The Squirrels Are Watching

Proposal: A Public Domain Fund

Posted in Fact and Law by andrewfong on December 17, 2009

Quick idea

Google and various other Silicon Valley entities should create a Public Domain fund. Basic idea is that you submit some creative work (a song, image, etc.) and through the magic of up-down voting, the top X entries win some Y dollars. Only catch is that if you take money from the fund, your work must now be in the public domain.

Rationale

A large number of people and groups depend on there being a robust public domain (or at least things easily redistributable via Creative Commons) — from lip dubs to remixes to fan fiction to mere inspiration, a substantial amount of creative expression takes the form of a derivative work. Whenever I feel the need to Photoshop (or GIMP) something together, I often spend a lot of time on Google Image Search or Flickr looking for source material. I imagine I’m not alone. Much of the derivative work out there gets by on fair use, but there’s definitely a good chunk of it doesn’t (or hovers in some gray area).

Furthermore, obtaining licensing and permissions from the original right holders is a tremendous hassle. There’re legal documents to be signed, dollars to be transferred, and hours to be wasted while you wait for someone to respond to your e-mail. Furthermore, the market value for a lot of these mash-ups is uncertain and probably not worth any licensing fee. More often than not, I’d bet that the creators of derivative works do one of two things: (1) give up on the current project or (2) use the source material without permission.

These derivative work creators would benefit from a large body of public domain works available for use. Now I’m not saying there isn’t already stuff out there. I certainly am usually able to find what I need given enough time, but it’d definitely make things a lot easier if public domain / less restrictive licensing were the norm. A Public Domain Fund would provide an economic incentive for creators to use less restrictive licensing.

Some issues

We require more money. Not necessarily — the goal is not to directly increase the public domain by paying off creators but to indirectly do so by shifting mindsets. Think of it a gimmick of sorts to get people thinking about the value of the public domain.

Why would creators agree to public domain their work? Some creators could potentially earn more by reserving all rights and licensing it out. Maybe. However, (1) a lot of creators toil in relative obscurity with little chance of a payout. Taking a smaller payout early on in exchange for committing their work to the public domain may be a good deal. (2) Committing a piece of work to the public domain doesn’t mean you’re going to see zero future profit from it. Being in the public domain doesn’t mean you can’t sell albums, charge for performances, or make money off of endorsements. It just means other people can do so as well. Those other people place some downward pressure on the prices you can charge, but it’s still above zero. And enough people out there value being “original” that it’s probably not much downward pressure at all (e.g. U2 can probably charge much more for a concert ticket than some high school band doing a cover of the same songs). (3) Competition with “copycats” is not zero-sum. People listening to a rip-off of your work on YouTube are probably going to more interested in hearing the original than if they never heard the original rip-off to begin with.

Who pays? Derivate works creators as a whole aren’t really organized enough to pull this off. However, there are certain large entities that benefit from these derivative works that could pull this off. Google / YouTube is an obvious one. Personally, I think the National Endowment for the Arts should put in a public domain requirement if they don’t already. At any rate, if you look around in that area, I’m pretty sure you can find enough large players to fund this.

Feedback / suggestions welcome.

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