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 the
interests of past creators and future creators is through the limited
term of copyright. While the current term of copyright is excessively
long, 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 we
grow the public domain. Any policy that allows works to clearly enter
into the public domain to benefit new creativity, without harming the
legitimate interests of past creators, should be pursued. We are
quickly moving away from a time when the activities which copyright
regulated were corporate in nature and having a floor full of lawyers
doing copyright clearance was reasonable. We need to modernize cultural
recycling into the public domain to match this new reality.
One of the interesting things when discussing the public domain is
the almost schizophrenic discussions you will hear from some creators.
They recognize the benefits to a growing public domain for their own
creativity, and think it is a great idea — except when it comes to
their own creativity. While I understand the emotional attachment to
ones own works of the mind, we need public policy that is more
practical in serving the needs of a majority of creators.
The commercial benefit of creativity expires far sooner than current
copyright. There is minimal extra a creator might theoretically receive
from having death+50 compared to a fixed 50 years or even a fixed 30
years. On the other hand, there is a large cost to creators for
copyright clearance, so they would benefit from anything that would
make 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:
- A “Safe Harbour” provision for works more than 75 years old where the life dates of the authors are not known
- No extensions of copyright durations
- Explicit assignment to the Public Domain of those photographs that were in the Public Domain in 1997
- 75 year copyright for works with more than 15 authors
- 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 of
copyright. Canada should work internationally to modernize trade
agreements and treaties to set maximums and then reduce the term of
copyright. It is unbalanced to have treaties that set the minimum term
of copyright, but do nothing to protect the public domain which
requires 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 Sheila
Copps (the same that signed the 1996 WIPO treaties) from a fixed 50
years for photography to being 50 years after the death of the
photographer. The vast majority of photographs are amateur in nature
that record events in our lives. Only a few are commercial in nature.
Few photographs offer any indication of who happened to be in control
of the camera when the picture was taken, and in many cases the
photograph was automated and didn’t have a photographer. When you go to
a studio it is the studio name that is put on the back (or sometimes
tainting the image), and it is unlikely this company will still exist
50+ years into the future with accurate records (and any motivation) to
know who the photographer might have been. This means that tieing the
expiry of copyright to the photographer is entirely unreasonable.
There were exceptions to the death+50 years left in Canadian
copyright to try to handle a few scenarios. When a corporation was the
first holder of copyright, the term remained a fixed 50 years given
corporations don’t “die” and their assets are sold indefinitely. The
owner of the negative or ‘plate’ is the first holder of copyright to
handle situations like someone being asked to take a picture
or when the photograph is automated (note: This aspect needs to be
updated to handle the fact digital cameras don’t have negatives or
‘plates’). Those who commissioned a photograph were also the first
copyright holder, making commissioned photography similar to a “work
for hire” scenario, and closer to the expectations of the general
Unfortunately professional photographer lobbiests are trying to
remove the remaining reasonable limits, and Bill C-60 and Bill C-61
both contained provisions to remove these sections (Section 10 and subsection 13(2))
from the Canadian copyright act. Many of these lobbiests are from
copyright collectives who are quite willing to accept money to license
works where the copyright status is uncertain or the copyright holder
is unknown, collecting money for works that may already be in the
public domain or where the copyright holder has no way of knowing the
money was collected (or where they may have given permission for free).
We also have Article 9 of the 1996 WIPO Copyright treaty
which directs countries to ignore article 7(4) of the Berne convention
to force photography to become death+50 years, not allowing Canada to
correct 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 of
copyright, we should be clarifying and limiting the term of copyright.
We should be moving to a fixed term from the date of recording for all
types of recordings (including video, still photography or sound).
These recordings are increasingly dominated by amateur or automated
recordings, where the only reasonable thing to do is to tie the expiry
of copyright to a fixed number of years from when the recording was
Canada should work towards a new WIPO copyright treaty that would
enable fixed terms of copyright for all types of works and remove the
antiquated concept of tieing the term of copyright to someones death.
For those that think this would be impossible they only need to look at
how easy it has been to extend the term of copyright through other
modifications to Berne. Having the cultural recycling date be based on
the death of the author not only morbidly creates public benefit from
the death of a creator, but also creates longer terms for those who are
younger compared to those who are old. This term is based on a
pre-computer world where it was easier to track the obituaries of
authors than it was to track metadata about individual works such as
the publication date.
Berne Article 5(2)
currently states that “The enjoyment and the exercise of these rights
shall not be subject to any formality”. This has been interpreted to
mean that copyright can not be subject to any registration or renewal
system, even though in practice nearly everyone has to register their
copyright 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 initial
unregistered term of copyright (maybe 5 years) after which renewal
would be required every 10 years up to the maximum term of copyright.
In this way Canadian creators would know that past works they wish to
build upon were part of the public domain 5 years after publication
unless they were properly registered. They could then make use of
search engines to search the registry system to to see if they were
already in the public domain, or otherwise find out the copyright
status so that they could more easily clear any rights.
I can foresee a near-future under such a system where copyright
holders and copyright collectives would have a “license now” links
associated with this registry system to facilitate friction-free
licensing of those works not yet in the public domain. This will
encourage people to register early rather than waiting for the expiry
of their initial registration-free period, given the returns from being
in the search engine will far outweigh any inconvenience of
Berne comes from a pre-computer era where registration would have
been too hard to administrate, and we would not have received the
benefit we could of creating friction free licensing.
There have been attempts to create such a system, but in reverse. A
collective society named Access Copyright made press releases
suggesting they were going to create a database of public domain works.
This project was flawed from the outset for a number of reasons. The
most obvious is that there are far more works in the public domain than
those still under copyright, so creating a database of works under
copyright would be far simpler. The other is that Access Copyright is a
special interest group with controversial views on copyright, and it has been documented
to try to collect money from works already in the public domain. Even
if a system were to be viable, which it is not, it would need to be
managed by an organization that is arms length from special interest
groups in the copyright debate.
Some people critique a registration/renewal system because they feel
it would be onerous to expect copyright holders to register their
copyright. I see this as a non-issue given modern technology would make
copyright registration simple, and tools would quickly be built to
automate much of this process. It would be simpler than many other
registrations and renewals in our lives today such as drivers licenses
and health cards, and it would be hard to make it as complex as filing
a tax return. There would also be many organizations from copyright
collectives to industry associations and unions that would help members
file their registrations and renewals, and might offer this service for
free as a membership incentive.
The benefits to creators of being able to more cheaply copyright
clear any works they have built upon will far outweigh any minor
inconvenience with registration and renewal. The current registration
process may not yet have been streamlined since it is infrequently
used, something that moving to a registration/renewal process would
I hope that fellow creators will move past their emotions and help
work towards practical improvements to our copyright law to not only
enhance the public domain but also make copyright clearance cheaper and
increase revenues from our works during the time when they are
commercially successful. While the current mess may greatly benefit
some copyright lawyers (and possibly some collective societies), it
does 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.