The impact of the “Paying” Public Domain on Creative Commons (II)
This is the second of two posts sharing the findings of a project funded by the Creative Commons Copyright Platform Activity Fund.[1] Read the first post.
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?
The impact of the Paying Public Domain on Creative Commons — Results from a survey to CC chapters in Argentina, Uruguay, and Paraguay.
In this second part, I share the results of a survey with members of the CC chapters in Argentina, Uruguay, and Paraguay. These three Latin American countries still enforce a “paying” public domain.
Where it is still in force, the PPD system may affect Creative Commons’ initiatives that take for granted that the Public Domain is gratuitous, such as is the case in the US, in particular:
● The CC0 License; and
● The CC Public Domain Mark.
The survey is available here (in Spanish). The answers are available here (in Spanish).
a) A domaine public payant (DPP) system is in force in your country?
All respondents answered yes.
b) What’s the legal source of the DPP, and what authority collects it?
Argentina
Argentinian Executive Decree-Law no. 1.224/58 introduced the DPP and created the National Funds for the Arts (Fondo Nacional de las Artes) (FNA) as its governing body. It is worth mentioning that this Decree-Law was signed by military general Pedro Eugenio Aramburu, de facto president of Argentina, after the coup d’état of 1955. Thus, the DPP was never discussed in the Argentinian Congress; the de facto government had previously dissolved it. The collection of the PPD fee has been delegated to private Collective Management Organizations (CMO), which charge a fee to the State for the collection service.
Paraguay
The DPP was incorporated in Title 5 (Sections 54, 55, and 56) of Act no. 1328/1998 on Copyright and Related Rights. However, anecdotal evidence suggests the DPP is not effectively enforced, as the implementing regulation (Decreto Reglamentario) has not been published yet.
Uruguay
The Uruguayan Copyright Act no. 9.739, of 17 December 1937, established a DPP in Section 9 for plastic and sculptural works and Section 42 for other types of works. The fee is collected by CMOs and delivered to the Ministry of Education and Culture (after deduction of collection expenses).
c) Do you think the DPP may limit the use of CC0 Licenses (“no rights reserved”)?
66,7% of the responses were positive (Argentina and Uruguay), and 33,3% were negative (Paraguay). The latter response finds an explanation that in Paraguay, the DPP is still not effectively enforced (see above).
d) How?
The respondents mentioned the DPP opposes the authors’ will to dedicate their work to the public domain. Moreover, the DPP tax is applied to most reuses of works, making them more expensive and burdensome to produce (the tax must be paid in advance, and its price tends to be equivalent to a license for a copyrighted work).
The Argentine CC chapter said that even though the CC0 license may grant the licensee the possibility of using the work as if it were in the public domain (Public License Fallback, point 3 of the CC0 License), the FNA considers the work to be in the private domain and therefore is not subject to the tax. However, it is not entirely clear whether it may be subject to CMO licensing fees for copyrighted works. Relinquishment of copyright seems not acceptable in Argentina (point 2 of the CC0 License — Waiver).[2]
e) Do you think the DPP may limit the use of CC public domain Mark 1.0?
All respondents replied affirmatively.
f) In what way(s)?
The respondents referred here to similar causes as those limiting CC0 Licenses. Moreover, respondents added that the DPP might mislead users who are not aware of the payment obligation.
g) Do you have any suggestions to overcome these problems?
Some respondents suggested abolishing the DPP altogether. Another suggestion was to incorporate a disclaimer or notice, referring to DPP’s potential existence in some jurisdictions and the legal obligation to pay this tax.
h) Do you think the DPP affects other free culture initiatives?
All respondents replied affirmatively.
i) Which ones?
Some said the DPP affects all 6 CC licenses. One respondent referred to an ironic situation: the reuse of works licensed under CC terms may be gratis during the License terms (if accepted by CMO). However, after the end of the copyright term, the users of the works will pay the DPP tax. In other words, the use of works may be more expensive after the copyright has expired!
A respondent said the public domain is a paradigm of free access, dissemination, reuse, and reappropriation of existing works, particularly generating new ones. Free culture can be thought of as a system that emulates such a model within the private domain’s scope by voluntarily licensing works under CC Licenses’ terms. Thus, both free culture and CC contribute to the commons. To the extent that a robust public domain serves as an incentive to cultural practices that make explicit values divergent from those promoted by the dominant artistic production system, the former’s deterioration undoubtedly affects free culture.
