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public domain

Public Domain Day 2010

Wallace McLean posts his annual list of authors whose works enter into the public domain in Canada this year.  There is additional coverage of public domain day here and here.  The issue should resonate particularly strongly this year, given the news that the European Union is demanding that Canada extend the term of c

Nobel Prize Winner on IP, Open Access and the Public Domain

Elinor Ostrom, this year's Nobel Prize Winner in Economics, has published on intellectual property, open access, and the public domain.

Jesse Brown: Publicly Funded Content Should Be Public Domain

Jesse Brown of Search Engine has a guest post at BoingBoing that stirred up considerable discussion.  Brown argues that publicly funded content should be released to the public domain within five years of creation.

Project Gutenberg Canada's Copyright Reform Recommendations

Project Gutenberg Canada, which has produced hundreds of electronic versions of public domain books, has submitted a response to the copyright consultation focused primarily on public domain issues.

Tuesday April 15, 2008
National Gallery Looking For Profits in the Wrong Place
My weekly technology law column (Toronto Star version, Ottawa Citizen version, Vancouver Sun version, homepage version) explores the issue of museums and fees associated with public domain works. As museums experiment with the Internet - many are using online video, social networks, and interactive multimedia to create next-generation museums that pull content from diverse places to create "virtual museums" - the museum community has emerged as a leading voice for the development of legal frameworks that provide sufficient flexibility to facilitate digitization and avoid restrictions that could hamper cultural innovation. Yet as museums embrace the Internet's potential, there is concern that their advocacy and actions are not always consistent.  This is particularly true with respect to their policies on public domain works, for which the term of copyright has expired. The public domain issue has emerged as a contentious one within the museum community.  Many museums receive regular requests for copies of works in their collection to be reproduced in school texts, magazines, or other publications.  The costs associated with these requests vary widely.  Some museums levy administrative fees (for the cost associated with handling the request), reproduction fees (for the cost of reproducing the image), and notwithstanding the expiry of copyright, permission fees. In 2006, London's famed Victoria and Albert Museum became the first museum to completely drop charges for the reproduction of images in scholarly books and magazines.   While that decision generated considerable acclaim, according to documents obtained under the Access to Information Act, the National Gallery of Canada (NGC) appears to be taking the opposite approach by treating public domain works as a profit centre.

The Access to Information Act records covered requests to the NGC for copies of public domain artworks between February 2006 and January 2007.  The NGC received approximately 250 such requests, for which it imposed contractual restrictions on use of the images and levied an average fee of $379.  While requesters were not advised of the cost breakdown, internal documents reveal that some of the price went to an administrative fee (typically $20) and a photographic fee (ranging from a low of $6 for a small slide reproduction to hundreds of dollars for new digital photographs in high resolution).

The most important determinant in the overall cost, however, was the "permission fee." Despite the fact that the images were in the public domain, the NGC often added hundreds of dollars to the total cost.  In fact, the permission costs for public domain works were actually higher than those for works still subject to copyright since the NGC reasoned that there would be additional charges applied by the copyright holder for the works not in the public domain.  In other words, the NGC saw an opportunity to increase the permission fee since no other copyright charges would be applied.

While it easy to dismiss these fees as a cost of doing business at a time when museums are struggling to make ends meet, the reality is that they represent a significant impediment to access and use of Canadian culture and ultimately undermine claims for enhanced taxpayer support.  As museums worldwide embrace the potential of digitization and the Internet, the time has come for Canada's museums to remove the cost and contractual barriers to Canadian heritage.

national gallery public domain column

My weekly technology law column (Toronto Star version, Ottawa Citizen version, Vancouver Sun version, homepage version) explores the issue of museums and fees associated with public domain works. As museums experiment with the Internet - many are using online video, social networks, and interactive multimedia to create next-generation museums that pull content from diverse places to create "virtual museums" - the museum community has emerged as a leading voice for the development of legal frameworks that provide sufficient flexibility to facilitate digitization and avoid restrictions that could hamper cultural innovation.

Yet as museums embrace the Internet's potential, there is concern that their advocacy and actions are not always consistent.  This is particularly true with respect to their policies on public domain works, for which the term of copyright has expired. The public domain issue has emerged as a contentious one within the museum community.  Many museums receive regular requests for copies of works in their collection to be reproduced in school texts, magazines, or other publications.  The costs associated with these requests vary widely.  Some museums levy administrative fees (for the cost associated with handling the request), reproduction fees (for the cost of reproducing the image), and notwithstanding the expiry of copyright, permission fees.

