Meera Nair

Posts Tagged ‘public domain’

cats in the public domain?

In Posts on January 1, 2013 at 11:21 am

Each year I look forward to the unveiling of works that will join the public domain on January 1. But this year a side story has caught my attention.

While Canada has (so far) maintained a life-plus-fifty copyright term, many other jurisdictions opted for life-plus-seventy. (The United States among them; Mike Masnick reminds us of the ongoing impoverishment of the American commons.) But among the life-plus-seventy jurisdictions, there was some celebrating last year when James Joyce’s copyrights expired. The iron grasp of his estate was legendary. Writing for the Independent, Gordon Bowker described the advent of 2012 as: “… the dawn of a new age for Joyce scholars, publishers and biographers who are now free to quote or publish him without the permission of the ferociously prohibitive Joyce estate.”

Of course, we expect this new age to only apply to Joyce’s published works.

But in February 2012, an unpublished work was commercially released. Dublin-based Ithys Press released The Cats of Copenhagen, a story written by Joyce for his grandson Stephen and sent to him in a letter in 1936. (The story was a companion piece to an earlier story penned for Stephen, The Cat and the Devil.  But that text had been later published as part of a collection of letters and then as a children’s picture book.) In October and November 2012, these cats turned up in a variety of European destinations as well as in the United States.

The letter containing the story was in the holdings of the Zurich James Joyce Foundation*.  Alison Flood covered the story for the Guardian; the Foundation was offended that their permission had not been sought for publication of The Cats of Copenhagen and stipulated that unpublished work was still protected by copyright. Moreover, the Foundation feared reprisals from a “very belligerent” Joyce estate.  Ithys Press insisted that in 2012 Joyce’s unpublished works were also public domain material.

Paragraph 33 of the Irish Copyright and Related Rights Act (2000) may have the answer:

Expiry of Copyright: Where the term of copyright in a work is not calculated from the death of the author or authors and the work is not lawfully made available to the public within 70 years of its creation, the copyright in that work shall expire on the expiration of that period of 70 years.

With 1936 as the latest possible date of creation for the text of The Cats of Copenhagen, any possible copyright term would have expired in 2007.  (If an Irish copyright enthusiast can offer a better explanation, please do.)

Copyright interpretation aside, what I find most enjoyable is the brief exchange in the comments on the Ithys Press page. After the first release of The Cats in Copenhagen (priced at €300) a reader asked if an edition that was “more democratic in price” could be released. In November Ithys Press triumphantly responded, “Well, it took us some time but we did it. Scribner’s ‘Cats’ might fit the bill.” The American publication is produced by Scribner/Simon & Schuster and is currently priced at $13.59.  Which is a welcome reminder that savvy publishers do not need excessive copyright as incentive to publish, being the first to give consumers what they want is a viable incentive too.

Happy New Year.

*The Foundation’s own copyright policy is an affront to fair dealing: “Researchers must obtain the written permission of the holder(s) of copyright and the ZJJF before requesting photocopies and/or publishing quotations from materials in the collection.” The collection holds a vast quantity of published material, in those instances there should be no doubt that reproduction as it lends itself to research is allowed.  Whether this policy was created by pressure from the Joyce estate or was an independent choice, it also violates the Berne Convention which stipulates in Article 10 (Certain Free Uses): “It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.”

Update: Jan 2 (in Israel): publicdomain never disappoints; the list of new inductees makes for wonderful reading.  Prior lists are available here.

A short lived celebration

In Posts on January 8, 2012 at 7:48 pm

With the celebration of the New Year, came new vigour into the Canadian public domain. But by Friday Michael Geist was alerting us that our public domain may stagnate soon. Under the auspices of the Trans-Pacific Partnership (a proposed international trading agreement) the term of copyright in Canada would increase from life plus fifty years, to life plus seventy years.

As Geist reminds us, our international obligation stops at life plus fifty years. Other countries have increased their copyright term, without any illustration of public benefit.  Whereas, evidence to the contrary is not hard to find. 1998 was not only the year of the United States’ Digital Millennium Copyright Act (DMCA) with its protection of digital locks, but also the year of their Copyright Term Extension Act (CTEA) which set American copyright term to life plus seventy years.

Before, during, and after the extension of American copyright term, dialogue was vigorous. A memorable comment came from Peter Jaszi; in his testimony to a Senate Judiciary Committee in 1995, he expressed concern that copyright in the United States would become perpetual via “the installment plan.” This lay in contravention to their Constitutional quid-pro-quo bargain: the monopoly of copyright is permitted only for a limited time in order to assure the public of unfettered access to creative works. These concerns were further argued through a constitutional challenge to CTEA, Eldred v. Ashcroft (2003). (Regrettably, the case did not succeed; see my entry here.)

