain began as a rather straightforward appropriation of perfectly ordinary terminology as part of a larger exercise in iconoclasm intended to transform that terminology in the course of a new service. I was interested at the outset in gaining recognition for a different sort of public domain. The public domain I had in mind would become a place of sanctuary for individual creative expression, a sanctuary conferring affirmative protection against the forces of private appropriation that threatened such expression. Recognition for that sanctuary was the challenge. Meaning would follow. I supposed that definitions could wait.
The work I hoped for in those early days was not quite the work I produced in the end. Something of the passion survived in what I finally published, perhaps: Boyle suggests that my essay reflected indignation, and “eloquently sarcastic ridicule” of the widespread expansionism of that time. But the particular concerns for creativity that prompted me to write in the first place were actually somewhat muted by the structure I ultimately settled upon for the work. Where
466
Jessica Litman
[12]
later wrote directly about the relationship between creativity and the public
domain, for example, my own concerns for that relationship I left mainly to
others to express, in quoted passages dispersed among a number of other issues
I decided to address as part of my strategy for encouraging the wider
recognition of the public domain I sought.
Thanks to the heartfelt eloquence of these additional voices,
creativity remained a central concern in the essay. One such cri
de coeur (written by California practitioner
Anthony Liebig, and prompted by litigation between
Nancy Sinatra and the Fifth Dimension) was powerful then and remains so now,
not merely as an observation on the issues raised in a long-forgotten case, but
more generally as a living commentary upon the impediments to creativity
engendered by encroachments upon the public domain:
From the standpoint of performers... the
right to perform in the popular genre or style is essential. Freedom of a performer to earn a living by
adopting - either consciously or because he is “influenced” or simply “with it”
- current modes and styles which may be widely or even uniformly demanded is,
indeed, imperative. How else can he
support himself and develop? Any
limitation upon absolute freedom of performance - while it might result in
short-lived bonanzas for one or two performers - would self-evidently be
stultifying to performers as a class.
Just how stultifying becomes clear when
one considers the predictable volume of litigation and threatened litigation
which would follow from any such limitation coupled with the equally
predictable inconsistency of result. After
several hundred years copyright infringement, which involves only comparison of
dimensional self-described works, is still a mystery... We could hardly expect the courts to set
parameters and fashion workable, understandable standards of comparison in “imitation”
cases in this century! In the meantime,
what about the performers and artists and their disseminators who wish to go
about their business unhindered?
…
From the standpoint of the audience,
society at large, and cultural growth, encroachment on the freedom of
performance would be destructive both qualitatively and quantitatively. Consider any artist, musician, or performer of
any era and ponder what his oeuvre would have amounted to had he been
precluded from utilizing the brush techniques, color principles, scales,
meters, cadences, sounds, moods and methods - in short, the styles - of those
who had gone before. Would the classical
periods of music and painting have been limited to but one producer each? Would Presley have been foreclosed as an
imitator or would he have had the right to foreclose those who came after him? Would the lost generation of American writers
have wasted itself in litigation to determine who “got with it” first? Indeed, could there have been a Renaissance? Would we have had a Brahms, a Rubens, a Steinbeck? Or, for that matter, a Sinatra or Fifth Dimension? [13]
Here, indeed,
was passion in the service of indignation.
For my own part, I began the essay with some attention to a central problem in intellectual property, namely, the problem of defining the boundaries of a property interest embodied in an intangible res. I turned then to what I had begun to see as a kind of metastasis in the law, particularly in the developing law of publicity, but no less so in the laws of trademark dilution and unfair
12.
Jessica Litman, The
Public Domain, 39 EMORY L.J. 965 (1990).
13.
Anthony Liebig, Style and Performance, 17
BULL. COPR. SOC’Y 40, 46-7 (1969).
467 Index
competition (of the misappropriation variety), both of which
latter doctrines had troubled me before. I passed over lightly both copyright and
patent law on the (then plausible but now quite clearly erroneous) assumption
that these well-established areas of intellectual property law were essentially
stabilized in their relationship to the public domain by internal doctrinal
mechanisms designed to avoid undue encroachments. I turned finally to a section of the essay in
which I offered some suggestions meant to secure greater functional recognition
for the public domain, suggestions aimed mainly at courts, though as it turned
out within a year or so after publication, susceptible to adoption by Congress
as well. [14]
Along the way I invited
comparison between the public domains in intellectual property and in public
lands. And I concluded with an allusion
to the buffalo now vanished from the American prairie, an allusion that,
frankly, I have sometimes wished since I could alter or withdraw.
It is of course idle to dwell upon such second thoughts as the ones I
have hinted at here. Motivation and
strategy often diverge, in the work of a scholar no less than in the work of an
artist. I will acknowledge, however,
that my motivation for writing now is in part to readdress, more directly, the
concerns for creativity that drove me then, and to suggest in passing at least
a partial, personal answer to the questions Boyle raises.
Not that I had neglected these questions altogether: the twentieth footnote to Recognizing the Public Domain reveals how quickly I succumbed to an examination of the public domain considerably less sanguine than I initially had in mind. Indeed, as I began to research the issues, and then to write, I found myself asking questions of the very sort that Boyle has asked: What was the public domain? How had it been understood? Was there a theory worthy of the name? Could abiding definitions be sensed in the cases or in the literature? And so on. [15] I shall spare the reader an extended exegesis of the numerous and diverse works considered in this very long note; they are faded now, as is my essay. [16] Definitions I left for others. But as for theory - theory as I understand theory; that is, an exercise in intellectual accounting that ordinarily precedes definitions - I did record that, in the course of my passage through the insights I had gathered from among these works and from my own reflections, a tentative theory actually had begun to suggest itself. It was unnecessary to my purpose to pursue the theory at length in that essay, though, and potentially a dis-
14.
