Tag Archives: copyright

WIPO SCCR/42: Why broadcast matters

This 9 – 13 May, I attended the 42nd meeting of the World Intellectual Property Organization’s Standing Committee on Copyright and Related rights (WIPO SCCR/42 for short). For a week, national delegates, expert panels, and observing civil society organisations (CSOs) like IFLA and rightholder groups discussed the impact of COVID-19; the WIPO African regional group’s proposal for a workplan on limitations and exceptions; broadcast rights; and other odds and ends for some 40+ hours’ worth of meetings, coffee breaks, and side discussions. Conversations advanced and  some commitments were made – including items on studies and toolkits on copyright limitations and exceptions.

It was my first trip to Geneva, so it was the first time I experienced the process. WIPO is the World Intellectual Property Organization, and indeed ‘IP’ is the general framing of Why We’re All Here. Creative outputs and patents are primarily considered valuable because they’re monetizable. The affective dimension (whether you ‘like’ a book) or the work’s value for humanity as a whole occasionally peaks through when civil society organisations (CSOs) or expert panels re-frame the issues, or (as happened twice, by my count) one of the invited artists on a panel delivers an a Capella performance.

By contrast, imagine a framework that began with ‘art and information are good, and people should have better access to those things’. It would be a very different conversation, for example, than that presented by WIPO’s expert report on how COVID-19 affected rightsholders and cultural institutions. There, the ‘Cultural Heritage Institutions, Education and Research’ section contained language about balancing access with rightholders’ interests that were largely absent the other way around from the rightholder sections.

In the observer section of the main room, CSOs sit alongside industry organisations. We’re there to represent our constituents’ interests and have our views heard, but it’s up to the delegates to make the votes.  The ‘rightholder’ side tends to represent publishers, record labels, and other aggregators and content distributors moreso than creators directly. The tension could be felt, for example, during Thursday’s presentations on streaming music in which expert presenters underlined that compensation was scarce for non-featured artists.  This tracks with online discussions I’d followed, along with standard-issue rock-n-roll lore about bands’ conflicts with their labels.

This is all also to say that delegates are engaged in a delicate push and pull between interests, and from the rightholders (and to some extent, us CSOs), like shoulder angels and devils, there can be an adversarial tendency to avoid wanting to lose any ground. So, with regard to limitations and exceptions to copyright – which enable libraries and individuals to lend, share, and make use of all kinds of material – the ‘opposite side’ can sound a bit like Groucho Marx laying out his platform on ascending to the university presidency in Horse Feathers – ‘whatever it is, I’m against it.’

(Side note: while I was unable on a quick search to locate the copyright status of Horse Feathers, the Marx Brothers were once themselves fined $1,000 for copyright violations; Groucho also responded to Warner Brothers’ fears that the then-forthcoming A Night in Casablanca [1946] would infringe on their film Casablanca [1942] by jokingly threatening a counter-suit over the word ‘Brothers’. Copyright has never been easy to sort out, or straightforward.)

Back to the Statute of Anne (1710), the first copyright law, copyright was intended to be a broad ecosystem that protects rightsholders’ right to compensation, and the public interest in having access to and working with materials. This includes the right to quote (on an obligatory basis), as well as possibilities to make a copy of a chapter, to use in the classroom, to offer commentary, to remix in ways not in competition with the original work. A robust copyright system enables different interests to be represented.

In respect to these positions, there are many good reasons for strong limitations and exceptions – including with respect to the broadcast rights, which came to the fore on the Tuesday and Wednesday in discussion of the Broadcast Treaty, which aims to protect broadcast signals (the medium, not the content). It has been under discussion since the late 90s.

Going forward, IFLA plans to highlight the importance of limitations and exceptions to preserve the right to archive and preserve broadcasts. Preservation shouldn’t have to be the sole responsibility of increasingly conglomerating commercial entities most immediately concerned with short-term profits. Cultural institutions are well equipped to collect, curate, and make available – if they don’t face dissuasive economic and administrative barriers to doing so. Here, archives and rightsholders have slightly different, but complementary & related interests. A key question, if you’re making content is: do you want your work to be accessible a few decades down the road?

One need only look to how much things have changed SINCE the broadcast treaty entered onto the agenda in the late 90s. For consumers,staring at screens in their homes, this period saw changes from standard definition to high definition, and from VHS to DVD (with detours into VCD in Asia) to Blu-Ray to streaming. Once-ubiquitous CRT monitors are currently a fad for retro gaming, as graphic designed for their slightly blurry displays and can look disconcertingly jagged on a modern 4K OLED, where every single one of the 8,294,400 pixels can show a different colour from its neighbour. Radio stations consolidated or went out of business. Long-running shows end, inevitably – and have to find archival homes for their collections or junk them. You’re lucky today to find equipment today that plays old consumer, professional and semi-professional storage formats, or to access files on the editing hardware and software from eras past.

This is all living memory, and underscores how difficult it is for people to  ‘watch’ TV like they did 25 years ago. To preserve that content and experience, archives play a key role – and need broad flexibility to capture, store, back up, and engage with content amid these changes. Sometimes, cool discoveries are made – like the recent find of a Minnesota TV station in their archives of a video of the musician Prince, at age 11. We can share that this discovery happened, beyond a local TV station, in part due to broad access rights.

As these discussions continue, support libraries! Please don’t create new barriers to preservation through new rights and impositions, but rather support proper exceptions and limitations to help libraries, archives and other institutions do their jobs preserving content and making it accessible.

