Sharing is caring. Then why do so few know about the public domain?

This is the inaugural article of a short series examining intellectual property frameworks in the Middle East and North Africa. These laws permit or prohibit free, open and lawful sharing of information, data and creative works. In this first piece, we center on the public domain.

According to most intellectual property frameworks, the legal protection of an artwork starts when the work is published. Then it extends throughout the author(s) lifetime(s) and can be prolonged for a limited period of time after the death of the author(s). Once the copyright expires, the artwork enters the public domain. According to the current Wikipedia definition:

Works in the public domain are those whose intellectual property rights have expired, have been forfeited, or are inapplicable. Examples include the works of Shakespeare and Beethoven, most of the early silent films, the formulae of Newtonian physics, Serpent encryption algorithm and powered flight. The term is not normally applied to situations where the creator of a work retains residual rights, in which case use of the work is referred to as “under license” or “with permission”.

But conditions apply. In some countries, the post-mortem copyright can be extended under some conditions. This is, for example, the case in France. Antoine de Saint-Exupéry, the author of the world’s most read book “Le Petit Prince, died on 31 July 1944.  He was taking part in a military operation as the WWII fighting raged. Due to wartime death, Saint-Exupéry has been requited with a special distinction: “Died for France”(“Mort pour la France”). This posthumous designation impacts the total duration of copyright protection for his writings. According to French intellectual property laws, the normal copyright duration is 70 years. And the designation “Mort pour la France” adds 30 extra years. Thus, “Le Petit Prince” will not enter the public domain in France until 2044.

What does it mean in practice? Well, in France, “Le Petit Prince” and Saint-Exupéry’s complete production are protected by exclusive copyright for a few more decades. These artworks cannot be republished, modified, adapted without financial compensation for the copyright holders. Yet, these same artworks are in the public domain elsewhere in the world! Which means that “Le Petit Prince” and all Saint-Exupéry’s works may not be used for derivative works without permission from the copyright owners… in France only.

Public domain logos.

The World Intellectual Property Organisation (WIPO) defines the public domain as follows:

The […] public domain is free to use by nature as it is premised on the absence of an exclusive right therein.

From the example with Saint-Exupéry, we also discovered another key feature of the public domain: territoriality. It means that the status of a copyrighted work varies according to the laws of the country. Just as “Le Petit Prince” can still be protected by copyright in France but belongs to the public domain elsewhere.

Some types of works are exclusions from copyright. The Berne Convention, an international copyright agreement that poses many principles of modern copyright legislation around the world, provides for two possible exclusions from copyright. One is a mandatory exclusion: it concerns news of the day and plain facts. The other is optional and covers official texts of a State; it is referred to as the policy public domain. Some countries have chosen to enforce both exclusions; others define extra exclusions in their intellectual property frameworks.

The public domain is not just a complicated thing. It is an enabler. A recent report by the WIPO found that “images from public-domain resources used to illustrate English-language Wikipedia pages are worth some $208 million on equivalent commercial platforms each year”. This means that when someone uses an image in the public domain from e.g. Wikimedia Commons, the person is saving money. According to the report, such images even contribute to wealth generation:

The study probed crowd-funded media projects on Kickstarter, finding the most successful use of public-domain material in project proposals for theatre, video games and comics. And many creators successfully mixed public-domain with licensed material to obtain funding for their projects.

Watch the video of the report launch if you are not that much into reading.

Public domain in MENA

Algeria, Bahrain, Egypt and Jordan are examples of countries having enforced the policy public domain. Algeria, thus excludes laws and regulations, decisions and administrative acts of state bodies and local authorities, court decisions, and their official translations from copyrighting. For Bahrain and Jordan, the documents in the policy public domain are court judgments and their translations, laws, administrative orders, international treaties, their translations (and Amiri Decrees, in the case of Bahrain). One may wonder why then we have difficulties accessing these documents in these countries. The answer is never simple. In general, a whole range of extra legislation comes into play thus restricting access to such information.

Other than the policy public domain whose implementation is not always clear, it is worth noting that not all MENA countries abide by the key characteristics of the public domain. As shown in the table chart below, Algeria seems to remain the only country in the region where one pays a fee to use public domain works. This was once explained by Algeria’s membership to the Bangui Accords where Art. 59 poses a paying public domain.

Legal status of works in the public domain.

The above chart shows that not all countries enable works to be freely reused and adapted even when these are in the public domain. In Jordan, for example, the definition of the public domain is unclear; thus, at least photographs do not require a fee prior to use.

Egypt is an interesting case. As per Intellectual Property Law 82 of 2002, are in the public domain works such as a photo or a movie that lacks the characteristics of a creative work (i.e., it reproduces reality mechanically) as well as it is a posthumous or anonymous work that was published or made available to the public for the first time (whichever date comes first) more than 50 years ago. For the creative works that have made it to the public domain in Egypt, a significant part is available through Bibliotheca Alexandrina’s DAR collection. The latter thus contains thousands of books in the public domain. This is noteworthy: “users can read only 5% of books that are under copy rights regulations” as the DAR highlights. Thus, anyone can read the entirety of the books in the public domain but the only 5-percent snippets from copyrighted books.

