In the Public Interest? Promoting the Public Domain

1 January was Public Domain Day.

Around the world, advocates for access to culture celebrated the possibility to share books and other materials more broadly, and to make creative new uses of them.

Libraries were well represented. For our institutions, entry into the public domain means that there are new opportunities to allow users to enjoy and draw on works held in our collections.

Yet as the recent extension of Uruguay’s copyright term shows, the question of how long it is necessary to wait until a work enters the public domain remains a hot topic. There are loud voices calling for further delay.

This blog explores the main arguments on both sides:

 

The Case for Delay

Recouping Investment: a key initial reason for introducing copyright was to ensure that it was possible for creators, and others who had put effort into producing books and other works, to cover their own costs.

By ensuring that creators (or their publishers) could set the price of a book and then collect money, it would pay for advances, printing, editing, and other costs. As the argument goes, the longer a work stays out of the public domain, the more possibility there is to recoup investments (including on successful works in order to cover the costs of less successful ones).

Of course, many works which fall under copyright are not commercial – for them this argument makes little sense. Moreover, the idea of the success of one book cross-subsidising other less successful ones already takes us away from the more philosophical idea of copyright as something protecting individual works towards a logic of investment and speculation.

Finally, and most critically, work by the Australian Productivity Commission (p127-131 of the 2016 Intellectual Property Review), bringing together research from elsewhere, has noted evidence that almost all works have no commercial life after only five years. In effect, extending copyright beyond this will not help recoup any investments save in very exceptional circumstances.

Funding Future Creativity: linked to this first argument, a case for long copyright terms (and so the revenues that come from exploiting it) is that it provides the money necessary to fund future work. Once again, the longer the term, the longer one work can help fund the time to produce new ones.

Again, it is certainly true that there should be the possibility to earn a living from creativity, and so to spare the time in order to produce further works. Of course, this is also why cultural policies exist, with a specific focus on encouraging new and diverse voices to emerge.

However, the fact remains that most works will only earn an income for a short period. Furthermore, this argument provides no support for copyright terms that last beyond the death of the author, given that there is clearly no more creativity at that point.

Recognition: another important argument for copyright terms is the recognition it offers to authors. It is true that a lot of work will go into a book, and this is something to be respected and valued.

Even when rights do not (or no longer) make commercial sense, it is nonetheless a powerful thing for an author to be able to claim ‘parenthood’. Economic rights (such as over copying or distribution of works) provide an economic tool for ensuring that a creator (or publisher) has a tool for preventing many uses with which they may not agree.

In effect, the argument runs that longer copyright terms represent a greater recognition for the work of creators. At the same time, the logic of ‘parenthood’ is less powerful when economic rights are signed away, and of course moral rights remain, providing a means of challenging ‘misuse’ of works.

 

The Case for Speed

Democratic Access to Culture: While some countries focus more on this than others, the specific role of culture in promoting well-being and other goals is the subject of broad consensus. It follows that any government committed to promoting equity should wish to promote equal access to culture.

The importance of democratic access is of course a major argument for libraries in general, especially in the case of works which are still subject to copyright. By buying works, libraries support creativity, and then give access in a way that carefully looks not to harm rightholders’ interests.

But as set out in the introduction, this job is much easier when works have entered the public domain, making it possible, for example, to place them online and so let people access them wherever and whenever they want. In effect, the longer works stay out of the public domain, the longer they are less available.

Supporting Creativity and Re-Use: Going one step further, entering the public domain removes barriers not just to access, but also to the re-use of works. At a time where it is increasingly easy to engage with books, music and other materials to create and share new ones, there is a strong demand for the ‘raw material’ for this further creativity.

While many of these re-uses are purely playful, some are of course commercial. This can be seen as distasteful in some cultures, and give rise to calls for the sharing of revenues with the creators of the original. Of course, once a work enters the public domain, this possibility disappears, even if the use is unoriginal. Other cultures are less concerned, seeing commercial re-use as a means of generating value.

Furthermore, re-use also provides an opportunity to re-discover the vast majority of works which are no longer commercially available after a short period. As the Australian Productivity Commission report highlights, just because one publisher has decided no longer to sell a book, it doesn’t mean that it doesn’t have value.

Given that this is the case for almost all works after only a few years, facilitating re-use provides a great way of saving books from oblivion. The longer we have to wait for a work to enter the public domain, the longer it risks remaining hidden – often without even a clear idea of who to contact in order to seek permission for use (Orphan Works).

 

Balancing the Arguments

Determining the right length of copyright – and so when works should enter into the public domain – will in the end be a balance between the arguments set out above.

In the short-term, copyright clearly is at the heart of the modern creative industries, providing a means of funding a large part of commercial culture. It has also become seen as a key ingredient in the recognition of artists.

However, in the longer term, economic and even more philosophical arguments lose their power, while the cumulative costs – in terms of missed opportunities to access, re-discover and re-use works as facilitated by their entry into the public domain – rise.

 

Of course, the arguments will apply differently for different creators and different works. It will always be possible to find works which are still earning copyright revenues many years after the death of an author. But this is clearly the exception not the rule.

 

This is why it is so valuable to celebrate – and remind ourselves of the importance of – the public domain.

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