Public Domain?

(Associated Press)

London’s National Portrait Gallery reported a heist last month, accusing Derrick Coetzee of making off with over 3,000 works in the museum’s collection. A volunteer contributor to the Internet encyclopedia Wikipedia, Mr. Coetzee downloaded images of venerable paintings from the Portrait Gallery’s Web site and put copies in a Wikipedia collection of art. The museum’s lawyers fired off a letter accusing Wikipedia of violating copyright and contracts; Mr. Coetzee’s lawyer responded there can be no prohibition on copying works that are in the public domain.

It’s not hard to understand the museum’s frustration. It goes to all the trouble and expense of making accurate photographic copies—getting the lighting just so, ensuring the magentas are distinguishable from the scarlets and crimsons—and then someone comes along with a few clicks of a mouse and appropriates thousands of images. One rightly chafes at the techie assumption that anything you can get your digital mitts on is free game. But no better is the opposite extreme, the effort to seize public property and put it under monopoly control.

Copyright law tries to balance two social goods, providing private ownership of intellectual property to reward creativity while eventually making creative works as widely accessible as possible by letting the copyright lapse decades after the work’s author is dead. If new copyrights can be attached to old works of art, the whole copyright system is thrown out of whack.

Any litigation over the Portrait Gallery’s complaint could turn on a simple jurisdictional question. Mr. Coetzee did his downloading in the U.S. The museum’s claims are based on its interpretation of U.K. law, which allows more restrictive enforcement of copyrights.

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Eric Felton
Wall Street Journal

Lewis Hyde and the Public Life of the Imagination

Lewis Hyde

In the late 1990s, [Lewis] Hyde began extending his lifelong project of examining “the public life of the imagination” into what had become newly topical territory: the “cultural commons.” The advent of Internet file-sharing services like Napster and Gnutella sparked urgent debates over how to strike a balance between public and private claims to creative work. For more than a decade, the so-called Copy Left — a diverse group of lawyers, activists, artists and intellectuals — has argued that new digital technologies are responsible for an unprecedented wave of innovation and that excessive legal restrictions should not be placed on, say, music remixes, image mashups or “read-write” sites like Wikipedia, where users create their own content. The Copy Left, or the “free culture movement,” as it is sometimes known, has articulated this position in part by drawing on the tradition of the medieval agricultural commons, the collective right of villagers, vassals and serfs —“commoners” — to make use of a plot of land. This analogy is also central to Hyde’s book in progress, which looks closely at how the tradition of the commons was transformed once it was brought from Europe to America.

For the Copy Left, as for Hyde, the last 20 years have witnessed a corporate “land grab” of information — often in the guise of protecting the work of individual artists — that has put a stranglehold on creativity, in increasingly bizarre ways. Over dinner not long ago, he told me about the legal fate of Emily Dickinson’s poems. Dickinson died in 1886, but it was not until 1955 that an “official” volume of her collected works was published, by Harvard University Press. The length of copyright terms has expanded substantially in the last century, and Harvard holds the exclusive right to Dickinson’s poems until 2050 — more than 160 years after they were first written. When the poet Robert Pinsky asked Harvard for permission to include a Dickinson poem in an article that he was writing for Slate about poetic insults, it refused, even for a fee. “Their feeling was that once the poem was online, they’d lose control of it,” Hyde told me.

In highlighting the absurd ways in which intellectual copyright has overreached, Hyde brings to mind such iconic Copy Left figures as Lawrence Lessig, a constitutional-law scholar at Stanford. Yet Hyde’s new book, which he allowed me to read in draft form (it is unfinished and untitled), addresses what he considers a more fundamental issue. We may believe there should be a limit on the market in cultural property, he argues, but that doesn’t mean that we have “a good public sense” of where to set that limit. Hyde’s book is, at its core, an attempt to help formulate that sense.

If this sounds like a heady goal, it is. But it is also eminently practical, and eminently American. For Hyde, redressing the balance between private (corporate, individual) and common (public) interests depends not just on effective policy but also on recovering the idea of the cultural commons as a deeply American concept. To that end, he excavates a history of the American imagination in which the emphasis is not on the lone genius (Thoreau scribbling hermetically in the Massachusetts woods) but on the anonymous pamphleteer, the inventor eager to share his discoveries. In an essay that offers a preview of his book (posted, fittingly, on his Web site), Hyde posits that the history of the commons and of the creative self are, in fact, twin histories. “The citizen called into being by a republic of freehold farms,” he writes, “is close cousin to the writer who built himself that cabin at Walden Pond. But along with such mainstream icons goes a shadow tradition, the one that made Jefferson skeptical of patents, the one that made even Thoreau argue late in life that every ‘town should have … a primitive forest …, where a stick should never be cut for fuel, a common possession forever,’ the one that led the framers of the Constitution to balance ‘exclusive right’ with ‘limited times.’ It is a tradition worth recovering.”

For nearly 10 years, Hyde has devoted himself to that task.

Daniel B. Smith
New York Times