How about some Copyfraud Modernization?

Copyright "c"

Creative work that is not “protected” by copyright is in the public domain. That means that anyone can copy it without fear of legal repercussion. Although terms for copyright are discussed at length in Canada’s Copyright Act” the public domain is not even mentioned.

Originally copyright applied only to the printed word, but it has been expanded to “protect” all of our modern culture; artwork, photographs, music, film, even performance. It used to be that copyright terms were relatively short; most creative work would find itself in the public domain during the lifetime of the creator.

Nowadays, of course, in most parts of the world, ever expanding copyright terms ensure that creative work will only enter the public domain decades after the death of the creator. Some of us are concerned that the reality may be that much of our art and culture will never go into the public domain. The very existence of the public domain is important.

In the tag line for his Digital Copyright site, Russell McOrmond says:

“All Canadian Citizens are “Rights Holders”

He’s right, and it is indeed a much needed reminder, because all too often the public’s rights are overlooked when they are not spelled out in law. The public lacks lobbyists; in a democracy, the government is expected to safeguard the public good.

The Public Domain

The public domain belongs to the public. Any time copyright “protection” is expanded in some way, it is always at the expense of the rights of the public.

Which is why I get so annoyed when I stumble upon creative work in the public domain like this painting “The Empress Comes (or Poppaea Comes)” by George Lawrence Bulleid:

And find such a public domain reproduction marked with a notice like this one:

This image (or other media file) is in the public domain because its copyright has expired. However – you may not use this image for commercial purposes and you may not alter the image or remove the WikiGallery watermark.

This applies to the United States, Canada, the European Union and those countries with a copyright term of life of the author plus 70 years.

Once any creative work is in the public domain, it can be copied, and altered by anyone for commercial purposes or otherwise.

That is the point of the public domain.

Attempts to lock up public domain creative work in this manner is called Copyfraud.


Copyfraud is everywhere.

False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s Water Lilies, and even the U.S. Constitution.

Archives claim blanket copyright in everything in their collections.

Vendors of microfilmed versions of historical newspapers assert copyright ownership.

These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the owner’s permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.”

Jason Mazzone, Brooklyn Law School

Copyfraud exists because laws criminalizing false statements about copyright are weak.

Or nonexistent, like Canada.

Copyright Modernization

Currently the Canadian government is contemplating passage of legislation to “modernize” Canadian Copyright law.

Yet Bill C-11 does nothing to address the issue of Copyfraud, a practice which inflicts untold harm on Canadians and our culture. Copyfraud prevents Canadians from accessing public domain work we are legally entitled to access. Denying us this access stops us from engaging fully with our cultural history and prevents us from building on our own history and culture.

Archives Canada is a federally funded website that offers to serve as “your gateway to Canada’s collective memory!” It’s a wonderful government initiative to help bring our past alive.

Or so I thought until I clicked through to one of the archives brought together under its auspices, University of Saskatchewan displays copyright statement a blanket “Copyright / Use Restrictions” applied to the entire site.

This archive offers permission “for scholarly and personal research purposes only”, stating that we must first get written permission from the University of Saskatchewan Archives to reproduce, publish or publicly display all materials.

What of public domain material held by the archive?

Canadian heritage is important. Canadian copyright law should indeed have balance, and work to protect the rights of Canadian citizens. It is past time to establish penalties for copyfraud. Perhaps we should establish statutory damages to redress the infringement of the rights of Canadians.

[redacted: see note below]

All Canadians have legal rights to all work in the public domain. Setting those rights down into law would be an excellent way to modernize our Canadian copyright law.

If Canada is modernizing copyright law, it should explicitly make copyfraud illegal.

Protect the public domain.

more reading

Image Credits
“The Empress Comes (or Poppaea Comes)” by George Lawrence Bulleid (Public Domain)


Those of you who might have read this article earlier may notice I had originally included a reproduction of a Canadian artwork held by the Saskatchewan archives that I erroneously believed to have been in the public domain. Math has always been a personal nemesis, and I lost a decade in my calculations. Therefore I have withdrawn the image as the work referenced was not actually in the public domain.

However, more than once I have come across public domain works in Canadian archives, presented as though the archive controls the copyright of the work, when it does not exist because the copyright term has ended.


9 thoughts on “How about some Copyfraud Modernization?

