What Happens When Books Enter the Public Domain? Testing Copyright’s Underuse Hypothesis Across Australia, New Zealand, the United States and Canada

40 Pages Posted: 18 Jun 2019

See all articles by Jacob Flynn

Jacob Flynn

affiliation not provided to SSRN

Rebecca Giblin

University of Melbourne - Law School

Francois Petitjean

Monash University

Date Written: June 10, 2019

Abstract

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.

Keywords: copyright, public domain, underuse, underuse hypothesis, theory

JEL Classification: K00, k12

Suggested Citation

Flynn, Jacob and Giblin, Rebecca and Petitjean, Francois, What Happens When Books Enter the Public Domain? Testing Copyright’s Underuse Hypothesis Across Australia, New Zealand, the United States and Canada (June 10, 2019). University of New South Wales Law Journal, Vol. 42, No. 4, 2019. Available at SSRN: https://ssrn.com/abstract=3401684

Jacob Flynn

affiliation not provided to SSRN

Rebecca Giblin (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Francois Petitjean

Monash University ( email )

23 Innovation Walk
Wellington Road
Clayton, Victoria 3800
Australia

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