ng of a healthy democracy. A society which is unable to access the knowledge required for a proper discussion of political, social, environmental or economic issues will not be able to achieve the kind of broad consensus upon which a healthy society is based;
- A rich public domain and fair access to copyright protected material enhances creativity and the production of new works. It is often assumed that economic growth benefits from ever-stronger intellectual property rights while some concession must be made to copyright exceptions for purely social reasons. In fact this is a false dichotomy. Many industries require access to copyright material for the purposes of research and development, education, software or hardware interoperability. A lack of reasonable access can actually hurt economic growth.
- Fair access to material in copyright can help to mitigate the digital divide. If access to knowledge is dependent upon an individual’s capacity to pay, then the less privileged will be placed at a significant disadvantage. In particular, this can play a part in perpetuating poverty and the lack of educational opportunities.
The limits of copyright
A balance between the interests of copyright owners in receiving fair reward for their efforts and the interests of copyright users in receiving reasonable access to copyright materials has been traditionally maintained in a number of ways. One of the most important of these is the implementation of a series of limitations and exceptions to the exclusive rights of copyright owners, which is the subject of this submission. However, there are other important limits, besides exceptions, on the control over knowledge that copyright imposes, some of which are being weakened in the digital environment.
These limits are:
- Duration of copyright
- Limited suite of rights
- Subject matter
Duration of copyright
Copyright has a limited duration, after which copyright material enters the public domain and may be freely used by anyone for any purpose. This is a very important aspect 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 rema