See Robert W. Kastenmeier & Michael J.
Remington, The Semiconductor Chip Protection Act of 1984: A Swamp or Firm
Ground, 70 MINN. L. REV. 417, 440-42 (1985) (acknowledging “the Lange test”
as a benchmark for new legislation). Of
course, that was then, and only briefly: sic transit gloria
mundi.
15.
Compare Lange, Recognizing the Public Domain, supra note
1, at 150-53 n.20 and accompanying text, with Boyle, supra
note 2, at 59.
16.
Lange, Recognizing the Public Domain, supra note 1, at 150-53
n.20. It is worth noting, though, that
even a cursory glance at the materials cited in this note and in the remainder
of the article reveals how many of the issues we discuss today, as if new, had
been anticipated then. See, e.g., Kenneth E. Kulzick
& Amy D. Hogue, Chilled Bird: Freedom of Expression in the Eighties,
14 LOY. L.A. L. REV. 57, 77-78 (1980) (suggesting that the burden of
proof be shifted from defendant to plaintiff in cases involving fair use).
468
traction. My ambition
was affirmative recognition for the public domain simpliciter,
and my medium a polemic in the guise of a scholarly essay. Constrained by that goal and that form, I was
candid in not attending to the nicer questions of definition and theory. These matters I consigned to a few glancing
passages in the text and to another footnote toward the end of the piece. In truth, questions of this sort have begun to
be attended to quite widely in the decades since. Boyle’s paper and the Conference on the Public
Domain itself are testament enough to that.
But what was the theory I laid to one side? Essentially this: that an adequate
comprehension of the public domain might actually have to begin with a
considerably more radical and dramatic reimagining of
intellectual property than I professed to see as necessary earlier in the
essay, a reimagining that would marry concepts in
unfair competition after Sears [17] and Compco
[18]with intimate moral rights, so as
ultimately to make room for the sanctuary I had initially envisioned. I had begun by supposing that rights in
proprietors and rights in the public domain could stand more or less on equal
footing as parties inter pares to a property-based regime. But as I worked my way through the piece I
began to doubt whether this was so. By
the time I reached the last of the half dozen suggestions I offered for action,
I had come to think that the problem with intellectual property was in the
nature of property itself - not merely in the boundary-fixing difficulties with
which I had begun the piece, but rather in the far more central ability of
proprietors to exclude others from their works in plenary fashion, and to
demand compensation for trespass where no damage necessarily might follow.
I do not mean to claim too much in the way of insight through
hindsight. Certainly I did not piece my
thoughts together in quite the way I mean to do here. This is representative of what I did say:
I have meant to convey two principal objections to the new thrust of the law. One is that it tends to reward a species of claim which almost always lacks definition and frequently lacks either a substantial showing of entitlement or any realistic evidence of a taking. The other is that the very momentum of these expanding claims tends to blur, and then displace, important individual and collective rights in the public domain... [C]ourts ought to indulge at least a presumption against new claims... [I]n cases in which it appears sensible to recognize new (or doubtful) intellectual property claims, it will be appropriate for the court to explain what is not covered by the grant as well. An explicit reservation of the public domain in these circumstances must be seen as a part of the court’s obligation to be clear about the holding... Inevitably, the work of defining the public domain... will follow and, we can hope, a more appropriate balance will be restored to the field of intellectual property [19]... It may be that the key to defining the scope of the public domain in a satisfactory way is to be found in a comparison of the natural law (or “moral”) basis of intellectual property with the more specific, occasional need to define and provide for certain economic or commercial interests not necessarily limited to authors and not necessarily the products of authorship... [A]s often as possible, courts ought to divert claims away from intellectual property theory and into such adjacent areas of law as the original form of
17.
Sears, Roebuck & Co. v. Stiffel Co., 376
18.
Compco Corp. v. Day-Brite
Lighting, Inc., 376
19.
Lange, Recognizing the Public Domain, supra note 1, at 171-177
(citations omitted).
469 Index
unfair competition, contracts or, perhaps, some species of
moral rights. There can be little damage
to the public domain in requiring precautions designed to prevent genuine
deception or confusion; Sears and Compco
would have permitted as much. Nor does
there seem to be any legitimate objection to moral rights requirements such as
attribution of authorship, although rights against distortion, truncation,
mutilation and the like are obviously another matter
[20]... Meanwhile, courts must be sensitive to the
taking too trivial to be actionable as well as the taking which produces apportionable profits. In doubtful cases... the defendant ought
always to prevail. [21]
A shift in proprietary rights away from property to what today would no
doubt be termed a “liability” regime
[22] (and by implication a corresponding withdrawal from the ready
availability of injunctive relief, and perhaps a move toward compulsory
licenses on a much wider basis
[23]);
a presumption against new proprietary interests, with doubtful cases always to
be resolved in favor of the doubt; an increased concern for classic unfair
competition concepts (confusion as opposed to misappropriation), with
corresponding reliance upon disclaimers and the like as alternatives to
exclusion; a frank embrace of the intimate aspects of moral rights, including
the rights to acknowledgment and attribution, but with no provision at all for
concerns grounded in appropriation; with a diminution in damage awards in
trivial cases, accompanied by an equitable apportionment of profits - and
meanwhile, beyond and above all these radical re-configurations of the
proprietary rights regimes, a corresponding re-conceptualization of the public
domain itself, but now a public domain enlarged in standing so as to render
presumptively paramount the rights it would confer as against the reduced
proprietary rights it would constrain: These
were the essay’s implicit strategies for realizing the creative sanctuary I
envisioned. In this way the public domain itself could become a place of refuge
for creative expression, a place of individual no less than collective
entitlement, dimensioned both physically and conceptually, and sanctioned by
law. In short, the public domain would
be a place like home, where, when you go there, they have to take you in and
let you dance.
