Why Intellectual Property? — Chapter 1

As I began reading James Boyle’s book, it was his title that initially intrigued me, The Public Domain: Enclosing the Commons of the Mind. What did he mean by juxtaposing the public domain with “enclosing the commons of the mind?” The public domain, those resources that all of us can use freely and without permission, is a researcher’s ultimate playground – no worries here about infringing on someone’s copyright or tracking down a photographer now living in Timbuktu before you can use an image. These are the materials that make my job as an archivist easy, allowing me to provide immediate and full access to primary materials.

A few pages into the first chapter, Boyle clarifies his title by asserting that intellectual property rights, originally meant to be “the servants of creativity” have gone awry and become prickly barriers that now restrict access to much of our 20th century works and culture. I couldn’t agree more, as I’ve often been frustrated helping researchers navigate through copyright issues. I’ll even confess to having my own favorite copyright cheat sheet and flow chart courtesy of Cornell University’s Copyright Information Center.
So how has this happened? Copyright is intended to be a good thing, providing incentives for innovation and rewards to the creators. Boyle leads us through an idealized vision of how intellectual property rights should work and then argues that two changes – extending copyright terms and giving copyright immediately to creators (no application needed) – have “turned the copyright system on its head.” No longer are exclusive rights given just for the duration of a works commercial feasibility. Instead copyright terms are now so long (the creator’s life plus 70 years) that many works may stay under copyright and unavailable for well over a century. We are losing access to about 85% of the works that under the prior system continuously stockpiled our public domain treasure trove.

Before reading Boyle’s book, I hadn’t thought about just how many works nationwide get trapped in this long term copyright dilemma. Every archivist knows the “orphan works” in their own holdings. Those materials with murky copyright that you professionally can’t duplicate and certainly shouldn’t place on the Internet without possibly involving your institution in copyright infringement. Boyle estimates that 95% of our books fall into this category and an equally large amount of our films and music. This is a huge number and daily impacts where our information comes from and how we can use it.

This is just Chapter one, so I’m really interested to read what further thoughts Boyle has on how we can possibly begin to reclaim some of our public domain. Check out the U.S. Copyright Office’s Orphan Works to see what they are saying about this topic as well.