Tag Archives: public domain

Poetry Potluck, the Public Domain, and “The Red Wheelbarrow”

The WordPress #writing201 poetry course has invited us to take a weekend break from writing, to share our favourite poems by others. I’d like to share a poem that is legal to freely reprint in full in Canada, but that would be infringing copyright in the USA and the UK. And then I’ll explain why this is important.

The Red Wheelbarrow
by William Carlos Williams (1883-1963)

so much depends

a red wheel

glazed with rain

beside the white

I want to share Carlos’ poem for three reasons:

  • because the poem (which I first read in my first university English class) exemplifies poetry as what Toronto’s former poet laureate Dionne Brand calls “a perfect kind of speech”;
  • because today kicks off Fair Use Week – a week devoted to raising awareness of the users’ rights in copyright law1;
  • and because the Canadian public domain lets me – as yet.
  • As a copyright scholar, I am as interested in how bloggers are sharing poems as in which poems they’re sharing. Whether #writing201 bloggers are infringing copyright by reprinting poems in full depends on where they are. For instance, here’s one blogger’s reproduction of a famous Robert Frost poem. Frost died in 1963, so his work is still copyright protected in the USA, the UK, and other jurisdictions where the term of copyright protection extends to 70 years after the author’s death. In Canada, though, the copyright has expired on Frost’s work – that is, Frost’s work is in the public domain – because Canadian copyright law only protects work until 50 years after the author’s death. So the complete works of some major authors – Frost, Hemingway (died 1961), Sylvia Plath (died 1963) – can now be freely copied and shared in full – but only in jurisdictions with shorter copyright terms, like Canada.

    Each January 1st, the Public Domain Day organization announces which canonical authors and cultural producers are entering the public domain that year. But the coming years may see fewer entries as corporate lobbyists continue to press governments for ever longer copyright terms in trade talks, like the Trans-Pacific Partnership, as a party to which Canada is now reported to have caved in to the demands of the USA to extend our copyright term to 70 years. Longer copyright terms don’t mean better pay for creators: major studies have shown that copyright need extend no longer than 7 to 14 years after publication (never mind after the creator’s death) to reap optimal financial rewards (Giblin 2015, Gowers 2006). All longer copyright terms mean is a diminished, impoverished public domain – our common cultural heritage – and increased control by corporations over the production and distribution of culture.

    1. Fair Use, or in Canada fair dealing, is the users’ right that allows you to make certain non-infringing uses of works that are still copyright-protected – as I did in my acrostic last week, which sampled lines from several contemporary US poets. The public domain describes works no longer protected by copyright. So fair dealing does not apply to the public domain, but both fair dealing and the public domain represent important provisions for users, rather than creators, of culture, which is why I mention Fair Use Week here.

    Bienvenue dans le domaine public, Monsieur Bataille

    January 1st is Public Domain Day: each year, copyright terms expire and admit to the public domain the works of artists, authors, critics, scholars, and other cultural producers whose copyright protection has ended. In Canada, copyright protection ends fifty years after the creator’s death; in other jurisdictions, it can end as late as seventy years after the creator’s death.

    Bataille_StoryOfTheEyeAmong the new entrants to the Canadian public domain this year is the French critic and scholar Georges Bataille (1897-1962), whose inter- and postwar criticism, philosophy, and pornography – and in particular his work on transgression – enjoyed a resurgence of interest amidst the Humanities’ turn to theory in the last quarter of the 20th century. (The first MA defence I attended was for a thesis on Bataille.)

    In honour of Bataille’s entry to the public domain (pas en traduction, bien sûr – seulement en français, sa langue originelle), and in response to a Daily Post prompt to share a favourite quote, I’d like to post a scene from Bataille’s autobiographical appendix to his own novella, Story of the Eye (L’histoire de l’oeil, 1928), a scene that has stayed with me through the years.