This is close to what I might have said in answer to Boyle’s questions on the basis of what I wrote twenty years ago, had I thought to say more than I did.
But it is not quite what I would say today.
20.
21.
22. Cf. Boyle, supra note 2, at
62-69. This term has come into
vogue-when, how and why, exactly, I do not know. I distrust it intensely in that it seems to
imply a compensable “wrong” in appropriation, a notion that I reject entirely.
23. I suggested as much (albeit with reservations and
some hedging) in testimony before Congress in 1984, in connection with hearings
on the Record Rental Amendment. See
Audio and Video First
470
In the first place, I am more skeptical about the utility in efforts to
reform intellectual property doctrines than I was when I wrote that essay. Note that I do not say “skeptical of the
prospects for reform.” Unlikely though I
know some students of the field believe it to be, I actually suppose that
intellectual property is susceptible to reform, not merely through action by
courts, as seemed sensible twenty years ago, but through direct political
action in the Congress and legislatures of the states. Consider copyright, for example.
The Copyright Society’s FACE Initiative,
[24] which proposes a direct appeal by copyright
proprietors and their representatives to primary and secondary school students
across the country, suggests to me that the agendas of the principal copyright
industries (the recording and motion picture industries foremost among them, in
company with publishers) are more imperiled than they are generally understood
to be by outsiders.
I confess to reservations about this initiative for reasons beyond the parochial concerns of copyright. I think it fundamentally wrong to insist that children internalize the proprietary and moral values of the copyright system. I fear the encroachment upon the formation and growth of creativity that these values represent when they are not suitably constrained - as we cannot count upon them to be in our time. We should be haunted, for example, by the familiar story of Helen Keller, a child (her world so unimaginably circumscribed) whose early efforts at creative self-expression were damaged irreparably by harsh accusations of plagiarism, accusations leveled against her by a mentor from whom she had reason to expect more in the way of empathy and judgment than he proved capable of mustering. [26] He proved, indeed, to be a
24.
See Friends of Active Copyright Education Web Site, at http://www.face-copyright.org/ (last visited
25.
Cf. David L. Lange, The Intellectual Property Clause in Contemporary
Trademark Law: An Appreciation of Two Recent Essays and Some Thoughts About Why
We Ought to Care, 59 LAW & CONTEMP. PROBS. 213, 224 n.53 (Spring 1996).
26.
Keller wrote a story (The Frost King) which she gave to her mentor, a
man named Michael Anagnos, the director of the
Perkins Institution for the Blind in
HHC: [bracketed] displayed on p.472 of original
471 Index
monster, not a mentor, and his assaults proved destructive
to the creative efforts of his imprisoned ward for the balance of her life. But then, apart from the extremity of his
appalling judgment and consequent cruelty, how was he unlike any other man or
woman who believes in the moral or intellectual or legal sanctity of exclusive
rights in expression?
[27] The
case is extreme, to be sure. But the
lesson within it should be central to us all. Children do not come naturally to understand
that it is wrong to appropriate creative expression - for the good and
sufficient reason, I would argue, that it is not naturally wrong. Creativity and appropriation are inseparable,
as inseparable as creativity and memory, and in my judgment they should remain
so, at whatever cost may follow to whatever other belief systems (including
copyright) may thus be obliged to stand aside.
But let us lay these broader issues to one side. I know the members of the Copyright Society to
be well-intentioned. There are no
monsters among them - only decent and honorable professionals, as committed to
their views as I am to mine.
[28]
The point remains: Copyright is
vulnerable. The FACE Initiative may
backfire.
A contest for the hearts and minds of a public is always in doubt unless whatever is at issue makes common sense. And here I think is copyright’s dilemma in the matter of the FACE Initiative: Copyright probably does not make common sense in the private lives of individuals. [29] Imagine the member-
27.
Keller’s tormentors were moved by concerns for academic integrity, not
copyright. I do acknowledge this
difference, but it does not alter my point here. Protests to the contrary notwithstanding,
plagiarism charges in the academy typically spring from, and are driven by, the
same misguided sense of ownership of expression that in copyright leads to
claims of proprietary rights. When that
is not so - when, in other words, the academy’s investment in protection is
grounded in genuine concerns for provenance, rather than entitlement on the
part of the putative “author” and a concomitant concern for enhancement of the
author’s reputation-the charges should be muted and the remedy essentially one
of attribution or acknowledgment.
Appropriation is then a matter of legitimate concern only to the extent
that these markers of provenance are deliberately withheld, and only when the
withholding is essentially in furtherance of a genuine purpose to defraud or
mislead. That can happen, but usually
the fault, if there is one, is in ignorance, haste, carelessness, misjudgment
or indifference-and even these are appropriately judged as venial, not mortal,
sins. Cf. Judith Hughes, The
Fuzzy Side of Intellectual Dishonesty: Placing Academic Honesty in an
Epistemological Context (2002), at http://www.cade-aced.ca/icdepapers/hughes.htm
(last visited
28.
This is not a pro forma disclaimer. I
only recently completed a term as a member of the Board of Trustees of the
Society. I number many members of the
Society among my closest and most valued professional acquaintances and
personal friends.
29.
I am sometimes asked whether I think there is any place for copyright at all in
the general system of freedom for creativity I favor. The short answer is that I do. In commercial settings, for example, copyright
can play a perfectly appropriate role if suitably constrained. Under the 1909 Act, copyright was essentially
so constrained; as Boyle points out, one had to work hard to infringe. See Boyle, supra
note 2, at 40. Advances in technology
make the restraint of the 1909 Act a matter for nos- [talgia today; that regime
probably could not be reinstituted as such.