Matt Voigts, Copyright & Open Access Policy Officer

COVID-19 Impacts on Cultural Industries and Education and Research Institutions: Key Questions from the WIPO Report

Tomorrow, the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights (SCCR) will hold an information session on the impact of COVID-19 on the cultural and creative industries, on the one hand, and on education and research on the other.

This follows requests from Member States at the previous meeting, conscious of the need to make sense of the experience of actors affected by copyright – either as owners, or as users, of relevant materials. While the meeting formally takes place outside of the SCCR agenda, its place at the beginning of the week will mean that it has the potential to shape discussions over the following days.

To support this, WIPO has published a commissioned study, based both on a series of responses to a call for evidence, and interviews with experts in different countries. The terms of reference for the study have not been shared, but it looks both to tackle the broader question of experiences (as mandated by the last meeting), and to cite case studies of initiatives taken (which goes beyond the mandate).

Ahead of this session – which will be available on WIPO’s webcasting service – this blog looks at some of the questions and issues raised by the report (intentionally or otherwise), and which the meeting tomorrow can hopefully address.

 

Public spending needed… but on what terms?

A consistent message from the report is the sense that governments need to step in to provide financial and other support, to institutions, businesses and individuals working with copyright where these would otherwise risk disappearing or disengaging. The report underlines in particular that the pandemic has represented a major shock to those actors depending on in-person engagement and activities, such as concerts, author events, or museum visits, as well as events where much business is done, such as book fairs.

Some – but not all – governments have of course taken action to help otherwise viable businesses from failing. The report underlines that more could and should have been done however, with independent authors in a particularly tough situation.

Looking forwards, however, this does raise the question of how to ensure that this support has maximum positive impact. Beyond the preservation of employment, how can this serve to support public interest goals, such as access to education, research and culture?

 

Digital here to stay, but how?

The report is clear about the fact that the shift to digital is going to be a lasting phenomenon, raising the question of how to ensure the sustainability of digital activities. It underlines components of a response, including efforts to get more people online, training and support for digital maturity, and new policy approaches in general.

A crucial point made is that libraries themselves have invested significantly in digital content – often paying again for the same material that they had already bought in physical format. Clearly, it cannot be sustainable for libraries to pay twice for the same things.

In terms of recommendations, the report does highlight the need to ‘provide clarity to institutions and organizations regarding the copyright implications of moving towards a digital world, and to evaluate appropriate means and innovative ways to make digital uses easier’.

Of course, this could be read either as a case for providing more flexible exceptions and limitations that adapt to needs, or for facilitating licensing. It is to be hoped that COVID will not be used as an excuse to extend the reach of licensing at the expense of the sort of free exceptions that libraries have traditionally relied on extensively, draining their resources.

More worrying is the suggestion that copyright for digital works should be tighter than that for physical ones (i.e. have weaker limitations and exceptions) in order to protect investments. This is to argue that there is less need to protect possibilities for education, research and cultural participation online than in person.

This of course flies in the face of the argument that rights offline should also be protected online, and indeed the case made by the UN Secretary-General that more effort is required to ensure that it is not only the decisions of private companies that should determine what we can and cannot do digitally.

 

An under-supply of digital content

A persistent issue is the lack of digital content available, especially in developing regions. The report suggests that this is sometimes due to a lack of capacity, but can also be the result of a conscious choice by rightholders not to make works available in digital form, for example due to apparent fears of piracy.

This raises a serious issue about the functioning of markets, and whether it really serves societal interest for works not to be sold in a form that works for people who may not be able to access libraries or bookshops, or even work with physical copies of books. The report suggests more licensing, but this has been a possibility for a long time, and does not seem to have delivered.

Instead, it’s worth remembering that it was the under-supply of accessible format works that underpinned the Marrakesh Treaty, which opened up the possibility to carry out format-shifting of works to make them accessible.

A parallel argument is that the ability of creators themselves to use digital platforms could be a useful area of focus. This is an area where libraries, through providing public access, can indeed help, although to do so need to have the necessary resources to offer such services.

 

Impacts are varied

At least terms of market impacts on different sectors, the story varies. For example, while extensively citing European research suggesting that the publishing sector there suffered strongly, it notes that publishing in the United States continued to grow. The US of course is characterised by a very flexible copyright regime – fair use – while another country whose model is celebrated, Canada, is also under regular attach from rightholders for the flexibility of their education exceptions.

In addition, the pandemic is reported as having been particularly hard for authors who, in addition to the impacts of falling sales (where sales actually fell), also missed out on other opportunities to earn, such as book fairs and signings. The same goes for performers, and people working as freelancers or on temporary contracts. This does raise questions about terms of employment, and what can be done to ensure fairer distribution of revenues to those missing out.

 

Anecdotes and rules

A point alluded to in the title is that the focus on examples of initiatives in the report goes beyond what was in the mandate proposed by Member States. This is of course valuable in terms of providing illustrations, but can also lead to the impression that everything is going well.

Furthermore, the report fails to reflect the view of many libraries that these initiatives, while welcome, were often hard to implement and were withdrawn well before the end of the pandemic – see IFLA’s own report on libraries, copyright and COVID-19 for more. Indeed, there is the argument that they were often intended as marketing exercises, aimed at building use of and reliance on services which could then be charged for.