    One night, we were awakened, my mother and I, by vehement words that the syphilitic [Bataille’s father] was literally howling in his room: he had suddenly gone mad. I went for the doctor, who came immediately. My father kept endlessly and eloquently imagining the most outrageous and generally the happiest events. The doctor had withdrawn to the next room with my mother and I had remained with the blind lunatic, when he shrieked in a stentorian voice: “Doctor, let me know when you’re done fucking my wife!” For me, that utterance, which in a split second annihilated the demoralizing effects of a strict upbringing, left me with something like a steady obligation, unconscious and unwilled: the necessity of finding an equivalent to that sentence in any situation I happen to be in; and this largely explains Story of the Eye. (94-95)

    To me, this scene represents a moment of dramatic intensity, transgressive absurdity, and critical illumination that continues to inform and inspire my own conviction that the research imagination must be impertinent – even audacious. Story of the Eye is perhaps the most frequently lent book I own – it should go without saying that if you’ve not yet read it, you owe it to yourself to do so at the earliest opportunity.

    Work Cited
    Bataille, Georges. Story of the Eye (1928). Trans. Joachim Neugroschel. San Francisco: City Lights, 1987.

    Call for papers on Literature & the Copyfight, for Congress 2012

    Call for papers: Literature & the Copyfight, Congress 2012.

    Critical scholarship is urgently needed to intervene on the question of copyright: once a staple stimulus for literary and cultural production that now tends more to stifle it. … This session invites papers on the relationship between literature, copyright, and the copyfight.

    The deadline for submissions is 15 Nov. 2011 (see link for contact info). Thanks to ACCUTE and SDH for joint hosting.

    [Instead of posting the complete call for papers here, I’m practicing not duplicating content.]

    Before the Law: Histories of Copyright

    You must imagine, at the eventual heart of things to come, linked or integrated systems or networks of computers capable of storing faithful simulacra of the entire treasure of the accumulated knowledge and artistic production of past ages…
    –Benjamin Kaplan, 1967

    Research for a talk I’ll be giving at #Congress11 includes reading some excellent studies of copyright in (or as) the history of literature. These studies share a couple of principles: they recognize the historical contingency of intellectual property law (it’s nothing natural), and they assert the fundamentally social character of all cultural production, in contrast to IP law’s attribution of it to individual “originality” (an attribution based on Romantic ideas of authorship). Mark Rose puts the matter succinctly in Authors and Owners: The Invention of Copyright:

    The persistence of the discourse of original genius implicit in the notion of creativity […] obscures the fact that cultural production is always a matter of appropriation and transformation […] What finally underwrites the [modern copyright] system, then, is our conviction about ourselves as individuals. […] Copyright stands squarely on the boundary between private and public. (135, 139-40)

    Paul Saint-Amour builds on Rose and other scholars in emerging cultural-economic fields — New Economic Criticism and Critical Cultural Legal Studies — to study copyright in Victorian and modern literature; however, his context is insistently that of the post-millennial copyfight, and he notes the contradictions of critiquing copyright on its own terms, through strategies of appropriation and infringement (like DJing, which I’ll be discussing elsewhere at Congress):

    You can seldom criticize the law by breaking it and yet expect the law to forgive your infraction as criticism. Law is not an argument so much as an instrument of self-enforcement; thus, even breaking the law confirms the logic and categories of the law, which work to criminalize any transgressive act of dissent. In the case of property law, this circularity tightens further: criticizing standards of ownership can lapse into a near-absurdity when some of the most effective critical pathways — counterappropriation or parody, for example — are by definition already owned by someone else. (19-20)

    (I was reminded of this comment when I found Martha Woodmansee’s syllabus for a course on “Intellectual Property and the Construction of Authorship,” with dozens of great readings made freely available for public download. If this is what fair use affords US educators, I’ll have what they’re having.)

    The ability of the law to successfully prosecute infractions depends, in part, on how well the law makes itself seem natural, self-evident. Demystifying the self-evident naturalness of copyright law is a project of all these books, most ambitiously essayed in William St Clair’s The Reading Nation in the Romantic Period, a sweeping cultural-economic history that puts intellectual property law front and centre as a regulator of not just the publishing business, but also literary production and, most importantly, public access to reading.

