An interesting point in English was raised the other day. We’ve moseyed our way on to Act III of Hamlet. We skipped a part of II.ii because apparently, it was Shakespeare talking about his views on theatre at the time. That led to something about his children, who were killed by the plague. So my English teacher says that there’s no one left who’s related to Shakespeare to collect all the royalties from every copy of his plays that were sold, although that could easily be rectified if they could get a DNA sample or something and match it with someone.
The fact is that it wouldn’t matter whether any of his relatives were alive or not anyway, since they wouldn’t be able to get any of that money we think they are entitled to. Why? Because of a nifty little thing called the Public Domain.
Shakespeare was born in 1564. He is considered to be the greatest writer in the English language. His plays are performed all over the world. After four hundred years, his works have become embedded into our culture. Today, there are countless editions of Shakespeare’s plays. At our school not everyone uses the same ones. Our class was lucky and got the elegant green hardbound copies of the Falcon Shakespeare.
But until 1774, Shakespeare’s works were under the control of one publisher
Basically, the publishers were controlling the spread of knowledge. This is around the time of the Enlightenment, where the popular notion is that knowledge should be free. Therefore, the British Parliament decided to limit the amount of time that publishers held the right to publish a work. This was 1710.
By the time the 1730s rolled around, the publishers tried to get Parliament to extend the term. They didn’t. So what do you do when you can’t get the government to do anything? Go to the courts. And the courts gave them what they wanted: copyright that lasted forever.
Then, in 1774, that decision was overturned by the House of Lords, the highest court of the day.
Before the case of Donaldson v. Beckett, there was no clear idea of a public domain in England. Before 1774, there was a strong argument that common law copyrights were perpetual. After 1774, the public domain was born. For the first time in Anglo-American history, the legal control over creative works expired, and the greatest works in English history—including those of Shakespeare, Bacon, Milton, Johnson, and Bunyan—were free of legal restraint.
Lessig, Lawrence. Free Culture. New York: The Penguin Press, 2004. p.93
After this decision, culture in England was freed from the control of the publishers. As a result, we can look up Shakespeare’s work online and search for something in them. We can have a wide variety of commentary and notes in the different editions of Shakespeare. The works of Shakespeare have spread because of the Public Domain.
Back then, copyright was in effect for fourteen years, renewable once if the author was alive, for a total of 28 years and only controlled the right to make copies of the work. After that, the work was released into the Public Domain, free for anyone to use. It was free for anyone to rip apart and study. It was free for anyone to mix and create something new out of it.
Today, copyright lasts for life and seventy years after that. Today, copyright not only controls the right to make copies of the work, it also controls the right to distribute, the right to perform, the right to control the creation of derivative works, and so on and so forth. Generally, copyright controls the right to use the work.
As a result, there has been no work passing into the Public Domain since the 1920s. We’re nearing almost a century in which our culture has been controlled by a select few.
The vast majority of works created in this time are of no commercial value to the holder of these rights anymore. But, since they’re not in the Public Domain, no one can collect them or copy them or archive them. And so, they will become lost and forgotten. No, these things probably aren’t going to get downloaded, but they are valuable as pieces of history, much as an old house is protected by laws because it’s a historic site. But there is nothing we can do to save that old work.
Also, creators that are hoping to build upon older works are reduced to having to fall back on Fair Use. You would think that Fair Use is enough cover some noble endeavours like filming documentaries or teaching. Nope. You can still get your ass sued by a corporation and you would have no choice but to give up because even if you won, you’d be destitute from the cost of fighting a legal battle against a corporation.
The direction in which legislators are heading is towards more copyright protections. Just the other day, I read an article at Ars Technica talking about the insane restrictions an American senator is proposing to add to digital devices.
The post points to broadcast flag draft legislation sponsored by Senator Gordon Smith (R-Ore.) that contains provisions which appear to limit digital broadcast media reception devices to “customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law and that prevents redistribution of copyrighted content over digital networks.” In other words, if it does anything heretofore unheard of with the digital content that it receives, then it’s illegal. And if it does anything “customary” that could also possibly lead to unauthorized redistribution, then it’s also illegal. So all the bases are covered!
Can it really be that bad? We already knew that the proposed HD radio provisions are just awful and absurdly draconian, but can Big Content really be trying to put a blanket freeze on innovation and outlaw any possible novel use at all of copyrighted digital broadcast content?
Think about the power the entertainment industry has over our culture. Not just our artistic culture, mind you, but our technology. Do you think that anyone will dare create more efficient distribution channels while takedown notices are popping up everywhere because of the DMCA?
Do you think the Internet, which operates by copying things, be it audio, video or plain text, will survive as a bastion of free flowing information that anyone can contribute to? Do you think the next Shakespeare will be able to permeate our culture while being restricted by those who control it?