In 2006, London's famed Victoria and Albert Museum became the first museum to completely drop charges for the reproduction of images in scholarly books and magazines.   While that decision generated considerable acclaim, according to documents obtained under the Access to Information Act, the National Gallery of Canada (NGC) appears to be taking the opposite approach by treating public domain works as a profit centre.

Tuesday October 30, 2007
Music Publisher's Takedown Strikes The Wrong Chord
My weekly law and technology column (Toronto Star version, Tyee version, homepage version, BBC version) focuses on the recent battle over the IMSLP. In February 2006, a part-time Canadian music student established a modest, non-commercial website that used collaborative wiki tools, such as those used by Wikipedia, to create an online library of public domain musical scores.  Within a matter of months, the International Music Score Library Project (IMSLP) featured over 1,000 musical scores for which the copyright had expired in Canada.  Nineteen months later - without any funding, sponsorship or promotion - the site had become the largest public domain music score library on the Internet, generating a million hits per day, featuring over 15,000 scores by over 1,000 composers, and adding 2,000 new scores each month. Eleven days ago, the IMSLP disappeared from the Internet.  Universal Edition, an Austrian music publisher, retained a Toronto law firm to demand that the site block European users from accessing certain works and from adding new scores for which the copyright had not expired in Europe.  The company noted that while the music scores entered the public domain in Canada fifty years after a composer’s death, Europe's copyright term is twenty years longer. The legal demand led to many sleepless nights as the student struggled with the prospect of liability for activity that is perfectly lawful in Canada.

The site had been very careful about copyright compliance, establishing a review system by experienced administrators who would only post new music scores that were clearly in the Canadian public domain. Notwithstanding those efforts, on October 19th, the law firm's stated deadline, the student took the world's best public domain music scores site offline. While the site may resurface - at least one volunteer group has offered to host it - the case places the spotlight on the compliance challenges for Canadian websites facing competing legal requirements.

There is little doubt that the site was compliant with Canadian law.  Not only is there no obligation to block non-Canadian visitors, but the Supreme Court of Canada has ruled that sites such as IMSLP are entitled to presume that they are being used in a lawful manner.  The site would therefore not be subject to claims that it authorized infringement.  Further, while there have been some suggestions that the site also hosted works that were not in the Canadian public domain, Universal Edition never bothered to provide the IMSLP with a complete list of allegedly infringing works.

Interestingly, this is not the first time that a Canadian website has faced pressure from a European publisher over conflicting public domain rules.  Several years ago, Jean-Marie Tremblay, a Quebec professor, established a website that contained hundreds of electronic versions of French language public domain sociology books.  A French publisher, the Presses Universitaires de France, threatened to sue on the basis that the site was accessible in France but that some of the books were still subject to copyright there.  Tremblay fought back and the site remains online to this day.

Although IMSLP is on safe ground under Canadian law, the European perspective on the issue is more complicated.  There is no question that some of the site's music scores would infringe European copyright law if sold or distributed in Europe. However, the IMSLP had no real or substantial connection - the defining standard for jurisdiction - with Europe.  Indeed, if Universal Edition were to file a lawsuit in Austria, it is entirely possible that the Austrian court would dismiss it on the grounds that it cannot assert jurisdiction over the Canadian-based site (and even if it did assert jurisdiction, it is unlikely that a Canadian court would uphold the judgment).

This case is enormously important from a public domain perspective.  If Universal Edition is correct, then the public domain becomes an offline concept, since posting works online would immediately result in the longest copyright term applying on a global basis.  Moreover, there are even broader implications for online businesses. According to Universal Edition, businesses must comply both with their local laws and with the requirements of any other jurisdiction where their site is accessible - in other words, the laws of virtually every country on earth. It is safe to say that e-commerce would grind to a halt under that standard since few organizations can realistically comply with hundreds of foreign laws.

imslp takedown column

My weekly law and technology column (Toronto Star version, Tyee version, homepage version, BBC version) focuses on the recent battle over the IMSLP. In February 2006, a part-time Canadian music student established a modest, non-commercial website that used collaborative wiki tools, such as those used by Wikipedia, to create an online library of public domain musical scores.  Within a matter of months, the International Music Score Library Project (IMSLP) featured over 1,000 musical scores for which the copyright had expired in Canada.  Nineteen months later - without any funding, sponsorship or promotion - the site had become the largest public domain music score library on the Internet, generating a million hits per day, featuring over 15,000 scores by over 1,000 composers, and adding 2,000 new scores each month.

