About Unclosure, or Thoughtful Engagement with the Public Domain
The public domain is the “great and ancient storehouse of human innovation” (Hyde 2010, 47). On January 1, 2019, that storehouse expanded in the United States for the first time in twenty years. While a new group of works should enter the public domain annually as copyright terms end, the United States Congress passed legislation in 1998 that extended these terms. The law became known as the “Mickey Mouse Protection Act” because it protected Disney’s “Steamboat Willie” (1928) the film where Mickey made his first appearance. It took another two decades before the next group shed their copyright protections, starting with work published or exhibited in 1923 and advancing each year. Once those works re-enter the cultural commons, anyone can use them freely without permission.
The public domain is defined by copyright. When British Parliament passed the first copyright law, the Statute of Anne, in 1710, the authors or owners of a book were granted the sole privilege to print or reprint it for fourteen years, a term which could be renewed once during the author’s lifetime (Hyde 2010, 53-54). The granting of exclusive rights to some meant restricting access for others. Thus the public domain only came into existence with the expiration of the first copyright terms when those works were released back into the cultural commons.
The first federal copyright law in the U.S. was similarly structured. The Copyright Act of 1790 was approved by Congress in response to President Washington’s urgent call in his first State of the Union address. The law provided those who filed for copyright a monopoly over their intellectual property for fourteen years with the possibility of renewing for another term. Congress deemed it “An Act for the Encouragement of Learning” because it was intended to promote the creation of culture that would ultimately belong to and benefit the people of the United States once the copyright had expired. The underlying theory of all such legislation is that while exclusive rights may limit the public domain in the short term it will lead to a larger and richer one in the long term (Hyde 2010).
As the terms of protection have continued to expand, the public domain is further limited. Under current U.S. copyright law, a work published after 1977 is copyrighted for the life of the author plus 70 years meaning it could potentially be protected for 170 years. Legal scholars such as James Boyle have described the extension of U.S. copyright terms as a “Second Enclosure Movement” and they “continue to debate the wisdom and extent of cultural enclosure” (Hyde 2010, 57). Just as the enclosure movement in England consolidated communal agricultural land into privately owned farmland, the enclosure of the cultural commons lead to intellectual property being fenced off for the exclusive use of the rights holder. For Boyle, the public domain is a necessary counterpoint to the increasingly restrictive reach of U.S. intellectual property laws.
Unclosure: An Act for the Encouragement of Learning is one attempt to counter the enclosure of culture by “unclosing” it. The cultural commons is not just fenced off by expanded copyright terms, but increasingly by a lack of awareness surrounding copyright law. At the same time works from 1923 are finally shedding their copyright terms after the twenty-year delay, our project seeks to inform the general public about its rights to access, use, and publish these works. Like the first U.S. federal copyright law, it is another act for the encouragement of learning. However, the hope is that this one will more immediately benefit students, teachers, scholars, and creators as they engage the culture that has reverted to their communal ownership.
In order to empower others to participate in the cutural commons, we decided to be transparent and share what we learned about the public domain and digital humanities through the Praxis Program through the University of Virginia’s Scholars’ Lab. Perhaps the best way to sum up the project is as a big pedagogical experiment. For reasons outlined below, we chose to focus on a single text published in 1923: Robert Frost’s New Hampshire. Working with everything from typeface to the whole collection, we created legal and logistical tutorials for a series of digital interventions. Each of the following interventions or projects is an example of what can be done with materials that are now in the public domain: storymap, sound, text mining, translation, typeface, and the website itself.
There are implicit assumptions about who benefits from the dedication of cultural production to the “public.” It is no coincidence, for example, that the Disney corporation has shaped both the history of copyright in this country and benefited enormously from works that have entered the public domain. Similarly, within the digital humanities there has historically been an implicit assumption that putting something online is akin to making it accessible to a broad public. We have attempted to address these oversights and inequities in our methods. Each project uses only open-source software and texts readily available for free through digital repositories and websites.
The accompanying tutorials describe how each project was made, advice for navigating relevant copyright law, and some include also thoughts about how instructors could incorporate such projects into the classroom. They assume no prior knowledge or experience, but mean to introduce fundamental skills and critical issues in digital humanities that could be relevant to a wide range of disciplines. It should be noted that though we are an interdisciplinary team, not one of us is a literature scholar. The tutorials will perhaps offer other scholars better equipped for literary analysis with the tools necessary to intervene in other public-domain texts using some of the digitial tools and methods. The hope is that these examples will spark new ideas for reimagining the corpus of art, film, literature, and music that has no reverted to communal ownership.
Why New Hampshire?