The more systematic examples come the US, where the flexibility provided by fair use is underlined as having enabled initiatives like the Hathi Trust Emergency Temporary Access Service. These arguably provide better pointers for how to build resilience than individual stories that may depend on a wide variety of other factors which are potentially not replicable.

 

And an old cliché about lending and sales…

The report does touch a number of times on the relationship between library activities and sales. There are unsubstantiated claims about the impact of higher levels of library lending and use. The one reference given is to a speculative conclusion in a German study about future impacts of eLending. This same study also underlines that cutting back on library lending is unlikely to lead to any increase in the purchasing of eBooks.

These arguments also do not sit well with the report’s conclusion that increased spending by libraries on digital content raises sustainability concerns for our institutions. In this case, the question needs rather to be ‘where is the money’?

Going further, unfortunately, it also repeats old tropes implying that the work of libraries is not significantly different to copyright piracy. These betray a fundamental misunderstanding of what copyright is about and how limitations and exceptions work. It also suggests an inability to differentiate between the interests of one particular lobby group, and of society as a whole. It is of course a shame that such claims are repeated in a WIPO-branded report.

 

Follow the discussion on WIPO’s webcasting service, from 11:30-16:30 Geneva time, for more!

Looking Ahead on Copyright in 2022

Even as it has added new complexity to law-making, the COVID-19 pandemic has shone a new light on the way that copyright regimes work, and how well able they are to flex to match an uncertain and changing world.

That they need to accommodate digital is clear, but there is still resistance to reproducing the sort of exceptions that already exist in the physical world. In some countries, worryingly, there is a growing readiness to attack libraries publicly around copyright issues (even on the basis of weak misunderstanding), something that perhaps betrays new levels of fear about the future. At the same time, there are new ways to enforce rights, stronger than those that existed previously, which in turn have their own potential consequences for libraries. Finally, there is the ongoing concern that zeal to regulate major internet platforms may have major negative consequences for non-commercial operators – both libraries themselves, and the platforms they rely on.

These issues will be felt first and foremost in public debate, but in particular in those countries where reforms are underway. In particular, this is the case in Australia, Nigeria, Namibia, Hong Kong (China), South Africa and Brazil, and we await the results of consultations in Canada. The European Union will also advance work on digital platforms, which is likely to shape approaches elsewhere, not least discussions in the United States with strong implications for how copyright is enforced on platforms.

It looks set to be another busy year.

Onsite vs Online Access: the combination of a pandemic that has forced the physical closure of libraries and laws that do not allow for remote access to library collections has proven frustrating over the last two years. Libraries, despite having legitimately acquired books and other materials, have been prevented from allowing their communities to use them. In many countries, digital access is still limited to computers on library premises – a complete non-solution in COVID times.

However, there are moves in a number of countries to extend the way in which we understand libraries (or other institutions, such as schools) to include remote access. In some cases, this is limited to those people who are affiliated in some way – for example, the European Union’s Directive on Copyright in the Digital Single Market proposes that access can take place through secure networks. Proposals in Australia only talk more broadly about taking reasonable steps to avoid infringements, with restricting use to registered library users mentioned as one means of doing this.

The possibility for libraries are able to give access to their collections digitally is certainly something that we can hope see advanced in 2022, drawing on the lessons of the pandemic. The traditional argument that the need to visit a library represents a sort of ‘friction’ that means that libraries do not compete with the market was already questionable, firstly because this ‘friction’ would be felt more by some than others (not people living far from a library, or with disabilities), but also because the substitution effect of library lending for sales still has not been conclusively demonstrated (and indeed, lending may well support sales).

Tensions grow: the state of relations between libraries and publishers has swung back and forth in recent years, with the low point of the embargo imposed by Macmillan rapidly replaced with much more positive news as the world entered lockdown, and wider and cheaper access was offered. However, and perhaps inevitably, special offers have not necessarily lasted, and the old challenges – refusals to license, restrictive terms, and high prices – have returned to the scene. With libraries likely to continue doing a lot of work digitally, the costs and terms associated with digital content will only become more important.

There has been notable success on both sides of the Atlantic in the past year, with a number of states in the US passing laws enforcing the right of libraries to licence eBooks under reasonable terms, while a similar proposal made significant progress in Germany before elections got in the way. However, these efforts have faced angry and frantic opposition, leading the Governor of New York state to veto a bill there. In Germany, a public campaign was even launched by rightholders, opposing calls for reasonable access to eBooks.

In the meanwhile, we have also seen strong opposition (including an anthology) to a move that would have allowed access to books that the National Library of New Zealand would otherwise have had to divest, effectively placing the principle of copyright over books that were long out of print ahead of their ongoing retention or access.

Sadly, these campaigns seem often to be built on a misleading presentation of what is being called for by libraries, and a disregard for the importance of equitable access to information. It has to be hoped that 2022 will be a year of greater readiness to step back from dramatic arguments, and to focus more on finding an optimal situation for all.

Zero tolerance: copyright offers very extensive powers to those who hold it, both in terms of what they are allowed to control, and the duration for which they can do it. In a physical world, many of these powers were hard to enforce – traditional means of copying did not leave a trail, meaning that enforcement efforts focused on significant commercial infringement. Furthermore, the challenges involved with going through the courts similarly meant that it was not worth trying to pursue smaller players.

However, technological tools have long since brought in new possibilities to monitor use and potential infringements (even if the long discussions about upload filters in the context of the Directive on Copyright in the Digital Single Market made clear that such filters are far from able to determine whether a use is legitimate or not), leading to what was already described in 2018 as the ‘demise of toleration’. Added to this, the creation of ‘small claims’ courts in the US makes it easier, potentially, to pursue smaller operators.