Eleven days ago, the IMSLP disappeared from the Internet.  Universal Edition, an Austrian music publisher, retained a Toronto law firm to demand that the site block European users from accessing certain works and from adding new scores for which the copyright had not expired in Europe.  The company noted that while the music scores entered the public domain in Canada fifty years after a composer’s death, Europe's copyright term is twenty years longer.

The legal demand led to many sleepless nights as the student struggled with the prospect of liability for activity that is perfectly lawful in Canada.

Wednesday May 23, 2007
Museums and the Public Domain
The Associated Press has picked up on a story involving public access to images in the Smithsonian Institution.  Public.Resource.Org has posted 6,288 images currently sold by the Smithsonian on Flickr (a book of the images can be downloaded for free from Lulu.com), arguing that the U.S. institution is overreaching by claiming copyright or control over images that are in the public domain. The issue is an important one that should also resonate in Canada.  Some readers may recall the battle between a small school division in Manitoba and the National Gallery of Canada over fees levied for a public domain Paul Kane painting. In the wake of that incident, I've been working with some students to identify how Canadian museums address access to public domain works in their collections.  The research is not yet complete, however, the preliminary news is not good.  Museums are strapped for cash and therefore use their physical control over images to levy fees over public domain works.  While a cost-recovery fee for digitization or administration is understandable, many institutions go much further charging "surrogate copyright fees" or "user's fees" for public domain works or deploy technology to limit the potential uses of digitized versions of those works.  For example, consider Emily Carr, whose work entered the public domain in 1996.

A B.C. site focused on Carr advises that her work is in the public domain but that reproductions of her works are subject to copyright, which resides with the galleries. The Art Gallery of Ontario's excellent Collection X site features some of Carr's work, with a copyright notice as well as low-resolution photographs that limits the ability to re-use the image.  The AGO is not alone - Canadian Heritage's Artefacts Canada posts thumbnail images of hundreds of Carr works all implying that the works are subject to copyright.

These claims are open to serious challenge.  The seminal case on point is a U.S. decision, Bridgeman Art Library v. Corel Corp., in which the court ruled that exact photographic copies of public domain images could not be protected by copyright because the copies lack originality (the court also ruled that it thought that UK copyright law would treat the issue in the same manner). 

It is very likely that Canadian courts would adopt the Bridgeman analysis. The Supreme Court of Canada's CCH decision addresses the issue of originality under copyright, with a unanimous court ruling that:

For a work to be "original" within the meaning of the Copyright Act, it must be more than a mere copy of another work.  At the same time, it need not be creative, in the sense of being novel or unique.  What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment.  By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work.  By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise.  For example, any skill and judgment that might be involved in simply changing the font of a work to produce "another" work would be too trivial to merit copyright protection as an “original” work.

The court went on to state that:

this Court stated that the purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.  When courts adopt a standard of originality requiring only that something be more than a mere copy or that someone simply show industriousness to ground copyright in a work, they tip the scale in favour of the author’s or creator’s rights, at the loss of society’s interest in maintaining a robust public domain that could help foster future creative innovation.

So what does this mean for images of public domain works?  As the court says, the image must be more than a mere copy of another work.  In many instances (ie. the Carr images), it does not appear that there is anything more than a mere copy of a public domain work.  While museums are understandably searching for revenue streams, doing so on the basis of misleading copyright claims is not the way to do it.  In fact, as Canadian Heritage Minister Bev Oda finalizes the long-awaited museum policy, she should use the opportunity to say so by creating a clear link between access to public domain works and public financial support for the institutions that house those works.

museums and public domain

The Associated Press has picked up on a story involving public access to images in the Smithsonian InstitutionPublic.Resource.Org has posted 6,288 images currently sold by the Smithsonian on Flickr (a book of the images can be downloaded for free from Lulu.com), arguing that the U.S. institution is overreaching by claiming copyright or control over images that are in the public domain.

The issue is an important one that should also resonate in Canada.  Some readers may recall the battle between a small school division in Manitoba and the National Gallery of Canada over fees levied for a public domain Paul Kane painting. In the wake of that incident, I've been working with some students to identify how Canadian museums address access to public domain works in their collections.  The research is not yet complete, however, the preliminary news is not good. 

Museums are strapped for cash and therefore use their physical control over images to levy fees over public domain works.  While a cost-recovery fee for digitization or administration is understandable, many institutions go much further charging "surrogate copyright fees" or "user's fees" for public domain works or deploy technology to limit the potential uses of digitized versions of those works. 