To be suitably constrained today, copyright ideally would have to be
converted into some version of an “opt-in” system-perhaps like the Writers’ and
Producers’ Guilds in the motion picture industry; or perhaps like the commons
of the General Public License described in Boyle’s article, which, as he quite
correctly observes, is an alternative system of protection. See id. at
44-45. While copyright remains as it is
under the 1976 Act, however, the best protection against its encroachments into
private lives is a separate and paramount public domain, from within which
creativity can be promoted and defended.]
HHC: [bracketed] displayed on p.473 of original
472
ship of the Parent-Teacher Associations of all the schools
on the FACE Initiative hit list suddenly encouraged and even obliged to pay
close and heretofore unaccustomed attention to copyright. What then? Now fully aware for the first time of the
potential for present limitations on their children’s education that copyright
actually presupposes,
[30]
are millions of parents and thousands of teachers likely to smile politely and
join hands in support of the motion picture and recording and publishing
industries’ agenda? I think not. Not merely because the copyright industries
say their agendas are fair and just; not merely because economists promise that
things will work out for the better, one fine tomorrow; not even if “it’s the
law” - not, in short, if it means that kids today do without access to
information and materials presently at hand and readily available but for
copyright. The agenda is politics, not
property, not fairness, not justice, not economics or law. The potential for a present backlash at the
ballot box is obvious and inescapable, perhaps unanswerable. If that backlash happens, copyright reform
will follow.
In the end, I am simply not persuaded that reform will suffice. Not if the goal is my goal, which is still to
secure maximum freedom for the creative imagination. There is some slippage in terminology here, to
be sure. Perhaps what I have in mind
today can fairly be thought of as reform. But I think it may come closer to revolution. And if that revolution is to happen I suspect
it will have to happen on the public domain’s watch.
And let me speak here, again briefly in passing, to what I think of as one of the least useful or persuasive notions to have sprung up in response to the growing recognition of the public domain. Professor Samuels and some others have suggested that no matter how we may struggle, in the end the public domain is whatever intellectual property is not. [31] Conceptually, this can be so only if one cannot envision the public domain as having an affirmative existence of its own. But that exercise does not require much, whether in the way of conceptual thinking or envisioning. Imagine an African veldt where lions and jack-
30.
What limitations? Take these as
commonplace examples of a considerably wider field: (1) limits on photocopying,
resulting in limits on “coursepaks”; (2) limits on
the availability of musical compositions, sound recordings, motion pictures and
audiovisual aids in the classroom and beyond; and (3) limits on internet access
resulting from encoded content protected by the Digital Millennium Copyright
Act of 1998, Pub. L. No. 105-304, 112 Stat. 2860. These limits remain substantial even after the
passage of the TEACH Act, which was meant to address some issues affecting
education. Technology,
Education and Copyright Harmonization Act of 2002, Pub. L. No. 107-273,
§ 13301, 116 Stat. 1758, 1910-13. All of
these limitations adversely affect the ability of students to engage in the
fullest use of copyrighted works for educational purposes. Not one of them has ever been vetted widely
among the parents or teachers of school-age children.
31.
Edward Samuels, The Public Domain in
Copyright Law, 41 J. COPR. SOC’Y U.S.A. 137 (1993); see Boyle, supra note 2, at 71-73.
473 Index
als and gazelles dwell in uneasy
symbiosis while the merciless sun shines down dispassionately upon them. There is symbiosis among them, yes, yet it
requires only this much (read: “a small pinch of”) imagination to understand
these inhabitants of the veldt as separate animals. Indeed, the function of taxonomy is to enable
us to draw these singularly useful, but also elementary, distinctions. You have to be a lion- or jackal-lover of
truly limited imagination or unlimited commitment to argue that gazelles are to
be understood as no more than whatever is left over after their adversaries
have finished feeding. For my own part,
I am not much interested in reforming the predators and scavengers among us. My project is to recognize gazelles as
gazelles - and not merely to recognize them, but to give them the means with
which to defend themselves against their natural enemies.
Intellectual property can go on being intellectual property, reformed
or otherwise. Meanwhile, the public
domain certainly can and should be envisioned as a thing apart, and
strengthened accordingly.
What is needed then, in my view, is an additional reimagining
of the public domain we have come to recognize. As James Boyle observes, the recurring
metaphor for the public domain today is mainly that of place: a wilderness, a
commons, a sanctuary, a home. These
metaphors appear to follow from the term “public domain” itself. In some settings, this is undoubtedly a useful
way to think. But from the perspective
of creativity I think it no longer quite suffices, if it ever did.
A better metaphor than place, I think, is status. Imagine the public domain as a status that arises from the exercise of the creative imagination, thus to confer entitlements, privileges and immunities in the service of that exercise; a status independently and affirmatively recognized in law, sometimes collective in nature and sometimes individual, but omnipresent, portable and defining; and a status meanwhile paramount to whatever inconsistent status may be conferred upon a work of authorship (or its author) from time to time, whether that work is protected as intellectual property, or is included within a so-called liability regime, or is otherwise provided for. One could imagine this sort of public domain more particularly still, so as to include tenets peculiar to setting or need, while suggesting the sources from which such a public domain might derive. [32] But in this essay I will merely suggest its nature, and even that somewhat indirectly - first, briefly, by way of simile supported by example; then, at slightly greater length, through an analogy drawn from an appealing article in
32.
