Post Copyright Reform

Further Federal Shenanigans in the Public Domain

August 5, 2014 ,

Remember that 4th of July post about the US Marine Corps Band’s dubious (albeit inadvertent) chilling of access to public domain material with scary-sounding—and entirely made-up—restrictions?

Well as it turns out, the Band isn’t the only piece of the federal government trying to illicitly tack on fake, copyright-esque limits onto public domain works.

The Department of Defense (DoD), on its Website proper, attempts to create usage-restricting distinctions between non-commercial and commercial uses of its imagery. Specifically, it alleges that would-be users of the latter kind have to jump through a series of bogus hoops to ask for permission.

These sorts of usage restrictions imply that the DoD has a right to limit who can use its images, depending on their intent. But as we discussed on the 4th (and even before that), Section 105 of the Copyright Act forbids the US government from copyrighting things it produces. Government works go directly in the public domain; no restrictions can be placed on the public domain, period, full stop.

But what’s the fuss? The DoD’s restrictions don’t seem profoundly offensive on their face; should it matter if parts of the government try to limit the public domain with minimal usage restrictions?

The public domain: what’s in a name?

Public domain materials are the building blocks of our culture; all of society enjoys unrestricted access to them. No threat of a lawsuit hangs over your head for using things in the public domain; if it’s in, do whatever you want with it, no questions asked. The only thing stopping me from making a stop-motion macaroni sculpture film depicting Sherlock Holmes as an anthopomorphic beatboxing B-52 Bomber performing Beethoven’s Ninth Symphony at a slam poetry competition to impress a Martian–cyborg Mr. Darcy from Jane Austen’s Pride and Prejudice . . . is good taste.

Why is an unlimited public domain so important?

Even the most minimal-sounding of restrictions on the public domain, if they are believed, imply that if you fail to comply with the restrictions you could end up in court. Litigation takes both time and money – last this law student checked, at least, lawyers weren’t cheap. Time that could be spent creating new works is lost, money that could have been used to improve or disseminate works evaporates—even if these risks don’t deter everyone, they will deter some. Plenty of rational people will avoid doing all sorts of things to avoid even the possibility of having to deal with a lawyer.

Imagine if it was possible for anyone to chill the public domain at a whim by making up some fake restrictions – throw Homer in a time machine, place a few nonsensical restrictions around The Odyssey, and suddenly Tennyson never writes “Ulysses” (the poem), Joyce never writes Ulysses (the novel), and George Clooney never cavorts about in a fake beard as Ulysses Everett McGill in the Academy Award-winning film “O Brother, Where Art Thou?” It doesn’t take a postmodern art theorist to realize the intense interrelation of all art to that which came before.

When the government makes misstatements about the public domain, the stakes are higher than if you or I or a dead Greek poet were to. Statements about intellectual property by departments or agencies carry the authority and legitimacy of the entire system. We entrust the government with the fundamental creation of copyright laws; we turn to it for protection when our intellectual property rights are infringed. As citizens, we must be able to trust that those charged with creation and enforcement of the law will state it openly and honestly. Failure to do so—as with the usage restrictions by the DoD on public domain materials here—betrays this reliance

The public domain in the United States already runs the risk of catastrophic stagnation. Courtesy of over-expanded copyright duration, no new works are scheduled to enter the Public Domain again until 2019. Our founding fathers justified the temporary monopoly of copyright in Article I, Section 8 of the Constitution by saying it must “promote the progress of science and useful arts.” Science and art alike, we all benefit from together—and when any portion of the government shackles the public domain with artificial usage restrictions, we all suffer together as well.


Original image credit: Flickr user AereiMilitariOrg