ENDitorial: Copyright vs Public Domain-copyright as a barrier to culture?
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“The book, as a book, belongs to the author, but as thought it belongs —
the word is not too big — to the human species. Any intelligent being has a
right to it. If one of the two rights, that of the writer and that of the
human spirit, must be sacrificed, then certainly it should be the right of
the writer, as the public interest is our sole preoccupation, and everyone,
I declare, should come before us” – Victor Hugo, Opening speech of the
International Literature Congress of 1878
For many of us, New Year means good resolutions for some even new beginnings
but it also means new works of art in the public domain. This year – and
just to name a few – James Joyce, Maurice Leblanc, Virginia Woolf, Robert
Delaunay, Sherwood Anderson, Henri Bergson have entered the public
To be in the public domain: what does it concretely mean? Public domain
works are part of a citizens’ cultural heritage, therefore their use is not
restricted – as they would be when they are protected by copyright.
Practically, it means that people can freely copy, translate, adapt or use
the works of the artists, writers or musicians.
Entering the public domain leads to a wider, access to cultural content.
The public domain promotes education and knowledge. It is a factor of new
and further creation, knowledge and innovation. Some of these elements are
of great importance and further enhance access to culture. Once a work has
entered the public domain, new editions and republications flourish,
giving the opportunity to a larger audience to access society’s cultural
heritage. 2010 turned into a year of Freud. When Sigmund Freud’s works
finally entered the public domain, publishers rushed to publish,
commissioned new translations and subsequently sold new versions of his
All in all, public domain enables a wider and higher circulation of
artistic, literary, dramatic, musical works, encouraging access for all. And
last but not least, public domain also has an economic value. Some
publishers indeed have specialised their business model on publishing works
for which copyright protection has expired. This is true not only for the
book publishers but also in the music industry.
A crucial question therefore arises: If public domain is so important and so
beneficial, why do we have to wait for so long after the artist’s, painter’s
or writer’s death to have works of art finally in the public domain?
The original idea behind copyright monopolies was to favour creativity and
to enable artists, writers and authors to continue to create. This would be
a great and praiseworthy purpose if only it had not have been turned away
from its primary goals. Copyright is currently the rule and public domain is
The content industry continually asks for, and receives ever-longer
copyright terms, and consequently the public domain continually
decreases. Just recently and after a strong lobby from the music industry,
the European Union decided to extend copyright for performers and producers
from 50 to 70 years. Turning back on Victor Hugo’s idea of his work as a
shared good, some in the rightsholders lobby are pushing the limits of
protection, and moving cultural goods out of the reach of society. They
argue that it serves the economy, helps to keep jobs and improves the
investment in new talent. However what they miss here is that access to the
works of the artists they claim to represent is restricted to the public, to
other publishers or other record companies. In the end, this only serves the
majors and the most famous artists, who are least in need of this
“protection”. Finally, while these dominant industries claim that term
extension is needed in order to invest in new talent, the policy of ever
longer copyright extension does not create any incentive to do so. In the
absence of such incentive, major record companies will continue to invest
only in performers that will bring in long-term of revenues, so alternative
and less popular musicians will be left out, undermining cultural diversity.
Nowadays, the protection of works subject to copyright is based not on their
date of publication but on the death of the authors, and the life expectancy
has improved, so the public domain is proportionally diminishing. If
copyright is to incentivise creation, what is the logic behind remunerating
artists for ever-longer periods after their deaths? The entire logic behind
the copyright protection has been subverted.
Cultural works are being locked away from the public and a greater barrier
is being built between the public and their culture. If copyright is meant
to defend culture and creation, it should not be used to create barriers
between citizens and their heritage.
Freud in the public domain (only in French, 27.01.2010)
EDRi-gram: New rules on term of protection of music recordings (21.09.2011)
The progressive weakening of the public domain (only in French, 2.01.2012)
Public domain calculator
(Contribution by Marie Humeau – EDRi)