    Intellectual property has existed for so long that it is difficult to imagine a world without it, but it is not intrinsic to authorship, books, or reading as such, but it too came into existence in response to a conjuncture of economic circumstances which came together in the late fifteenth century. […] The intellectual property regime has changed frequently and drastically over the centuries. […] During the intervals when the normal intellectual property structures temporarily broke down, we can see that the whole economy of writing and reading immediately changed. (41)

    So are we taking part, now, in a breakdown of IP structures, or in their further entrenchment? It can be bewildering and discouraging that the answers vary so wildly. Last week, copyright lawyer Howard Knopf blogged about Margaret Atwood’s comments on Bill C-32, which heighten “creator-vs.-educator” hostilities, and suggest misconceptions about IP law basics like fair dealing (which are especially troubling to see being expressed by such a major author). Histories of copyright bring some much-needed perspective to present debates so pressured by private-interest spin, by reminding us that copyright was invented to advance the public interest, and by suggesting ways to re-assert the priority of that interest and reclaim the cultural common wealth.

    Works Cited
    Kaplan, Benjamin. An Unhurried View of Copyright. New York: Columbia UP, 1967.
    Rose, Mark. Authors and Owners: The Invention of Copyright. Cambridge: Harvard UP, 1993.
    Saint-Amour, Paul K. The Copywrights: Intellectual Property and the Literary Imagination. Ithaca: Cornell UP, 2003.
    St Clair, William. The Reading Nation in the Romantic Period. Cambridge: Cambridge UP, 2004.

    QuestionCopyright.org on this year’s “most ironic Oscar winner”

    This is worth wider notice: a Question Copyright post that points out the irony in Trent Reznor’s win of the Oscar award on Sunday for “best original score,” since the score in question, for The Social Network, openly borrows Edvard Grieg’s “Mountain King” masterpiece — and since Reznor himself is, as the article details, “a musician who has capitalized on remix culture”:

    [Reznor’s] an Oscar winner […] thanks to the same interest group responsible for the remarkably effective industry capture of national and international lawmakers with respect to copyright issues. […] With its sinister melody and increasingly frenetic pace, “In the Hall of the Mountain King” would make the perfect theme song for Hollywood’s escalating efforts to impose its supramaximalist view of copyright on the entire globe. Yet on Sunday, Hollywood gave its highest award to the poster child for remix culture.

    And here I thought I’d never find anything at all of any interest whatsoever in the Oscars, that annual, over-exposed orgy of interminable self-congratulation, where the super-elite bow down before the one they serve to get what they “deserve.”

    Lady Gaga, copyfighter?

    Google search results for “Lady Gaga infringement”: 630,000
    For “Lady Gaga copyright”: 270,000,000

    That’s a lot of Intertubes about Lady Gaga and copyright. Sifting the results, though, turns up little by way of actual actions. She threatened to sue the maker of a “Lady Gag Gag” sex doll, for instance; and action against her has been threatened by an alleged co-writer.

    (If anyone knows of other actions, please comment — I just haven’t time to sift all two hundred and seventy million results!)

    Rather more of the results have to do instead with Gaga’s perceived lack of originality, pointing out rather obvious similarities between her image and music and those of Madonna, or, say, between her meat dress and Canadian sculptor Jana Sterbak’s 1987 meat dress.

    I had bristled at first that Lady Gaga so nakedly plagiarized the meat dress. But it now occurs to me that what she’s doing in music and fashion combined is oddly representative of today’s remix culture, in a political climate of ever more restrictive IP regulation. Lady Gaga, a major presence in both fashion and music now, is, in a way, bringing something of the copyright-indifferent business practices of the former — in which “there’s very little intellectual property protection” — to bear on the copyright-mad business practices of the latter.

    Maybe not intentionally, maybe just inadvertently.

    In any case, the various productions and performances of Lady Gaga stand open to some very suggestive interpretation, as critical statements on the present state of tensions and negotiations between the corporate-backed hegemony of “originality” and the creativity of open appropriation.

    Update: I’ll take this story about Lady GaGa’s endorsement of a little Canadian girl who covered “Born this way” on Youtube as some solid evidence supporting my hunch here.
    The Youtube vid in question is pretty excellent.

