What do Japan's Blue Sky Library, Malaysia's answer to John Wayne, and the first recorded composer from New Zealand, all have in common? They could all disappear from their countries' public domain for the next 20 years, if the current agreement on copyright term extension in the Trans-Pacific Partnership (TPP) holds.
You may have read in the news over the past year about how the public domain has recently been enriched with some exciting new additions, such as Sherlock Holmes and—in countries with shorter copyright terms, such as Canada—James Bond, passing out of copyright, freeing them for reissue, adaptation, and remix.
But what you probably haven't heard before is that six of the countries presently negotiating the TPP, and who have reportedly caved in and agreed on copyright term extension, would have been about to contribute cultural icons of their own to the public domain, enriching their own countries and the world with home-grown art, music, and film that is otherwise at risk of being forgotten.
These countries are Brunei, Canada, New Zealand, Malaysia, Japan, and Vietnam. Each of these fascinating countries has such a depth of creative talent that an entire article could easily be devoted to each of them, exploring the public domain works that the world can look forward to—or that we will miss out on for another 20 years, if the TPP passes. But for now, a little taste from each country will have to do.
The Group of Seven were an art movement of the early 20th century whose distinctively Canadian landscape paintings are collected in galleries around Canada and the world. In the United States only one of the members of the group died long enough ago that his works have reached the public domain, but in Canada it is a different story—within a decade, the entire artistic output of the Group of Seven will be freely available to the public, allowing anyone to restore, reproduce and share these timeless masterpieces.
That is, unless the TPP is passed and the term of copyright in Canada is extended. In that case, you can hold your breath for another twenty years.
Since 2010, New Zealanders have finally been able to perform and reuse the works of their most important yet under-appreciated early composer, Alfred Hill, without asking for permission from his estate. Hill was the very first antipodean composer to have a chamber work committed to record, and some of those same precious early recordings have been preserved by the National Archive of Australia, and brought to the world free of copyright restrictions.
Although these crackly old recordings may not seem to be of wide interest in themselves, imagine the potential for these works to be brought back to life in another medium such as film, as the songs of Annette Hanshaw were in Nina Paley's masterful Sita Sings the Blues.
Malaysia and Brunei
Actor, director, writer and composer P. Ramlee is truly a Malaysian superstar, who starred in over 60 movies during Malay filmmaking's golden age in the 1950s and 1960s. He remains a cult figure in Malaysia, Brunei and Singapore—John Wayne may have a star on Hollywood's Walk of Fame, but Ramlee has an entire street in central Kuala Lumpur. Although he died in 1973, many of his films have already come out of copyright in Malaysia and Brunei, and others continue to do so. An example is Seniman Bujang Lapok (The Three Worn Out Actor Bachelors), a metafictional comedy from 1961 that Ramlee also wrote, directed, and composed for.
A point of note is that in most of the TPP countries (Canada a notable exception), films are protected from the date of publication, not from the death of the author. That makes an enormous difference, when the “author” of a film can include whoever is the longest-lived of the the principal director, the author of the screenplay, the author of the dialogue, and the composer of its soundtrack. This is why so few European films have ever reached the public domain, and why Malaysian and Bruneian film lovers are far more fortunate—for now.
Just as the United States has its well-known Project Gutenburg that digitizes and distributes public domain literature, so too other TPP countries such as Australia, Canada and New Zealand have sister projects that focus on works from local authors, as well as those that can legally be made available sooner to residents of those countries that have shorter copyright terms. Japan has such an archive also; the Aozora Bunko, which translates as Blue Sky Library.
Over the last three years, Aozora Bunko has celebrated the release of classic works from authors such as historical novelist Eiji Yoshikawa, philosopher Kiyoshi Miki, and poet Tatsuji Miyoshi. But the curators of the archive are worried about its future, with the shadow of copyright term extension under the TPP, noting that of 572 authors whose works they have published, about half would have to be taken offline if the copyright term is extended retroactively. (Even if not retroactive, the extension of copyright would mean no new Aozora Bunko releases until 2036.)
Under a regime in which copyright in film lasts for 50 rather than 70 years from publication, films made in 1965 are now coming out of copyright. In the case of Vietnam, this of course falls in the middle of the Vietnam War, and for this reason the Vietnamese films of that period, which include both documentaries and dramas, are of immense historical and cultural interest.
Such a film, due to return to the public domain next year, is Nổi gió (Rising Wind), directed by Huy Thành, which jointly won the Golden Lotus award for best feature film at the inaugural Vietnam Film Festival in 1970. Considered as the first movie of Vietnam's revolutionary cinema, and adapted from a play of the same name, it tells the tragic story of a family torn apart by war, from a very different perspective than shown in American films from that period or since.
Why Should Americans Care?
It might be assumed that an extension of the copyright term in the TPP wouldn't affect the United States, because our law already provides for that same copyright term. But although the impact might not be so immediate, the United States would still lose; for one thing, it would lose the flexibility to reduce its own copyright term back to the Berne Convention minimum term of life plus 50 years.
This isn't such an unlikely prospect as you might think. Maria Pallante, Register of Copyrights, wrote in 2013 about her vision of the Next Great Copyright Act, including the suggestion that:
perhaps the law could shift the burden of the last twenty years from the user to the copyright owner, so that at least in some instances, copyright owners would have to assert their continued interest in exploiting the work by registering with the Copyright Office in a timely manner. And if they did not, the works would enter the public domain.
In her draft report for the European Parliament, Julia Reda went further [PDF], suggesting that the European Commission “harmonise the term of protection of copyright to a duration that does not exceed the current international standards set out in the Berne Convention” (ie. 50 years from death). So our lawmakers should not be too hasty in ruling out the future reform of the copyright term, by cementing current law into a multilateral trade agreement.
It is true that the US already has trade deals with other countries that do require a life plus 70 year minimum—but these are largely with countries (such as Jordan, Australia, and Singapore) who were forced into changing their own law as a cost of entry into that agreement, even against the recommendations [PDF] of their own domestic advisers. Those countries would hardly be likely to put up much of a fight if the US acceded to a joint relaxation of the copyright term obligation.
But if the US locks the same obligation into the TPP and TTIP (Trans-Atlantic Trade and Investment Partnership), that dynamic changes, and it will become much more difficult for the United States to reconsider later down the road, without the much more complicated task of coordinating this with both the copyright-maximalist European Commission as well as eleven other countries of the Pacific rim.1
The Good News
So that's the bad news. But there's also some very good news: any of the six countries above can stop this deal! If even one of the countries—Brunei, Canada, Japan, Malaysia, New Zealand or Vietnam— is brave enough to stand up to the United States and block the extension of the copyright term, then that ill-advised deal could still fall through. If you are from one of those countries, you can call your Member of Parliament, or your trade ministry,2 and demand that they save the public domain, by retaining the life plus 50 year copyright term that is your right under the Berne Convention. If you are in the US, your best avenue to stop term extension, and the TPP's other anti-user threats, is to support our Fast Track action.
- 1. Even without reducing the copyright term wholesale, there is a middle-ground that the United States could avail itself of which could make all of the copyright works that are legally available in “life plus 50” countries available in the United States also: a simple Copyright Act amendment called the “rule of the shorter term”. This simple and sensible rule—which Congress could choose to adopt this year, if it wanted to—says that the United States is not obliged to protect foreign copyrights for longer than those copyrights are protected in their home country. By adopting the rule of the shorter term as an alternative to requiring other countries to extend their copyright terms, the perceived unfairness of differential copyright terms to U.S. copyright holders immediately disappears. What's not to like?