The case of folklore

In most MENA countries, intellectual property frameworks contain a special mention of folklore. This is the case for Algeria, Bahrain, Egypt, Morocco, Oman, Qatar, Tunisia, to name a few. Folklore features as a strong cultural identity item in all these countries. This mention is a unique characteristic of intellectual property in MENA. Let’s have a closer look at folklore.

From available readings, Lebanon and Yemen explicitly exclude “artistic folkloric works of all kinds” from copyright, that is from being appropriated. Yet, works derived from folklore are subject of standard copyright protection meaning that bits and pieces of common culture can still be appropriated by individuals or companies.

Algeria, under some restrictions, as well as Egypt state that folklore is public domain. Yet, Algeria continues to practise a fee-paying public domain, a legacy from the mostly abandoned today domaine public payant. The situation in Egypt is unclear as the law states (Art. 142) that:

National folklore is deemed public domain. The Competent Ministry shall exercise the moral and financial copyrights on folklore.

These provisions are quite contradictory to the core of the public domain. They suggest that the Ministry of Culture (defined as the ‘Competent Ministry’ for folklore in Art. 138) can perceive a fee from any use of folklore items.

In Oman, authors of folklore are explicitly protected (Art. 2 of the Omani relevant law). In Qatar, the performance of folklore is subject of copyright while the folklore works themselves are protected under theneighbouring rights. I wondered who the author is: it turns out that the State acts as such (Art. 32 of the Qatari relevant law). It thus perceives all benefits from folklore use, including financial income. The situation is close to identical in Saudi Arabia (Art. 7). In Tunisia, to use folklore elements, you need to get a license from the Ministry of Culture and to pay a fee. This means that a given state authority regulates the use and adaptation of national cultural heritage expressions. In Morocco, the Copyright Act of 2000 as amended in 2005, protects expressions of folklore against reproduction, communication to the public, adaptation and fixation when such uses have a commercial aim or lie outside of the conventional or customary framework. In plain English, you can listen to folk songs and read folktales (if collections exist) at home… And that’s more or less it.

That is an uncanny situation. Folklore and heritage expression are integral parts of a people’s history and cultural identity. Imposing strict rules that limit access to and distribution of these works is thus paradoxical. Of course, one could argue that such sorts of laws protect folklore from being transformed into some sort of expression that would go against its original values. This may be true to a certain extent. But these restrictive laws and their formulation transform folklore in a matter of private economic right, thus taking it away from the people.

And protection for heritage is not always ensured either. Take Qatar: stories have primarily been shared by word of mouth. There is a Ministry of Culture, Arts and Heritage in the country, but no national heritage archive exists. In a recent two-day training course, different recommendations emanated, amongst which was the one about “the establishment of a national archive that includes all the heritage elements of Qatar”. Furthermore, native Qataris make up only 15 percent of the country’s entire population. Yet, folklore played a crucial role in the country:

Folklore was a way for extended families to share their heritage and values. It “allowed grandfathers and grandmothers to play a big role in children’s verbal education at home,” explains Elnour Hamad, an art education professor at Qatar University.

One may wonder how then the rich folklore tradition is preserved and disseminated. The answer is one of mixed fortunes: in 2011, several students took up the challenge to discover, collect, transcribe and translate into English traditional Qatari folktales and folk stories. Even the Ministry has no such anthology.

Why should we care for the public domain?

How is then a restrictive copyright law helping protect and make live the country’s traditional cultural heritage? More broadly, the WIPO has a list of issues relating to expressions of folklore, and one of them is: What objective is sought to be achieved through according intellectual property protection (economic rights, moral rights)? Restrictive frameworks for folklore and more generally to creative works erode the public domain and deprive anyone of the opportunity to read, watch, listen and create. A restrictive legislation also means that knowledge dissemination is shunned and loses one of its main features: its dynamics.

Works in the public domain belong to anyone and to all of us:

The public domain is part of the common cultural and intellectual heritage of humanity and is the major source of inspiration, imagination and discovery for creators. Works in the public domain are not subject to any restrictions and may be freely used without permission for commercial and non-commercial purposes. It is important for access to knowledge and must be accessible for the benefit of creators, inventors, universities and research centres. (source)


Credits:

Additional sources:

  • “Middle East and Arabic Countries Copyright Law Handbook”, USA International Business Publications, Feb 2007

  • “Intellectual Property and Development: Theory and Practice”, Rami M. Olwan, Springer Science & Business Media, 15 mars 2013

  • “Indigenous Heritage and Intellectual Property”,Silke von Lewinski, Kluwer Law International, 4 April 2008

  • The Development of Intellectual Property Regimes in the Arabian Gulf States: Infidels at the Gates”, David Price, Routledge, 2009

– The Public Domain – Why WIPO should care (2007)

 
Posted on: August 14, 2015, by : rayna