    UPDATE 2.0! TorrentFreak confirms that “Lady Gaga Is a BitTorrent Loving Pirate.”
    Apparently “she asked her fans to send a torrent (or YouTube) link of the Top Chef Just Desserts finale.”
    Now, about that thing with the photographers

    Canadians have until Jan. 31 to comment on copyright bill

    As Michael Geist says in his blog post today, we Canadians have until the end of this month to send comments on the new copyright bill, Bill C32, to the legislative committee now responsible for it. I’m not sure it’s exactly the “Canadian DMCA” that Cory Doctorow describes it as (especially since the DMCA itself is now more flexible on fair use and digital locks than our expected bill), but a copyright bill has no business protecting digital locks. IMHO.
    For the record, here’s the letter I’ve just sent. (To send your own, consider these sources and strategies.)

    Dear Bill C32 legislative committee,

    There are solid gains for fair dealing in Bill C-32, but the bill protects digital locks more strictly than current US copyright law or even ACTA, now — and this protection trumps the bill’s otherwise substantial gains in fair dealing for Canadian consumers, educators, and businesses. Furthermore, digital locks — TPMs, DRM, etc. — are not intellectual property and should not be covered by IP legislation.

    Bill C32 should provide protection for circumventing digital locks when undertaken for lawful purposes. As has been widely noted, this provision would still let Canada meet its obligations to international copyright agreements like WIPO and ACTA.

    Thank you for fielding my comments on Bill C32.

    Glenn Gould, copyfighter

    “The role of the forger, of the unknown maker of unauthenticated goods, is emblematic of electronic culture.”
    –Glenn Gould, 1964 (343)

    In the mid-1960s, the virtuoso Canadian pianist, Glenn Gould, caused a sensation by abandoning live concert performances and tours, as well as speaking engagements, to focus strictly on recording and broadcasting. Gould had quickly tired of touring performances and the concert-hall economy that demanded them. His profession had ensconced concerts as the test and affirmation of authentic virtuosity. Gould not only dropped them, retiring to the studio and the radio booth; he also began to attack them, in thoughtful — and prescient — critiques, as the antithesis of artistic achievement in an age of mechanical reproduction.

    Gould’s major statement of his thesis on recording as the future of music is his 1965 CBC radio documentary, “Dialogue on the Prospects of Recording”. Gould’s argument uncannily echoed Walter Benjamin’s, on art and mechanical reproduction, of which, as far as I know, Gould was unaware; his position was more specifically influenced by Marshall McLuhan. Gould argues that new electronic media represent a more private, individualized, and aesthetically satisfying future of music in contrast to the outmoded public “museums” of
    live performance that, for him, no longer lay claim to the optimal appreciation of music. Gould echoes Benjamin in criticizing the romanticization (what Benjamin would call the aura) of the artist at the expense of appreciating the artwork: “the determination of the value of the work of art according to the information available about it is a most delinquent for of aesthetic appraisal” (“Prospects” 341). To illustrate his case, Gould tells the story of a wartime forger of Vermeer paintings, Hans van Meegeren. Van Meergen was reviled as a forger who had fooled expert art historians; he got only momentary reprieve after the war when it became apparent that the Vermeers he had sold to Nazis for enormous sums were in fact forgeries. Gould hails van Meergen as a “private hero” whose case “perfectly epitomizes the confrontation between those values of identity and of personal-responsibility-for-authorship which post-Renaissance art has until recently accepted and those pluralistic values which electronic forms assert” (341).

    Gould’s elaboration on the “pluralistic values” of electronic forms centres on “a new kind of listener — a listener more participant in the musical experience” — indeed, a “listener [who] can ultimately become his own composer” (347). For Gould’s new kind of listener, private listening eclipses public listening. The intimacy and clarity of home listening lends the music higher definition and opens it not only to more involved appreciation, but also to transformation by the listener: “It may well be that the very near future will produce a do-it-yourself laboratory of home recording techniques…We already see this happening in the case of the hi-fi bug, the fellow who places his own interpretative notions of questions of dynamics, of balance, of separation, of textural preferences [on] the recording which he plays on his home stereo” (“Forgery” 219). Gould is extrapolating from the increasing availability of home stereo EQ controls and home audiotape systems, in 1964, to accurately project new, participatory forms of music production-consumption (prosumption) that have since materialized: a decade later, in the vinyl-synching, cassette splicing foundations of hip hop music; forty years later, in the digital redistributions and remix forms enabled by CD, MP3, and P2P.