Coupled with the rhetoric that every use of a copyrighted work requires compensation (which conveniently ignores both the emphasis on ‘free uses’ in the Berne Convention, and the establishment of rights of access alongside rights of compensation in the Universal Declaration of Human Rights), this potentially opens the door to increased efforts to penalise any infringement (or perceived infringement) of copyright severely. A key expression of this is likely to be in the types of platform relation increasingly being in different countries around the world, following the model of the EU’s Directive on Copyright in the Digital Single Market. The pressure will be on platforms to take on the sort of policing role usually left to public authorities, with the expectation that they use technological tools to spot infringements, even only very minor ones, or those carried out in good faith.

Crucially, in addition to having a chilling effect on decisions around using copyrighted works, this approach may well also serve to deepen inequalities, with only better funded players able either to take the risks, or to pay for broad licences which offer them adequate protection against liability. It will become all the more important to ensure clear rights for users, as well as protections for libraries and others when acting in good faith.

More blockchain: with new money flowing into ‘web3’ business models, we’re likely to see a resurgence of talk about how blockchain might be used. Clearly, web3 in general has its critics, ranging from those who question how novel it is, to those who ask what difference it is likely to make in reality, or who point out the risks of it concentrating power in the hands of those who already have it.

However, with potential investment funding available, as well as confused attempts to turn copyrighted works into non-fungible tokens (or at least to link the two), there remains the underlying concern that a shift to blockchain and a model focused on using technology, rather than law, to set out the rules of the game risks undermining the role of governments in ensuring fairness.

Of course, with many arguments for web3 based on a sense that institutions are untrustworthy – and indeed that we need to get rid of the need to trust, and instead be able to depend on things happening correctly – it is perhaps normal to want to exclude government. However, copyright in particular depends on achieving a balance that, it feels, blockchain and micro-contracts may struggle to achieve. The risk is that web3 applications rigidly enforce the ‘rights’ side of the picture, without considering the exceptions on which libraries and users depend.

Avoiding collateral: finally, and following a point already made above, the drive to regulate platforms will continue apace in 2022, with the European Union’s Digital Services Act and Digital Markets Acts scheduled to be agreed, ongoing drives to reform Section 230 in the United States, and the subject coming up regularly in reforms elsewhere.

Major internet platforms are tempting, and often well-justified targets, given their significant market power, and degree of control over so many aspects of people’s lives. Breaking them up, or imposing stricter rules that allow users greater freedom to move and choose, may well be positive outcomes for societies as a whole. Indeed, their power is one of the things driving interest in web3 mentioned above.

At the same time, in the excitement of efforts to regulate platforms, it can be all too easy to apply major new restrictions or liabilities on much smaller, non-profit entities which operate platforms, such as repositories or digital libraries, book review sites or similar. These are clearly not in any position to take on the same sort of responsibilities as multi-billion dollar companies – for example to implement filtering technology, or to respond to notifications within hours or even minutes.

The challenge is that those calling for reforms too often have little awareness of the risk of collateral damage, or even interest in preventing it. An important role for libraries and others in 2022 will be to make sure that the lawmakers involved in this work do understand the implications of the decisions they make, and ensure that in looking to regulate the power of platforms, they do not end up causing harm to education, research and culture institutions and infrastructures.

No, loss of access to information should not just be collateral damage: 10 years on from the SOPA-PIPA Internet blackout

Today marks 10 years since many major websites replaced their landing pages with black blocks or messages, in protest against efforts to pass laws in the United States that would have created dramatic new possibilities to block or otherwise damage websites accused of hosting copyright-infringing works.

The Stop Online Piracy Act and Protect Intellectual Property Acts were developed in response to fears that there were few ways to address piracy on websites outside of the United States. While domestic legislation (the Digital Millennium Copyright Act) did offer a means of calling for the removal of pirated content, the worry was that this was not doing the job.

To overcome this, the proposals focused on those aspects that could be more effectively controlled in the United States – the Domain Name System (DNS – which makes the links between the URLs we put in browser bars, and the series of numbers that takes you to content), search engines, advertisers and payment providers.

These tools were necessarily blunt – they could not focus on individual items of infringing content, but rather sites as a whole, regardless of how much legal content was there. Such sites would risk disappearing from search engine results, or simply not appearing when a user typed in the URL. Added to this was concern that meddling with the DNS could also create significant security questions.

In addition to this, the bills opened up the possibility not just for the US Attorney General to create a list of sites which would be subject to restrictions, with only vague definitions of which sites could be included. These rules would have applied to all sites, not even only the foreign-based sites which were the theoretical original target.

More worrying still, there would have been the possibility to seek court orders that would have prevented advertisers or payment providers from working with sites accused of infringement, without solid proof having been offered.

In short, while the bills may have led to the blocking of pirate sites or pirated content, it would likely have caused huge collateral damage, including to sites which in fact contain no pirated content at all. To turn this around, it would have had a huge impact on the possibilities open for people to create and share online, including, for example, repositories and digital libraries.

A post from the Electronic Frontier Foundation sets out what could have happened if the Bills had been passed, with sites hosting user-generated content slowly eliminated, and indeed only the best-funded sites ready to operate under the new rules.