New Hampshire has a particularly emblematic history when it comes to copyright and the public domain. It is an iconic collection featuring some of Frost’s most famous poems, such as “Stopping by Woods on a Snowy Evening” and “Fire and Ice.” In writing the title poem, he drew from the cultural commons, parodying T.S. Eliot’s seminal work of poetry The Waste Land (1922) in his use of excessive footnotes (Tuten and Zubizarreta 2000, 230). The collection the won him the 1924 Pulitzer Prize in Poetry and he then went on to serve as Poet Laureate for Vermont. The success of New Hampshire led Frost’s estate and publisher to vigorously defended its copyright, even as the poems circulated widely through American culture from English textbooks to John F. Kennedy’s campaign speeches. Now, the first edition with its original font and woodcut images has entered the public domain; it exemplifies the life cycle of cultural production which begins and ends with the commons.
But how common is the commons? In the weeks leading up to Public Domain Day, several newspapers and websites released cherry-picked lists of what they thought were the most notable works entering the public domain. Time and time again, they cited Frost’s New Hampshire (1923) as an example of a classic work that would soon shed its copyright restrictions. Rather than focusing on the historical ways in which Frost has been canonized, we saw the potential to explore how public-domain status could foster interventions in the canonical status of New Hampshire. While the re-emergence of the public domain and its updating every year brings opportunities for new circulation, it also invites us to think about who can circulate, how they circulate, and what political and social injustices might be re-instantiated by doing so. The public domain is about renewed circulation, but it also demands that we decide how to deal with works that are over a century old. These works reflect the culture(s) of their time and are laden with assumptions about race, gender, and class. How can we intervene in them in responsible and ethical ways to more generally promote a public good?
In her critique of digital humanities’ tendency to privilege the epistemologies and ontologies of the Global North, Roopika Risam proposes that we incorporate decolonial “intellectual moves” to center “that which has traditionally been relegated to the position of subaltern in dominant narratives” (Risam 2018, 84). Such gestures could be grounded in what decolonial theorists Walter Mignolo and Madina Tlostanova call “border thinking,” which they define as an “epistemology of exteriority:” a way of thinking that responds to coloniality by denying the epistemic privilege traditionally assigned to Euro-American paradigms, drawing instead from indigenous, subaltern and other historically-excluded modes of thought (Mignolo and Tlostanova 2006, 206). In the process of asking what can be done with a work like New Hampshire, we have tried to engage in our own small acts of border thinking.
Frost’s poetry portrays a colonized, Euro-American landscape antithetical to the ideals of inclusivity, equal access, and hybridity underlying discourses of the “cultural commons.” Poems such as “The Gift Outright,” which Frost recited at President Kennedy’s inauguration, suggest that colonists only needed to overthrow English oppressors in order to possess the land. Native people are absent in Frost’s vision of what would become the northeastern United States, their own claims to their homelands unmentioned. When Frost does acknowledge the region’s indigenous peoples, he perpetuates the myth of the “vanishing Indian,” the idea that natives were doomed to perish rather than capable of surviving and adapting while preserving their cultures. In “The Vanishing Red,” Frost chronicles the grizzly murder of “the last Red Man in Acton [Massachusetts]” at the hands of a Euro-American miller. For the poetic speaker, this murder embodies the centuries-long conflict between natives and settlers. The death of “the last Red Man” signals the “inevitable” disappearance of native peoples from a colonized land. It is no wonder that Frost’s poetry is not well received in native communities.
Long before European settlers called the place “New Hampshire,” it comprised part of W8banaki, the Dawnland (Bruchac and Joubert 2019, 343). This traditional homeland of Abenaki peoples spans from Lake Champlain to the coast of central Maine, and from the St. Lawrence River to northern Massachusetts. The Abenaki comprise sovereign peoples throughout New England, including the following bands and tribes: The Cowassuck Band of the Penacook Abenaki People, The Elnu Abenaki Tribe, Koasek (Cowasuck) Traditional Band of the Sovereign Abenaki Nation, Abenaki Nation of Missisquoi - St. Francis/Sokoki Band, and the Nulhegan Band of Coosuck Abenaki Nation. Although Abenaki peoples have inhabited their lands for over 10,000 years, they are conspicuously absent from Robert Frost’s New Hampshire.
