In Enclosing the public domain: The restriction of public domain books in a digital environment, a paper in First Monday, researchers from the Victoria University of Wellington document the widespread proactice of putting restrictions on scanned copies of public domain books online.
They sampled repositories like Google Books, Project Gutenberg, and the Internet Archive, and found about half the public domain books in their sample had some kind of conditions or restrictions on their use, due to uncertainty about whether the books were in the public domain. However, they showed that they could typically determine public domain status in about a minute, and say that the repositories should be following suit.
Meanwhile, Parker Higgins describes his own difficulties with public domain audio clips on Soundcloud, which are targeted by copyfraudsters who falsely claim to own clips like the "Houston, we have a problem" recording made during the Apollo 13 crisis. As Higgins points out, there are plenty of powerful entities who lobby online services for a shoot now/ask questions later approach to copyright takedowns, while the victims of the fraud have no powerful voice advocating for them. Combine that with a legal system that imposes no penalties for copyfraud, and you've got a recipe for out-and-out ripoffs that render the public domain nearly meaningless:
Even as these companies and services strive to be massively accessible public spaces—SoundCloud bills itself as "the world's leading social sound platform where anyone can create sounds and share them everywhere"—they reflect mostly corporate priorities, because they face far too little pressure from the other side. That is, from users who wish to participate in culture, and who don't want to be treated like criminals.
But that doesn't have to be the case. I refuse to let this be an eulogy for the public domain. I choose to engage with it as an essential component of a participatory culture. It's only if we forget how to use it that we could see it wither away. Even with its rough recent history, it deserves our attention, and our support.
I'm sure my particular uploading situation will work out fine. SoundCloud is full of smart people, and this automated match will get cleared up in days, if not hours. But that's ultimately an unsatisfying conclusion. The real problem is that we've bought into the rhetoric and the arguments that an unauthorized use is an unacceptable use. As a result our online services have looked less like the public platforms we want, and more like policed spaces where any activity can be interrogated for its papers, please.
Houston, We Have A Public Domain Problem [Parker Higgins/Medium]
Enclosing the public domain: The restriction of public domain books in a digital environment [Alex Clark and Brenda Chawner/First Monday]