Of course, one must eventually state plainly how such a public domain might be
made a reality. The ultimate sources of
law, as I suppose them to be, are essentially four in number: a happy but
unlikely evolution in the main tenets of the relevant positive law; the First
Amendment; the Intellectual Property Clause; and an international convention,
perhaps grounded in human rights. None
of these is to play any real role in this essay. But I am at work (with my Duke colleague Jeff
Powell) on a book on the First Amendment in which we do address these issues
somewhat directly. That book, No Law:
Intellectual Property in the Absolute Image of the First Amendment, is
under contract with the Stanford University Press, and is scheduled for
completion within the coming year.
474
the contemporary literature, and finally, through an example
of how a public domain so configured might actually work in practice.
Let us envision the public domain as if it were a status like
citizenship, but a “citizenship” arising from the exercise of creative
imagination rather than as a concomitant of birth.
[33] It is surely no challenge to identify
creativity and imagination with citizenship in a more conventional sense. This is indeed consistent with a perfectly
ordinary understanding of citizenship, now well established in American life
and by no means original with us. The
Roman historian Tacitus, writing of the reigns of the
Emperor Nerva and Trajan,
observed: “Such was the happiness of the times that men could think as they
pleased and speak as they thought.”
[34] Justice
Brandeis appropriated that insight (without attribution) in Whitney v.
California, in which he identified thinking and speaking as principal
objects of First Amendment protection. [35] Here, then, is an idea powerful
enough to transcend its origins: happiness as a function of thinking and
speaking freely, and each of these as an attribute of desirable citizenship. I suggest in turn that thinking of the public
domain as conferring a status akin to citizenship - but now a citizenship of
the creative imagination --- is little more than a step away from civic
republicanism toward a clearer understanding of the recognition and protection
that exercises of creativity require and should beget.
For make no mistake: It is protection, not merely recognition or definition, that we need. A concept like citizenship can serve usefully
here, as it has for thousands of years.
Consider, for example, the Apostle Paul’s claim upon citizenship in
this account drawn from the Book of Acts. Paul, born Saul of Tarsus in Silesia, a Jew
but also a Roman and now an apostate, is preaching the Gospel of Christ in
Jerusalem Temple, to the intense displeasure of the devout, and the resulting
discomfort of Claudius Lysias, Chief Captain of the
Roman Guard, whose task it is to maintain order in this important but
beleaguered outpost of the Empire:
And as they cried out, and cast off
their clothes, and threw dust into the air,
The chief captain commanded him to be
brought into the castle, and bade that he should be examined by scourging; that
he might know wherefore they cried so against him.
33.
Though I am unaware of any suggestion quite like this, I mean to make no claim
of originality here, and will cheerfully accept the representations of anyone
who does claim it. In some part I
imagine the idea occurred to me as a result of John Perry Barlow’s interesting
suggestions for a “citizenship of the net,” a notion now very commonly
expressed in the term “netizens” - though in truth I
am actually not much interested in the net as a special province of
concern. And I may have been influenced
by the concepts developed in Jed Rubenfeld’s recent
essay, The Freedom of Imagination: Copyright’s Constitutionality, which
was published last year in the YALE LAW JOURNAL, and which I had the pleasure
of reading while it was still in manuscript. See infra note 37, and accompanying
text. In any event, whatever the genesis
of the idea may be, I do think it apt, and have merely tried to develop it here
as an alternative to place.
34.
1 TACITUS, THE HISTORIES, § 1 (A.D. 109).
I have employed this cite in a number of earlier essays.
35.
274
475
And as they bound him with thongs, Paul said unto the
centurion that stood by, Is it lawful for you to
scourge a man that is a Roman, and uncondemned?
When the centurion heard that, he went
and told the chief captain, saying, Take heed what thou doest: for this man is
a Roman.
Then the chief captain came, and said
unto him, Tell me, art thou a Roman? He said, Yea.
And the chief captain answered, With a great sum obtained I this freedom. And Paul said, But I
was free born.
Then straightway they departed from him which should have examined him: and the chief captain also
was afraid, after he knew that he was a Roman, and because he had bound him. [36]
Civis Romanus
Sum: As in this example, and like the model originally proposed above,
citizenship is a status independently and affirmatively recognized in law. It confers entitlements, privileges and
immunities, sometimes collective in nature and sometimes individual. It is omnipresent, portable and defining. Above all, it is capable of achieving paramountcy vis-à-vis rights, obligations or constraints
otherwise imposed by law. I do not say
that the public domain is exactly equivalent to citizenship. I do say that it might profitably take on
these attributes of citizenship in securing protection for exercises of the
creative imagination against the claims otherwise to be made under rights now
sounding in intellectual property or its successors.
A similar suggestion can be seen in a recent essay by Jed Rubenfeld, [37] who argues that the First Amendment should be read to protect what he calls “the freedom of imagination.” The analogy is plain. I envision a public domain configured so as to offer attributes akin to the status of citizenship in the service of creative imagination. Rubenfeld envisions attributes of citizenship itself in that service, particularly in the form of the First Amendment. One must not go too far. These are not quite the same thoughts. I am interested in the public domain as an affirmative source of entitlements capable of deployment, as, when and where required, against the encroachments upon the creative imagination threatened by intellectual property. He is interested in the First Amendment, but supposes that, were it read as it ought to be, some such encroachments would necessarily be curtailed. [38] He is not primarily interested in developing his ideas as an exercise in fashioning public policy for intellectual property. [39] (For that matter, properly understood, neither am I.) His project is the First Amendment. Mine is the public domain. Taking these differences fully into account, however, I am still much drawn to the parallels his argument affords.
36.
Acts 22:23-29 (King James).
37. Jed Rubenfeld, The
Freedom of Imagination: Copyright’s Constitutionality, 112 YALE L.J. 1
(2002).
38.
Cf. id. at 13.
39.
476
To begin with, he relies upon an exercise of the imagination to invoke
First Amendment protection. I would rely
on a similar exercise to invoke the protection of the public domain.
