A short lived celebration

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.

Eight years after Eldred

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.