The impact of the “Paying” Public Domain on Creative Commons (I)
In some countries, republication of public domain works is subject to paying a fee or tax to the State. How does this affect CC initiatives?
This is the first of two posts sharing the findings of a project funded by the Creative Commons Copyright Platform Activity Fund.[1] Read the second post.
What is the “Paying” Public Domain?
It seems self-evident that works in the public domain can be reused, remixed and mashed up for free. Well, not everywhere. In the countries that enforce a domaine public payant or paying public domain (PPD), a fee (or tax) has to be paid to a state agency to republish works in the public domain. In Latin America, the PPD is in force in Argentina, Uruguay, and Paraguay (it also exists in many African countries).
In these three countries, after the copyright has expired, the PPD kicks in and lasts indefinitely. Unlike what happens under copyright law, in a PPD system, it is the State and not the author who gets paid. The PPD affects works of national and foreign authors, anonymous works, and even works that were never copyrighted.
The justification for the PPD is the collection of money to redistribute among local authors in grants, subsidies, or prizes. However, unlike copyright, which relies on the market, the PPD depends on a piece of costly state machinery to perform its duties. Moreover, the decision of which author gets funded is taken by public officials, which may be in line with a political agenda and not necessarily with artistic merit.
According to a report by WIPO, “under a system of domaine public payant, or “paying public domain,” a fee is imposed for the use of works in the public domain. Generally, the system works like a compulsory license: the use is conditioned on payment of the prescribed fee but not upon securing a priori authorization. The public domain to which such a regime applies is usually only composed of works the copyright of which has expired (except in countries applying it to expressions of folklore, as further detailed below). In some countries, only the commercial or for-profit exploitation of public domain material is subject to payment” [2].
The same report states that the PPD is in force in “Algeria, Kenya, Ruanda, Senegal, Republic of the Congo, Côte d’Ivoire, and Paraguay. The pre-eminence of African countries can be explained by the Bangui Agreement of the OAPI and its Annex on literary and artistic property that provides for such a regime for the exploitation of expressions of folklore and works or productions that have fallen into the public domain” (ibid.). Surprisingly, the report omitted Argentina, Uruguay, and Paraguay, countries where the PPD has been uninterruptedly in force since 1958, 1937, and 1998, respectively.
For the sake of illustration, the Argentinian PPD system (called in Spanish régimen del dominio público pagante) requires payment of a fee to the State for any reproduction, publication, synchronization, performance, broadcast, communication to the public, or the making of derivative works, of any work in the public domain.
The webpage of the enforcing agency of the Argentinian PPD system, the Fondo Nacional de las Artes (National Fund for the Arts), states that “the reproduction of a movie like Frozen, by Disney, must also pay [the paying public domain fee] since its story is an adaptation of The Snow Queen by Hans Christian Andersen; and the use of a work like Michelangelo’s Creation of Adam in a video game, too.”[3] Failure to pay the tax will lead to lawsuits and eventually the payment of fines, damages and interests.
For those readers in the US, let us imagine that to publish a new edition of Shakespeare’s Hamlet in contemporary English, the publisher would have to pay a fee (or tax) to a State agency, such as the National Endowment for the Arts. The amount of the fee (or tax) is likely to be equivalent to the licensing fee of a similar copyrighted work.
The “Paying” Public Domain around the world
Most countries never had a PPD system in force, despite it being promoted during much of the 20th century by UNESCO and WIPO.[4] Moreover, the majority of countries that had at some point a PPD in force have abolished it.
Below is a non-exhaustive list of countries that once had a PPD system in force but have later abolished it.
● Brazil
Section 93 of Act no. 5.988 of 14 December 1973 established a PPD system. It was repealed by Act no. 7123 of 12 September 1983.
● Italy
Pursuant to Act no. 1012 of 19 September 1882, copyright protection extended during the author’s life plus 40 years post mortem auctoris. After this period, the exclusive economic rights were transferred to the Italian State for another 40 years. This first version of the Italian PPD was derogated in 1925.
However, according to Act no. 633 of 21 April 1941, the PPD was reintroduced in Italy (named diritto demaniale). It was finally abolished by section 6 of Law-Decree no. 699, of 31 December 1996.
● Mexico
Mexico enforced a PPD system from 1963 to 1993. It was even included in section 82 of the Mexican Copyright Act of 11 January 1982 (under the name dominio público remunerado). However, it was repealed in 1993.
● France
In 1956 the Caisse Nationale des Lettres, which had been created in 1946, set up a limited PPD (restricted to literary works only). It was cancelled in 1976.
Why did these and other countries abolish the PPD?
Scholarly papers and parliamentary discussions point towards its inefficiency, high operative costs and unnecessariness. Copyright law is enough to reimburse most authors.
The creation of a follow-on legal monopoly, after the copyright has expired in the State’s hands, unduly taxes creativity and access to works at low prices.
[1] This work by Maximiliano Marzetti (2021) is licensed under the terms of a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence (CC BY-NC-SA 4.0). I would like to thank Patricia Díaz (CC Uruguay), Juan Pablo Suárez (CC Argentina) and Maricarmen Sequera (CC Paraguay) for their priceless contribution.
[2] WIPO Secretariat, 24 November 2010, Note on the Meanings of the Term “Public Domain” in the Intellectual Property System with particular reference to the Protection of Traditional Knowledge and Traditional Cultural Expressions/Expressions of Folklore, Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Seventeenth Session.
[3] The original text in Spanish says, “la reproducción de una película como Frozen, de Disney, también debe pagar, ya que su historia es una adaptación de La reina de las nieves, de Hans Christian Andersen; y el uso de una obra como La creación de Adán de Miguel Ángel en un videojuego, también”. English translation by the author.
[4] UNESCO, General Conference, Paris, 27 May 1949; WIPO Tunis Model Law on Copyright for Developing Countries (including a section on the PPD) Geneva, 1976; and WIPO & UNESCO, Committee of Non-Governmental Experts on the “Domaine Public Payant”, Geneva 1982.