Various events and activities are taking place around the world, for example organised by Creative Commons – take a look to find out more. But below are just a few lessons emerging from the events around PIPA and SOPA, as well as developments over the last ten years, which are relevant to libraries.

Access to information needs to be valued: a key problem with the PIPA and SOPA legislation was the failure to consider the negative impacts on access to information as a sufficiently serious problem to stop any earlier.

There are many claims shared about the value of the copyright industries, and assessments of the costs of piracy, but many fewer about the value of access to information itself. This is partly because it is far harder to calculate (without over-stating the accuracy of the value claims mentioned earlier), but also because it tends to be far more widely dispersed.

While there are calculations of the value of economic activities depending on fair use or other exceptions to copyright, these of course do not necessarily account for the broader benefits of access to learners, researchers, and indeed readers in general. More needs to be done to ensure that this access is given its due weight in decision-making.

Enforcement cannot ignore equilibrium or equitable process: PIPA and SOPA arguably represented a landmark in efforts to promote copyright enforcement, without regard to the costs of depriving people of access to information (as mentioned in the previous point), or indeed of whether there is any justification.

However, efforts to find new ways to enforce copyright law have continued, and alongside valid and proportionate approaches, there continue to be less discriminate ones. The creation of ‘watch lists’, based only on (untested) accusations made by individuals and companies, pressuring platforms into implementing imperfect upload filters, promoting the use of technological protection measures without consideration of whether they prevent legitimate uses – all represent efforts at enforcement without bothering to value access.

Such a disproportionate emphasis on enforcement, without respect for user rights, needs to be resisted, both in domestic policy, as well as in trade deals and international cooperation programmes.

Zero tolerance approaches have a chilling effect: by creating the possibility for sites to be ‘disappeared’ or otherwise penalised for hosting even only individual pieces of pirated content, SOPA and PIPA effectively promoted a zero-tolerance approach to copyright infringement.

While action in such situations may be justified in order to remove individual content, the risk of having entire websites taken down makes the cost of hosting infringing content, even inadvertently, so high as to dissuade many from even starting. Setting high fines or criminal penalties may have a similar impact.

This could be the case both for platforms used by libraries, as well as repositories run by libraries, where it is near to impossible to ensure that there is no infringing content at all there. Faced with this, the emergence of community-owned and run infrastructures risks being reversed and ended.

Decisions need to be global: there are two key reflections from the events around PIPA and SOPA. One is that it highlighted the general need for global internet governance, given that the tools available to individual countries are ill-suited to solving challenges associated with a global internet. The risk, in acting at the national level, is to splinter the internet between different jurisdictions (with standards often dictated by the biggest and richest players – arguably initially the United States, but now, Europe).

This, indeed, is why organisations like IFLA engage at the Internet Governance Forum and World Intellectual Property Organisation, as well as supporting regional engagement.

A connected concern is that the control of the US at the time over the Domain Name System meant that it had a unique possibility to interfere with a key part of the internet architecture. This, in turn, provides an argument for ensuring that this infrastructure is in global hands, not just that of any one player.

 

Of course, over the last ten years, more issues have emerged since then, including in particular the role of platforms, with business models which raise new questions, some of which may touch on copyright, but many of which belong more to the competition or anti-trust fields.

The size of platforms has meant that imposing rules on them risks becoming a proxy for addressing underlying problems, such as copyright infringement or hate-speech. Dislike and distrust of such platforms, in the light of their profits and practices, doubtless also helps in these efforts.  However, while certainly there can be no justification for business models based on promoting illegal content, this should not be a substitute for efforts to bring criminals to justice. There is also plenty else going on, around privacy, disinformation, and much more.

Nonetheless, the points set out all represent issues that were raised in the debates about SOPA and PIPA, ten years ago, which are arguably still with us.

Happy Public Domain Day: three ways of looking at why it matters

1 January of each year is Public Domain Day, the day that a new set of historical works enter the public domain, opening up wide new possibilities for access and use.

The reason for this all happening on 1 January is because many copyright laws provide protection for a set number of years (at minimum 50, often more) after the end of the year in which the creator died.

This protection gives an exclusive right to control things like reproduction, distribution, translation, performance, or communicating to the public online. These tend to be known as ‘economic’ rights; meanwhile ‘moral’ rights (such as to be named alongside a work) do not have a limit in time.

As such, in countries with protection lasting for life plus 50 years, it means that the works of creators who died in 1971 are now far more freely available. In countries with protection lasting for life plus 70 years, it is the works of creators who died in 1951. Some other countries have more complex rules – you can find out more on the relevant Wikipedia page.

While of course it may seem odd to be celebrating the fact that a certain time has passed since a death, in reality, entry into the public domain brings many benefits, including of course to creators insofar as their original motivation for creating will have been to share their ideas with the world.

Nonetheless, there is an unfortunate trend towards trying to extend copyright terms, often as part of trade deals, limiting when new books, songs and images enter into the public domain. There are also efforts in some countries to charge fees for use of public domain works, or at least direct reproductions of them.

This blog sets out three connected angles to the argument for celebrating Public Domain Day.

 

Library collections liberated

Public Domain Day is an important moment for libraries holding works whose economic copyright protection comes to an end.

To survive until this point, relevant books, documents, recordings, images, and other materials will likely have benefitted from significant investment in preservation and conservation.

And while they may well have been open for limited access and use already, entry into the public domain is what creates many new opportunities to ensure an impact in terms of access to and use of works.

For example, new possibilities emerge to make digital copies of works which can be made freely available online, to use copies in class or even research, in person or remotely without payment, and library users have much wider options to play with or remix works.

