The Public Domain
Creativity and innovation rely on a rich heritage of prior intellectual endeavor. We stand on the shoulders of giants by revisiting, reusing, and transforming the ideas and works of our peers and predecessors. Digital communications promise a new explosion of this kind of collaborative creative activity. But at the same time, expanding intellectual property protection leaves fewer and fewer creative works in the “public domain” — the body of creative material unfettered by law and, to quote Supreme Court Justice Louis Brandeis, “free as the air to common use.”
Until 1976, creative works were not protected by U.S. copyright law unless their authors took the trouble to publish a copyright notice along with them. Works not affixed with a notice passed into the public domain. Following legislative changes in 1976 and 1988, creative works are now automatically copyrighted. We believe that many people would not choose this “copyright by default” if they had an easy mechanism for turning their work over to the public or exercising some but not all of theirlegal rights. It is Creative Commons’ goal to help create such a mechanism.
Background on and examples of the value of the public domain
- “Cultivating the Public Domain,” Creative Commons White Paper.
- Conference on the Public Domain, Duke Law School (collected conference papers).
- “The Public Domain in Copyright Law,” Edward Samuels, 41 Journal of the Copyright Society 137 (1993).
- “The Public Domain in Genomics,” Rebecca A. Eisenberg (2000).
- “Making the Public Domain Public,” Robert A. Baron (revised Apr. 28, 2000).
Organizations that support the public domain
The public domain in the news
- “Other People’s Property,” Sarah Lai Stirland, Village Voice (Apr. 2002).
Related to the public domain is the more general idea of “the commons” — resources that are not divided into individual bits of property but rather are jointly held so that anyone may use them without special permission. Think of public streets, parks, waterways, outer space, and creative works in the public domain — all of these things are, in a way, part of the commons.
The “tragedy of the commons” is the familiar notion that widespread public use of a commons leads to its inevitable depletion. But some resources, once created, cannot be depleted. In the words of Thomas Jefferson, “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine receives light without darkening me.” An idea is not diminished when more people use it. Creative Commons aspires to cultivate a commons in which people can feel free to reuse not only ideas, but also words, images, and music without asking permission — because permission has already been granted to everyone.
Background on the value of the commons
- “Public Assets, Private Profits,” David Bollier (2001).
- “Reclaiming the Commons,” Yes! Magazine (Summer 2001).
- “Reclaiming a Commons,” Lawrence Lessig (May 1999).
The free software and open source software communities have inspired what is sometimes called “open content.” Some copyright holders have made books, music, and other creative works available under licenses that give anyone permission to copy and make other uses of the works without specific permission or a royalty payment. Creative Commons hopes to build on the work of these pioneers by creating a menu of license provisions that people can combine to make their work available for copying and creative reuses.
- “Open content,” Wikipedia Encyclopedia.
- “Why Open Content Matters,” Bryan Pfaffenberger, Linux Journal (Apr. 11, 2001).
- “Open Content,” Berkman Center for Internet & Society.
Intellectual Property Conservancies
As we help people make their work available with public domain dedications and generous licenses, we will also build an “intellectual property conservancy.” Like a land trust or nature preserve, the conservancy will serve to protect works of special public value from exclusionary private ownership and from obsolescence due to neglect or technological change. We will encourage people to donate their works to Creative Commons to be held in public trust; in some cases, we may purchase important works to help guarantee both their integrity and widespread availability. Our ultimate goal is to develop a rich repository of high-quality works in a variety of media, and to promote an ethos of sharing, public education, and creative interactivity.
Background on intellectual property conservancies
- “Public Access to Digital Material,” Brewster Kahle, Rick Prelinger, and Mary E. Jackson (Mar. 5, 2001).
- “Intellectual Property Conservancies,” David Bearman, D-Lib Magazine (Dec. 2000).
- “May the Source Be With You,” Lawrence Lessig, Wired (Sept. 12, 2001).