Claiming What’s Ours: Preserving the “Public” in the Public Domain

December 30, 2022 was a momentous day in Canada’s copyright history, although it may not have been on the radar of the majority of the Canadian public. That is the date that the term of copyright protection in Canada changed to align with that of the United States, a requirement of the Canada-US-Mexico (CUSMA) trade agreement that came into force on July 1, 2020. Previously, Canada had the shortest copyright term of the three North American countries: the life of the author plus an additional 50 years. The CUSMA agreement forced the extension of that term to life plus 70 years. This extends by two decades the length of time before copyright expires and a work enters the public domain, at which point it becomes freely available for anyone to use or copy without permission or payment. For Canadians, this means that no additional works will enter the public domain until 2043, effectively locking up access to works by many prominent Canadians, as well as the works of other creators around the world, for an additional 20 years. Adding insult to injury, there is evidence to suggest that it will be corporate copyright owners, not Canadian authors and creators, who will reap the benefits of extending the term of protection.

While some argued the change was necessary in order to bring Canada in line with its major trading partners, it is difficult not to view the twenty-year extension as anything but a further erosion of the public’s right to freely access information, knowledge, and culture. It is a move that tips the balance of rights, already weighed heavily in favour of copyright owners, even further in that direction. A landmark Canadian Supreme Court decision, Théberge v. Galerie d’Art du Petit Champlain, established that while the Copyright Act provides for creators to obtain “just rewards” for their efforts, it is also intended that the public interest is served. Furthermore, the Théberge decision noted that “[e]xcessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.”

The extension of Canada’s copyright term is an expansion of control by copyright holders that has undoubtedly created additional obstacles to the access and utilization of works. It complicates the process of tracing copyright ownership and obtaining permissions, as the longer copyright lasts, the more challenging (if not impossible) it becomes to locate those who inherited copyright ownership of the deceased author’s works. It results in more out-of-commerce and orphan works (works still under copyright protection but with unknown or unlocatable copyright owners) which will then become unavailable for re-use in many cases. It also stifles creative innovation by narrowing the scope of content freely available for today’s creators to repurpose and build on. But a longer term of copyright protection is just one example of how the public domain has and continues to be diminished, at the expense of the public it is meant to serve. In the digital age, when the use of works is increasingly constrained by license restrictions and website terms of use, content in which copyright has long since expired is routinely lifted from the public domain, locked behind paywalls, and/or subject to overreaching claims of copyright ownership. Online databases, e-book collections, and digitized collections of primary source materials frequently contain public domain content which, by virtue of its license terms, is available only to authorized users, and only for personal research and study purposes. Public domain images have found their way into the collections of image licensing companies which charge expensive licensing fees for their use.

Cultural heritage institutions, engaged in the digitization and preservation of valuable historical works and artifacts, also often claim ownership in the digital reproductions they make available and impose unnecessary limits on their reproduction and use. A 2024 report by Glammons, a European organization dedicated to “unlock[ing] the past and cultural heritage as a resource for present and future social development” found that, in spite of gains made during the Covid-19 pandemic in opening up access to public domain works, only fifty-two percent of surveyed European galleries, libraries, archives and museums (known collectively as GLAMs) were “public domain compliant”, meaning that they did not place copyright restrictions on their digitised public domain assets. A brief search of Canadian GLAMs sites reveals that some national and provincial galleries and museums also claim copyright ownership of digitized public domain content in their collections, place restrictions on their use, and charge licensing fees for reproductions of such works.

These practices have arisen due to a number of factors – the need for GLAMs to generate revenue from their collections, the mistaken belief that a new copyright is created when a public domain work is digitized, and a general confusion and uncertainty throughout the sector when it comes to “restrictive and vague” copyright law. But critics such as Douglas McCarthy, an advocate for open access to cultural heritage, have pointed out that such practices detract from the core purpose of copyright, which is to encourage creation by granting exclusive rights to creators for a limited term, after which their works become “a shared cultural resource”. McCarthy observes that by asserting copyright ownership over works in which copyright has expired, these institutions are “effectively extending copyright beyond its intended limits….creating an artificial scarcity that hinders the free flow of information and creativity, contradicting the very purpose of the public domain.”

Such practices also have the effect of perpetuating a “permissions culture” that posits that any and all uses of a work require authorization. They contribute to a shrinking public domain, which in turn impacts public perceptions of its value and usefulness and normalizes the notion that the only content of value is that which is paid for. These beliefs undermine the public understanding of the user rights enshrined in Canadian law, discouraging users from exercising fair dealing and other exceptions to copyright, and ultimately impeding both access to, and the future development of, a robust public domain.

Can the trend be reversed? In response to the extended copyright term, some have already suggested legislative changes that might help to reduce barriers to access as well as enrich and build upon the existing public domain. Measures providing creators with more control over their works once those works are no longer commercially available could result in more content entering the public domain sooner, for example, if publishing contracts were required to revert copyright ownership to authors after a certain period of time, or if a formal process existed enabling rights owners to place their works in the public domain before copyright expired. It is also essential that existing user rights to freely access and use content without permission are preserved by making contract or license terms that override those rights unenforceable. These kinds of provisions have already been implemented in some jurisdictions, ensuring that license restrictions that may be imposed on public domain content do not inhibit public access and use.

Globally, there has been increasing awareness of the need to ensure unfettered access to public domain content, spurred in part by initiatives such as the Open Heritage Statement, which calls on governments, universities, museums, and archives around the world to commit to “equitable access to heritage in the public domain”, while also outlining “shared values, principles and actions” that can help institutions to overcome barriers to public access. If this vision is to be realized, then copyright law also needs to provide protections for institutions so they do not assume unnecessary risk in their efforts to preserve and make available our collective cultural heritage. Measures limiting liability for institutions engaged in digitizing and publishing orphan works or works whose copyright status is unknown, would help alleviate uncertainty, mitigate risk, and encourage the digitization of a wealth of historical content currently unavailable due to potential copyright implications.

Equitable access to public domain resources depends on the ability to make them available in the digital environment without restriction. Widespread public attention and support is needed for the organizations who continue to advocate for open access to cultural heritage, and to call out and resist attempts to build fences around the public domain. But revisions to copyright laws are also required if we are to maintain the balance identified in Théberge. The twenty-year copyright extension mandated by CUSMA demonstrates that decisions made in the context of trade negotiations can have profound and lasting effects on public access to knowledge and culture. In order to safeguard and sustain the public domain for the benefit of current and future generations, copyright reforms must redress the imbalance and place equal weight on the public interest, user rights and the preservation of the public domain — otherwise copyright law serves only to extend private control rather than advancing the broader social and cultural goals it was intended to foster.