[Note: This analysis is published in the context of the 2019 #CopyrightWeek, under the theme of 16 January on ‘Public Domain and Creativity’, which revolves around the idea that: “Copyright policy should encourage creativity, not hamper it. Excessive copyright terms inhibit our ability to comment, criticize, and rework our common culture”.]

[Note: Find here an Estonian translation of this article by Raul Veede from Wikimedia Eesti]

On 16 January, the #CopyrightWeek theme is ‘Public Domain and Creativity’. The starting point is that: “Copyright policy should encourage creativity, not hamper it. Excessive copyright terms inhibit our ability to comment, criticize, and rework our common culture”.

Something remarkable happened recently. For the first time in 20 years, new works entered the public domain in the US. Those from 1923 should have become freely available for any purposes in 1999, after the standard 75-year copyright term had expired. But in 1998, the US Congress passed legislation that extended their copyright for another 20 years, giving works published between 1923 and 1977 an expanded term of 95 years.

Although it is welcome that there is this sudden flood of works entering the public domain, many well-known, it is also a disgrace that this twenty-year gap ever happened. At the heart of modern copyright lies a compact: in return for receiving a time-limited, government-backed monopoly on the diffusion of their works, creators promise to allow them to pass into the public domain at the end of that monopoly term.

The theory is that this guaranteed term of protection acts as an incentive to create new works. But extending copyright by 20 years in 1998 could have no impact on the creation of more works back in 1923, for obvious reasons. The retrospective extension provided no gain for the original creators, but a real loss for the general public, who were denied their side of the copyright bargain – the free use of works from 1923. That unjustified extension of US copyright in 1998 was taking from people what was rightly theirs, something that is commonly called “theft”. The unwarranted twenty-year absence of new public domain works is therefore real copyright theft, unlike the bogus kind so often invoked by the copyright industry.

Extending copyright retrospectively is clearly absurd as a way of encouraging dead artists to be more productive in the past. But what about copyright itself? Is there any evidence that it is important as a stimulus for creativity among living artists?

Shakespeare died a hundred years before modern copyright came into existence with the 1710 Statute of Anne. In France, there was no copyright for any of the country’s classical masters – Molière, Racine, Rousseau and Voltaire. Italy’s supreme poet, Dante Alighieri, died in 1321, some six hundred years before Italy introduced copyright. The first German copyright law appeared in Prussia in 1837, which means that neither Goethe nor Schiller ever had legal protection for their works. Alexander Pushkin, by contrast, did live to see Russia’s first copyright law. It was passed in 1828, a few years before he died in a duel. But he began his masterpiece, Eugene Onegin, a novel in verse, in 1823. So he could hardly have been stimulated to create what is regarded by many Russians as the greatest work in their language by the prospect of a government-backed monopoly on it.

What is true for literature, is even more the case for the other arts, all of which received copyright protection much later than the written word did. This means that the compositions of J. S. Bach, Mozart and Beethoven were created without copyright protection, as was all Renaissance and Baroque art. That includes painters such as Leonardo da Vinci, Rubens and Rembrandt; sculptors like Michelangelo and Bernini; and architects like Brunelleschi and Wren.

While copyright evidently played no role whatsoever in the creation of Western civilisation’s greatest masterpieces, the public domain, by contrast, was crucially important. Of course, the concept did not exist until copyright brought it into being by negating it. Before copyright, everything was what we now call the public domain – a rich resource that artists could draw on and use directly in order to create new works, without needing to ask permission from anyone.

Shakespeare is a perfect example of how creativity worked before copyright. All of his plays draw on existing tales, histories, poems and theatre works, to a lesser or greater degree. The extent of his debt to existing material is evident in one of his greatest plays, King Lear. As well as using information from “The Chronicles of England, Scotlande, and Irelande” by Raphael Holinshed, published in 1587, Shakespeare drew on multiple sources, including an earlier “King Leir”, even to the extent of copying them verbatim:

possible sources are the anonymous play King Leir (published in 1605); The Mirror for Magistrates (1574), by John Higgins; The Malcontent (1604), by John Marston; The London Prodigal (1605); Montaigne’s Essays, which were translated into English by John Florio in 1603; An Historical Description of Iland of Britaine (1577), by William Harrison; Remaines Concerning Britaine (1606), by William Camden; Albion’s England (1589), by William Warner; and A Declaration of egregious Popish Impostures (1603), by Samuel Harsnett, which provided some of the language used by Edgar while he feigns madness.

Shakespeare was not alone in taking whatever he needed from wherever he found it, and making something better. The non-existence of copyright and its restrictions meant that artists faced no legal obstacles when it came to building on the work of others. Handel thought nothing of basing compositions on themes by other composers. Bach re-wrote entire pieces by contemporaries such as Vivaldi, arranging them for different forces. When Mozart composed “The Marriage of Figaro“, he didn’t need to enter into negotiations with the French author Beaumarchais, who wrote the original play that the opera is based on. Similarly, it would never have occurred to Beethoven to ask Schiller for permission to use the poem “Ode to Joy” in the finale of the composer’s Ninth Symphony, or to check that his alterations to the poet’s text were acceptable. All assumed they were free to draw on the works of their predecessors and contemporaries, and accepted that others would do the same when it came to their own creations.

Compare that situation with today. Eric Whitacre is one of the best-known and most popular contemporary composers. As well as writing music that has a wide following, he is also noteworthy for his enthusiastic embrace of the Internet, for example in his Virtual Choir performances, one of which has nearly six million views on YouTube.

In 1999, Whitacre was commissioned to write a choral piece in memory of a couple who had died within weeks of each other after 50 years of marriage. He was asked to set Robert Frost’s well-known poem “Stopping By Woods on a Snowy Evening”. Whitacre was inspired by the text to create one of his most memorable pieces, which was widely performed. Then he discovered that, contrary to his initial belief, he was not allowed to set the poem:

After a LONG legal battle (many letters, many representatives), the estate of Robert Frost and their publisher, Henry Holt Inc., sternly and formally forbid me from using the poem for publication or performance until the poem became public domain in 2038.

I was crushed. The piece was dead, and would sit under my bed for the next 37 years because of some ridiculous ruling by heirs and lawyers.

In the end, Whitacre was able to salvage his work by asking a friend of his, a poet he had worked with before, to write new words that fit the music. The result is “Sleep”, which was also performed as part of Whiteacre’s Virtual Choir project. The story has a happy ending, but only because Whitacre happened to know someone who had the skills and the inclination to help.

In any case, it highlights how the problem would never have arisen had the poem been in the public domain (as, ironically, it now is – the “heirs and lawyers” were wrong). It underlines how the frictionless nature of the public domain promotes creativity by getting out of the way, and letting inspiration run freely. Contrast that with copyright, which is an unavoidable obstacle to artists who wish to celebrate the work of others by extending it. Today, copyright’s monopoly brings with it legal and economic threats of such dire force that, far from stoking the artistic fire, it quenches it. If we want more great art of the kind and calibre of Shakespeare and his fellow geniuses, we need more public domain – not more copyright.