The term “legal realism”, which appears in Carys J. Craig’s essay “The Canadian Public Domain: What, Where, and to What End?” seems a bit too much like a euphemism for “hopelessly subjective”. Like in other realms of legislation, the continuing procession of legal cases setting new precedents and overturning older ones seems to be the only constant factor affecting the definitions of terms like “public domain” in Canadian copyright law.
Craig points out that the label ‘public domain’ has progressed, in terms of its definition, from a domain, to a discourse, to a series of “uses”, and finally to “a continuum of legal states on a spectrum (there are now argued to be several ‘species’ of public domain, a multiverse of sorts, if one uses the outmoded spacial metaphor). This perspective is based on the relatively recent view of information, and its various modes of digital exchange, as a community, a network rather than a medium or a technical means-to-an-end(s) (Craig, 232).
The advent of the internet and the increasing move toward an economy of information has blurred the line between a piece of information that can be copyrighted, and an idea or concept, which most view as un-copyrightable. A process of doing or creating something, or the use of an existing idea or concept within a new and particular context, still constitutes something to which copyright can be applied.
For any creation to be copyrighted in the digital age, a healthy public domain must still exist from which creators can draw, allowing such creations to cohere through the ‘conduits’, or assemblers, that are their creators. Since the dissolution of the myth of romantic authorship, the notion that copyright requires the public domain in order to exist seems self-explanatory. No matter how strong your rope is and how hard you pull, your bucket won’t draw any water if the well is dry.
The claim to a work’s use and value falls upon whomever claims it first, much like a discovery of a mathematical law that existed before the discovery was made falls to whoever discovered that principle first (and proved it). Such discoveries, creative or otherwise, are extremely important to culture, as is the environment which produces these insights. What if the learning of mathematics was as proprietary as some other information is today? Would mathematical theories still arise as frequently, and from as many cultural and economic backgrounds?
Craig points out that copyright law is scantly studied in Canada, despite its importance, even by those whose careers depend upon its use and potential modification. While investigating the history of such laws can turn up more a hazy history of ‘copyright lore’ than concrete ‘copyright law’, the task remains an important one, especially in an era where the authors of ‘unique’ works are mostly non-humans.
The question that came to my mind throughout my initial research, and continues to occupy the forefront of my other inquiries, is how can copyright law adapt to the increasing presence of advanced algorithms or ‘bots’ online, which can trawl sources both in the public domain and under various restrictions, and reassemble this material into supposedly ‘unique’ texts? I wrote a short piece about such bots on another blog, which I am working to transform into a PhD proposal.
These bots use paraphrasing and syntactical rearrangement to accomplish these tasks for a price, in the case of entrepreneur Philip M. Parker,’s bots. Should copyright law be changed in response to these entities? Are they exploiting loopholes that should be closed, or perhaps widened to benefit the public domain(s)? What kinds of changes should be made in lieu of swarms of non-human, but human-controlled, entities with the ability to rapidly assemble copyrightable works? Does this potentially deprive human beings from participating in the creative process, or does it provide an unparalleled opportunity to assemble information in ways human beings simply can’t do so quickly or efficiently? Perhaps these questions can’t, and won’t, be answered until enough legal cases arise to set a precedent.
Finally, the perspective, elucidated in Craig’s essay, that something falling into public domain suggests a loss of relevance or quality is also somewhat disturbing. The greatest works of literature, having fallen into public domain, have allowed people to both scrutinize them with fresh eyes, and to study them free of charge, simply to enrich their knowledge of literature. The so-called “cultural stewardship” model described by Craig also seems suspicious, more like a ploy to extend the model of planned obsolescence to knowledge, where that model has thus far only applied to material goods…
Craig, Carys J., The Canadian Public Domain: What, Where, and to What End? (January 1, 2010). Canadian Journal of Law & Technology, Vol. 7, p. 221, 2010. Available at SSRN: http://ssrn.com/abstract=1567711