  1. We are only all ‘rights holders’ because to be human is to be creative, and inevitably, thanks to copyright legislation, we all at some time or another end up holding everyone’s right to copy the ‘original’ work we’ve produced – and there’s little we can do about it except to restore everyone’s right to copy our work in the form of a libertarian license (a license that undoes copyright’s abridgement of our liberty, its annulling of our right to copy), or better still, to publicly disavow copyright.

    One can only effectively HOLD another’s right if it has been annulled by law. Copyright annuls the right to copy in the majority, to leave it, by exclusion, in the HANDS of a few.

    Rights are the power we are all born with – as equals. Law is supposed to recognise our rights. It is not supposed to annul them in order to privilege a few.

    Incidentally, the public domain is all published works. It is a relatively recent memeological adjustment that the ‘public domain’ is all published works not ‘protected’ by copyright.

    • In Canada copyright is automatically applied to all copyrightable work, making all Canadians “rights holders” under our law. Libertarian licenses are the only means currently available to Canadians.

      Although lip service has been paid to the public, generally the public is not often legally protected these days. As you point out, if the public had been protected in the first place, back when your long ago government enacted “The Statute of Anne,” say, the public would in fact truly have the right to access all work in the public domain. Unfortunately, the public only has access to those public domain works which have been emancipated from copyright “protection” in that we we now consider “the public domain.”

      My concern here is to stop further erosion of what is today accepted as the public domain. This issue has become of particular importance because the draft Canadian Copyright legislations which will probably be passed by Christmas will make “digital locks” (DRM/TPM) the most sacrosanct element of Canada’s “modernized” copyright law. Simple application of a DRM/TPM will have the legal power to prevent Canadians from accessing public domain work locked behind them.

      This will make it a crime to read/listen to/watch any public domain work published digitally with a Technical protection measure that denies user access. Copyfraud will go unpunished, but the act of unlocking the digital lock that denies citizens access to public domain work will become illegal.

      It would only take a few powerful corporations to DRM digital devices which will effectively eliminate Canadian free access to the digital public domain. I have every confidence such measures will be routinely slapped on any digital device/software manufactured for Canadian use once Bill C-11 passes. When it becomes the legal default, even libertarian licensing won’t allow creators to break the bonds of copyright for our own work.

      • Yes, the corporate state will attempt all manner of measures to control communication, however, in my comment above I’m primarily concerned to help people avoid unwittingly buying-in to modern mythologies surrounding copyright. As individuals we can at least ensure we improve our understanding. Only when everyone understands why copyright is an instrument of injustice is there any hope of challenging the corporate state’s crusade to introduce ever more draconian legislation. While the majority believes copyright to be a priori good, the state will have sanction to do anything to reinforce it, even imprison people who point their mobile phones at cinema screens.

        Do not buy-in to the myth that the public domain is a ghetto of ‘art not protected by copyright’. The public domain is all published works – mankind’s cultural commonwealth – it belongs to the people, not the publishing corporations.

        Copyright is the injustice. False claims merely compound it. If you start defending the ghetto against unwarranted incursions then you start defending the privilege that creates it.

          • No work is lost except that which the public ‘forgets’ (destroys all known copies of).

            Even works supposedly not ‘protected’ by copyright are still effectively subject to it given that any sufficiently powerful entity can claim copyright over their copies or derivatives thereof. That’s the problem with a privilege – it’s a weapon, an instrument of injustice, a means by which the powerful can subdue/extort the weak. We see it in the field of patents all the time. It doesn’t matter if you infringe a patent or not, it is typically cheaper to settle than pay through the nose for ‘justice’.

            Don’t worry about defending works supposedly no longer protected by copyright from invalid copyright claims (you can’t afford to). However, if you want to preserve those published works at risk of being ‘forgotten’ then create a repository dedicated to their preservation, with BitTorrent seeds, etc.


        In Canada copyright is automatically applied to all copyrightable work

        That’s a very tautological statement – Of course copyright is applied to all copyrightable works; that’s what makes it a copyrightable work in the first place.


        • What I was attempting to say is that in Canada anything that can be copyrighted is “protected” by copyright by default. As a Canadian writer, that means that everything that I write and publish in any way is automatically covered by copyright, whether or not I wish it to be.

          Which is why I am obliged to use one of those libertarian licenses which Crosby referenced to allow my work to be shared.

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