Another respondent said the DPP denaturalizes the public domain institution, the development and growth of free culture, and the Commons.
j) What is your overall assessment of the DPP?
A respondent said it is nonsense. The DPP tax’s primary payer in Uruguay is the State itself (i.e., public theaters, radios, TV stations, etc.). This implies that a state institution has to pay a tax to another state institution. A few thousands of dollars are collected this way per year (minus a charge that goes to the copyright collecting societies) at the end of the day. This suggests that the DPP costs (increasing monetary and transaction costs to reuse works in the public domain) exceed the system’s benefits (the money collected this way, redistributed among local authors).
Another respondent said the DPP defies the raison d’être of the public domain by placing undue restrictions that discourage access, use, dissemination, reappropriation, or rediscovery of works in the public domain. Moreover, it limits using the common cultural heritage because it imposes an economic barrier to use those works.
k) Why do you think the DPP is still in force?
A respondent gave three reasons: (1) due to the low value that is ascribed to the public domain by most people; (2) due to the advantages it represents to the persons in charge of managing the system, (3) due to the symbolic value that some artists attribute to it. Besides, CMO have no interest in losing this source of income (they get a cut to collect the tax per delegation of the State).
Another respondent added that the damage the DPP causes to free culture is difficult to perceive, it is evident only on the aggregate but not at the individual level. However, the problem becomes obvious when we look at the DPP as a whole, as an unjustified tax that increases the costs to reuse, modify and disseminate works in the public domain. Moreover, on the one hand, no individual has incentives to voice concerns against the DPP. On the other hand, those who obtain benefits from the DPP (institutions) have strong incentives, the capacity to influence, and resources to defend the status quo. This argument echoes the “interest group theory” by Olson: the interests of small and cohesive interest groups (lobbies) prevail over the disaggregated majority of citizens. The latter coordination costs are high and expected benefits diffuse, whereas the opposite is true for the former.[3]
Furthermore, while the means are wrong, the ends are laudable, which poses a difficult obstacle when proposing change.
Lastly, the DPP allows the perpetuation of exclusive monopolies. A cranky model that is bad for most individuals but profitable for those who benefit from it.
Conclusions and recommendations
The survey confirmed some of the ideas I had already expressed in previous works. Simply put, the DPP is an ineffectual, distortive and unfair tax on sharing and remixing artistic works.
Public Choice arguments provide the best explanation as to why it is still in force in some countries (rational apathy of individuals and interest group activity). [4]
The DPP remains in force exclusively in developing countries, which is even more regrettable. These countries have built additional barriers to sharing, reusing, and remixing works in the public domain.
It would be interesting to replicate this project in Africa, where the DPP is also still enforced.
On a more practical note, perhaps a notice should be added to both the CC0 License and the public domain Mark 1.0, stating something like this:
“In some jurisdictions, a paying public domain system may be in force. In jurisdictions enforcing a paying public domain system, it is suggested to contact the local enforcing agency to determine whether the payment of a fee or tax is required for republishing works in the public domain”.
To conclude, the CC Network might be in the proper position to begin a global discussion on the effects of the DPP on free culture. Moreover, repealing the DPP might be beneficial for developing countries. Thus, promoting the DPP’s abolition may be a campaign worthy of CC Network.
[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] See Andres Guadamuz, Comparative Analysis of National Approaches on Voluntary Copyright Relinquishment, WIPO, 2014.
[3] See Olson, M. (1965). The Logic of Collective Action. Harvard University Press.
[4] See Marzetti, M. Paying for works in the public domain? The “domaine public payant” in the 21st century, Gewerblicher Rechtsschutz Und Urheberrecht, Internationaler Teil (4) (2019); ¿Es eficiente el dominio público pagante argentino? Una aproximación desde el análisis económico del derecho. ElDIAL — Suplemento Propiedad Industrial e Intelectual (2016); Propuestas para ampliar el acceso a los bienes públicos en Argentina Estableciendo el necesario balance entre derechos de propiedad intelectual y dominio público, CLACSO(2013).