Canadians may wish to read the detailed analysis of seventeen note-worthy economists, prepared for the Eldred case. From their summary:

The longer term for new works provides some increase in anticipated compensation for an author. Because the additional compensation occurs many decades in the future, its present value is small, very likely an improvement of less than 1% compared to the pre-CTEA term.

With respect to the economists’ analysis, dissenting Justice Breyer of the United States Supreme Court offered these choice words:

What potential Shakespeare, Wharton, or Hemingway would be moved by such [a gain]? What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?

The economists also observed that the extension of term for existing works does not provoke a further incentive to create — the investment required had already been made. Against these negligible, or non-existent, benefits of term extension, the economists examined the costs of the extension by way of access to existing works and creation of derivative works:

A lengthened copyright term under the CTEA keeps additional materials out of new creators’ hands. Would-be new creators face increased transaction costs: the necessity to engage in costly locating (especially for very old works, the very ones that would be in the public domain but for the CTEA) and bargaining with multiple parties. These higher costs give new creators less incentive to produce. As a result, the CTEA imposes two kinds of burden on society, fewer new works produced and higher  transaction costs in the creation of some works.

Canadians might also be interested in the 2009 copyright consultation submission of Project Gutenberg Canada, written by its founder Mark Akrigg. He explains how our cultural heritage is affected by copyright’s lengthy term:

The commercial value of copyrights is exhausted far more quickly than most people realize. The vast majority of books go out of print shortly after their original appearance, and are never reprinted. Very long copyright periods are dangerous to Canada’s cultural heritage, because many original works are in essence gone forever by the time they enter the Public Domain. They are forgotten, because they have been unavailable so long.

Akrigg asked our Government to refrain from copyright term extension and protect the public domain. In his final recommendation, he made three suggestions:

(a) The Copyright Act be renamed the Copyright and Public Domain Act. The purpose of this to emphasize that private copyright and public copyright (the right to use the Public Domain freely) are both vitally important.

(b) Explicit recognition of the Public Domain. The preamble to the copyright update bill should include specific recognition of the role of the legislation in ensuring “the orderly passage of works to the Public Domain to form part of Canada’s cultural heritage”, and a statement that “full, unimpeded access to the Canadian Public Domain is a critically important cultural right which is vital to preserving Canada’s cultural heritage.”

(c) The creation of a Public Domain Commissioner. The Public Domain is not protected by organizations of any kind, and its critical importance is often overlooked in policy discussions and decisions. For the public good, a high-profile advocate is needed to ensure that the Public Domain is protected and promoted. The history of copyright in Canada must not be a depressing tale of increasingly oppressive legislation removing accepted rights from the Canadian people. It would be extremely helpful to have a Public Domain Commissioner with a specific mandate to act as the advocate of the Public Domain, to facilitate the access of Canadians to their cultural heritage, and to report to Parliament on the status and health of Canada’s Public Domain.

Our Supreme Court has not been shy to emphasize the preeminence of the public domain. In 2002, Justice Binne, writing for the majority in Théberge v. Galerie d’Art du Petit Champlain inc., stated: “Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole (para.32).” Two years later, in CCH Canadian Ltd. v. Law Society of Upper Canada, Chief Justice McLachlin spoke of the importance that there be “room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others (para. 23).”

Our life plus fifty copyright term gives Canadian creators an advantageous position with disfavour to none. In fact, far from extending copyright’s term, a worthy ambition would be the international reduction of the term of copyright. With instant obsolescence an increasing characteristic of the present day world, lengthy protection holds even less meaning.

On 31 December 2011, in Canada Gazette, the Government of Canada filed notice of a public consultation regarding the TPP agreement: “It is essential that the Government of Canada be fully aware of the interests and potential sensitivities of Canadians with respect to this initiative.” Canadians may submit comments before February 14, 2012; see Canada Gazette for details.

Happy New Year

In Posts on January 1, 2012 at 7:59 am

Happy Public Domain Day!

January 1 marks the celebration of a new year, and, a celebration of old works. As in previous years, publicdomain publishes* an extensive listing of some of the authors whose works  can now be freely enjoyed. The author writes, “Copyright is necessary for our cultural life and cultural economy. But so is copyright expiration, allowing us all to build on the collective cultural and intellectual past of our own countries and of the entire world.”

