I believe in open. Rather than trying to deny that fact, I figure it’s best to reveal my personal bias from the get-go. Although my work with Open Education Resources is recent, I’ve embraced the spirit of open throughout my professional career. As an educator, the materials I created were freely shared with my peers, no credit required. In contract work, I’ve requested that our collaborative works be licensed via Creative Commons, preferably with the least restrictive license possible. Further, as a trained archivist, I understand that present U.S. copyright law is convoluted, with records of cultural heritage sometimes being subject to antiquated state and federal laws. Finally, politically (and relevant to my argument), I tend to be a constitutionalist. Now that I’ve revealed my bias for all to see, let’s get to the heart of the matter.
In its earliest iterations, intellectual property (and therefore copyright) was intended to protect the rights of the creator for a very short period of time to incentivize innovation and maximize mutual benefit to the creator and society at large. In describing the history of intellectual property, Wikipedia references laws that include such phrases as “limited in time and scope;” “as little protection as possible to ensure innovation;” “a patent for five, ten, or fifteen years;” etc. In fact, the U.S. Constitution, Article 1, Section 8, Clause 8 states that Congress shall have the power “to promote the progress of science and useful arts, by securing for limited times [emphasis mine] to authors and inventors the exclusive rights to their respective writings and discoveries.” In each of these instances, wherein a creator is granted exclusive privilege for a time, the balance of mutual benefit directly relates to that limited term. If, as is currently the case under the Copyright Term Extension Act, a creator is granted roughly 100 years or more (lifetime +70) of copyright, how does the public, who perhaps financially supported the work (through grants and funding or the social contract made in respecting copyright), benefit? In line with this, since copyright was intended to encourage a creator to keep creating, those protections should cease immediately upon a creator’s death.
Beyond this, I find the idea that someone could patent something for 100+ years galling. While I support the ability of an individual to own their work and would argue with anyone for the necessity of attribution and crediting a creator, I do not believe that a 100-year protection of creative works is appropriate in our connected world. History is rife with examples of the diffusion and improvement on ideas. Further, whether we speak about art, science, or thought, the “greats” that we study throughout our past often learned by studying the work of another "great." Consider Plato as student to Socrates, artists like Michelangelo or Van Gogh copying the masters who came before them, or Copernicus and Kepler building on the research of Ptolemy and each other. Knowing that each of these examples occurred in a much less connected world than ours today, I want to highlight the fact that we, as man, have never lived in a creative or intellectual vacuum. We create by remixing the work of others and adding our own unique flair, perspective, vision, etc. This does not make our work any less valid or creative, but it does raise questions about the amount of time we should be willing to allow someone to protect an “original” (really?) work.
At the end of the day, and given the digitally connected environment in which creation and innovation occur, I firmly believe that copyright protection should be limited to the creator and restricted to a length of no more than 15 years (although I would prefer something closer to 7). I will go a step further and say that any creators who are funded by public monies should be required to license their works for retention, reuse, revision, remixing, and redistribution (The 5 Rs of Openness) using the least restrictive Creative Commons license available. (I choose Creative Commons so attribution is required whereas in the Public Domain it is optional).