Abenaki peoples refer to their homeland as nd’akinna. You can hear within it the root aki, meaning “land.” And you can also hear n, used in this construction as an exclusive plural possessive pronoun. The Abenaki historian Lisa Brooks explains the linguistic features of the Abenaki language as well as its political implications for indigenous peoples:
“In the Abenaki language, as with many indigenous languages on this continent, the pronoun we (and its possessive form) is always inclusive (‘kiona’) or exclusive (‘niona’), and thus specificity is built into the very structure of language. In the twenty-first century, as indigenous methodologies are moving into spaces from which they were previously excluded, these concepts may help ‘us’ to be more aware of the ways in which ‘we’ build a more inclusive or exclusive process of ôjmowôgan, the collective activity of (telling) history.” (Lisa Brooks 2018, 266)
Therefore, nd’akinna means, “our land,” but distinguishes between those speaking (who possess the land) and those listening (who do not). Nd’akinna, then, is not the word that we non-native settlers sought to use in speaking about Abenaki homelands. Instead, the appropriate construction is wd’akiw8, “their land,” which distinguishes between those speaking (we, who do not possess the land) and those who it belongs to. This linguistic distinction demands we consider whose land we seek to discuss as well as the appropriate way to discuss it. Crucially, it also reminds us about the clear distinction between speakers and listeners - and that one of our main responsibilities in this project was listening to the indigenous voices that New Hampshire neglects.
Native scholars have argued that although indigenous peoples remain in their homelands, Euro-American colonizers have tried removing them from the history of those places. The Western Abenaki anthropologist Marge Bruchac calls this process “historical erasure.” She argues that, during the nineteenth century, local antiquarians, geologists, and zoologists marginalized native oral traditions and knowledges of peoples inhabiting the Connecticut River Valley in present-day New England. Despite the survival of the region’s indigenous peoples, scholars cast them as “‘unreal’ remnants of the Native past,” believing all “real Indians” had vanished centuries earlier (Bruchac 2007, vii). The Ojibwe historian Jean O’Brien similarly traces the process by which colonizers wrote indigenous peoples out of their own lands. In her book, Firsting and Lasting: Writing Indians out of Existence in New England, O’Brien argues that, during the nineteenth and early-twentieth centuries, amateur scholars across New England wrote town histories that celebrated the “first” arrival of European colonists while claiming to chronicle the disappearance of the area’s “last” indigenous inhabitants. While colonization wrought physical violence against native peoples, colonists consolidated their claim over native homelands through the “histories” they wrote about them.
However, Abenaki and other indigenous peoples have long used writing to lay claim to their lands, assert their identities, and express their cultures. The Abenaki word for the noun that English-speakers call “writing” is awikhigan. Lisa Brooks explains that, “in the Abenaki language, awikhigan first described birch-bark maps and scrolls, but it has come to include petitions, letters, maps, drawings, and especially books” (Brooks 2018, 262). Capacious in its forms, awikhigan is also intimately related to space. Brooks argues that, since long before colonization, awikhigan has conveyed “the relationships between people, between places, between nonhumans, between the waterways that joined them.” The stories recorded on these awikhigan “would even connect people with their relations across time, bringing the past, present, and future into the same space” (Brooks 2008, 12).
A vibrant community of Abenaki poets, authors, storytellers, artists, language specialists, and other culture carriers continues both transmitting their peoples’ ancient knowledges and contributing new threads to their culture. In our effort to learn by listening to Abenaki voices, we drew from several centuries of Abenaki literature, starting with Dawnland Voices: An Anthology of Indigenous Writing from New England, edited by Siobhan Senier in coordination with eleven tribal editors. The anthology contains writings from the centuries before colonization to the present day by indigenous inhabitants of present-day Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, and Connecticut This collection of writing complements the oral traditions of Abenaki people while suggesting the diversity of native voices that come from the Northeast.
Since its publication in 2014, Dawnland Voices has continued online as a digital magazine, Dawnland Voices 2.0: Indigenous Writing from New England and the Northeast. In the spirit of the awikhigan Lisa Brooks describes, Dawnland Voices 2.0 has featured writing in the forms of poems, essays, stories, memorials, reflections, photographs, nonfiction pieces, baskets, and letters. In a recent issue, the editors describe Dawnland Voices 2.0 and the editing process by which they create it “as a kind of gathering place – where community members come together, exchange ideas, are fed and sustained, and in turn sustain others,” (Dawnland Voices, January 2019). The two Dawnland Voices projects speak to the thriving Abenaki literary community gathered throughout wd’akiw8 and across the country.
Unclosure drew inspiration from several awikhiganal from this community. In her poem “Looking for Indians,” the Pulitzer-prize-nominated poet Cheryl Savageau recounts the night when she learned she was Abenaki, her father revealing on an old atlas her people’s homeland, now called “Vermont,” “New Hampshire,” “Maine,” “Massachusetts,” and “Quebec,” but soon known to her as nd’akinna. In “Pemigewasset,” Savageau describes her deep connection with the river valleys where her ancestors long dwelled, as well as the kinship ties linking her with other Abenaki peoples from across wd’akiw8. In addition to poems capturing her own sense of belonging in her ancestral homelands, the poet Carol Bachofner reflects on the “Land Sickness” that occurs when indigenous peoples are separated from their homes. In his prolific career, Joseph Bruchac reminds his readers of the vital connection between these homelands and the stories that shape indigenous identities.
