In and Out of the Public Domain: the Role of Libraries

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The development of libraries around the world is the result of an understanding that societies are stronger, more creative and more productive when they are literate and informed.

The public domain – the sum of works which are no longer subject to the economic rights included in copyright and so freely available to use and re-use – makes a major contribution to this goal.

While copyright has a de facto role in financing the production and dissemination of professional culture, it is essentially an exception, limited in time and scope, to public domain status. The implication is that in the long-term, free access to and use of works is the default setting for a healthy society.

Libraries work with, and complement, the public domain in many ways – here are just a few:

Making it to the Public Domain: Preservation

A first key role of libraries is to ensure that works survive long enough to make it into the public domain.

Life plus fifty years – and often more – is a long time (more on this below). Libraries have long experience of ensuring that works are collected and preserved for future generations. This is a key public interest activity, repeatedly recognised in law, and one that cannot be left to markets.

IFLA is working at all levels to support copyright reforms that will facilitate copying for preservation, in particular through digitisation. This will require not only permission for ‘format shifting’ – the right to copy works using supports to the original – but also the relaxing of rules on how many copies can be taken.

The explosion of digital content poses a particular challenge. As we underlined in our contribution to the GISWatch report 2016, launched at the Internet Governance Forum in Mexico in December, action is needed to ensure that ‘born-digital’ works are not condemned to early disappearance.

The right to take copies of such works, technical challenges linked to changes in file formats and supports (who can read floppy disks anymore?) and even guidance on how to choose which materials to preserve are all priorities.

Why Wait? Promoting Access to Orphan and Out-of-Commerce Works

Libraries are active in pushing for policy choices that do not turn copyright into a jail sentence.

As the Australian Productivity Commission has recently underlined, there is no correlation between the length of copyright protection and the market life of the vast majority of works. In addition, reforms over the years have created new rights – for authors, illustrators and publishers, for example – meaning that one work can have a number of different rightholders.

The consequence is that when a publisher decides to stop selling a particular work, it does not become openly available to the public – and so a candidate for possible rediscovery and re-use – for many years. This is the problem of out-of-commerce works.

Moreover, getting permission to do this – especially when one or more rightholders cannot be identified or contacted, making the work an ‘orphan’ – can be expensive in terms of time and even resources. This prevents all but the best resourced libraries and cultural heritage institutions from rescuing such out of commerce and orphan works from obscurity.

A first response is to resist any efforts to extend copyright term durations. But in the interests of not turning copyright terms into prison terms, there also need to be simpler, more practical ways of ensuring that works that have come to the end of their market lives can be made available to the public.

 

Outside of the Public Domain: Ensuring Ability to Pay isn’t a Criterion for Access to Knowledge

The regular flow of newspaper articles about how libraries are lending things like tools to their users – besides their value as ‘and finally’ stories – provides a useful reminder of a fundamental role of libraries as concerns books that are still on the market.

In effect, libraries allow for access to knowledge and culture to be open to everyone, without upsetting the balance of copyright. They buy books (often using taxpayer funds), but then allow the community as a whole to read and borrow them. In this way, they ensure that everyone can have access to information, innovation and creativity, regardless of background or resources.

Given the widespread acknowledgement of the importance of access to information, science and culture, but also the fact that copyright is unlikely to disappear as a means of financing the creation and dissemination of knowledge and culture any time soon, the role of libraries seems as important as ever.

 

 

Libraries are natural partners, on both the practical and political level, not only in protecting and enhancing the public domain, but also in pursuing the broader goal of universal and equitable access to knowledge and culture. Follow IFLA’s work to hear more!

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