Flynn, Giblin and Petitjean (2019)
|Flynn, Giblin and Petitjean (2019)|
|Title:||What Happens When Books Enter the Public Domain? Testing Copyright’s Underuse Hypothesis Across Australia, New Zealand, the United States and Canada|
|Author(s):||Flynn, J., Giblin, R., Petitjean, F.|
|Citation:||Flynn, J., Giblin, R. And Petitjean, F. (2019) What Happens When Books Enter the Public Domain? Testing Copyright’s Underuse Hypothesis Across Australia, New Zealand, the United States and Canada. University of New South Wales Law Journal, 42 (4)|
|Key Related Studies:|
|About the Data|
|Data Description:||Data were obtained based on information from the OverDrive database. This was used to determine the relationship between availability of titles and copyright status. Firstly, the study selects “culturally valuable” titles based on Oxford Companions to English, Australian, New Zealand, American and Canadian literature. Secondly, the study selects titles which are in the public domain in some countries but remained in copyright in others. This resulted in a list of 250 authors who died between 1962 and 1967, with the effect of being public domain in New Zealand and Canada but remaining in copyright in Australia. |
In total this resulted in 3,224 records by 227 of the sampled authors, which were made available by publishers to libraries across Australia, New Zealand, the US and Canada. Relevant information relating to these titles were analysed according to price, availability and available licenses.
|Data Type:||Primary and Secondary data|
|Secondary Data Sources:|
|Data Collection Methods:|
|Data Analysis Methods:|
|Cross Country Study?:||Yes|
|Government or policy study?:||No|
|Time Period(s) of Collection:|
“The United States (‘US’) extended most copyright terms by 20 years in 1998, and has since exported that extension via ‘free trade’ agreements to countries including Australia and Canada. A key justification for the longer term was the claim that exclusive rights are necessary to encourage publishers to invest in making older works available — and that, unless such rights were granted, they would go underused. This study empirically tests this ‘underuse hypothesis’ by investigating the relative availability of ebooks to public libraries across Australia, New Zealand, the US and Canada. We find that books are actually less available where they are under copyright than where they are in the public domain, and that commercial publishers seem undeterred from investing in works even where others are competing to supply the same titles. We also find that exclusive rights do not appear to trigger investment in works that have low commercial demand, with books from 59% of the ‘culturally valuable’ authors we sampled unavailable in any jurisdiction, regardless of copyright status. This provides new evidence of how even the shortest copyright terms can outlast works’ commercial value, even where cultural value remains. Further, we find that works are priced much higher where they are under copyright than where they in the public domain, and these differences typically far exceed what would be paid to authors or their heirs. Thus, one effect of extending copyrights from life + 50 to life + 70 is that libraries are obliged to pay higher prices in exchange for worse access.
This is the first published study to test the underuse hypothesis outside the US, and the first to analyse comparative availability of identical works across jurisdictions where their copyright status differs. It adds to the evidence that the underuse hypothesis is not borne out by real world practice. Nonetheless, countries are still being obliged to enact extended terms as a cost of trade access. We argue that such nations should explore alternative ways of dividing up those rights to better achieve copyright’s fundamental aims of rewarding authors and promoting widespread access to knowledge and culture.“
Main Results of the Study
• For 135 of the 227 sampled authors (59%) commercial publishers made no ebooks available to libraries in any of the countries surveyed. Of the authors whose works were made available, 33% had only one title available, and 76% eight or fewer. The US has fewest titles available (521), followed by Australia (551), NZ (582) and Canada (599). The study suggests that the overall low availability of the titles demonstrates that commercial exhaustion occurs long before the shortest minimum terms of protection under copyright.
• Overall, works are made more readily available from commercial publishers where they are in the public domain than in copyright. Similarly, titles in the public domain have more licence offerings available for libraries than the same titles when they are under copyright. As a result, this reduces the availability and accessibility of older, culturally valuable books, increasing costs for libraries to provide access.
Policy Implications as Stated By Author
Longer copyright terms are not useful in securing a fair share of economic rewards to authors, and instead may exacerbate this problem. The study encourages countries to explore the “wriggle room” left to them by treaties, including exploring options for reversion rights and safeguards against orphaning.
Coverage of Study
|Level of aggregation:||Books|
|Period of material under study:|