‘Negotiating with the Dead’

When it became evident that our copyright term was to be extended by twenty years, with no measures to mitigate the excess damage wrought by such action, Margaret Atwood’s book of this title kept returning to mind. A foray into the relationships that exist between writers and writing, a book where the word copyright did not feature among those ruminations, the title nonetheless feels apt for the days ahead.

Works of long-since-dead authors will now—in the best of situations—literally become objects of negotiation. This is purportedly to the benefit of those authors’ heirs, whereas on balance the true beneficiaries will be international publishing conglomerates and collective societies. In the worst of situations though, works will simply fade away with no surviving copy to emerge seventy years after their authors’ deaths. Those authors will be forgotten, and the public domain will remain poorer.

Atwood has been a prominent advocate for a stronger scope of protection in the name of copyright, famously remembered for her characterization of exceptions as expropriation and theft during a Standing Committee Meeting of the Department of Canadian Heritage in 1996. Two decades later, when she gave the 2016 CLC Kreisel Lecture at the University of Alberta, fair dealing was called out by name. Nonetheless, that lecture was a delight to listen to, grounded as it was on Atwood’s own experiences of being a Canadian writer.

It is her life that lies at the foundation of Negotiating, which took form through the Empson Lectures at the University of Cambridge in 2000. The combination of literature, literary criticism, book history, and history itself, written as only Margaret Atwood can, makes for compelling reading. In this book she comes perhaps closest to answering an age-old question about writing: what does it mean to write? There is no neat and tidy answer; at the very least it is blood, sweat, and tears amid negotiations between oneself, the society of the living, but also that of the dead.

To be sure, financial wherewithal is relevant to any impetus to write. Money appears approximately three times among the 74 reasons for writing taken “from the words of writers themselves (xx-xxii).” Yet, perhaps unintentionally, Atwood lays bare why copyright was not, nor ever will be, a broad determinant of success (either literary or material) for Canadian writers and publishers. From identifying the limitations of the Canadian publishing sector in the early to mid-twentieth century (to say there was disinterest in Canadian authors is putting it mildly), to stripping away the facades of originality and individuality (which underpin copyright’s structure of rights) in literary endeavor, there is much here to remind us that Canada’s phenomenal success in developing literary talent (see here and here) has occurred despite copyright, not because of it.

After borrowing the book repeatedly from the Edmonton Public Library, I had to buy it. Or rather, I had to buy it in the original form. Because what I had borrowed was a book titled On Writers and Writing, by Margaret Atwood, identified as a Canadian reprint of her earlier work, Negotiating with the Dead.

My preference was to buy Negotiating; in the peculiarities of my own mind, somehow it felt more authentic. As it turned out though, my instincts were correct. The two books are not the same. The difference lies, not in Atwood’s words, but in the representation of what copyright is. While both books specify the copyright as belonging to O.W. Toad (the name of Atwood’s enterprise), similarity ends there.

In Negotiating, published by The Press Syndicate of The University of Cambridge, readers are told: “This book is in copyright. Subject to statutory exceptions and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press (emphasis mine).”

There it is. A clear indication that statutory exceptions exist and are relevant; meaning that some reproduction might not require permission. Whereas in Writers, published by Emblem (an imprint of McClelland & Stewart, a division of Random House of Canada Limited, a Penguin Random House Company), readers are told that permission is always needed for even a particle copied:

“All rights reserved. The use of any part of this publication reproduced, transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, or stored in a retrieval system, without the prior written consent of the publisher – or, in the case of photocopying or other reprographic copying, a license from the Canadian Copyright Licensing Agency – is an infringement of the copyright law (emphasis mine).”

Despite what a publisher might prefer, Canada’s Copyright Act permits unauthorized uses of insubstantial parts of a work and unauthorized uses of substantial parts which comport with fair dealing or other exceptions. As the Supreme Court (with unanimity) stated in 2004, “the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright (para 48).” And yet, willful misinformation is standard fare among books issued in Canada.

Given the stunting of our public domain by term extension, fair dealing is even more important now as it provides some allowance of use of older, protected, material. But even a large and liberal interpretation of fair dealing, as required by our Supreme Court, is no substitute for a vibrant public domain.

With the Act expected to undergo change this year, Canada could still introduce a system of registration associated to a longer term of copyright. Owners of works which continue to be commercially successful fifty years after an author’s death, will likely choose to register and thus receive the additional twenty years of protection. Whereas works that did not have such longevity with respect to commercialization, and works that were never intended for revenue generation, would likely not be registered and thus would enter the public domain without the twenty year delay. Such a system was recommended by a former Industry Committee to uphold our obligations under CUSMA, ensure that commercial works which may benefit by a longer term are able to capture that gain, and continue to grow the public domain.

The difficulty is to convey to current Canadian lawmakers the importance of the public domain. Too often, its intangibility has meant that the public domain is perceived as being of lesser value. That an author’s work is not protected somehow deems it and the author as being unworthy. Even the way older works are spoken of, that they have “fallen into the public domain,” carries an aura of degradation familiar to the plight of “fallen women.” Whereas the public domain is precisely the opposite; it enables new works to emerge. As Jessica Litman wrote in The Public Domain (1990):

To say that every new work is in some sense based on the works that preceded it is such a truism that it has long been a cliche, invoked but not examined. …  The public domain should be understood not as the realm of material undeserving of protection, but as a device that permits the rest of the system to work by leaving the raw material of authorship available for authors to use (966-968).

That this truism went unexamined and unarticulated is a testament to the difficulty of capturing the intricacy of the relationships between old works and new authors. Margaret Atwood not only undertook such an exploration but also elegantly articulated the journey that underlies every literary endeavor.

