Every year, January 1st is Public Domain Day, marking the day on which works whose copyright protection has expired enter the public domain. In Canada, the copyright term for literary works is generally the life of the author plus 50 years, so works created by authors who died in 1968 entered the public domain in Canada on January 1st, 2019. These include works by authors such as Enid Blyton, Upton Sinclair, and John Steinbeck.
Public Domain Day helps us to recognize and appreciate the value of the scope and contents of our public domain. However, when we talk about well-known works entering the public domain at the end of their copyright protection, it is almost as though entry into the public domain is merely the last stage of that work’s life-cycle. This perspective may not sufficiently acknowledge the fact that “the public” has been a stakeholder in these works since their creation, and that one of the reasons it has been in the public interest to provide copyright protection to works is that all of those protected works (once the reasonable economic and related interests of the rights-holder have been exclusively exercised subject to the limitations in the Copyright ActCopyright Act for an appropriate period of time) will become part of the public domain.
To properly recognize and appreciate the value of the public domain, we must acknowledge the importance of protecting not only what is already part of the public domain today, but also protecting the works that are currently still under copyright and that will become part of the public domain in the future. John Steinbeck published The Grapes of Wrath in 1939, and since that time it has always been widely known and readily accessible. Ongoing public access to The Grapes of Wrath is unlikely to be enhanced significantly by its entry into the public domain. However, for every success story like The Grapes of Wrath, how many other lesser known works from 1939, or works by lesser known authors who also died in 1968, have been lost to us? How many works that are now rightfully part of the public domain are no longer available to anyone?
If we are to properly recognize and appreciate the value of the public domain, we must take steps to preserve works while they are still protected by copyright. The only practical way to ensure this cultural preservation is by making copies of the works, and one impediment to such stewardship is concern about potential copyright infringement. Although it is important to acknowledge that there are provisions in the Copyright Act, including the Libraries, Archives and Museums exceptions (ss. 30.1–30.4), that go some way toward addressing these concerns, the sufficiency of these provisions to address the practical realities of cultural memory programs, and their applicability to all relevant works, including “born digital” works, deserve careful review. It is important that libraries, archives, and museums are able to reproduce copyright-protected materials for the purposes of stewardship and ensuring ongoing public access without being constrained by copyright concerns. Such activities should have no impact on the economic interests of the rights-holders in those materials.
A statutory copyright regime exists to serve the public interest. It is in the public interest to build a fertile environment for the creation of new literary, artistic, musical, dramatic, and cinematographic works. It is also in the public interest to ensure that such an environment appropriately respects the interests of the creators to benefit from the works they produce as well as the interest of users to access and draw from those works. And given that all those creative works will ultimately become part of the public domain, it is in the public interest that the preservation of those works is encouraged, supported, and protected within that copyright regime. Such preservation will contribute to those works’ ongoing public accessibility and usefulness.
Returning to Public Domain Day, it is certainly worthwhile to be reminded every year about the value of the public domain. However, when we think about the public domain, it is less important to focus on those well-known works that have just been added to it, and more important to consider what we can be doing to ensure that culturally valuable and possibly obscure works survive and remain accessible throughout the long tail of their copyright protection until they ultimately enter the public domain and, of course, thereafter.
It should be noted that January 1st of this year also marked the first time in 20 years that works have similarly entered the public domain in the United States. In 1998, the US copyright term was extended to the life of the author plus 70 years, so for the last twenty years no works have entered the public domain in the US through the expiry of a copyright term. Ironically, if Canada ratifies and implements the recently signed USMCA, which includes provisions to extend the term of copyright protection in Canada to the life of the author plus 70 years, Canada could be entering its own 20-year drought of works entering the public domain. This would mean an even larger burden for ensuring the culturally responsible and lawful preservation of copyright-protected works to ensure their availability to the public after they finally do enter the public domain.
For more information about copyright at the University of Alberta, check out the Copyright Office website, or email our help desk.
Adrian Sheppard — Director, Copyright Office
Adrian has been the Director of the University of Alberta’s Copyright Office since April 2015. One role of the Copyright Office is to educate and inform U of A students, faculty and staff on issues related to copyright. Adrian has an LL.B. from the University of Victoria.
Note: This post is intended to provide information and perspective about copyright issues, but should not be considered as legal advice.