On January 1 of every year, a batch of creative works fall out of copyright and become available for anyone to freely copy, transform, and combine.1
Welcome to Public Domain Day 2023.
You’ve probably never heard of the Trans-Pacific Partnership (TPP) – and that’s by design. TPP is “is a secretive, multi-national trade agreement that threatens to extend restrictive intellectual property (IP) laws across the globe and rewrite international rules on its enforcement.”
The governments involved, and the hundreds of corporations who are helping to write the provisions, want us to know as little as possible before it becomes law.
Fortunately, enough information about the contents has leaked to offer a good, if very chilling, picture of how the packageÂ “would have extensive negative ramifications for users’ freedom of speech, right to privacy and due process, and hinder peoples’ abilities to innovate.”
Because supporters of TPP are worried about the backlash that would result if more people had a good look at the provisions, they are pushing Congress to pass a “fast track” bill for this and similar trade agreements.
If passed, the “Bipartisan Congressional Trade Priorities Act” would give over to the executive branch much of the exclusive constitutional authority over trade policy that Congress is supposed to exercise. Sponsors of the bill claim that this process “provides greater transparency and gives Congress greater oversight of the Administration’s trade negotiations.” But in fact, fast track does precisely the opposite, ensuring that there’s even less transparency and less democratic oversight over trade negotiations, while making it easier for Big Content to impose its wish list of draconian copyright provisions on the US and its trading partners through secretive trade pacts.
Read the facts that are known about TPP and the efforts to force it’s provisions into American law. Then join the Electronic Frontier Foundation and other groups in demanding that Congress “stand up for your digital rights and preserve our constitutional checks and balances in government.”
Almost since the first digital file was posted on the web, lobbyists for the big copyright holders, like the RIAA, have been working to slow down illegal copying of media. Between DRM, lots of lawsuits, and the buying of Congress critters, their clients are still watching their old business models (primarily one of restricting access to their products) slip away.
Now they’re trying a more subtle approach: education, in the form of “thinly disguised corporate propaganda” for elementary-level kids.
In an anti-piracy curriculum to be tested in California schools later this year, teachers will present students with scenarios conveying the message that it is never appropriate to reuse copyrighted materials. Never! Older kids are told it’s always considered stealing while for 1st graders copying is just plain “mean”.
But what about fair use, the concept in copyright law that under certain circumstances, it is completely appropriate to use part of a copyrighted work? And Creative Commons, under which content creators openly license the use of their creations?
According to Marsali Hancock, president of the The Internet Keep Safe Coalition, one of the designers of this program, “fair use is not a part of the teaching material because K-6 graders don’t have the ability to grasp it.” Their curriculum does believe that second graders are old enough to understand the concept of marketing their photographs online.
The introduction to Creative Commons is equally simplistic and carrying a corporate bias.
The fifth-grade lesson introduces the Creative Commons license, in which rights holders grant limited permission on re-use. But even in explaining the Creative Commons, the lesson says that it’s illegal to make any copies of copyrighted works. That’s a message that essentially says it’s even unlawful to rip CDs to your iPod.
“If a song or movie is copyrighted, you can’t copy it, download it, or use it in your own work without permission,” according to the fifth-grade worksheet. “However, Creative Commons allows artists to tell users how and if their work can be used by others. For example, if a musician is okay with their music being downloaded for free – they will offer it on their website as a ‘Free download’. An artist can also let you know how you can use their work by using a Creative Commons license.”
The vice president of the California School Library Association, the organization that co-produce the material saysÂ “We’ve got some editing to do.”, which, based only on what’s presented in this story, is an understatement.
What all the groups involved with “Be a Creator” (yes, that’s the proposed title)Â don’t appear to remember is that this kind of heavy handed, one-sided approach to “educating” studentsÂ didn’t work in the 90’s when the Software Publishers Association used story and song to preach “Don’t Copy That Floppy“. I suspect this effort will fall flat with it’s target audience as well.
Kids have grown up sharing and repurposing almost anything in digital form and some slick corporate propaganda won’t change that. Which means we not onlyÂ need to help our students understand copyright law but also model for them how to responsibly exercise their fair use rights within those laws.
On the other side of things, the copyright industry needs to acknowledge that fair use is real and come to terms with the idea that bits of their content are going to be reused, remixed, and shared. It may not fit with their traditional business model but, in the long run,Â that process is good for both the people who create media and the culture at large.
Many of us have read and heard enough about these bills this past week to last the rest of the year. But, if you can tolerate just a little more, here are a couple more important viewpoints on the subject.
In his anti-SOPA/PIPA, web blackout post from last Wednesday, Seth Godin looks at the two bills from a broader perspective and discusses the lack of real leadership in Congress.
When did we lose Congress? Not just in terms of losing our respect for just about everyone there (one of the least respected careers in the USA) but in the sense that they no longer even pretend to represent our interests or act as we would act if given the chance?
Godin says that their approval ratings are so low because “Congress has a marketing problem”, but that problem is “largely because they have a problem with the decisions they make and the way that they make them.”.
As good as his post is, Godin makes one glaring error when he says the debate is “now winding down”.
As Clay Shirky explains in this excellent short talk he gave recently at the TED offices, SOPA and PIPA are just the latest attempts by the media industry to eliminate the concept of fair use and exercise complete control over popular culture, and they have no intention of stopping with this minor setback.
The worst part of these two bills is the fact that Congress would be altering centuries of American legal precedent to allow a few large companies and their lobbyistsÂ to proactively censor the web, to declare users guilty with minimal evidence, and then force them to prove their innocence. At great cost to the accused, of course.
Godin is right that SOPA and PIPA are likely dead in their current forms, carrying their current names. However, the dangerous and destructive concepts at their foundations are not going away until we get some leadership in Congress that is willing to do their job and actually represent the people.
Don’t hold your breath.
PBS’s Media Shift blog discusses that question, which has been come very complicated in the age of digital books.
Analog books are simple: pay your money and ownership transfers to you.
More importantly, you have the right to resell the copy (love used bookstores!), give it to someone, loan it (the founding principle of libraries), or even rent it (if you can find willing customers).
It’s all part of copyright law and even has a name: the first sale doctrine.
The ruling in Bobbs-Merrill Co. v. Straus was subsequently codified in what is now Section 109(a) of the Copyright Act, which states that “the owner of a particular copy or phono record lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phono record.”
You would think the same principal would apply to digital copies of the same materials.
However, are you the owner of that digital copy of Stephen King or are you leasing the right to use it from the publisher?
Section 109(a) doesn’t define the seemingly simple term “owner” in this context and big publishers see in that an opportunity to apply the concept of pay-per-view (or per read in this case) if they can get away with it.
When software, music, and other media people think they own is added to the mix, the result is a giant copyright mess now being hashed out in the legal system.
As much as I like the iPad, Kindle and similar digital readers, this issue of not being able to easily share a book is the primary reason why I’m reluctant to pay for ebooks from Amazon, Apple and others, and canceled my Audible audiobook account several years back.
It’s also why schools and libraries, not to mention anyone who likes being able to pass along a good read (listen?) to friends and family, need to look very carefully at what they’re actually getting for their money when they decide to go digital.