There are endless schemes for improving education, from testing to vouchers to charter schools to standards and back to testing again. There's one simple step, though, that isn't on the list of de rigeur reforms that would decrease education costs and increase the relevance and breadth of the curriculum. That step is letting copyrights lapse.
As Timothy B. Lee wrote last week at the Washington Post, we've just passed the 15 year anniversary of the Sonny Bono Copyright Term Extension Act. That law retroactively put another 20 years onto all works due to enter the public domain. It ensured that iconic songs by Gershwin and, iconic properties like Mickey Mouse would remain private property for another two decades. Extending copyright provided an enormous windfall to those owners. The money and incentives being what they are, it seems likely that Disney and others who stand to profit will lobby Congress to extend copyright even further the Sonny Bono Act lapses five years from now.
Lee points out that opposition to copyright extension is much more organized now than it was 15 years ago. In part this is because of increased academic research. In part it's because Internet companies like Google have an interest in providing services (like Google books) that depend for their value in no small part on a robust public domain. Artists like Nina Paley have argued that restrictive copyright doesn't promote creativity, but curtails it by, for example, making it difficult to impossible for filmmakers to clear music. Recently, Joseph Thomas wrote in Slate about how that copyright restrictions have made it virtually impossible for him to publish his biography of Shel Silverstein.
But restricting the public domain doesn't just hurt artists and scholars. It hurts educators too—and, by extension, it hurts the kids they educate.
I've worked as an educational writer in a number of contexts over the last twenty years, and educational materials inevitably rely heavily on the public domain. Whether you're working on a textbook or creating passages for exams, every project has a limited budget—if you can use the public domain for free, you use the public domain. Moreover, getting permissions for copyrighted work can be difficult to impossible. Rights holders may charge exorbitant fees, or may place restrictive conditions on use—refusing to allow subheads, for example, which might be necessary to help students find their way in a challenging text. Even worse, there are many cases where you can't find the copyright holders at all, or can't get them to respond to you. Thus, costs of non-public domain texts generally include not just the fees themselves, but labor and frustration.
With all these hurdles and expense, there is a powerful incentive to use works that are already in the public domain. When I first started to do educational writing 20 years ago, that meant using materials that were 75 years old. First it was works before 1920, then 1921, then 1922…I remember thinking ahead, greedily, to that time only a few years in the future, when I could present students with passages from Langston Hughes, Ernest Hemingway, Dashiell Hammett, Zora Neale Hurston.
But that never happened. Instead, the copyright extension was passed in 1998, and works from 1923 forward were embargoed for another 20 years. Which means that for the bulk of my career, I've been going for examples to the same old texts—which are only getting older.
So what's wrong with old texts? Obviously, there's a lot of great writing from the past, whether it be Jane Austen or Mark Twain or Isabella Bird—and I've used passages from all those people. Still, the fact is, language and life change over time. Shakespeare's English is different from ours; you don't necessarily want to use a passage from Hamlet to illustrate grammar rules, unless your goal is to completely befuddle your students. Much of the children's literature of the past, which would be usable in terms of reading level, is couched in a sentimental idiom that is going to repulse most kids today, just as it would repulse most adults. And passages from before 1922 don't reference the Internet, or television, or commercial air travel, or sports leagues, or even the highway system. The world of 95 years ago is very alien to a 12-year-old. Which doesn't mean they can't read about it, but it is an additional barrier to both interest and comprehension.
The biggest problem, though, is diversity. For many reasons—fewer educational opportunities, prejudice on the part of publishers, prejudice on the part of the reading public—the number of works by black writers before 1922 is limited. This is especially the case because educational publishers are often, shamefully, unwilling to include discussions of slavery in exam material on the grounds of "sensitivity". The Harlem Renaissance, with Hughes and Hurston and all its wonders, is poised there in the mid-1920s—locked away for another generation when the Sonny Bono Act was passed. And there are even fewer works to choose from by Asian-American and Hispanic-American writers. Extending copyright, then, effectively leaves students listening to an America, and a world, that has the progressive racial representation and attitudes of 95 years ago.
Educational publishers do obtain more recent material to show kids. But the Sonny Bono Act has made it harder and more expensive than it needs to be. Extending copyright further would make it harder still. We have a public domain because giving people access to knowledge makes us as a culture stronger, smarter, and richer In the name of propitiating Disney, Congress is robbing the rest of us, adults and children both.