RESPECT CREATORS 4: FAVOUR A RICH PUBLIC DOMAIN OVER A LIMITED ONE
When asked how long copyright terms should last, the majority of respondents to the question in “Our Digital Future” indicated that they do not want copyright to last beyond the death of the creator, with the majority at 53.3 percent indicating they believe copyright should last either 10 years (28.7 percent) or until the death of the creator (24.6 percent).57 Only 15 percent of respondents voted for a copyright term beyond the death of the creator, and less than 4 percent voted for the term length proposed in leaked drafts of the TPP or longer (i.e. the death of the creator plus 70 years).58
By voting for shorter copyright terms, the participants in “Our Digital Future” are voting for a richer public domain. The public domain is comprised of works that are not restricted by copyright and do not require a license or fee to use. Works can enter the public domain automatically because they are not copyrightable, can be designated in the public domain because they are being used under fair dealing/fair use provisions, can become part of the public domain because the copyright term has expired, or can be made public domain by the creator/rights holder. As the Authors Alliance points out, the public domain maximizes the potential for creators’ works to be accessible - therefore, the process for dedicating works to the public domain should be easy and clear.59
The public domain is important not just because it allows creators to reach audiences – it also creates a vast store of works that creators can freely draw from and reuse. Whether works we likely consider as part of our common cultural heritage or folk tradition are in the public domain or not can have a very significant impact on creators. For example, for those in the English speaking TPP countries, we can feel the realism of a film or television show where characters sing “Happy Birthday” at a birthday party - and the unreality of a scene in which they sing anything else. Yet in order to represent this everyday reality, creators currently need to pay royalties to Warner Brothers, which collects over US $2 million per year from a disputed claim to the copyright on the song.60 The existence of a public domain for cultural works like “Happy Birthday” has a significant impact on the ability of creators to reference and reuse works without incurring significant additional production costs, or running the risk of harsh penalties for copyright infringement.
The ability for creators to affordably represent, reference and remix our culture is not the only reason to support a rich public domain; worryingly, without provisions where works automatically enter the public domain after a reasonable time limit, the vast majority of recorded 20th century culture is lost as “orphan works,” and will likely be entirely inaccessible to creators.61 The majority of books, for example, go out of print shortly after their original publication, and are long forgotten by the time they enter the public domain – they will likely never be re-printed, and the limited copies in circulation will be difficult or impossible to access.62 For many other works, the copyright owner cannot be found, and/or their date of death is unknown, so uncertainty over their copyright status means they will never enter the public domain, in a regime where publishers, archivists, scholars, etc. are fearful of being held liable for copyright infringement of up to $150,000.63 As the Authors Alliance notes, “the specter of such crippling liability can chill even non-infringing and socially beneficial acts of authorship, dissemination, archiving, and curation” – yet another reason to ensure reasonable penalties for copyright infringement.64
The scale of the orphan works problem, and the diminishment of publicly accessible culture, have led dedicated advocates of the public domain like Mark Akrigg, the founder of Project Gutenberg Canada, which preserves and makes available public domain ebooks, to raise the alarm about the risks of the TPP and the proposed copyright term extensions in the leaked drafts.65
Participants in the “Our Digital Future” project join with librarians, archivists, scholars and others in rejecting exceedingly long copyright terms. Copyright terms have steadily increased in length since the creation of copyright; when copyright was first established in Britain with the Statute of Anne, it lasted just fourteen years.66 The first efforts to extend it by the booksellers were rejected on the grounds that they would make the public into “slaves” of the publishing industry, and lock up knowledge and science in “cobweb chains.”67 In this report, we join with the majority of our crowdsourcing participants in seeking copyright protection that focuses on livelihoods and protections for creators – and ends with their death. This strikes the appropriate balance between the needs of individual creators for compensation for their work, and the needs of the creative sector as a whole for cultural goods that are not locked away from the public.
57. For full results from this question, see “Appendix: Methodology”
59. This is a challenge in US copyright law http://www.authorsalliance.org/principles-and-proposals- for-copyright-reform/principle-1/. An opt-out rather than opt-in model for copyright would be one approach to solving this problem: http://www.law-democracy.org/live/wp-content/uploads/2013/07/ Final-Copyright-Paper.pdf p.35