In effect, it allows for a much deeper, richer engagement between library users and the heritage and ideas of the past, going beyond the simple ‘consumption’ of works.

Clearly, in providing access, it remains important to remember that copyright is not the only factor at play in deciding whether to provide access to works or not. Factors such as the interests and preferences of indigenous groups, privacy and beyond will also come into play!

 

Building the knowledge commons

Connected to the previous point is about what entry into the public domain means for the ability of libraries to make an impact, a second argument focuses on how this contributes to the building of the Knowledge Commons.

This is a term that has existed for a while already, building on previous ideas of ‘commons’ – things and resources that are owned by, and available, to all, contributing to individual and collective wellbeing.

It receives particular attention in the recent UNESCO Futures of Education report, which refers to it as ‘the collective knowledge resources of humanity that have been accumulated over generations and are continuously transforming’.

The UNESCO report underlines how important it is for young people, as they learn, to be able not only to access this commons, but also to contribute to it. It cites this as a step away from rote-learning, with young people simply forced to accept the status quo.

Clearly, possibilities for access, analysis, and re-use are at their strongest when works are in the public domain! In effect, each year on 1 January, we can mark the moment that the knowledge commons grows stronger, offering new possibilities for learning, sharing and creativity.

 

Maximising welfare

Of course, a key argument for copyright in the first place is that it is by keeping works out of the public domain, and so crating artificial scarcity, that it is possible to generate the income necessary to cover the costs of creation.

While of course it is unsurprising that actors depending on a business model built on the exploitation of copyright will tend to paint this as the only possible means of supporting creativity, it is also true that no other dominant single dominant model has yet emerged to replace it, at least in the creative industries. Clearly we do have an interest in ensuring that those who have a talent for developing and expressing new ideas should have a means of earning a living by doing it.

The question then is where to find the balance. One way of thinking about this is by looking at costs and benefits over time.

Graph suggesting that the cumulative net benefits of copyright peak at a certiain time, and then fall awayGraph A offers a way of reflecting on this, for a complete set of works published in a given year. The horizontal axis represents time after publication, and the vertical, benefits/costs. Figures are not included, as the graph provides a model, rather than a set calculation, and because it can be hard to put a clear figure on monetary costs or benefits to some things.

The blue line represents the benefit to rightholders from copyright – in effect what is earned from sales and other licensing revenue. This starts high, but rapidly falls, with a ‘long tail’. This reflects the fact that most copyrighted works have a very limited commercial life, and just a few will continue to make money for a long time while others are effectively forgotten or worse, lost.

The green line represents the costs to the public – the impact of people who would benefit from having access to the full set of works not having it, for example to support education, research or wellbeing. Clearly some people can buy works, but it’s assumed that they have paid what they felt the work was worth, and so there is no net cost or benefit to them.

The red line therefore represents the net benefit of copyright to society as a whole – i.e. the benefit to the rightholder minus the cost to the public.

At first, this is positive. However, after a time, the cost to the public of not being able to access works becomes greater than sales or licensing fees for rightholders. At this point, the red line drops below the axis, representing a net loss to society as a whole.

Finally, the dark grey line represents the cumulative net benefit over time. At first, this is growing. However, once the costs of copyright grow higher than the benefits, this line starts falling, representing a falling total benefit to society over time.

Graph indicating that the net cumulative benefits of copyright peak and start falling at some point. However, by having a date of entry into the public domain, it is possible to halt this fall in net benefitsEntry into the public domain provides a response to this situation of a falling cumulative net benefit over time. Graph B illustrates this. At halfway along the horizontal axis, works from a given year enter the public domain, and so benefits to rightholders from sales and licensing fees (blue line), which were already low and falling, are reduced to zero. However, the costs to the public (green line) also disappear, and in fact turn into benefits as people are able to use and enjoy works freely.

The impact of this is that there is now a net benefit to society again (red line), meaning that cumulative net benefits (grey line) also start to rise again, reversing the downward trend previously seen.

Of course, the specific shape of some of these lines can be discussed (and of course, date of entry into the public domain most often depends on when the author dies), but in effect, this provides a more economic model for understanding why the public domain matters for the societies that libraries serve.

In particular, assuming that the term of copyright protection is already longer than the point at which the costs of copyright start to outweigh the benefits, then any extension of terms would certainly lead to further net losses to society.

 

In summary, public domain day is something to be celebrated, both for libraries themselves, and for the societies we serve. It creates new possibilities for libraries to get the best out of their collections, it significantly expands the knowledge commons, and it corrects a situation of falling net benefits to society.

Happy Public Domain Day!

 

Interested in finding out more? Key organisations associated with the public domain are holding a celebration on 20 January, with a particular emphasis on the sound recordings now becoming available – find out more here!

 

From the 17th to the 21st centuries: Copyright, Creativity and Access

Who should pay for creativity and how?

And who should be able to access creative works and how?

These are questions to which the answers have varied over time, leading to different business models, and different outcomes.

Of course, at the heart of this discussion is copyright – a set of exclusive rights awarded to creators allowing them control over copying and many forms of use of the works they have created.

As this blog will set out, copyright is often portrayed as a form of progress compared to what came before. However, the shift from patronage to a free market cannot be the end of the process if we are to reflect the understanding of human rights that has emerged over the 20th and 21st centuries.