    What’s more: Gould recognizes the symbolic and material threat that DIY listening-composing would pose to music critics, concert halls, and record labels alike. “To those who insist that the relation of audience to the performing act be a passive one, it already constitutes licentious interpretative interference” (219). Echoing Benjamin’s argument about aura, Gould identifies the “controversy [of] the tape splice” as a target of “the antirecord lobby [which] proclaims splicing a dishonest and dehumanizing technique” (337). As for the emerging pro-record (but anti-recording) lobby, Gould imagines a “local club of spare-time mechanics … concentrating upon the project of producing a master tape amalgamating the perfect virtues of the Beethoven Fifth as rendered by Klemperer, Karajan and Bruno Walter,” and then reflects that “there may be certain contractual difficulties here. Perhaps EMI, Deutsche Grammophon and Columbia Records will be less warmly disposed than I to this idea” (“Forgery” 219-20).

    Gould even nods inadvertently to the discourse of intellectual property regulation in reflecting on the audience’s departure from public performance scenes to private home listening. “Those experiences through which the listener encounters music electronically transmitted are not within the public domain” (“Prospects” 347, my emphasis). For his purposes, Gould simply means that electronic media encourage domestic, individualized, and customizable music appreciation; yet by unwittingly referring to the “public domain” of copyright law, Gould ironically describes what has since become one of the most hotly contested issues in the copyfight today: the gradual disappearance of the public domain amidst the “new enclosures” of corporate copyright exploitation and entrenchment. On this account, Gould’s remark that “the technology of electronic forms makes it highly improbably that we will move in any direction but one of even greater intensity and complexity” (352) is similarly right on the money, both in terms of the technics and the legalities now involved.

    Yet despite his incisive (and sometimes inadvertent) recognitions of Big Media’s impositions, Gould remained consistently optimistic about the implications “that the mechanics of electronic creation and preservation will determine the large part of the future of artistically ordered sound — if that is a safe word than music” (“Forgery” 218).

    In the electronic age the art of music will become much more viably a part of our lives, much less an ornament to them, and that it will consequently change them much more profoundly … The audience would be the artist and their life would be art. (“Prospects” 353)

    As an iconoclastic icon of Canadian culture, Gould shared important insights about art, adaptation, and appropriation — not to mention “pluralistic values” — that have proven prescient and urgently critical to current debates over intellectual property, and how best to define and regulate it, among the fast-changing technoscapes of electronic media. In the face of the attempted lockdowns, confiscations, and extortions of Access Copyright, Bill C-32, ACTA, and so on, I take as a heartening affirmation Gould’s assertion that “there is, in fact, nothing to prevent a dedicated connoisseur from acting as his own tape editor … exercising such interpretive predilections as will permit him to create his own ideal performance” (348, my emphasis).

    Works Cited

    Benjamin, Walter. “The Work of Art in the Age of Mechanical Reproduction” (1936). Rpt. in Marxists Internet Archive, 2005.
    Gould, Glenn. “Dialogue on the Prospects of Recording.” CBC Radio, 10 Jan. 1965. Rpt. in Time 4 Time [blog], 7 Oct. 2008.
    —. “Forgery and imitation in the creative process” (1963). The Art of Glenn Gould: Reflections of a Musical Genius. Ed. John P.L. Roberts. Toronto: Malcolm Lester, 1999. 204-221.
    —. “The Prospects of Recording.” The Glenn Gould Reader. Ed. Tim Page. New York: Knopf, 1984. 331-53.

    See also:
    “Glenn Gould on recording.” The Music of Man. Perf. Yehudi Menuhin, ,Glenn Gould. CBC et al, 1987. Rpt. at Youtube.