Rubenfeld’s explicit inclusion of the
imagination as the central focus of his essay offers a neat resolution to a
troublesome problem in envisioning the reach and scope of the public domain. This problem has been to bring within reach of
the public domain and its protection those kinds of appropriations that are
creative but do not necessarily result in any form of public expression, or
that may result in no expression of any kind.
To be sure, there is never any certainty in this term or that. Imagination is distinct from action in Rubenfeld’s view: “The freedom of imagination demands that
people be free to exercise their imagination. It is not a freedom to do what one imagines.”
[41] Violence, intentional misrepresentation
(“knowingly denying that an exercise of imagination is an exercise of
imagination” [42]), misinformation - these are among the
arguable exercises of the imagination that are not within the freedom Rubenfeld envisions. And piracy: “When copyright law bars simple
piracy, it does not punish infringers for exercising their imagination. It punishes them for failing to exercise their
imagination - for failing to add any new imaginative content to the copied
material.” [43]
I suppose that peer-to-peer file sharing (à la Napster, for example) would not qualify as an exercise of imagination under the test Rubenfeld himself has in mind here. And what about appropriation artists like Damian Loeb, [44] or Negativland, [45] or Sherrie Levine? [46] Would they be protected? Rubenfeld’s analysis is additionally complex at this point because he would actually approach the First Amendment question in cases like these from within the matrix of copyright principles that have evolved from the derivative works right. [47] Thus, “not just any change in the original work should suffice to evade the copyright holder’s reproduction right. Trivial or obvious modifications, or changes that involve no substantially new act of imagination, especially if intro-
40.
See id. at 34-35.
41.
42.
43.
44.
See http://www.damianloeb.com/ (last visited
45.
See http://www.negativland.com/ (last visited
46.
See http://www.crownpoint.com/html/levine.html
(last visited
47.
Rubenfeld, supra note 37, at 49-60.
477 Index
duced to evade the reproduction
right, should not qualify. At bottom,
the judge is called on to decide whether the old has been reimagined
- whether the allegedly infringing new work is in fact new.”
[48] Appropriation artists might or might
not make the grade if this is to be the approach. Negativland probably
would, its madcap thefts surely creative and imaginative under the strictest
scrutiny. [49] Loeb
might, since in his work appropriation is mixed with elements of substantial
originality. [50] Levine
is another matter. As I understand Rubenfeld, he would not extend the freedom of imagination
to appropriation artists whose art appears objectively to consist of
appropriation simpliciter, unmediated by
additional affirmative acts of imagination.
[51] If Levine is that kind of artist (a
question Rubenfeld does not consider and one I need
not resolve here), then she is beyond the reach of the freedom of imagination.
[52]
I expect I would apply Rubenfeld’s standard
less restrictively than he. I think
file-sharing involves substantial exercises of the imagination: the kids who do
it are producing music for themselves. And
Levine’s art (as I understand it) appeals to me no less than the collage work
of Negativland and Loeb. But then, should Rubenfeld
and I differ, so what? He can hardly be
faulted for interpreting his own project in a way I do not entirely agree with.
The great value in his work is the
vision itself, a vision which places imagination at the center of First
Amendment protection. In this vision I
can and do concur entirely - though in the end I continue to think that the
public domain, configured as suggested here, may offer the advantage of a
somewhat more specific and reliable protection.
[53] I shall conclude this essay with an
elaboration upon how that public domain might work in practice.
Consider copyright’s fair use doctrine. Under the proposal I have advanced here, that doctrine should now be seen as an affirmative aspect of the public domain at large, rather than as a mere affirmative defense to an allegation of
48.
49.
See Negativland, FAIR USE: THE STORY OF THE
LETTER U AND THE NUMERAL 2 (1995).
50.
See supra note 44.
51.
See Rubenfeld, supra note 37, at 48.
52.
The reader can judge: see supra note 46.
53.
The real difficulty with the First Amendment as a source for an expansive
vision of the public domain is that the Amendment has been so closely
circumscribed by Supreme Court cases since the early 1970s as to rob it of
vitality, a constraining circumstance with which even the best scholars can
contend only up to a point. See, e.g.,
Yochai Benkler, Free as
the Air to Common Use: First Amendment Constraints on the Enclosure of the
Public Domain, 74 N.Y.U. L. REV. 354 (1999); Neil Weinstock
Netanel, Locating Copyright Within the First
Amendment Skein, 54 STAN. L. REV. 1 (2001).
In these and many other articles first rate scholars are obliged to pick
their way among doctrines that are fundamentally at odds with a decent concern
for creativity. Of course, this is in no
sense a failing on their part; to the contrary, their scholarship may appear to
be the more elegant and heroic for their efforts. Rubenfeld’s article
deals with this problem no less elegantly or heroically than have others, but
in the end he cannot altogether escape the confining matrix of the Court’s
cases either. If the First Amendment is
to serve, then it too will have to be addressed in terms of its baseline
deficiencies in interpretation, an undertaking primary among the tasks my
colleague Jeff Powell and I have taken up in drafting the manuscript for our
book. See supra note 32.
478
copyright infringement.
[54]
So viewed, fair use would not be
limited in the protection it confers merely to those instances in which
copyright infringement is alleged. It
would extend as well, and as fully, to species of infringement recognized under
other doctrines, including the right of publicity, trademarks, misappropriation
in unfair competition, trade secrets, ideas, and even patents. An agenda of this sort would require years to
realize, of course, and more space and time than I have to describe it now. But limited even to a setting in which the
adversary is copyright, one can reimagine fair use as
an aspect of the public domain rather than of copyright itself, and envision a
role for fair use well beyond the one it now plays in that field.