For example, consider Emily Carr, whose work entered the public domain in 1996.

Monday September 11, 2006
The Most Dangerous Treaty You've Never Heard About
With government negotiators and broadcast officials descending on Geneva this week to continue negotiations on the WIPO Broadcast Treaty, my weekly Law Bytes column (Toronto Star version, homepage version) examines a proposal that started as an attempt to address the narrow issue of signal theft and has today mushroomed into a massive treaty that would grant broadcasters in some countries many new rights.  Many people are questioning the impact of the treaty, which includes an exclusive retranmission right, an extension in the term of protection for broadcasts, and the decision to make the exceptions and limitations in the treaty optional.  Indeed, even the Canadian delegation has wondered aloud whether the treaty would create a danger that some broadcasts might never fall into the public domain, effectively creating a perpetual broadcasting right. The impact of the treaty on individuals and creators could be dramatic, potentially making it more difficult to record television shows for viewing at a later time, locking up content that is otherwise in the public domain, and necessitating that film makers obtain twice as many consents for the re-use of broadcast clips.  The potential cost of the new rights is also significant, with Canadian broadcast distributors, including the major telecommunications companies that have begun offering high-definition television services, fearing that the new retransmission right alone could result in more than a half billion dollars in new royalty payments flowing out of Canada to U.S. broadcasters.

With the prospect of a diplomatic conference looming (a diplomatic conference is the last stage in the treaty-making process and a sure sign that agreement may be imminent), a coalition of critics of the proposed treaty, which include technology giants (Dell, HP, Intel, and Sony), telecommunications companies (AT&T, Verizon), library associations, and civil rights groups, went on the offensive last week.  The coalition outlined a series of concerns, most notably arguing that the treaty is a solution in search of a problem.

The broadcasting industry has thrived in recent years with an explosion of new services and revenue streams.  In Canada, the market places premium value on the industry with the sale of broadcasting companies fetching billions of dollars.  Given this success, the coalition observed that there does not appear to be any compelling need to provide the industry with a basket of additional rights.

In addition to the treaty's substantive shortcomings, the manner in which it has evolved is also cause for concern.  For the past few years, negotiators and lobbyists have quietly been working toward the treaty with minimal public input or consultation.  The U.S. Patent and Trademark Office conducted an open afternoon session last Tuesday in Washington that enabled approximately 40 supporters and critics to air their views, however, the meeting could not be recorded and no immediate broader consultation is planned.

The Canadian approach has been even more secretive.  While the USPTO was conducting its meeting, Canadian government officials held a closed conference call with a select group of stakeholders to update them on the current status of the treaty negotiations.  Canada has not conducted any public consultations on the treaty nor issued any public statements articulating a definitive Canadian position.

The column concludes by noting that over the next month, U.S. and Canadian broadcasters will unveil a slate of new television programs, hopeful that a handful will emerge as the next Desperate Housewives, Seinfeld, or American Idol.  Programs that fail to quickly find an audience, face the prospect of cancellation.  In this regard, the broadcast industry clearly understands the need to cut its losses by putting an end to programs that are not working.  Unfortunately, the same cannot be said for those negotiating the unnecessary and potentially harmful WIPO Broadcast Treaty.

wipo broadcast treaty column

With government negotiators and broadcast officials descending on Geneva this week to continue negotiations on the WIPO Broadcast Treaty, my weekly Law Bytes column (Toronto Star version, homepage version) examines a proposal that started as an attempt to address the narrow issue of signal theft and has today mushroomed into a massive treaty that would grant broadcasters in some countries many new rights.  Many people are questioning the impact of the treaty, which includes an exclusive retranmission right, an extension in the term of protection for broadcasts, and the decision to make the exceptions and limitations in the treaty optional.  Indeed, even the Canadian delegation has wondered aloud whether the treaty would create a danger that some broadcasts might never fall into the public domain, effectively creating a perpetual broadcasting right.

The impact of the treaty on individuals and creators could be dramatic, potentially making it more difficult to record television shows for viewing at a later time, locking up content that is otherwise in the public domain, and necessitating that film makers obtain twice as many consents for the re-use of broadcast clips. 

The potential cost of the new rights is also significant, with Canadian broadcast distributors, including the major telecommunications companies that have begun offering high-definition television services, fearing that the new retransmission right alone could result in more than a half billion dollars in new royalty payments flowing out of Canada to U.S. broadcasters.

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