Wednesday, January 14, 2009

On "strange things done in the midnight sun" of the public domain

NB - Note update below!

There's a good CBC article on the public domain quoting two of my favourite PD crusaders, Wallace McLean and Edward Guo of IMSLP fame (see here and here). BTW, IMSLP is back in action here.

All of this reminds me that an ever alert reader has pointed out that the website or Robert W. Service takes a different position than do I about the expiration of Service’s copyright in Canada. The site (now corrected - see below) says:
Copyright: We have had several people contact us on this subject. Service's work, in the United States, is in the public domain for that work published prior to 1922. In Canada, the copyright is still in effect and will be until 70 years after Service's death, or until 2028.

Mr. Wm. Krasilovsky, is attorney, agent for Robert's Estate. His email address is: and his fax number is 212-983-3228
(Emphasis added)

The statement that “In Canada, the copyright is still in effect and will be until 70 years after Service's death, or until 2028” is simply dead wrong. Robert W. Service’s term of copyright expired in Canada on the stroke of midnight December 31, 2008. It may well be that “There are strange things done in the midnight sun” in Canada, but a life plus 70 copyright term isn’t yet one of them. The reference to 1922 in the USA is also wrong. It should be 1923.

I’m quite sure that the misinformation on the Robert W. Service website does NOT come from Bill Krasilovsky, who is mentioned as the attorney for the Robert W. Service Estate. Mr. William Krasilovsky is a very well known, highly regarded and very experienced New York lawyer and a co-author of “the bible” of America music law, namely “This Business of Music”, which is now into its tenth edition. A long time ago, this book was one of the key sources of my interest in copyright law. I still use it and highly recommend it for anything to do with the American music industry and as a very good overview of American copyright law. In fact, I reviewed the 7th edition of his book here. The book is readily available online from Amazon, etc.

The mistaken misinformation on the Service website illustrates, if nothing else, the great difficulties that can occasionally arise in establishing the clear coming out date of a dead author or a particular work. I wish Access Copyright luck in its public domain registry project, especially in view of the conflicting agendas of those who may wish to sew doubt into whether a work has indeed gone into the public domain. Over the years, there has been much litigation about the PD status of particular works in particular countries - because the question can sometimes be quite murky and a lot of money can be at stake.

One of these years, the many conflict of laws issues that are and will be arising regarding the legal reality of different copyright terms in different countries and the fact that the internet can make borders disappear will result in the call for a treaty to rationalize all of this. The trouble, of course, will be that there would be huge pressure to harmonize to the excessive US + EU + Disney® term of life + 70 years.


NB - The information about copyright in Canada has now been corrected on the Service site, as well as the reference to 1922 in the USA, which is now correctly 1923.

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