This is a made-in-Canada site; it includes information for our life-plus-fifty copyright term. (The author also addresses the life-plus-seventy realms.) 1961 is the transition point for this year’s largess; the works of creators who passed away in 1961 became full-fledged members of the public domain at 12:01am this morning.

The Center for the Study of the Public Domain at Duke Law School also marks the occasion. So too does Communia; see here. But the public domain is not confined to works whose copyright term has expired. As I have written elsewhere, it also includes: “the realm of all works which can be exploited by everybody without any authorization.” Meaning, works put to use through legitimate exceptions (i.e. fair dealing / fair use) are public domain. Our public domain comes into existence, not just by the expiration of copyright, but also by the boundaries of copyright.

* Previous references to the work of publicdomain are here and here.

“artists in conversation with copyright”

In Posts on August 28, 2011 at 10:25 am

Martha Rans, Legal Director of Artists’ Legal Outreach (ALO) is curating  Art, Revolution and Ownership: Who Owns the Public Domain, September 8-11. Allied with New Forms Festival (now in its 11th year) and W2 Community Media Arts (a nonprofit Vancouver arts centre which reaches far beyond Vancouver),  this event marks a rare opportunity — to engage in an interdisciplinary conversation in copyright.

The public is invited to enjoy the works of Diyan Achjadi, Sonny Assu, John Cage, James Gnam, Faith Moosang, Ben Reeves, Hart Snider, Diana Thorneycroft and Michael Nicoll Yahgulanaas.  Participating with Martha in this dialogue are Geoff Glass (co-founder of the Vancouver Fair Copyright Coalition), Mark Hosler (founder of NegativLand),  Laura Murray (Professor in English, Queens University), Tina Piper (Assistant Professor in Law, McGill University), and Kirsty Robertson (Assistant Professor in Visual Arts, University of Western Ontario),

It all begins on Sept. 8, with art is either a complaint or do something else –  performed by the award-winning contemporary ballet company, plastic orchid factory.   Complete details are available here.

Update: September 12, 2011.  The ARO site was hacked; I disabled my link. But the event was wonderful; stunning artwork combined with vibrant conversation.

correction to The New York Times

In Posts on February 22, 2011 at 9:46 pm

Earlier today The New York Times posted an article about the International Music Score Library Project. A Canadian endeavor, this site holds an extensive collection of public domain music scores and recordings. Founded in 2006 by a college music student, his aim was clear:

The ultimate goal of the IMSLP is to gather all public domain music scores, in addition to the music scores of all contemporary composers who wish to release them to the public free of charge.

Looking through the IMSLP archive, it is evident that the project entailed more than just collecting music scores; the volunteers sought to build a community of music lovers that would engage beyond the contribution of music, to promote engagement with music.

[As I write this, the article is behind a login screen. Nevertheless, correction is still needed...]

The impression cast by the NYT is that the site began with faulty copyright practices:

Universal Edition, a music publisher based in Europe, where copyright laws tend to be stricter, threatened a cease-and-desist order against the site for copyright violations in October 2007. Mr. Guo said he did not have the time or money to remove all the offending scores, so he took the site down completely and posted an emotional farewell. That, he said, galvanized followers to appeal to Universal.

This implication is a disservice to IMSLP. The site operated with strict controls concerning the uploading of music scores to the server. What caused the disfavour was the behaviour of individuals outside of the project; Europeans were accessing the site for music scores that were not yet public domain material in Europe. Universal Edition demanded that IMSLP block access to European and American users, and, agree to hefty financial penalties which were “non reducible by court” for any violation. That Universal’s claim had no basis in Canadian law did not deter the publisher from further insisting that IMSLP agree that punishment could be ongoing. This was more than ironic; as one person observed:

Of all the sites where printed music is available for download, IMSLP was virtually alone in actively discouraging copyright infringement by informing the end user about the copyright status of works in various countries.

The NYT article further misrepresents the situation with the remark that, “The site operates from servers in Canada, where copyright law is generally looser,” erroneously implying that IMSLP was exploiting some unfortunate loophole in the law. The reality is simply that copyright term is shorter in Canada than in Europe or the United States. Canada adheres to the Berne Convention minimum standard of life of the creator plus fifty years. Then, like now, IMSLP provided detailed information concerning when a work entered the public domain. Those early instructions can still be viewed in the archives; notably, careful distinction was drawn between the copyright terms of the composer, editor and publisher, all of which contributed to the date of entry to the public domain.

