For those not familiar with the concept, Public Domain Day commemorates the fact that, on 1 January every year, the copyright in thousands of works around the world expires, legally placing them in the public domain and making them free for anyone to make use of as they wish. This year much of the world will be celebrating by making new and innovative use of the works of Evelyn Waugh, C.S. Foster and Andre Breton. But unfortunately, not here in Australia. None of these works, or the works of any of the other creators who died in 1966, will fall into the public domain for another 20 years here, thanks to the copyright term extension that happened as part of the US Free Trade Agreement. In fact, no works will fall into the public domain in Australia for another 10 years.
Last year we were excited to tell you about an impending partial solution to this problem. A new bill had been proposed by the government that would end the current perpetual copyright in unpublished works, and instead give them the same copyright as their published counterparts. This would mean that on 1 January 2018 (as proposed by the bill’s exposure draft) literally millions of old unpublished works from our national collections would enter the public domain all at once, including recipes used by Captain Cook, letters written by Jane Austen and endless ephemera. Every year after that, new works whose authors died 70 years earlier would also fall into the public domain. We’d be back to having an growing public domain. We strongly hoped that this year we’d be celebrate the bill passing into law – but unfortunately, we’re still waiting for it to even be tabled. The government still says its tabling is imminent, but it appears to be stuck behind other government priorities.
So once again, we have a Public Domain Day with not much to celebrate in terms of the public domain. But there is always something worth being happy about, and this year it comes in the form of the final report of the Productivity Commission’s inquiry into Australia’s IP Arrangements, which was released to the public on 20 December. The report has added and amended much from the draft (see our detailed breakdown of it here), but it keeps much of the key concepts, including the need to re-balance copyright to recognise the rights of users, a recommendation to introduce a flexible fair use exception that would increase the ways in which material can be used even while it is in copyright, oh, and ending perpetual copyright for unpublished works. The ADA likes its core recommendations, and we’ll be publishing a detailed analysis soon.
While we may not have a slew of new works entering the public domain in Australia today, there does seem to be increasing awareness and evidence that it is just as important that copyright promotes use as protection. And that’s something to celebrate.