In the case of creative work, one can have all the protections previously mentioned for the scientific and technical data, with the addition of copyright protection. Because copyright is the default rule for creative works, copyright holders avoid the privity problem that occurs with contract.
How does this work? If I create a work, I can assert copyright in it, provided that it is creative enough that I can. I “give it to you”—I license a copy to you or you pay me to own a copy of the work—but if you further make copies and the people downstream from you make unauthorized, unprivileged copies, I can go after all of you as a matter of law. In fact, since 1976, I do not even have to put the copyright mark in a symbol on my creative work to have the copyright attach.
So if you are surfing the Internet and encounter a wonderful haiku and there is no copyright symbol on it, it does not mean that the work is not copyrighted. There are plenty of people—lawyers usually—who get up at lecterns like this one and sow fear, uncertainty, and doubt, warning that works published online are in all probability copyrighted, so if in doubt, do not do anything with the work.
If this is the regime we have for these two types of data, what kinds of material do we have in the public domain today? We have work created by nonhoarders, those “crazy” people who give their work away for reasons that in the last session were explained to be actually quite rational. That sort of work can become part of the public domain either by choice or by patron encouragement or even requirement. For example, if a researcher receives a U.S. government grant, the terms of the grant might require that the researcher share the data and let others make derivative works from them. Yet often the patron in these types of arrangements is a university—and as others have discussed during this symposium, universities today are torn between whether they want to be dot edu or dot com. While they are trying to figure that out, universities may not be the ones to rely upon to encourage or require materials to be shared freely; indeed, they may have the opposite agenda.
So that is how the system, generally, is working. For someone wishing to release into the public domain scientific and technical data for which one cannot assert copyright in the first instance, that person need simply fail to take the previously discussed steps to protect that type of data—that is, fail to keep the data secret, fail to write a contract, and fail to create and apply a digital rights management system.
But if the work at issue is a copyrightable work, under the current system one has to take certain steps to disclaim it. A person can choose to distribute this type of material to others, either formally or informally; however, they may not know the legal steps necessary to enter it into the public domain. Instead, it is more often the case that the person chooses not to enforce the rights that are legally retained and that other people come to know that.
A final way that creative material enters the public domain is through copyright expiration. Copyright is for a limited time, which at this moment for corporate-created works in the United States is 95 years. Of course, these copyrights have been extended retroactively repeatedly, rendering such entry mostly theoretical—unless the Supreme Court holds for the plaintiffs (for whom I am co-counsel) in Eldred v. Ashcroft, a case currently pending before the court. 2
We also have the informal, de facto public domain, brought about by the existence of photocopiers, personal computers, and the Internet. Even with a set of “background” rights reserved to the author in any creative work, the fact is that most published works—whether or not they are published online—are largely available for use. We have had a culture that permits a certain amount of copying for personal use, and many activities that would count as legalistic violations of copyright are neither frowned upon nor fought against by copyright holders, much less the general public.
The situation as it stands, then, is in flux. The large-scale publishers who usually benefit from some level of copying and sharing are now well aware that photocopiers, personal computers, and the Internet exist—and that in their current incarnations, they represent a threat to prevailing business models. These publishers are unhappy, they are litigious, and they are hiring good coders to write digital rights management systems.
3 They have a certain zealous righteousness to their position and freely use the language of theft to describe what is going on when, for
2See Eldred v. Ashcroft 537 U.S. ___ (2003). The Supreme Court decided in favor of the defendant. For additional information, see http://www.supremecourtus.gov/opinions/02pdf/01-618.pdf.