When IMSLP went offline in 2007, the BBC covered the story quite well and observed that:

There are even broader implications for online businesses. According to Universal Edition, businesses must comply both with their local laws and with the requirements of any other jurisdiction where their site is accessible – in other words, the laws of virtually every country on earth. It is safe to say that e-commerce would grind to a halt under that standard since few organizations can realistically comply with hundreds of foreign laws.

Happily for music enthusiasts the site is alive and thriving. But Universal Edition did not acknowledge their past behaviour and instead conveyed to the NYT that the music publisher was “unfairly maligned by its critics for doing what music publishers typically do: use revenue from the sale of old pieces to finance publishing of contemporary composers.”

Perhaps acknowledgement has to be inferred from the publisher’s current description of IMSLP as “this very valiant and completely kosher and clean repository of public material, which we perfectly endorse…”

Eight years after Eldred

In Posts on January 14, 2011 at 7:18 pm

January 15 marks a copyright anniversary — the Supreme Court of the United States handed down their decision for Eldred v. Ashcroft on January 15, 2003.

Eric Eldred produced html books from public domain material. In The Future of Ideas, Lawrence Lessig describes Eldred’s motivation; it began with his daughter’s school assignment about The Scarlet Letter. Finding no usable material on the Web, Eldred created an html copy and made it available for all. A legitimate action, given that Nathaniel Hawthorne died in 1864. Eldred’s interest in these early e-books continued and he created many more derivative works of public domain material. However, the 1998 extension of copyright term in the United States brought a halt to his plans to release work written by Robert Frost. Frost’s work, about to enter the public domain, became tied up for another twenty years.

With the aid of Lawrence Lessig and others, a legal challenge began. They argued that although the Copyright Clause within the United States Constitution allows Congress the right to grant authors exclusive rights, those rights were explicitly deemed to be for “limited times.” Continuous renewal of copyright defeats the intention that copyright should end. Moreover, retroactive copyright term extension compromises the freedom of speech guaranteed by the First Amendment.

The case was lost at all three levels of the American judiciary: the District Court, the Court of Appeals for the District of Columbia Circuit, and finally at the Supreme Court. Justice Ginsburg delivered the final opinion; with a 7-2 decision it was held that the 1998 Copyright Term Extension Act (CTEA), which extended copyright in the United States by 20 years for both new and existing works, did not violate the constitutional parameters of either the Copyright Clause or the First Amendment.

On January 16, 2003 the New York Times delivered an opinion of its own. An editorial titled, The Coming of Copyright Perpetuity summed up the mood that day:

In effect, the Supreme Court’s decision makes it likely that we are seeing the end of the public domain and the birth of copyright perpetuity. Public Domain has been a grand experiment and one that should not be allowed to die. The ability to draw freely on the entire creative output of humanity is one of the reasons we live in a time of such fruitful creative ferment.

When I read that editorial in 2003, I needed my library-paid subscription to retrieve it. Since then, NYT has made their work publicly available. As have many media outlets. Lessig’s loss at the Supreme Court spurred him onto further efforts — namely the founding of Creative Commons (CC). In eight years CC has blossomed across more than fifty jurisdictions; thousands of people have chosen to enhance the public domain by granting access to their own copyrighted material. And Robert Frost’s work — seemingly untouchable in 1999 — is available, as I discovered a few weeks ago. Presumably, his copyright holders do not object… With the passage of time, business and personal practices are finding co-existence in our digitally-connected world.

If future amendment of copyright is needed, ideally speaking, copyright terms should decrease. It remains that good works are financial remunerative, even after their copyright term has expired. The many editions of the works of Jane Austen and Lucy Maud Montgomery stand as testimonial. And the economic analyses conducted in the Eldred case illustrates how little commercial gain actually occurs, for most works, over a lengthy copyright term (see Justice Breyer’s dissent.)

But since the world is less than ideal, fair dealing becomes even more important. The public domain isn’t dead yet; fair dealing allows it to keep growing.

Happy New Year

In Posts on January 4, 2011 at 11:23 am

January 1 marks the potential arrival of new material to the public domain. At publicdomain on Xanga is a treasure trove of names – people who passed away in 1960 – their published works can be freely enjoyed in the life-plus-fifty copyright jurisdictions. Writers, composers, artists, politicians, historians, scientists, economists and more are on the list. (Check out the previous years’ entries as well.) Communia features writers whose works are now relieved of their life-plus-seventy copyright terms together with a list of European initiatives celebrating the public domain. But the Center for the Study of the Public Domain at Duke University places a sobering check on the celebratory mood; this year not a single published work will officially enter the public domain of the United States.