In a work-in-progress Jennifer Anderson and I offered at the
Creative appropriation would be presumptively privileged in every instance, without primary concern either for exploitation adversely affecting the economic value of an antecedent work or for the reputation or sensibilities of its author or proprietor - though in appropriate cases an equitable provision for sharing the proceeds of such exploitations would follow, as would suitable provisions for disclaimers, acknowledgments, attribution and the like. The exclusive rights of authors under copyright,
54.
In the text, notes, and citations immediately following, I will cut blindly
across vast swaths of prior writing by scholars, some whose works I know, and
no doubt others whose publications have escaped my notice. I particularly acknowledge Professor
Patterson (whose many writings in the field have set an example for anyone who
ventures into this area of the law), as well as his occasional writing partner
Professor Joyce; Professor Gordon (whose seminal essay on fair use as market
failure has helped shape all following debate in the field); Judge Leval (whose proposal with respect to transformative works
has had great effect in the field); Professor Fisher (whose own much longer
work on fair use in some sense set the stage for Judge Leval’s
later work); Professor Weinreb (whose vision of fair
use as “fair” I have thought especially attractive); Professor Netanel (whose work I always read with great respect and
interest); Judge Birch (whose opinion in SunTrust Bank v. Houghton-Mifflin
Co. reflects a deeper appreciation of fair use than is common among
judges); Judge Kosinski (whose views on appropriation
and apportionment I think interesting, if not entirely persuasive); and David Nimmer (whose writing on fair use, as on everything else,
is truly remarkable). In a different
sort of essay I would feel constrained to gather additional representative
citations, so that the intellectual provenance of the things said by me here
would be both manifest and thorough. On
this occasion, however, when my purpose frankly is to present a straightforward
polemic rather than conventional scholarship, I shall beg the reader’s
indulgence, and content myself with acknowledging that most of what I propose
has probably been anticipated elsewhere, whether or not it has been assembled
in quite the same way.
55.
See David Lange & Jennifer Lange Anderson, Copyright, Fair Use
and Transformative Critical Appropriation (2001), available at http://www.law.duke.edu/pd/papers/langeand.pdf
(last visited
56.
See Pierre N. Leval, Commentary: Toward a
Fair Use Standard, 103 HARV. L. REV. 1105 (1990); Pierre N. Leval, Nimmer Lecture:
Fair Use Rescued, 44 UCLA L. REV. 1449 (1997).
479 Index
including rights in derivative works, would be subordinated
accordingly, but would remain otherwise unaffected.
[57]
No revision to the Copyright Act would be required, in our view. Section 107 already supports (we would say
commands) a reading that makes its provisions superior to the provisions of
section 106.
[58]
And how far would this carry us toward our goal of affirmative
protection for creative appropriation?
If we presuppose the necessary creative exercise in
connection with the appropriation, then rarely, if ever, should fair use be
withheld merely on account of either functional or aesthetic equivalency
between the two works. It may be that a
secondary work appears to add nothing at all to the creative offices already
reflected in an antecedent work; and in that case perhaps it would be
appropriate to inquire further into the justification for fair use. While such a scenario can be envisioned in
theory, it is exceedingly unlikely to be encountered in practice, absent the
boldest forms of appropriation through the simplest forms of copying, followed
by publication to persons already identically addressed by the proprietor of
the antecedent work. And even in that
case, an identical creative exercise in the second work, fairly judged to have
prompted that appropriation (whether or not independently), would justify the
claim of fair use nonetheless. Should
Lauren Greenfield take up painting, for example, the fact that she may produce
works of the sort that Damian Loeb produces does not mean that Loeb’s
independent conceptions would not continue to be privileged. Indeed, it is entirely possible, under the
analysis we propose, that Loeb and
From the perspective of mere identity or functional equivalency, then, fair use would be withheld only when no creative exercise could be discerned in the second work at all. Straightforward piracy would continue to be forbidden, of course, and might even be regulated more closely in the absence of any lingering concern for fair use. But piracy could not effectively be urged in a transaction merely because the second work, if licensed, would amount to a derivative work. Under this analysis, to the contrary, the question of derivative work status is of no greater consequence than would follow
57.
Lange & Anderson, supra note 55.
The idea of apportionment of profits is by no means new, and it has
seemed just, as opposed to a kind of winner-take-all outcome in fair use. It is a useful way to accommodate the fourth
factor under Section 107 of the Copyright Act. 17 U.S.C. §
107(4) (2000) (“the effect of the use upon the potential market for or value of
the copyrighted work”). I
contemplated apportionment in passing in Recognizing the Public Domain, supra
note 1, at 174, although there I considered it primarily in conceptual terms,
rather than in the immediate context of fair use. Among its recent proponents are Professors Netanel and Rubenfeld, as well as
Judge Kosinski, who suggested it in the course of his
Brace Memorial Lecture. But I have had
some second thoughts about whether this idea is in fact as useful or as fair as
it seems. Specifically, I wonder whether
it does not unwisely entangle the legitimacy of creative appropriation with the
wholly separate (and essentially adventitious) question of profits and revenue
streams. I shall not try to work this
out in a footnote, but do want to record my reservation about the issue. (It is one of the reasons Jennifer Anderson
and I have temporarily withdrawn our fair use essay from publication.)
58.
The texts of the two sections suggest as much on their face: 17 U.S.C. § 106 is
“subject to sections 107 through 122”; 17 U.S.C. § 107 applies “notwithstanding
the provisions of sections 106 and 106A.”
In SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1260 n.3 (11th
Cir. 2001), Judge Birch suggested that fair use, properly understood, is an
affirmative right, not an affirmative defense.
See also Kulzick & Hogue, supra note
16.
