In a world in which pub­lic domain speech­es by gov­ern­ment offi­cials on gov­ern­ment time are copy­right­ed, it’s hard to con­clude any­thing oth­er than that copy­right is broken.

If it is not “fair use” to present film shot by CSPAN’s cam­eras of con­gress­crit­ters at work for edu­ca­tion­al pur­pos­es and with attri­bu­tion, copy­right is broken.

His­tor­i­cal­ly, the idea was that works were in the pub­lic domain unless Con­gress, exer­cis­ing a right grant­ed by the US Con­sti­tu­tion in order “to pro­mote the progress of sci­ence and use­ful arts,” grants a copy­right, patent or trade­mark. In our age of cor­po­rate mass media, con­tent pro­duc­ers like Dis­ney have worked hard to reverse this equa­tion, mak­ing restric­tions on copy­ing the default, with pub­lic domain occu­py­ing a rare and spe­cial status. 

The con­se­quences of that are far-reach­ing. I casu­al­ly quot­ed the Con­sti­tu­tion above, and I could sell mate­ri­als which casu­al­ly quote the Bible, Shake­speare, the Fed­er­al­ist Papers or Mark Twain. But if the same doc­u­ment con­tained an image of Mick­ey Mouse, or quot­ed the “I Have a Dream” speech, or a chunk of Por­gy and Bess, I could be in trou­ble. The copy­right on those works have been extend­ed every time they get close to expir­ing. “Oh! Susan­nah” belongs to all Amer­i­cans, not just Stephen Fos­ter, and in any just world, so would Gersh­win’s “Sum­mer­time.” That is what “pub­lic domain” means.

For­tu­nate­ly, Con­gress is slow­ly mov­ing to restore some bal­ance. It won’t end the copy­rights on cen­tu­ry-old works, but the FAIR USE Act would at least clar­i­fy the right to quote from a copy­right­ed work for pur­pos­es of jour­nal­ism, crit­i­cism, com­men­tary and research. I can’t say whether that would put the Speak­er’s use of CSPAN’s clips back in the clear, but I hope so.