Creators protecting our public domain

Published: September 12th, 2009

Tomorrow, Sunday September 13′th, is the last day make your voice heard in the 2009 copyright consultation.

One of the key ways in which copyright is balanced between theinterests of past creators and future creators is through the limitedterm of copyright. While the current term of copyright is excessivelylong, and appears to be expanded in the USA every time Mickey Mouse is about to become part of the public domain, copyright is intended to eventually expire.

Since all creativity builds upon the past it is critical that wegrow the public domain. Any policy that allows works to clearly enterinto the public domain to benefit new creativity, without harming thelegitimate interests of past creators, should be pursued. We arequickly moving away from a time when the activities which copyrightregulated were corporate in nature and having a floor full of lawyersdoing copyright clearance was reasonable. We need to modernize culturalrecycling into the public domain to match this new reality.

One of the interesting things when discussing the public domain isthe almost schizophrenic discussions you will hear from some creators.They recognize the benefits to a growing public domain for their owncreativity, and think it is a great idea — except when it comes totheir own creativity. While I understand the emotional attachment toones own works of the mind, we need public policy that is morepractical in serving the needs of a majority of creators.

The commercial benefit of creativity expires far sooner than currentcopyright. There is minimal extra a creator might theoretically receivefrom having death+50 compared to a fixed 50 years or even a fixed 30years. On the other hand, there is a large cost to creators forcopyright clearance, so they would benefit from anything that wouldmake this simpler and less expensive.

Project Gutenberg Canada made a few modest proposals to the 2009 consultation in support of the public domain. The author of that submission, Dr. Mark Akrigg, makes five major recommendations:

  1. A “Safe Harbour” provision for works more than 75 years old where the life dates of the authors are not known
  2. No extensions of copyright durations
  3. Explicit assignment to the Public Domain of those photographs that were in the Public Domain in 1997
  4. 75 year copyright for works with more than 15 authors
  5. Enhanced protection of the Public Domain

I made a number of suggestions (some of them overlapping) in support of the public domain in my written submission to this consultation that may be worth expanding upon.

Canada needs to clarify and simplify the term of copyright,resisting any proposals to extend and/or obfuscate the expiry date ofcopyright. Canada should work internationally to modernize tradeagreements and treaties to set maximums and then reduce the term ofcopyright. It is unbalanced to have treaties that set the minimum termof copyright, but do nothing to protect the public domain whichrequires that we set a maximum term of copyright.

We can take photography as an example of what is going wrong in this area of policy, both domestically and in trade agreements.

The Berne convention (WIPO Treaty #1, article 7(4) ) standard for photography is a minimum of a fixed 25 years from when the photograph was taken.

Canada moved in 1997 with Bill C-32 under Heritage Minister SheilaCopps (the same that signed the 1996 WIPO treaties) from a fixed 50years for photography to being 50 years after the death of thephotographer. The vast majority of photographs are amateur in naturethat record events in our lives. Only a few are commercial in nature.Few photographs offer any indication of who happened to be in controlof the camera when the picture was taken, and in many cases thephotograph was automated and didn’t have a photographer. When you go toa studio it is the studio name that is put on the back (or sometimestainting the image), and it is unlikely this company will still exist50+ years into the future with accurate records (and any motivation) toknow who the photographer might have been. This means that tieing theexpiry of copyright to the photographer is entirely unreasonable.

There were exceptions to the death+50 years left in Canadiancopyright to try to handle a few scenarios. When a corporation was thefirst holder of copyright, the term remained a fixed 50 years givencorporations don’t “die” and their assets are sold indefinitely. Theowner of the negative or ‘plate’ is the first holder of copyright tohandle situations like someone being asked to take a pictureor when the photograph is automated (note: This aspect needs to beupdated to handle the fact digital cameras don’t have negatives or‘plates’). Those who commissioned a photograph were also the firstcopyright holder, making commissioned photography similar to a “workfor hire” scenario, and closer to the expectations of the generalpublic.

Unfortunately professional photographer lobbiests are trying toremove the remaining reasonable limits, and Bill C-60 and Bill C-61both contained provisions to remove these sections (Section 10 and subsection 13(2))from the Canadian copyright act. Many of these lobbiests are fromcopyright collectives who are quite willing to accept money to licenseworks where the copyright status is uncertain or the copyright holderis unknown, collecting money for works that may already be in thepublic domain or where the copyright holder has no way of knowing themoney was collected (or where they may have given permission for free).

