Meera Nair

Posts Tagged ‘Ireland’

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But in February 2012, an unpublished work was commercially released.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was offended that their permission had not been sought for publication of The Cats of Copenhagen and stipulated that unpublished work was still protected by copyright.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  Ithys Press insisted that in 2012 Joyce’s unpublished works were also public domain material.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.

Fair Use – the essential innovation

In Posts on May 12, 2011 at 10:12 am

I usually focus on the creative development possible through fair dealing or fair use; those downstream uses of copyrighted work that facilitate research and learning, or, transformative uses that produce new works. However, there is another element of individual use that deserves attention. The arguably legitimate activities of time and format shifting carried out through private copying. We should not forget that economic prosperity, on a national scale, can be facilitated through these individual activities.

Last week I drew attention to the work of Consumers International (CI); I noted that their current IP Watchlist indicates that Malaysia, Japan, and the United Kingdom are considering implementing fair use within their domestic copyright laws. In a separate report, Access to Knowledge for Consumers – Reports of Campaigns and Research 2008-2010, is a chapter concerning Israeli copyright law and its implementation of fair use in 2007. The chapter, written by Dr. Nimrod Kozlovski, Jonathan J. Klinger, Uria Yarkoni and Nati Davidi, gives an apt summary of the history of Israeli copyright law and related ongoing activity.

The authors position fair use as part and parcel of Israel’s innovative potential. The advantage of protecting consumer rights is that individuals have the certainty to engage in business with others with productive gain for all:

We can see that in a series of cases, the Israeli courts favoured the free markets and competition over property rights, with the understanding that as innovation comes, there will be more welfare (p.177).

In terms of Israel’s progress, fair use is considered essential to achieve free markets and free competition.

This is a perspective that Ireland is now willing to consider. As was reported by John Kennedy on May 9, 2011, the Department of Enterprise, Trade and Innovation is seeking submissions concerning copyright. According to the department’s website:

There is a perception in certain industries that national copyright legislation does not cater well for the digital environment and actually creates barriers to innovation and the development of new business models.

The terms of reference for this review of copyright include, “Examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context.” Interestingly enough, the terms also state that if suitable changes are not possible under the current constraints of EU copyright directives, Ireland will make recommendations for changes to those EU directives.

The United States is the foremost example of the creative development that can be fostered by maintaining flexible limits on copyright’s mandate. A point exemplified and emphasized by Google; two years ago the company called on the U.K. government to adopt fair use, and, two months ago followed it up by giving that same government a submission detailing the importance of fair use:

[Fair Use’s] flexibility has enabled it to protect both creative cultural output, such as parody or news commentary, and technological innovation built on digital copying. … Fair use is regularly referred to as the key tool by which the US fosters innovation … And the proof is in the pudding: no country in the world can compete with the U.S. for the most innovative search technologies, social networks, video and music hosting platform, and for the sheer generation of the most jobs and wealth in the Internet domain. If one is looking for evidence of how innovation succeeds, the best way is to look at those places where innovation has succeeded (see Section 4.2).

A more in-depth analysis of fair use as a catalyst for American innovation can be found in Fair Use As Innovation Policy (2008), by Fred von Lohmann (Senior Intellectual Property Attorney with the Electronic Frontier Foundation (EFF) and Lecturer at Stanford Law School.) He observes that the more noble aspects of unauthorized use of copyrighted material are easily and often defended – i.e., fair use preserves freedom of expression and fair use upholds the time-honoured process of creating something new by building on something old. But Lohmann focuses on the act of private copying with the reminder that until 1998 the U.S. followed a mantra of “innovate broadly first, regulate narrowly later (p.25)”. Those innovations took form in popular consumer technologies which depended on the legitimacy of allowing individuals to engage in private copying. Lohmann concludes: “From this observation grows the corollary that the fair use doctrine may well be playing an increasingly critical role in U.S. innovation policy (p.36).”

(And to naysayers who will complain that fair use is thus a subsidy to the high-tech sector paid for by content providers, Lohmann gives an extensive four-part rebuttal.)

It seems likely that the Federal Government of Canada will reintroduce Bill C-32 in the near future. Much has been made of the fact that Canadian copyright law has not been significantly altered since 1997. Rather than implementing measures deemed suitable for 1998, perhaps the government will look forward and position Canada as an early adopter of a proven digital economy catalyst. All that is needed is a little unshackled, innovative thinking.