Right might still be wrong

30 January 2013

Deze bijdrage van Paul Keller verscheen in de Januari / Februari-uitgave ('Public Domain') van de Fabrikzeitung uit Zürich.

The first general principle of the 2010 Public Domain Manifesto states that 'The Public Domain is the rule, copyright protection is the exception'. This principle refers to two important characteristics of modern copyright theory: First, that copyright only gets awarded to works that have a certain level of originality and second, that copyright is a right limited in time.

These two principles shape the contours of the temporary removal from the Public Domain that we call copyright. Unfortunately what sounds relatively straightforward in theory turns out to be rather difficult in practice. In the current environment, it is often difficult to determine where copyright starts – what makes a work original enough to qualify for copyright protection? – and it is even more difficult to determine when copyright protection ends.

This last observation might sound a bit strange to anyone who has a cursory knowledge of copyright. Doesn't copyright end 70 years after the death of the author respectively 70 years after the first publication in case the author happens to be anonymous or not a natural person? That rule sounds simple enough to figure out when a work enters into the Public Domain.

Unfortunately this rule doesn't capture the complexities of copyright legislation around the world. There are at least three different problems that contribute to this: (1) differing lengths of protection in different counties, (2) various exceptions to this rule and (3) lack of reliable information on the death dates of creators.

Globalized publishing vs. National regulation

The first problem is relatively straightforward. While most of us are used to a copyright term of protection of 70 years after the death of an author, there are actually huge variations between countries around. The Berne Convention for the Protection of Literary and Artistic Works from 1886 which still provides the blueprint for almost all copyright systems in the world specifies a minimum term of protection of 50 years after the death of the author (hereafter ‹PMA› for Post Mortem Auctoris). While most developed countries have adopted a 70 years PMA term (the US have 95) there are countries with even shorter terms (for example Lybia with 25 years PMA) and some with much longer terms (Mexico has a term of 100 years PMA).

To look at a concrete example, the original French version of the famous novella Le Petit Prince by Antoine de Saint-Exupéry (who died in 1944), is in the Public Domain in a large number of countries that have a copyright term in line with the Berne convention such as Canada while it is still protected throughout the European Union (more about this later).

So how does this work in the online environment where national borders don't matter much? No one has really figured that out, but anecdotal evidence suggests it does not work very well:

In 2006 Amazon.com remotely removed already purchased copies of George Orwell's novel 1984 from it's customers Kindles. This act – which got a lot of well deserved criticism for it's creepiness – was ultimately caused by the confusion about copyright term duration. The edition in question was added by an Australian publisher specialised in re-editions of public domain works who considered Orwell's works to be in the public Domain. Orwell died in 1950, Australia has PMA + 50 years for authors who died before 1955. That allowed them to publish the novel without having to have secured a license to do so. Amazon had originally accepted this perfectly legal edition into it's catalogue, but later reversed this stand as it was pushed by the US publisher of 1984 on the basis of the much longer American term of protection.

The exception proves the rule

Issues like these are made worse by the second problem mentioned above. While the general rules for term duration seem relatively straightforward to work with, there are lots of exceptions to this rule. Things like the fact that the British Parliament has awarded a right to royalty in perpetuity in Peter Pan to the Great Ormond Street Hospital (which is featured in the plays) or all kinds or war-related extensions in a number of European countries.

One of the most striking examples for this comes from France, where as a result of these rules even legal scholars can't figure out, when the above mentioned Petit Prince will be in the Public Domain. Amsterdam based legal researcher Christina Angelopoulos highlights this in a recent article:

In France, the Intellectual Property Code contains three provisions extending the term of protection for works which were in copyright during WWI and WWII or whose authors died for France. To compensate the loss and difficulties in the commercial exploitation of works during the two World Wars:

The rights of authors, composers and artists of works published before the signing of the Treaty of Versailles and which had not fallen into the public domain on 3 February 1919 were extended by 6 years and 152 days;
The rights of authors, composers and artists of works published before 1 January 1948 and which had not fallen into the public domain on 13 August 1941 were extended by 8 years and 120 days; The rights of authors, composers and artists who died for France during WWI or WWII were extended by 30 years. It should be noted that the two first extensions can accumulate in cases of works published during WWI, which can then benefit from an extension of up to 14 years and 272 days.


