(I wrote most of this before I had learned of Michael Hart’s death; as I suggest below, Project Gutenberg is not, in my estimation, the ultimate solution to making the “public domain” a reality. It is, however, hard to think of a better, more successful project.)

There is no such thing as the public domain.

I have been meaning to write a short post to make a brief point for a while: there is no such thing as the public domain.

JSTOR’s decision yesterday to make its copies of “public domain” content available to “unaffiliated” users underscores this fact. No new content has entered the public domain; but being unencumbered by copyright and being readily available not the same thing.

The “public domain,” when we talk about expanding it or about new texts and images entering it, sounds like a wonderful place. But, of course, it isn’t a place at all. Like the related concept of “the commons,” the “public domain” offers an analogy to a shared public space. As my colleague Gabriel Hankins has reminded me, however, the “commons” was once an actual, honest-to-goodness place. You could (to adopt that infelicitous phrase which Liz Lemon has made infectious) “go to there.” You could even graze your cattle there.

Should you be interested in any of the many great texts which are in the “public domain,” however, there is no “there” to which you can go. This may seem painfully obvious and simple, but this fact means that making the “public domain” publicly accessible is not nearly as straightforward as it looks.

The “public domain” of copyright law is not a place but a freedom; the public domain is a metaphor. And because of this metaphor, the assertion that a text is “in the public domain,” can mislead us into thinking something is accomplished when it remains to be done. Expanding the public domain (through orphan works legislation or copyright reform) is an important an laudable goal. But expanding the public domain is only part of the problem.

No one should pay for Jane Eyre ever again.

In this sense, if the public domain isn’t a place, it is (or it ought to be) a task. Texts entering the public domain need someone to actually make them accessible. But who?

Project Gutenberg is perhaps the most successful attempt to bring the public domain into existence. It offers great texts in formats that are enormously helpful to readers.

But for scholars the project can feel a little unnerving. The source from which these texts are created is not always clear; and the project seems unconcerned with the many cases where a single work can exist in very different forms.

This may sound like the fusty preoccupation of textual scholars obsessing about reading apparatuses and variants (did you hear the one about the “soiled fish of the sea”?). But this is not a matter solely of interest to editors and textual scholars, or even to academic.

I’m going to speculate for a moment. Please excuse me.

Every year high school and college students read public domain texts; the establishment of reliable, freely available texts in open formats would be an unambiguous and unalloyed good of the highest order. Such texts could provide a basis upon which specialized annotated or critical editions could then be built. Imagine if every known bibliographic instance of a major text were available in some standard, lightly marked up version of TEI, ready to be remixed or added to for the differing circumstances of different classrooms. (One can imagine licensing such texts with something less stringent

The time is propitious to establish such texts; if I may play the role of futurist for a moment, it seems quite likely (almost certain) that most high school and college students in the future will be using electronic texts (rather than paper). With this possibility (eventuality?) in the foreseeable future, it seems a wise investment of scholarly effort to establish such texts. I think this fantasy of mine has at least some resonance with recent discussions on TEI-L about the future of the TEI, including this thread about a repository of TEI texts.

I know that there are problems here. Running a repository is no easy feat. What incentives exist for scholars to actually work on such an enormous bit of labor?

But isn’t there also an enormous opportunity here? The person who establishes the text(s) of a work with an enormous audience (a work like Jane Eyre) will have secured an enormous boon for the foreseeable future. Surely there is value there. Isn’t that the sort of thing you’d want on a CV? “I’m the guy who made Jane Eyre available to the future.”

There is no such place as the public domain. It sure would be nice, though, if there were.