480
were the second work a simple copy. If an exercise of the creative imagination
invokes fair use, then the exclusive rights must gracefully step aside pro tanto.
[59]
Ah, but then: “straightforward piracy?” I can hear James Boyle asking, “What
does that mean?”
It means an appropriation unmotivated by any creative exercise,
including an exercise of the creative imagination. And how do we know when we are in the presence
of such an exercise? There is no
escaping: we must decide. In Rubenfeld’s approach to this issue, he establishes what
seem to me to be categories of conduct leading one to conclude that imagination
is at work or not.
[60]
The bright lines that result I
have already suggested may be more restrictive than the fair use model I have
just outlined is meant to be. In my
view, the decision ought to be grounded in fact-finding affected by law: The
decision of a trial judge should be reviewable in plenary fashion by a court of
appeal. The presumption should be fair
use. [61]
And what of the most extreme cases? In private correspondence, initiated by David Nimmer and joined in by Neil Netanel, Jed Rubenfeld and me, we have asked that question of each other, having Rubenfeld’s article in mind. Consider, as we have, a hypothetical (somewhat distorted from the original put by Jorge Borges) in which Cervantes’ Don Quixote is “recreated” word for word by a later “author” to the pleasurable reception of those who have not read it before because, until its recreation, it had seemed merely an antique. [62] Is this an exercise of the imagination? I think it fair to say the members of our ad hoc discussion group are of mixed minds about the matter. But I would say it all depends on what the putative junior creator has in mind. Appropriation is creative, I think, and therefore qualifies as an exercise of the creative imagination, when we see in it the qualities or attributes we recognize in conceptual art of any kind. [63] And if the answer to the question is debatable or in doubt, then the junior creator should prevail as against all efforts by a senior party to forbid the appropriation, for the cardinal rule of good citizenship under the protective
59.
Lange & Anderson, supra note 55, at 151.
60.
See Rubenfeld, supra note 37, at 48-49.
61.
In my view the availability of such a presumption is a necessary prerequisite
to any adequate theory of the public domain.
Indeed, that is essentially where this essay begins. See text accompanying supra
notes 1 & 2.
62.
Cf. David Nimmer, Copyright in the
63.
See Schiff, supra note 26. Even this splendidly satisfying
conception of creativity may not go as far as one might like. “Making a find” is creative, as Schiff says;
I would argue that even the “find” may be creative, if motivated in play. See David Lange, At
Play in the Fields of the Word: Copyright and the Construction of Authorship in
the Post-Literate Millennium, 55 LAW & CONTEMP. PROBS. 139 (Spring
1992) [hereinafter Lange, At Play].
481 Index
reach of the public domain is that doubtful cases ought
always to be resolved in favor of appropriation.
Certainly, appropriation of a very ordinary sort can amount to an
exercise of the creative imagination. In
his provocative essay on fair use included among the papers in this symposium,
[64] David Nimmer publishes for the first time the contents of a poem
written by Anne Frank in 1940 to a friend whose birthday party in Amsterdam
young Anne attended, perhaps for the last time. “Dear Henny,” Anne
Frank wrote on that occasion, “Pluck roses on earth, and forget me not.” [65]
The words are haunting now,
poignant, simple, terribly sweet and sad. They call to us from across the years with a
power they surely could not have possessed when first they were penned. Yet I
would have said they were unmistakably creative then. Who today would deny that they are imagination
exemplified?
But I am obliged to report - on the authority of David Nimmer himself, who discovered what I am about to relate
after his own article had gone to press - that these words also appear to have
been appropriated verbatim from an anthology of poems widely available in The
Netherlands at the time. The poet who
wrote them was named Snelders. His work appears to have been composed in 1895,
and might plausibly have remained under copyright in 1940.
[66]
Was Anne Frank a creator on the occasion when she wrote her note to Henny? I have said I
think so, and my opinion remains unchanged.
But was she an author? Perhaps not, in the conventional understanding of that term in
copyright. Was she a plagiarist,
a pirate, a thief? No decent person
would lay such a charge against her memory. She was just a young girl, barely ten years
old, a friend writing to a friend on the occasion of a celebration. Presupposing copyright, was this fair use? Yes, surely then - and even now, under the
tedious and inexact standards of our time. But I submit that these are the wrong
questions, and not merely for obvious reasons of decency. The questions are wrong because, coming as
they do from within the matrix of copyright, they are
motivated by the wrong priorities and the wrong concerns.
It is wrong to challenge school children with responsibility for
copyright. Wrong for
copyright to intrude into private lives. Wrong to measure creativity
by the standards of copyright. Wrong
to lay impediments (moral, intellectual, legal) before
exercises of the imagination, whether great or small. Wrong, in short, to rob us of this vital
aspect of our citizenship: the right to think as we please and to speak as we
think.
We must learn to reimagine the public domain. We must learn to ask questions from within the province of that new status, a status like citizenship, measured by creativity and the imagination, and invoked by an exercise of
64.
David Nimmer, "Fairest of Them All" and
Other Fairy Tales of Fair Use, 66 LAW & CONTEMP. PROBS. 263
(Winter/Spring 2003).
65.
66.
E-mail from David Nimmer (
482
either. For then Anne
Frank’s answer to the question of entitlement will be our common answer: Civis musarum sum.
James Boyle is right, of course. There are many public domains. Perhaps we must recognize them all. But for myself and others like me, I want the public domain, however it may be defined, to secure these elemental aspirations which I believe innate in human kind: to think and to imagine, to remember and appropriate, to play and to create. [67] It will be enough if recognizing the public domain brings us to that end.
67. See Lange, At Play, supra note
63.
483
The Competitiveness of Nations
in a Global Knowledge-Based Economy
June 2004