Every year, January 1st is Public Domain Day, marking the day on which works whose copyright protection has expired enter the public domain. In Canada, the copyright term for literary works is generally the life of the author plus 50 years, so works created by authors who died in 1968 entered the public domain in Canada on January 1st, 2019. These include works by authors such as Enid Blyton, Upton Sinclair, and John Steinbeck.
Public Domain Day helps us to recognize and appreciate the value of the scope and contents of our public domain. However, when we talk about well-known works entering the public domain at the end of their copyright protection, it is almost as though entry into the public domain is merely the last stage of that work’s life-cycle. This perspective may not sufficiently acknowledge the fact that “the public” has been a stakeholder in these works since their creation, and that one of the reasons it has been in the public interest to provide copyright protection to works is that all of those protected works (once the reasonable economic and related interests of the rights-holder have been exclusively exercised subject to the limitations in the Copyright Act for an appropriate period of time) will become part of the public domain.
To properly recognize and appreciate the value of the public domain, we must acknowledge the importance of protecting not only what is already part of the public domain today, but also protecting the works that are currently still under copyright and that will become part of the public domain in the future. John Steinbeck published The Grapes of Wrath in 1939, and since that time it has always been widely known and readily accessible. Ongoing public access to The Grapes of Wrath is unlikely to be enhanced significantly by its entry into the public domain. However, for every success story like The Grapes of Wrath, how many other lesser known works from 1939, or works by lesser known authors who also died in 1968, have been lost to us? How many works that are now rightfully part of the public domain are no longer available to anyone?
If we are to properly recognize and appreciate the value of the public domain, we must take steps to preserve works while they are still protected by copyright. The only practical way to ensure this cultural preservation is by making copies of the works, and one impediment to such stewardship is concern about potential copyright infringement. Although it is important to acknowledge that there are provisions in the Copyright Act, including the Libraries, Archives and Museums exceptions (ss. 30.1–30.4), that go some way toward addressing these concerns, the sufficiency of these provisions to address the practical realities of cultural memory programs, and their applicability to all relevant works, incl