The Law and the Cultural Commons

What is the Cultural Commons?

The cultural commons is a vast store of ideas, inventions, and works of art that we have inherited from the past. A commons is a kind of property in which more than one person has rights. A commons is a social regime for managing a collectively owned resource.

In writing about art and ideas, Lewis Hyde, in his book titled, Common as Air (2010) states at page 214 “art and ideas, unlike land and houses, belong by nature to a cultural commons, open to all”.

In Imperial China, 900 to 1800, to copy the work of those who came before was a matter of respect rather than theft. (Hyde, Page 20.)

Thomas Jefferson (1743-1826) said: “The field of knowledge is the common property of mankind”.

Benjamin Franklin (1706-1790) said that we have unpayable debts to the world around us, to our community, to our forebears, to the ancients, to nature, and to the Gods. (Hyde Page 145.)

History of Printing

Johannes Gutenberg (1398-1468) was the first European to use movable type printing, circa 1439.

In the 17th century there were a mere 20 printers in London, England who had monopoly privileges. In the 18th century there were 30,000 printers and booksellers in England. (Hyde Page 89.)

In the 18th century, American revolutionaries stated that monopoly privileges must be limited and not be perpetual. In the European experience, perpetuities were a tool of despots.

In Britain, circa 1620, the Crown prohibited the publication of proceedings of Parliament. (Hyde Page 150.) In Maryland, U.S.A., in 1693 a printer was jailed for publishing the proceedings of the legislature.

History of Copyright and Patents

Samuel Johnson in the 18th century stated that the interests of learning are against the creation of a perpetual copyright in favour of authors.

John Dollond (1706-1761) was an English optician who successfully claimed a patent in a case where Lord Mansfield stated that the advantage that an inventor gains is not for having made the invention, but for having disclosed the invention to the public, so that when the limited period of his patent has expired, the public gains the free use of the idea. Similarly, a limited copyright can be described as a grant whose true purpose is not to reward creators but to enrich the cultural commons.

In England, after the invention of the printing press, the Crown in 1557 granted monopoly rights to a group of London printers, whereby the London printers enjoyed a state-sanctioned monopoly over what appeared in print. In 1710 the first copyright law, the Statute of Anne, granted authors, upon registration, copyright in their works for 14 years. In the absence of registration all books entered the public domain as soon as they appeared. The Statute of Anne was the first copyright law and had the effect of opening up the book trade and created a cultural commons in books. The proper name of the Statute of Anne was “An Act for the Encouragement of Learning”.

Adam Smith (1723-1790) in his classic book, The Wealth of Nations, condemned grants by the Crown of monopoly rights to commercial interests such as the London printers.

The Legal Commons

Hyde states that the legal community came to life through agreed-upon non-ownership of creative labours. That is, legal opinions are public documents belonging to no one because they belong to all of us. Hyde states that nobody has ever successfully claimed copyright in the unauthorized use of someone else’s legal argument. In fact, legal writers want to have their work appropriated. The law is collective: it belongs to all citizens…. to sample someone else’s brief is a favour, not a theft …. common ownership makes that species of public life possible. (Hyde, page 248 and 249.)

In Newsletter No. 15 in September 1995, Maritime Law Book stated that we “do not claim copyright in judicial decisions. But we do claim copyright in our headnotes”.

Starting in June 2008 MLB provided free access to all its databases, except headnotes. We call such access Raw Law.

The MLB Key Number System was created by MLB by reliance on classifications or topical arrangements found in legal texts and legal encyclopedias. Should our claim to copyright in the Key Number System be questioned? MLB has consistently granted permission to law librarians for the use of our Key Number classification system for a library’s internal use.

Noah Webster in creating his famous dictionary borrowed extensively from Samuel Johnson’s dictionary. Nevertheless, Webster claimed a perpetual copyright in his work. (Hyde Page 185 and 186.)

In Law Society of Upper Canada v. CCH, 317 N.R. 107, [2004] S.C.J. no. 12, the Supreme Court of Canada stated at para. 35 that judicial decisions are part of the legal commons. Paragraph 35 stated:

[35] This said, the judicial reasons in and of themselves, without the headnotes, are not original works in which the publishers could claim copyright. The changes made to judicial reasons are relatively trivial; the publishers add only basic factual information about the date of the judgment, the court and the panel hearing the case, counsel for each party, lists of cases, statutes and parallel citations. The publishers also correct minor grammatical errors and spelling mistakes. Any skill and judgment that might be involved in making these minor changes and additions to the judicial reasons are too trivial to warrant copyright protection. The changes and additions are more properly characterized as a mere mechanical exercise. As such, the reported reasons, when disentangled from the rest of the compilation – namely the headnote – are not covered by copyright. It would not be copyright infringement for someone to reproduce only the judicial reasons.