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.”
Copyfraud exists because laws criminalizing false statements about copyright are weak.
Or nonexistent, like Canada.
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.
“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.