Huxley by Trevor Leyenhorst (CC BY 2.0)

Huxley by Trevor Leyenhorst (CC BY 2.0)


Why Copyright Term Matters: Publisher Study Highlights Crucial Role of the Public Domain in Ontario Schools

The Ontario Book Publishers Organization recently published a study funded by the OMDC on the use of Canadian books in English classes in Ontario Public and Catholic schools from Grades 7 to 12. The study surveyed teachers and school boards on which books (including novels, short story collections, creative non-fiction, poetry and plays but not textbooks) are taught in English classes. The goal was to see whether Canadian books were included in class lists. The survey generated hundreds of responses (27 from school board participants and 280 from the Ontario Teachers Federation) resulting references to 695 books by 539 authors.

The OBPO argued that the takeaway from the study is that Canadian books are not well represented in Canadian classrooms since less than a quarter of the mentions referred to a Canadian work and none of the top 10 works were Canadian. While that suggests that there is considerable room to increase the presence of Canadian works in the classroom, the data in the study can be used for other purposes. Working with Sydney Elliott, one of my research assistants, we reviewed the OBPO data to identify the presence of public domain works in Ontario classrooms (ie. the use of works for which the term of copyright has expired).

The results were striking as the data confirms that public domain books are an essential part of the English curriculum. Of the top 20 titles, half are in the public domain today or will enter the public domain within the next few years. William Shakespeare is unsurprisingly responsible for many of these titles, but he is not alone. Other very popular public domain works include books by F. Scott Fitzgerald and George Orwell along with books by John Wyndham and John Steinbeck that will enter the public domain in Canada by the end of the decade.

The importance of the public domain within the classroom extends far beyond the most popular works, however. The survey identified 99 books that received at least four separate mentions from respondents. Of those 99 books, 20 are in the public domain and two more will enter the public domain shortly. This covers a wide range of additional authors including Huxley, Conrad, Shelley, Bronte, and McNamee. These books are widely used as they represent 35% of the total mentions. Expanding even further to the entire list of 695 books, 96 are in the public domain or about to enter it.

Despite efforts by some to dismiss its value, the widespread use of public domain works within Canadian classrooms underscores its continued relevance. It also raises two important policy issues. First, it reinforces how many of the works used in classrooms fall outside of current copyright protection and not are not subject to licence fees or royalties. In fact, as the Ontario government emphasizes the benefits of open electronic textbooks, using public domain works will become even more essential since they can be fully incorporated into open electronic texts without the need for licenses or permissions and can be made more readily accessible in electronic form for blind and sight impaired students.

Second, there is another large category of works currently used in Canadian classrooms beyond the nearly 100 public domain titles. Our review identified another 27 titles that are scheduled to enter the public domain within the next 20-25 years including works from authors and poets such as Agatha Christie, J.R.R. Tolkein, and W.H. Auden. These works – which appear regularly on class lists – would be directly affected should Canada agree to extend the term of copyright as part of the NAFTA negotiations. With the U.S. pushing Canada to extend the term beyond the Berne Convention requirement of life of the author plus 50 years (to life plus 70), no new works would enter the public domain for 20 years (assuming it takes several years to negotiate and implement an extension, the extended term could catch works currently closer to 25 years away from public domain status).

This extension would have a real cost: a New Zealand study on term extension in the TPP estimated the cost at tens of millions of dollars per year. Within Canadian classrooms, dozens of books scheduled to enter the public domain would be shut out for decades. These are books that are used by thousands of students today. The prospect of using those books in new and innovative ways without the need for further licensing or royalties – as well as increasing access in open electronic form – would be lost for a generation.

Recent reports indicate that efforts to revive the TPP may involve the removal of the provisions on copyright term extension from that agreement. As Canada continues the NAFTA talks, it should resist any further term extension by continuing to adhere to the international treaty standard, recognizing that longer terms will have a direct impact on Canadian students, who are sometimes forgotten as among the most active readers of public domain works.

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