A year ago, YES! published a collection of articles challenging readers to “reclaim the commons”—what Jonathan Rowe thoughtfully describes as “the vast realm that is the shared heritage of all of us that we typically use without toll or price” (see YES! Summer 2001). Rowe and others warned of the enclosure and destruction of common resources, while celebrating thriving commons—from community gardens to open-source software—and urging their protection.
This call to action resonated with observers alarmed by recent changes in copyright law. These changes threaten to erode the intellectual commons.
Copyright law grants people who produce expressive works (books, maps, musical compositions, etc.) exclusive rights to copy and distribute those works, and to make new works based upon them. The traditional justification for this limited monopoly is that it encourages creativity and, in the words of the US Constitution, “promote[s] the progress of science and useful arts.”
Of course, lots of people who produce creative work aren't in it for the copyright. At one time, the restrictions imposed by US copyright law did not extend to the work of these self-motivated creators. If they published their work without invoking copyright law, the work passed by default into the public domain. It thus became fodder for unlimited copying and creative reuses—part of a commons that promotes creativity not by promising financial rewards, but by providing the intellectual raw materials for new creations.
Expressive works are now automatically copyrighted, and the monopoly rights last at least 70 years—a time period now being challenged before the US Supreme Court. This means that when I find a photograph posted on the Internet without any indication of its copyright status, I have to assume that the photograph is subject to copyright restrictions—I can't safely copy it onto my website, or use it in film, or reprint it in a book.
Imagine that whenever you grew a flower in the community garden, an officious caretaker potted it up and delivered it to your backyard where only you could enjoy it. That is how copyright works now.
I am involved with a new nonprofit project, called Creative Commons, that is attempting to make it easier to permanently plant creative works in the community garden of the public domain. We are building an Internet-based tool that will help people create legal documents that voluntarily disclaim or limit the copyrights that would otherwise automatically apply to their works. We also plan to help people label their digital works in a “machine-readable” way that will ultimately enable Internet users to search for, say, public domain sound recordings or photographs that may be copied for noncommercial purposes. We plan to make this tool available at no cost to anyone—whether world-renowned professional or garage-based amateur—who wants to share work freely with others.
This idea won't appeal to all copyright holders. Some people prefer to restrict copying of their works; some people make a living by selling copies of their works or charging other people royalties for the privilege of doing so. But these preferences are not universal, and imposing them on everyone unnecessarily diminishes the commons—depleting our shared store of intellectual raw material and imposing needless barriers to collaborative creativity. We invite self-motivated creators to opt out of the default of copyright and instead cultivate the Creative Commons.