It is only fitting then that Margaret Atwood should have the last words:

… All writers must go from now to once upon a time; all must go from here to there; all must descend to where the stories are kept; all must take care not to be captured and held immobile by the past. And all must commit acts of larceny, or else of reclamation, depending how you look at it. The dead may guard the treasure, but it’s useless treasure unless it can be brought back into the land of the living and allowed to enter time once more – which means to enter the realm of audience, the realm of readers, the realm of change (p.178).

term extension — redux

Mount Robson, by Lawren Harris (1885-1970). A recent arrival to Canada’s public domain.

The spectre of copyright term extension has returned to Canada as the Federal Government seeks to fulfill its CUSMA obligation to extend the term from life-plus-fifty years to life-plus-seventy years. Canadians have been invited to comment regarding the “[adoption of] measures to mitigate the potential implications of this longer term of protection.”

As Michael Geist writes, with only a month allotted for Canadian input (during a pandemic), this has all the appearance of “consultation theatre,” particularly as a credible and comprehensive evaluation of many proposed changes to the Copyright Act, including term extension, was carried out by the INDU Committee assembled in 2017-2018. In their words:

[The Committee] favours extending the term of copyright, but only if CUSMA is ratified. The Committee expects that rights-holders will benefit from term extension, but also notes the arguments made against it. The Committee believes that requiring rights-holders to register their copyright to enjoy its benefits after a period equal to the life of the author plus 50 years would mitigate some of the disadvantages of term extension, promote copyright registration, and thus increase the overall transparency of the copyright system. 

But as Geist also writes: “The government is not inclined to support the committee’s recommendation.” Even more disappointing is the sight of the present government denigrating the painstaking work of the former INDU Committee members and analysts by questioning the legitimacy of their recommendation. In the consultation document, this government writes: 

The approach recommended by INDU raises serious questions in the context of Canada’s international obligations, as well as the costs that would be borne by copyright owners and the duplication of administrative efforts that might result. Numerous international treaties to which Canada is a party (e.g., Berne) prohibit the imposition of any ‘formalities’ [such as registration] that would need to be satisfied for foreign works to benefit from copyright protection in Canada (p. 9).

The dire warning of “international obligations” is not a new tactic when it comes to matters of copyright; this bogey man returns each time Canada deviates from the path of copyright maximalism. But maximalism in itself is not an international obligation. As the World Intellectual Property Organization (WIPO) makes abundantly clear, while the Berne Convention sets minimum standards of protection, including a prohibition on registration for foreign copyright-owners, all protection is limited by time: “As to the duration of protection, the general rule is that protection must be granted until the expiration of the 50th year after the author’s death (emphasis in original).”

The present government takes further aim at registration: “with new pressure on copyright owners to register their works, such an approach would likely result in increased costs in the form of registration fees and associated administrative and legal costs, particularly for owners of copyright in multiple works (p. 9).” Through their analyses of all submissions to the 2017-2018 Copyright Review, librarians Jennifer Zerkee and Stephanie Savage shed some light as to whom such copyright owners might be:  

INDU received 13 briefs recommending extending term to life + 70, primarily from the music industry, film/TV, and publishing. 6/x

— Jennifer Zerkee (@jzerkee) February 12, 2021

(Savage and Zerkee showcased their research during the ABC Copyright 2020 Fall Series and provided their slides to University of Alberta’s Education and Research Archive.)

It will come as no surprise that enthusiasts for term extension hail from commercial arenas. Broadly speaking, corporate entities with large holdings of commercially successful works have the potential to gain revenue through longer periods of control. They are the epitome of “owners of copyright in multiple works.” But to suggest that such companies are ill-equipped to handle the administration and costs of registration lacks conviction. And whether the copyright owner is a corporation, or an author’s heirs, the necessity of registration will not arise for decades, allowing ample evidence to accrue as to whether registration will enhance anyone’s coffers.

Moreover, as the prior INDU committee noted, a registration system ensures transparency and, by extension, allows users a better means to gauge what is or is not in the public domain. Such a state of affairs not only provides libraries, archives, and museums with more stable ground on which to practice their public missions (a need recognized by this government), but also offers smaller independent creators and publishers security to practice their crafts as well. 

There will always be those who insist that increasing the scope and duration of copyright provides both individuals and industry with greater incentive to invest in creative activity. But Eldred v. Ashcroft (2003), the ill-fated constitutional challenge to American copyright extension at the U.S. Supreme Court, remains a salient rebuttal to this catechism.

At that time, a bevy of noted economists placed the monetary gain of term extension as negligible: “Because the additional compensation occurs many decades in the future, its present value is small, very likely an improvement of less than 1%.” While the majority of the Justices allowed the term extension, dissenting Justice Breyer offered this memorable riposte: “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?” (Further details here.)

As Zerkee notes, one “creator/rights-holder” (Broadview Press) argued against term extension during the Copyright Review. Broadview Press is an independent Canadian publisher; their work is highly acclaimed, particularly their value-added editions of public domain works. In this regard, they exemplify what is too often glossed over by copyright maximalists: that the public domain can, and does, provides fodder for creative, commercial activity. Not only did Broadview Press argue against term extension, they recommended “that Canada protect or reduce the length of copyright term to be no more than ‘life of the author plus 50 years’.” 

The government is accepting submissions on the topic of copyright term extension until March 12, 2021.

Update March 30, 2021

The government agreed to extend the deadline for submissions to this consultation. My submission is here.

Update December 11, 2021

The government has posted all submissions. (Mine in its official capacity is here.)

cats in the public domain?

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

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

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”

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

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

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

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

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.