    Bill C32 must allow for lawful digital lock-picking

    @TonyClement_MP @MPJamesMoore @CharlieAngusMP @MPMarcGarneau C32 protects digital locks more than US law, ACTA; but digital locks are not IP
    [Retweet this]

    @TonyClement_MP @MPJamesMoore @CharlieAngusMP @MPMarcGarneau C32 must provide for circumventing digital locks when for lawful purposes
    [Retweet this]

    Bill C32, the Act to amend the Copyright Act, has passed second reading and is now in committee. There are solid gains for fair dealing in Bill C-32, but they’re meaningless if the bill remains inflexible on protecting digital locks: the technological protection measures increasingly placed on media content and devices. (See this CBC article for a good explanation of digital locks and what their protection in this bill could mean.)

    The committee debating Bill C32 needs to keep hearing from Canadians about the major problem with the bill–and about its simple solution:

    The problem:

    Bill C32 protects digital locks more strictly than current US copyright law or even ACTA, and this protection trumps the bill’s otherwise substantial gains in fair dealing for Canadian consumers and educators. Furthermore, digital locks — TPMs, DRM, etc — are not intellectual property and should not be covered by IP legislation.

    The solution:

    Bill C32 should provide protection for circumventing digital locks when undertaken for lawful purposes. (As IP law professor Michael Geist says — in item seven of this article — this provision would still let Canada meet its obligations to international copyright agreements like WIPO and ACTA.)

    Tweet or e-mail the committee members, as well as the ministers behind the bill, to let them know how to fix Bill C32, in order to protect flexible fair dealing for Canadians. Protecting fair dealing, not digital locks, is what will keep Canadian industry competitive, Canadian research innovative, and Canadian culture creative.

    Charlie Angus (NDP) @CharlieAngusMP | Angus.C@parl.gc.ca
    Kelly Block (C) @KellyBlockMP | Block.K@parl.gc.ca
    Sylvie Boucher (C) Boucher.S@parl.gc.ca
    Peter Braid (C) @peterbraid | Braid.P@parl.gc.ca
    Serge Cardin (BQ) Cardin.S@parl.gc.ca
    Dean Del Mastro (C) @mpdeandelmastro | DelMastro.D@parl.gc.ca
    Marc Garneau (L) @MPMarcGarneau | Garneau.M@parl.gc.ca
    Mike Lake (C) @MikeLakeMP | Lake.M@parl.gc.ca
    Carole Lavallee (BQ) @Carolelavallee | Lavallee.C@parl.gc.ca
    Dan McTeague (L) @danmcteague | McTeague.D@parl.gc.ca
    Pablo Rodriguez (L) Rodriguez.P@parl.gc.ca

    Committee chair: TBA

    Objection to Access Copyright’s 1300% student tariff increase

    [If you want to object, you’ve got until Wednesday. See Howard Knopf’s blog, or Michael Geist’s, for details.]

    Dear Mr McDougall [gilles.mcdougall@cb-cda.gc.ca],

    I am writing, as a university professor, to object to Access Copyright’s proposed Post-Secondary Educational Institution Tariff 2011-13.

    AC’s sought-for fees are exorbitant and excessive; they will unfairly burden public education budgets; they will gravely chill Canadian research and teaching; and they seek to arrogate licensing authority over a set of rights and a repertoire (of digital content and everyday communication practices) to an organization, AC, that does not own either these rights or this repertoire (some of which are protected under fair dealing provisions, as decisions like that in the 14 May 2010 SOCAN “previews” case continue to uphold).

    For a distance-education institution like Athabasca University, the fees and restrictions (as well as the consequently onerous record-keeping) being proposed by AC will acutely compromise our ability to teach and research effectively, and to fulfil our mandate of removing barriers to access to postsecondary education.

    Thank you for fielding and registering this objection.

    with best regards,

    – Dr. Mark A. McCutcheon
    Assistant Professor
    Centre for Language & Literature
    Centre for Integrated Studies
    Athabasca University

    Sent: 4:54 pm, 9 Aug. 2010

    The SOCAN “Previews” case
    IP lawyer (and AC member!) Howard Knopf: Access Copyright’s excessive $45 per university student proposed tariff – August 11, 2010 deadline
    IP & e-commerce prof Michael Geist: “Access Copyright’s 1300% Tariff Increase – Deadline to Object is August 11, 2010”
    TechDirt: “Access Copyright Wants $45 From Every University Student For Copying & Even Linking To Copyright Works”