We also have Article 9 of the 1996 WIPO Copyright treatywhich directs countries to ignore article 7(4) of the Berne conventionto force photography to become death+50 years, not allowing Canada tocorrect the error we made in the 1990’s. This is yet another reason not to ratify that treaty.

Instead of modifying Berne to extend and obfuscate the term ofcopyright, we should be clarifying and limiting the term of copyright.We should be moving to a fixed term from the date of recording for alltypes of recordings (including video, still photography or sound).These recordings are increasingly dominated by amateur or automatedrecordings, where the only reasonable thing to do is to tie the expiryof copyright to a fixed number of years from when the recording wasmade.

Canada should work towards a new WIPO copyright treaty that wouldenable fixed terms of copyright for all types of works and remove theantiquated concept of tieing the term of copyright to someones death.For those that think this would be impossible they only need to look athow easy it has been to extend the term of copyright through othermodifications to Berne. Having the cultural recycling date be based onthe death of the author not only morbidly creates public benefit fromthe death of a creator, but also creates longer terms for those who areyounger compared to those who are old. This term is based on apre-computer world where it was easier to track the obituaries ofauthors than it was to track metadata about individual works such asthe publication date.

Berne Article 5(2)currently states that “The enjoyment and the exercise of these rightsshall not be subject to any formality”. This has been interpreted tomean that copyright can not be subject to any registration or renewalsystem, even though in practice nearly everyone has to register theircopyright before trying to launch a lawsuit.

We should recognize how outdated the idea of not having registry is and move to a system of registration and renewals.

I believe it would be Berne compliant if we had an initialunregistered term of copyright (maybe 5 years) after which renewalwould be required every 10 years up to the maximum term of copyright.In this way Canadian creators would know that past works they wish tobuild upon were part of the public domain 5 years after publicationunless they were properly registered. They could then make use ofsearch engines to search the registry system to to see if they werealready in the public domain, or otherwise find out the copyrightstatus so that they could more easily clear any rights.

I can foresee a near-future under such a system where copyrightholders and copyright collectives would have a “license now” linksassociated with this registry system to facilitate friction-freelicensing of those works not yet in the public domain. This willencourage people to register early rather than waiting for the expiryof their initial registration-free period, given the returns from beingin the search engine will far outweigh any inconvenience ofregistration.

Berne comes from a pre-computer era where registration would havebeen too hard to administrate, and we would not have received thebenefit we could of creating friction free licensing.

There have been attempts to create such a system, but in reverse. Acollective society named Access Copyright made press releasessuggesting they were going to create a database of public domain works.This project was flawed from the outset for a number of reasons. Themost obvious is that there are far more works in the public domain thanthose still under copyright, so creating a database of works undercopyright would be far simpler. The other is that Access Copyright is aspecial interest group with controversial views on copyright, and it has been documentedto try to collect money from works already in the public domain. Evenif a system were to be viable, which it is not, it would need to bemanaged by an organization that is arms length from special interestgroups in the copyright debate.

Some people critique a registration/renewal system because they feelit would be onerous to expect copyright holders to register theircopyright. I see this as a non-issue given modern technology would makecopyright registration simple, and tools would quickly be built toautomate much of this process. It would be simpler than many otherregistrations and renewals in our lives today such as drivers licensesand health cards, and it would be hard to make it as complex as filinga tax return. There would also be many organizations from copyrightcollectives to industry associations and unions that would help membersfile their registrations and renewals, and might offer this service forfree as a membership incentive.

The benefits to creators of being able to more cheaply copyrightclear any works they have built upon will far outweigh any minorinconvenience with registration and renewal. The current registrationprocess may not yet have been streamlined since it is infrequentlyused, something that moving to a registration/renewal process wouldquickly change.

I hope that fellow creators will move past their emotions and helpwork towards practical improvements to our copyright law to not onlyenhance the public domain but also make copyright clearance cheaper andincrease revenues from our works during the time when they arecommercially successful. While the current mess may greatly benefitsome copyright lawyers (and possibly some collective societies), itdoes nothing but harm the interests of creators.

P.S. Check out the PublicDomain blog

Russell McOrmond is a self employed consultant, policy coordinator for CLUE: Canada’s Association for Free/Libre and Open Source Software, co-coordinator for Getting Open Source Logic INto Governments (GOSLING), and host for Digital Copyright Canada.

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