From the 17th to the 19th centuries

The traditional model of supporting creativity and the arts is often characterised as being about patronage, i.e. where wealthy individuals or organisations simply provide the money up front for a new book, painting or other work.

For a long time indeed, monarchs, aristocrats, wealthy merchants and businesspeople, and religious institutions tended to be the ones paying the bills, in highly unequal societies where most people were illiterate and struggled to survive.

Under this model, the only works that would get created were those that could find a wealthy backer.

We can see this as a 17th century model (or at least the model that dominated up until the 17th century) – i.e. before the first copyright laws came into force in the early 18th century, and were internationalised with the Berne Convention in the 19th.

In effect, by creating a property right, copyright made it possible to turn works into commodities that could be bought and sold on the market. In doing so, it ensured that it wasn’t just the richest people and institutions that determined what would be paid for, but rather the wider buying public

Of course, it is not as if the patronage model has gone away. Patronage by wealthy backers is still a big thing in the visual arts sector, and government cultural policies can often be key in helping emerging talents and minority voices break through.

Moreover, in the scholarly sector, copyright has little if anything to do with whether researchers get paid – university salaries and grants rather account for this.

Nonetheless, those arguing for stronger copyright often focus on the importance of the shift from a (17th century) patronage model to a (19th century) market model as progress.

Under this discourse, copyright is a democratising influence, allowing the decisions of millions of consumers to determine what gets produced, rather than a small number of powerful and/or wealthy individuals.

From the 19th to the 21st centuries: from charity to guarantees

The promotion of the idea of copyright as a far-reaching exclusive property right created a new issue however – how to facilitate uses of works that contribute to broader public interest goals.

With the 20th century, the notion of universal human rights came into focus with the Universal Declaration of 1948. In the 21st century, the logic of ‘no-one left behind’ and a ‘right to development’ have come into the mainstream, accentuating the idea that everyone has a right to a basic set of possibilities to fulfil their potential.

In this context, there is the question of how to meet the needs of people who might need books and other works, but cannot otherwise afford them. In other words, what would happen when the free market doesn’t deliver?

The 19th century approach was, arguably, through charity. The generous rich would provide support for the less fortunate, on a discretionary basis. In effect, they filled a gap that many governments were unwilling to fill, although doubtless in doing to encouraged the idea that there was no need for governments to act at all.

We still see the legacy of this approach, not least in the case of libraries with the construction of many institutions by people like Andrew Carnegie.

However, philanthropists and their fortunes come and go, and goodwill alone does not provide a strong foundation for guaranteeing fundamental rights.

Over the 20th century, the importance of exceptions and limitations to copyright, as a means of avoiding market failures and guaranteeing possibilities to deliver education, research, parody and beyond, emerged, not least through doctrines such as Fair Dealing and Fair Use.

However, these exceptions have increasingly been bypassed in the 21st century with the rise of digital tools for providing access to content. With the terms of contracts often priming over law, and few libraries or users in a position truly to negotiate terms, rightholders have an immense ability to determine what can and cannot be done with books, returning to a model of unlimited rights.

In the case of libraries, this means control over what our institutions can buy, whether they can lend it, copy it for education or research purposes, or even preserve it for the future.

This is not, arguably, an adequate way to enable libraries to carry out activities that make a reality of these key activities. Relying on a combination of the market and the discretionary generosity of private actors is not enough.

We have seen, during the COVID pandemic, that depending on goodwill offers of access to materials by rightholders has led to a highly uneven level of access, which often stopped well before the need for this disappeared (indeed, this need is continuing).

This is where the importance of a modern, balanced copyright system comes in, ensuring that institutions like libraries, as well as schools, research institutions and others, are able to deliver on these key rights, independently of the goodwill of private actors.

If we are to ensure that the rights of access to education, research and culture are realised in the 21st century, we need copyright laws that take a positive approach to delivering on these rights.

Clearly, of course, this needs to be done in a way that does not jeopardise the creation of works in the first place, but there is evidence enough that empowered libraries constitute an asset, not a threat, to the sustainability of the book sector.

In particular in fields where governments already play a key role in paying for creativity and publishing, the importance of ensuring that these investments deliver on public interest objectives is particularly strong.

In short, a modern copyright system requires not just a shift from patronage by the wealthy to a greater freedom to create and earn a living from creativity – i.e. from the 17th to the 19th centuries – but also a shift from fundamental rights of access to information depending purely on goodwill to being guaranteed in law – and so from the 19th to the 21st centuries.

A Right to Be Remembered: A Task for Copyright Laws

Ever since the decision of the Court of Justice of the European Union to allow people to request the removal of articles that violate their right to a private life from search results about them, the notion of a ‘Right to be Forgotten’ as entered the language.

It is not uncontroversial. Supporters highlight the possibility it offers for people to leave past minor misdemeanours behind them (especially once they have served their time), or to protect themselves against damage to their reputation, for example from allegations or charges which were never proven to the true.

Opponents worry that such provisions can be used to make it more difficult to find out about the past activities of people in power, and even the deletion of records (not just their removal from search results). The fact that decisions as to who has this right are effectively left to private companies also worries some.

In parallel, however, some commentators have pointed out the relevance of thinking about a ‘right to be remembered’.

This blog starts by exploring some of the different ways in which this has been talked about already as an idea, before underlining its relevance in a digital age, and finally setting out how this could manifest itself in copyright laws. In doing so, it covers much of the same ground as the UNECO 2015 Recommendation on Documentary Heritage.

