t to copyright as it guarantees an enormous treasure trove of resource material that is permanently available to education, research and the development of new creative works.
However, the entry of copyright works into the public domain has been restrained by successive increases in the duration of copyright. The maximum duration of copyright, when the very first Copyright Act was passed in England following the passage of the Statute of Anne, was 28 years. Since then the duration of copyright has increased in many jurisdictions to the life of the author plus 70 years, which is far beyond any reasonable window of commercial exploitation. In the United States, Lawrence Lessig argues that copyright duration has been extended no fewer than 11 times in the last 40 years. Professor Peter Jaszi refers to this as ‘perpetual copyright on the instalment plan’.
While the duration of copyright provides the author with a definite period of protection, extending the term progressively is unfairly prejudicing users of information. The reasoning given for an extended term of protection is that life expectancy is increasing and hence the period of protection should be extended accordingly. This argument fails however, because the copyright term is now well beyond one’s lifetime. Moreover, extended terms of protection are even more prejudicial to some developing countries where adult life expectancy is low. Essentially, what the extension of the term does is benefit rights owners and their future generations in developed nations, at the expense of users of information and potential new creators in both developed and developing nations. This result distorts the balance and prevents the use of older works in new ways.
IFLA also believes that it is ironic that the extension of the copyright term is occurring at the same time that many governments are promoting increased access to local content through digitization. Much of this content is perceived by copyright owners to have no economic value. Nevertheless, it will continue to remain broadly inaccessible, as it will not enter the public domain until the expiry of its allotted span – well beyond the lifetime of the author. Following the passage of the Copyright Term Extension Act in the United States, for example, almost no additional works will come into the public domain until 2023. With copyright enjoying such a long duration, the operation of exceptions becomes more important than ever.
Limited suite of rights
A copyright owner’s capacity to control the use of his or her work is limited to the suite of rights, which is specifically granted by the copyright regime. These rights typically include the right to reproduce, the right to communicate to the public, the right to publish etc. Uses that fall outside these rights are not subject to the copyright owner’s control. For example, copyright permission is required to print copies of a book; however, once a legitimately-printed copy has been sold, the copyright owner may not control what is done with that copy (with the exceptions of importation in some jurisdictions and rental and lending rights in Europe). The purchaser is free to read the book multiple times, lend, borrow, sell or destroy it. (This was enshrined in U.S. law as the ‘Doctrine of First Sale.’)
Again, the digital environment has very much weakened the value of this limit; most uses of a digital work will constitute either a reproduction or a communication or both. Access to copyright works in the digital environment requires a reproduction even of a temporary nature, e.g. a cache copy. If the right to control reproduction is not limited, a rights owner has the right to total control of every access.
Copyright historically applied only to books. It has been expanded ever since to include an ever-widening set of creative and non-creative material. For example, some compilations of purely factual data (e.g., directories) may be protected by copyright, if they fulfil the originality test, as well as by a unique database protection in many jurisdictions, although notably, not in