With regard to non-musical works, commentators are divided on whether the added mileage would salvage the other two extensions as well: some commentators consider that the extensions due to the wars remain absorbed by the new harmonised term of protection. In this case, a non-musical work whose author died for France, whether published during WWI or WWII or not, will benefit from a term of protection of 100 years pma (70 years pma + 30 years). Others argue that, given that the accumulated extensions will certainly result in a term longer than that of the Directive, the calculation should be made on the basis of the old 50 years pma rule. As a result, the term for non-musical works whose author died for France would vary between 80 years pma (50 years pma + 30 years) and 94 years and 272 days (50 years pma + 30 years + 6 years and 152 days + 8 years and 120 days), depending on the date of publication of the work.

The case of a non-musical work published during WWI or WWII and written by an author who died for France is not hypothetical. […] For example, the entry of Antoine de Saint-Exupéry’s famous novella The Little Prince into the public domain oscillates from 1 May 2033 to 1 January 2045, depending on the interpretation accepted. (Christina Angelopoulos: The Myth of European Term Harmonisation: 27 Public Domains for the 27 Member States, IIC, 2012-5, p. 567.)

These exceptions make it incredibly hard to determine if a work is still protected by copyright or not.

The grey matter

Combined, these two problems make it difficult, but not impossible to determine if a work is in the public domain. One can easily imagine writing an algorithm that analyses the copyright status of a work based on the general rules and all documented exceptions. However such an automated public domain calculator [the author is involved in such an attempt which is documented at www.outofcopyright.eu. This article is primarily based on research done in this context.] would not only require a good modelling of the rules, but also access to reliable information about information such as the date of first publication of a work and the dates of death of the associated authors.

Both types of information can be very hard to get by. While they are often readily available in the case of famous authors, they tend to me much harder to come by in the case of less famous creators or works, who unlike books do not always carry a date of publication.
This makes it very difficult to take a collection of artworks from a museum or a box of photographs from an archive and analyse, which works are in the public domain and which ones are not. As a result we are currently dealing with a lot of works that are living in a sad grey zone inbetween being positively copyrighted and being positively in the public domain, because it is either impossible or prohibitively expensive to figure out their rights status.

Right now this grey zone includes all works created from the mid-19th century until 1942. Many of the historically extremely interesting works published in this period which are in the public domain, remain unusable because we can't determine their status. This of course is a highly undesirable situation and none of these works are not given the chance of a second life.

One way to solve this issue would be, to turn around the burden of proof. Instead of requiring potential re-users to determine, if a work is still protected by copyright, we should require authors to provide the necessary information to make this determination. Works should only be protected by copyright, if the rights holder makes available the relevant information via a publicly available registry. One such proposal come from the Communia association for the public domain, which recommends that:

In order to prevent unnecessary and unwanted protection of works of authorship, full copyright protection should only be granted to works that have been registered by their authors. Non-registered works should only get moral rights protection. (Communia policy recommendation #8)

Unfortunately the above-mentioned Berne Convention from 1886 prohibits registration requirements and changing the Berne Convention is universally understood to be more difficult than figuring out the public domain status of even the largest and least well-documented collections imaginable.

By Paul Keller

Deze tekst heeft een Creative Commons Naamsvermelding-licentie (CC BY) en is gekopieerd van de Kennisland-website. Ga voor de volledige versie met afbeeldingen, streamers en noten naar https://www.kl.nl/en/opinion/right-might-still-be-wrong/

This text has a Creative Commons Attribution License (CC BY) and has been copied from the Kennisland website. For a full version with images, streamers and notes go to https://www.kl.nl/en/opinion/right-might-still-be-wrong/