 

From Forgetting to Remembering

Soon after the idea of the ‘Right to Be Forgotten’ appeared, that of a ‘Right to Be Remembered’ also popped up.

For some, the concept was an excuse to justify the collection of data about customers in order to offer them an ‘improved’ customer experience on websites.

However, already in 2015, Irina Raicu from the Markkula Centre for Applied Ethics at Santa Clara University in 2015 talked about being remembered as a  ‘privilege’, raising the idea of the importance of ensuring that individual stories are not lost. In particular, she highlights the importance of ensuring that the names of Holocaust victims where known, in order to promote awareness of what happened.

An article published by people involved in the High Atlas Foundation went further, suggesting that creating a right for communities to protect and preserve their heritage, and have autonomy over its safeguarding should be added to the Universal Declaration of Human Rights.

In this, it made the connection with the practices of many Western institutions in the past in appropriating elements of heritage from other cultures (often seen as inferior), and supported efforts at restitution.

This work does also highlight the issue, increasingly recognised in the library field, of the need to reconsider practices that risked treating knowledge and experience from much of the world and its populations, consciously or unconsciously, as inferior. In doing so, this has led to a situation where some groups’ lives have been more easily forgotten, allowing our image of the past to be distorted.

In parallel, we also have more conscious efforts to eradicate the experience of individuals or groups from history altogether, either through the altering of existing records, or the deliberate destruction of materials that testify to people’s existence.

In short, we can argue that individuals and groups should have the possibility to be remembered, and their experiences and contributions valued by those who come after.

Indeed, this could be seen as an element of the cultural rights offered by international law; future generations risking seeing these rights jeopardised if the memory of those who have come before – their ancestors – is simply wiped away.

 

New Possibilities

The emergence of the internet, and its spread to a greater and greater share of the global population have meant that there are now more opportunities than ever before to share stories, ideas and experiences.

It is no longer the case that only those with access to a printing press and a distribution network can share their ideas, experiences, and knowledge widely, through websites, blogs, social media, and beyond.

However, the possibility to be heard today is not the same thing as the possibility to be heard in future. The internet is a poor preserver of material. Materials published there, or otherwise in digital form, can easily be lost, and so the knowledge and experience of their creators forgotten.

Ironically, in parallel, in a world so focused on digital access, the same fate also risks befalling physical works, which are less easily found and accessed. And in the meanwhile, the intensification of the consequences of climate change risk seeing whole collections of memory destroyed.

This is where libraries, archives and museums can step in, with a mandate to ensure as broad a preservation of the experience of today for the benefit of tomorrow. This is a key social function, an investment today in ensuring the possibility for future generations to learn, to carry out research, and to enjoy their cultural rights.

In other words, the right to be remembered depends on having libraries, archives, museums and other heritage actors and institutions, tasked with preserving the memory of all cultures, libraries, archives and museums, and giving access to it.

It is clearly not something that can be left to the market. We cannot put a price on the value of memory or of the cultural rights it supports, just as we cannot charge our future selves for the cost of this work today. We need empowered libraries, archives and museums to fil the gap.

Clearly, this is work that needs to be taken forwards in line with ethical principles, in particular as regards Indigenous peoples, with collections built and managed in a way that respects the interests of the groups affected. There is growing awareness of how this can be done, in parallel with wider efforts to ensure that collections practices reflect the communities our institutions serve.

 

Acting for a Right to Be Remembered

A number of the elements that need to be in place for a Right to Be Remembered are already covered above – heritage institutions with the resources necessary to safeguard the knowledge and experience of the present and past, as well as collections policies and practices that promote inclusion while also respecting the interests of Indigenous groups in particular.

Yet beyond this, there is also the question of how to ensure that copyright laws do not end up representing a barrier to the right to be remembered.

This is a distinct possibility. Copyright already applies to works regardless of whether there is any intention to exploit them commercially. Even for works which are produced with a market in mind, for all but a tiny minority the term of protection extends far beyond their commercial lifespan.

In fulfilling their mission to defend the right to be remembered, libraries, archives and museums do risk running into blockages, being forbidden to take preservation copies of in-copyright works, in the most appropriate format, unless they seek permission (which may be impossible) or pay remuneration (which diverts resources away from the work of preservation itself).

This is the case in the 70% of countries which do not offer libraries, archives and museums a guarantee of being able to preserve works using whatever technology is most appropriate. Only among the 27 countries of the European Union is there (supposed to be) a clear possibility to form cross-border partnerships for preservation, helping ensure most effective use of resources and expertise.

As highlighted above, simply leaving the Right to Be Remembered to the market is unlikely to be an effective strategy. We tend to discount the value of access to knowledge for future generations, and of course even just the potential of earning revenues on a work in the short-term may prove too strong a temptation for rightholders.

Importantly, the Right to Be Remembered cannot be effective if works containing memory are locked away. While, of course, the Right to Be Remembered should not in itself mean the loss of the right to exploit a work commercially, it is meaningless if it is not accompanied by the possibility for people to access this memory. Cultural rights do not only apply to works that are old enough to have fallen into the public domain.

As the UNESCO 2015 Recommendation notes as early as its title, preservation and access must go hand in hand.

In short, if we are to take the Right to Be Remembered seriously, we need to ensure that institutions charged with making this right a reality themselves are guaranteed the possibility under copyright law to do whatever is necessary to preserve knowledge and experience, and to provide access to this knowledge in ways that do not jeopardise commercial exploitation.