These awikhiganal encouraged us to imagine Abenaki country rather than the colonized landscape depicted in Robert Frost’s New Hampshire. In order to do so, we realized that we not only needed to listen but also to engage Abenaki voices on our project. To solicit collaboration, we reached out to the editors of Dawnland Voices 2.0, excited to invite those active at the digital gathering place. Siobhan Senier generously have her advice during a video call and reached out on our behalf to the Dawnland Voices community and New Hampshire Indigenous People’s Collaborative Collective. Unfortunately, members of these communities were unavailable to participate, their schedules full with their own projects or other collaborations.
Lacking Abenaki collaborators but seeking to meet our deadline at the end of the academic year, we reconceived several ongoing projects that sought to interrogate Frost’s New Hampshire through an indigenous lens. As part of the translation project, Chris Whitehead translated one of Frost’s poems into Western Abenaki. He chose to translate “Plowmen” because it offered a chance to reveal the fundamental differences between how Abenaki and Euro-American peoples draw life from the land. Similarly, the storymap project began as a digital awikhigan. We sought to place Frost’s New Hampshire in the cartographic space of wd’akiw8, thereby recasting Frost’s notions of literacy and place in indigenous terms. Readers would experience the written word as physical places marked with Western Abenaki place-names. Atop this map, pop-out annotations would provide the historical context about how Euro-Americans colonized “New Hampshire.” We also hoped to feature written and sonic examples of Abenaki poetry in response to the poetry by Frost. When it became clear that this collaboration would not be possible within the time that we had, we designed an alternative sonic intervention. We recorded the voices of local students at Western Albemarle High School and superimposed them over Frost’s text to demonstrate the potential of intermingling audio and text in digital projects to create new amplified or layered meanings.
Ultimately, however, we decided not to include these projects in Unclosure. In early April 2019, the Praxis team presented a work-in-progress version of our site at the “Decolonizing the Digital Humanities: Indigenous Arts, Histories, and Knowledges from the Material to the Screen,” held at the University of Virginia. During a roundtable discussion, conference participants offered valuable feedback about how to improve our project. In particular, the conference’s keynote speaker, Marge Bruchac, shared critical perspectives and advice about the work-in-progress version we presented. She cautioned us that one of the poems we selected for the storymap and sound projects, “The Witch of Coös,” can be read as an act of violence against native women. To broadcast it to our audience - even with the intention of interrogating and contextualizing it - would perpetuate that violence. Moreover, publishing a translation of “Plowmen” into Western Abenaki without input from the appropriate language experts risked undermining ongoing efforts by Abenaki leaders to preserve and teach their language. To publish Unclosure in its work-in-progress state risked undermining the project’s intention: in attempting decolonization, it would become an act of recolonization. As a result of this critical feedback, we ultimately decided to include variations of these projects in Unclosure that would not perpetrate this unintended violence.
The Praxis team is grateful for this well-timed opportunity to learn by listening. We learned that to achieve our initial goal of reimagining Frost’s New Hampshire as wd’akiw8/nd’akinna would have required true collaboration. Such collaboration needs time and resources beyond the scope of the Praxis Program and the academic semester. Crucially, it entails conversations at the very beginning of the process, before arriving upon a project’s vision or setting its plan in place. We invite others interested in Unclosure’s mission to pick up where we left off. In addition to her thoughts on our work-in-progress website, Professor Bruchac also envisioned a path forward. She suggested casting a wide net among Abenaki communities by holding a town hall event at the Kearsarge Indian Museum, another gathering place for Abenaki peoples. From that town hall, a new project could emerge.
Although Unclosure took a different form than we had initially envisioned, we hope it still inspires you to take a fresh look at materials that now belong to all of us. Most importantly, we hope it helps you appreciate the responsibility we all have in creating a more open, respectful, and ethical public domain.
How to Cite
This project is the product of intense and ongoing collaboration. If your style guide prefers a single bibliography entry for this resource, we recommend:
Unclosure: An Act for the Encouragement of Learning, version 1.0. Praxis Program, University of Virginia Library, Scholars’ Lab https://unclosure.scholarslab.org.
And, if your style guide insists on author names, then we suggest:
Catherine Addington, Zhiqiu Jiang, Emily Mellen, Eleanore Neumann, Mathilda Shepard, Chris Whitehead. Unclosure: An Act for the Encouragement of Learning, version 1.0. Praxis Program, University of Virginia Library, Scholars’ Lab https://unclosure.scholarslab.org.
Please contact ScholarsLab@Virginia.edu for feedback and questions.
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