Thinking about the commons in 1997-98

In 1997-98 I lived in New York City, where I thought information wanted to be expensive. But while I made my living selling stock footage to media producers (I still do), I'd begun to realize that the system of enclosure surrounding cultural and historical materials was broken and needed to be changed.

I'd been reading about the history of landscape and land use in the U.S. and began to think about environmental metaphors for thinking about the distribution of culture. In 1997, I drafted this piece, which I continued to work on through 1998. But then I moved to San Francisco, met Brewster Kahle, started to put my films online, and action substituted for theory. The theory, and my fuller realization of what it meant to give things away to the public online, would come later.

Meanwhile, Eric Eldred and Larry Lessig had met one another. Eric, a reader and scholar of Nathaniel Hawthorne and many others, wanted to make free electronic versions of classic books available to the public, but was stymied by copyright extension. As I understand it, Eric elaborated the idea behind what would become Creative Commons, and Lessig worked to put together the team that made it happen.

Here, warts, naivete and all, is the last draft of the piece I wrote in 1998, salvaged from an old email:

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For an Intellectual Property Preserve

Rick Prelinger January 27, 1998

The Problem

Our history and culture are increasingly becoming private
property rather than public resource.

As the potential for widespread and rapid access to our
cultural heritage dramatically increases, corporate control
of intellectual property threatens to inhibit the freedoms of
inquiry and expression.  In the past few years, copyright
proprietors have pushed for term extension, narrower
definitions of fair use and heightened prohibitions against
digital copying.  "Harmonization" of U.S. copyright law has
removed millions of international works from the U.S. public
domain.

Concurrently, key collections of historical still and moving
images have been acquired by powerful entities like The Image
Bank (a subsidiary of Eastman Kodak), Getty Images and
Corbis.  These collections are generally inaccessible without
payment of substantial research and licensing fees.  Textual
material, music and works of art are now owned or controlled
by a dwindling number of rightsholders.  It is now highly
probable that most access to cultural and historical
materials will follow the paradigm of "billable events," with
few exceptions or discounts for nonprofit or noninstitutional
users.

The function of not-for-profit entities like libraries,
museums and archives is also changing.  They no longer exist
simply to offer reference or reader's access to their
holdings.  With the proliferation of authoring tools in all
media and the vast increase in all modes of cultural
production, many access requests now anticipate the
reproduction of materials for reuse and public distribution,
and this is running headlong into the limitations of
copyright law.  Although the Internet is dramatically
increasing the population of authors and publishers, there is
no concomitant increase in the amount of preexisting content
that these people can legally access.


The Precedent

Private corporations exerted unprecedented pressures on the
"public domain" -- American land and natural resources -- in
the late 19th and early 20th centuries.  The aggressive
pursuit of extractive interests such as mining, logging and
agriculture threatened to exhaust public lands and encroach
upon naturally or culturally significant sites.  In response
to this threat, the conservationist movement lobbied to
organize a system of national forests, parks and monuments.
By preserving a limited public sphere not subject to the
exercise of private property rights, the benefits of
wilderness and cultural sites were preserved for all.


The Preserve

It's time for a intellectual property preserve that protects
words, pictures, sounds, moving images and digital
information as public property.

Although this idea might sound strange, glimpses of it
already exist here and there.  Massive repositories of public
information (much not subject to copyright) reside in
government agencies like the National Archives and Library of
Congress.  Private initiatives like Project Gutenberg aim to
make public domain texts available to the world in electronic
form.  Many rightsholders and custodians of cultural
materials have renounced exclusive right to the content they
nominally control.

How might an intellectual property preserve work?

The Preserve wouldn't seek to be a library, museum or
archives, although it might possibly collect physical
materials in some cases.  Rather, it would be a repository
for intellectual property rights that had been donated by
rightsholders.  These rights would include copyrights, or in
the case of public domain materials, the right to reproduce
and disseminate the materials.  The activities of the
Preserve would be closely coordinated with existing
institutions, who would often still hold physical materials.

The Preserve would contain textual material, still and moving
images, works of art, sounds and digital information of all
kinds.  These assets would be acquired in two ways.  First,
the Preserve would purchase certain key resources to build up
a core collection of content.  This activity would
necessarily be supported by private funding.  Second, after
developing a curatorial plan, the Preserve would solicit
donations of content.  These donations might not necessarily
include the physical materials representing the content, but
would definitely copyrights or rights to reproduce.

Why would copyright owners (or owners of public domain
materials) ever cede their properties to the Preserve?
First, and perhaps most important, tax incentives.  Amend the
tax code to allow substantial deductions or tax credits for
donating valuable copyrights or materials.  Second, key
donors might be compensated with funds raised by foundations
and private organizations.  Third, by recognizing the act of
donation as a prestigious deed benefitting the national
cultural heritage.

The Preserve aims to make a finite but significant portion of
our intellectual and cultural property available to one and
all -- both individuals and corporations -- for nothing more
than the physical costs of duplication and transmission.  Its
concept supports freedom of inquiry and freedom of expression
by preserving the right to quote, to duplicate, to
appropriate preexisting material.

The Preserve is not an anti-corporate scheme, and it is not
meant to compete with existing copyright-based industries.
By setting up a parallel public sector where rights to key
works (especially historically and culturally significant
works) are available at no cost, the Preserve actually
strengthens the copyright system.  Publishers, media
companies and the information industry would enjoy the same
right to duplicate and remarket information in the Preserve
as anyone else -- but the seventh-grader incorporating
historical film clips in her multimedia term paper would no
longer have to wonder whether she was violating copyright
law.


Questions

At this point, there are as many questions as there are
answers.  Some of the questions that might be addressed in a
comprehensive study follow:

-- Who, and what interests, would need to be convened in
order to organize the Preserve?
-- Should the Preserve be constituted as an independent
organization or as a project of an existing entity?
-- How will the Preserve's activities be funded?
-- How does the Preserve relate to existing institutions
and initiatives, such as the American Memory Project at LC;
existing digital library initiatives; and task forces on
intellectual property rights, such as the forthcoming
National Academy of Sciences study?
-- Is the concept of public/private partnership relevant
to how the Preserve might be organized, especially in terms
of how public access to the Preserve's materials might be
effected?
-- How should the Preserve collect materials?  Should it
collect physical materials of any kind, or should it just be
a rights clearinghouse that charges no fees, or nominal
handling fees?
-- Should the Preserve defray the costs of digitization
and making works ready for dissemination?
-- How will members of the public reproduce works in the
Preserve?  By contract with institutions that possess the
physical works themselves, or by duplicating digital copies
held by the Preserve?
-- What tax questions arise out of the donation of
rights, and is legislation necessary?
-- How would rightsholders or custodians of key
collections be compensated for ceding their resources to the
Preserve?
-- On curatorial issues: what kinds of content should be
targeted or acquisition?
-- Questions of copyright vs. questions of contractual
control:  many public domain collections reside in public and
private repositories, but are protected from reuse by
contractual considerations
-- Could "orphan works" (works whose copyright holder is
out of business or unknown) find their way into the Preserve,
if legitimate property rights are somehow protected?
-- Should works that go into the public domain
automatically default into the Preserve when they are no
longer protected by copyright, thus rendering the Preserve
responsible for providing access to users as needed?
-- Would the Preserve be a national or an international
organization?  Would its benefits be available
internationally?