a.) the astounding term extensions over the history of copyright in the United States and b.) the way in which they track potential expiration dates for one particular Mickey Mouse cartoon — Steamboat Willie.

Tom Bell's graph of copyright term extensions

What Tom knows, but the casual viewer may not, is that while this graph is quite correct it actually dramatically understates the extent to which the effective length of copyright has been extended and does so in two distinct ways.

1.)  For most of American history, copyright has been given in renewable increments.  14 years, renewable for another 14.  28 years, renewable for another 28 and so on.  Tom’s graph shows the maximum possible length of copyright at any given time — and does so quite correctly.  But if we asked, “what was the median length of actual copyright during that period?” we would have a very different graph.  We know that when we finally abandoned the benign practice of renewable terms, 85% of copyright holders were not bothering to renew their works for the second term.  Thus, the effective length of copyright for the majority of copyrighted culture was actually half what Tom shows.  14 years in 1790 and so on.

2.)  The proportion of culture covered by Tom’s graph changes by several orders of magnitude.  Until the 1976 Copyright Act we actually required some formalities before you received a copyright.  Those formalities differed through time, but at least this could be said — your work was not copyrighted unless you gave some indication that you wanted it to be (though the requirements of that indication were different).  For example, you might have to write “Copyright 1970 James Boyle.”  This meant that copyright was an opt in scheme.  But after the 1976 Act came into force, copyright was an opt out scheme, and it was hard to opt out.  (When we founded Creative Commons, and asked the copyright office how they would recommend putting a work into the public domain, they said “we don’t provide that service.”)  What did that mean?  Suddenly, all fixed original expression was sucked into copyright, whether you wanted it to be or not.  Copyright’s domain increased many hundred fold — in ways that have dramatically impoverished our archival heritage.  All those great home movies, journals, neighbourhood newspapers — they are all copyrighted for 95 years or the life of the author plus 70 years.  And since we can’t find the authors — they are effectively locked away.  We are the first generation that has managed to deny our own culture to ourselves.  No work created during your lifetime will, without conscious action by its creator, become available for you to build upon freely without permission or fee.  Its a cultural outrage.

Combine those two factors and what do you have?  If one looked at effective length of copyright for most works, one would find that a.) for most of American history the vast majority of most potentially copyrightable works weren’t under copyright at all  and b.)  that, of the tiny, tiny  percentage that were, the vast majority went into the public domain at the expiration of their first term.  Combine those two factors and the line on the graph becomes dramatically steeper.  In fact, it makes Everest look like the Netherlands. We have dragged all of culture into copyright, and kept it there even if the owners wouldn’t have wanted to renew.  So, bad as it is, Tom’s graph actually understates the reality.

http://twitter.com/thepublicdomain

I have been a member of the board from the beginning.  My e-mail folders have correspondence dating from 2001 when we thought it would be called “The IP Conservancy”  (hardly a name to inspire excitement) and that it would sit on our computers and hold great works donated by public spirited authors and heirs, as well as a free-for-all potlatch donated by the community.

Little by little those ideas (and that name) disappeared, and the Creative Commons you know now appeared.  The same e-mail history tells the story of the continual push to have a CC for Science — eventually founded by me, Hal Abelson and Eric Saltzman in 2004 — and to move CC more centrally into education.  (I was one of the co-founders of ccLearn in 2007).  At the beginning we dreamed, ambitiously, of having 10,000 digital artifacts under CC licenses.  There are now more than 200 million.   Through the process I got to work with astounding people.  Larry Lessig, first of all, who is the true moving force behind CC.  Larry invited me onto the board before there was an “it” to be on the board of, and is one of my dearest friends.  Molly van Houweling, who was CC’s first leader, Glenn Brown, Diane Cabell, John Wilbanks, Mike Linksvayer,  Ben Adida, Aaron Swartz, Mia Garlick… the list goes on and on; it would be Oscar-night long if I mentioned everyone — each one of them someone who at a particular moment did something without which the CC that exists now would not.

Then there is the CC board, with whom I shared fears, beers, triumphs, late night grant writing sessions,  and laughs too many to count. Working with Mike Carroll, Hal Abelson and Eric Saltzman was a particular delight.  [Vivid snapshots: Hal Abelson, one of the greatest computer scientists of his generation, proofreading the first CC website, line by line and link by link, like a high school intern. Laurie Racine, who heard a half-baked, back of the envelope pitch, and started the flow of money to make it happen.  Mike Carroll frowning as he worked on the first draft of the first CC license -- our Jefferson. [;->] Glenn Brown smiling with relief as everyone (finally) started to dance at the David Byrne/Gilberto Gil concert.  The first time I got yelled at by a collecting society rep. The first time we were mischaracterized in the press.  The first sleepless night thinking about the budget.Being condemned because the licenses allowed too much choice.. and too little. (All experiences that were to be repeated.) The first grant I co-wrote that was funded.  The 20th grant I co-wrote that wasn’t.  Seeing MIT Open Courseware come out — and realizing with a gulp that we had provided a key part of the architecture for global open learning. The first time someone said “lets put this under a CC license” and everyone in the room nodded, not knowing I had any connection to the organization. One of the founders of Google, saying to me, without apparent irony, “well, you have such a strong brand…” People from 40 countries at an iCommons event –  brilliant, accomplished people who were lawyers, academics, artists, judges — talking about CC as if it had always been there. Having a stranger explain CC to me. Michelle Thorne asking me about careers in open content.. I nearly chuckled, but she had the last laugh, she found one! The first time a collecting society rep suggested we could work together. The time a Nobel prize winner said “why doesn’t CC do something about this?” as if that were the most natural question in the world.]

And it meant I got to have friends around the world who put something of themselves into CC and changed it for the better — Joi Ito, our CEO, Paul Keller, Alek Tarkowski, Fred Benenson, Prodromos Tsiavos, Melanie dulong DeRosnay, Andrés Guadamuz, Tomislav Medak, Bernt Hugenholtz, Brian Fitzgerald, the whole of the CCi network…   I could just go on mentioning names but I’d be doing it more to spur my own memories than to communicate — still that is a function of blogs too.  Anyway, this unseemly display of nostalgia and the rehearsal of so many friends’ names serves only to say how very proud I am to have been a part of CC and how excited I am for its future.  We will be a central part of the movement that changes the way science is done, I think — the current inefficiencies are too great and the potential gain too enormous to let the chance slide.  I think open education is an idea which makes too much sense to be resisted (which is not to say it won’t be.)  And the idea of building a global creative commons is just as inspiring as its always been.

Still, its been a long time and after that many years, anyone deserves a bit of a rest and a change.  With the creation of Science Commons and ccLearn, and the transition from Larry’s leadership over, I feel as if I’ve already accomplished a lot of what I can contribute.  I am not going away of course.  I will continue to be a strong supporter of CC and particularly of Science Commons — it needs your help, give now!  I going to be doing much more work with the organization I set up at Duke, the Center for the Study of the Public Domain, including finishing a comic book on the history of music and working with the Center for Public Genomics.  I will be serving as a board member on the Public Library of Science — believing that there are lots of options for collaboration down the line.  And I will be looking on with interest,  awe (and occasional total, flummoxed confusion — remember, its Creative Commons we are talking about here!) to see what the future brings.  Keep in touch.  I will.