Nicolas Rapold and Why the Public Domain Sucks

By now, most of you have probably read Nicolas Rapold’s New York Times piece on film and the public domain. Apart from demonstrating what seems to be an almost willful misunderstanding of how the public domain functions (e.g., there’s no mystery as to why Birth of a Nation is no longer under copyright), Rapold refers to the public domain as “purgatory” for film.

I don’t know why he didn’t simply call it “hell,” since purgatory implies that films will languish for a period of time before being restored to holiness of copyright protection.

Yes, the article is bad. It places the blame for poor quality releases at the feet of the public domain, without noting that the alternative is not high quality releases, but nothing. It suggests that the low prices of “discount DVD bins” are somehow a bad thing. It notes but does not engage the fact that in some cases, were films still under copyright, their directors would choose to keep them locked away from us. It fails to point to research indicating that copyright protection actually decreases the availability of older works.

All that being said, as it is, the public domain sucks.

It’s old. The rule of thumb is that works made prior to 1923 are in the public domain. This rule is inaccurate in both directions, since unpublished works made prior to 1923 might still be under copyright, and many works made after 1923 are in the public domain for a variety of reasons, such as their owners not renewing the copyright or failing to observe formalities. But all those exceptions are too complicated for normal people, so the pre-1923 rule of thumb abounds in the United States.

Because it’s so old, it’s often hard to use, outdated, offensive, or simply inaccurate. For example, Wikipedia incorporates some content from the 1911 edition of the Encyclopædia Britannica, but has a long list of caveats for contributors relying on the work.

And it’s boring. American Dad did a good send-up of the public domain in an episode where Roger explains that he and his band “cover public domain songs… Camptown Races, Baa Baa Black Sheep” before playing a rock version of “London Bridge.” Later in the episode, the audience is thoroughly unimpressed with their rendition of “Blue Tail Fly/Jimmy Crack Corn” (note the crickets at the end of the clip).

While this is a somewhat facetious example, the point remains. Public domain works are often out of style and not attractive or interesting to modern audiences, in large part due to their age.

Of course, the reason why the public domain is full of old and boring material is because copyrights have been repeatedly retroactively extended, ensuring that virtually nothing of any substantial economic value falls out of copyright protection. This is a vicious circle: the longer copyrights are extended, the less relevant the public domain seems. The less relevant it seems, the more writers like Rapold can call it “purgatory” with a straight face. The more writers like Rapold call it “purgatory,” the easier it is for people to claim the public domain isn’t valuable. And the less perceived value the public domain holds, the easier it is to argue for longer copyrights.

The public domain could be awesome. Every year, James Boyle’s outfit at Duke celebrates Public Domain Day, showcasing what could have entered the public domain were it not for retroactive copyright extensions. And not everything has to age out of copyright to enter the public domain: projects like Musopen aim to create modern, copyright-free recordings of classical music, and many classic works of literature and art were never copyrighted to begin with.

But apart from the gems (distinguished by their rarity), the public domain is mostly not awesome. There’s been suspicion for years that copyrights will be extended yet again to prevent anything from entering the public domain (in 2019, works from 1923 will finally fall out of copyright). I suspect this won’t happen, in part because there’s more political resistance to copyright maximalism today than during the last copyright term extension, but also because nothing of economic value will be lost when century-old works lose copyright protection.

Maybe I’ll get taken to task by people pointing out that Shakespeare, Les Misérables, and the Bible are all in the public domain. Fair enough. But what about the vast majority of copyrighted works that don’t or won’t stand the test of time? What value do they add to the public domain when they enter it a century after their creation? Little to none. Their value is largely confined to a contemporaneous audience. By extending copyright protection beyond this period of value, we ensure that even when they do lose copyright protection, we gain nothing.

So congratulations to the copyright lobby. You’ve successfully eviscerated the public domain to the point that you no longer need to ask for copyright term extensions.

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About Gabriel

Ph.D. in political science. Postdoc and resident fellow at Yale Law School's Information Society Project. Tech geek. Mechanically inclined. I study the politics of intellectual property.
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2 Responses to Nicolas Rapold and Why the Public Domain Sucks

  1. T says:

    I think you miss the true reason that public domain sucks: for software and other works which could be considered controversial, it’s impossible to put something in the public domain intentionally and maintain legal “hold harmless” and “fitness for use” protections you get by not putting it in the public domain, and licensing it under terms instead.

    While it’s easy to see how this applies to software – a sort routine which is placed in the public domain, and which has an error, which is then used in a blood-gas monitor or avionics other system meeting the definition of a life support system could kill someone.

    But the same goes for artwork which incites, or writing, including political speech.

    Without implicit protections built into the concept of “public domain”, it is most often not worth it for the author to place something into the public domain directly, and intentionally, while still alive, unless it’s done in the form of a last will and testament.

    The Berne Convention was part of this slippery slope, making works implicitly copyright, unless disclaimed, instead of defaulting in the other direction.

    While I agree that most forms of intellectual property protections last too long to achieve their constitutional intent – promoting progress in the sciences and useful arts – without some form of protection for the living author, changing these terms is potentially perilous, from a legal perspective.

  2. Teresa Call says:

    Nicolas Rapold has shown again and again in his writing that he is not only dense, but also thinks he knows everything. He’s more evidence that intelligent journalism is dying.

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