Setting apart the question of being able to access a work, and the contract obligations that all too often trump copyright law, we should remember that the public domain holds much more than merely expired works. As I explained here, the public domain includes the unprotected aspects of any work. This includes unauthorized use of substantial portions of works, when the works are legitimately utilized according to domestic law. Said another way, when we use fair dealing appropriately, we are accessing the public domain.

Think about it – every book, every song, every image, “every original literary, dramatic, musical and artistic work” is potentially public domain material. The public domain exists not just by virtue of a work’s copyright term, but also by the use we make of it.

Best wishes to all for 2011.

Publishing from the Public Domain

In Posts on October 2, 2010 at 10:19 am

Last week disappeared in a flurry of grant application work; that nerve-wracking dotting of i’s and crossing of t’s, all done while holding my breath. Normal breathing has not yet resumed, but I am hopeful for next week. To facilitate the calming process I sought refuge in Empire and Communication by Harold Adams Innis (1894-1952). His original work was engaging to the eye – the body of printed text was set on large pages, with wide margins where tantalizing notes challenged the reader to figure out the obscure connection. (Sadly, that edition has been out of print for years.) E&C recently appeared on the market again; even though the format was not preserved I happily bought the book.

Yet the following notice came as a surprise:

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise (except for brief passages for the purposes of review), without the prior written permission of … Permission to photocopy should be requested from Access Copyright.

Statements like this are frustrating. Granted, publishers have no obligation to educate readers about fair dealing, but this notice projects the aura of speaking the law and propagates the belief that copyright is a grant of absolute control. Whereas in this case, even the “All rights reserved” is faulty. The little c in the circle is dated to 2007. Yet Innis died in 1952. Given that the work was first published prior to his death, the term of copyright would have lasted for fifty years after the calendar year of Innis’ death. All of Innis’ published works entered the public domain on January 1, 2003.

The recent publication does contain a new introduction and that work should be held to copyright. Either to the author or to the publisher, depending on the terms of agreement between the two parties. But in either case, while the bundle of rights that comprise copyright are extensive, copyright owners do not have the right to unilaterally forbid fair dealing.

For those interested, Creative Commons Canada provides a very nice flowchart to guide questions of copyright duration. And Project Gutenberg Canada has an impressive collection of works which are of public domain status in Canada, including some of the works of Harold Adams Innis.

Our Chief Justice

In Posts on June 1, 2010 at 9:37 pm

Today was an eventful day. Ministers Clement and Moore set the stage for amendment to the Copyright Act with their op/ed in the National Post. The Ministers emphasized the importance of facilitating creative effort in Canada. To that end, the Parliamentary process for amending the Act has begun with the Notice Paper.

But something more significant was happening elsewhere. The Canadian Club of Toronto honoured Chief Justice Beverley McLachlin as the 2010 Canadian of the Year. The award is presented to individuals who have, “improved the lives of others and benefited us as a nation.” The Chief Justice oversaw some landmark moments in Canadian copyright history, the most critical being the CCH Canadian case of 2004. CCH Canadian confirmed the individuality of every instance of fair dealing, provided a framework of exploration for each dealing, and emphasized that fair dealing was an integral part of copyright law. However, the case also addressed originality. At issue was whether the headnotes summarizing court cases were sufficiently original to quality for copyright.

Writing for the Court, the Chief Justice’s explanation of original pierces through to the reality of intellectual endeavor and she is quite explicit as to where such endeavor arises from:

When courts adopt a standard of originality requiring only that something be more than a mere copy or that someone simply show industriousness to ground copyright in a work, they tip the scale in favour of the author’s or creator’s rights, at the loss of society’s interest in maintaining a robust public domain that could help foster future creative innovation. … By way of contrast, when an author must exercise skill and judgment to ground originality in a work, there is a safeguard against the author being overcompensated for his or her work. This helps ensure that there is room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others [Para. 23].

The term public domain is also not defined in our Act. Connotation of the phrase ranges from the benign (that which is freely available to the public) to an aura of degradation (to fall into the public domain implies a loss of stature). Common to both interpretations is the belief that material in the public domain is absent copyright, either through expiry or ineligibility. As I have noted the World Intellectual Property Organization defines the public domain as, “… the realm of works which can be exploited by everybody without any authorization.” This includes work lacking copyright protection, however, it also includes currently copyrighted material accessed in accordance with exceptions detailed in our Act. Including fair dealing.

Happy New Year

In Resources on January 2, 2010 at 7:41 pm

Here is a site worth reading. Addressing jurisdictions where copyright protection lasts for life plus fifty, and life plus seventy, years, the writer has identified individuals whose published work is no longer under copyright.

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