A quick aside, as I'm discussing matters of law here, I want to point out that I have not studied law and am not a copyright subject expert. Except where stated, opinions here are my own, derived from earlier experiences, reading Copyfight and materials connected to the Cooking for Copyright campaign.
Letters of Note is a collection of correspondence compiled by Shaun Usher, based on the blog of the same name. It's a wonderful book full of insights to popular and historically significant people and times, giving them the human touch a brief encyclopedic article can't. Among my many favourites are the letter from 11-year-old girl who wrote to Abraham Lincoln to suggest that he grow a beard, Tim Schafer's text adventure covering letter to a job application and Kurt Vonnegut's letter to the head of a school board that consigned a class set of his books to their furnace. The letters can be beautiful, funny, shocking and emotional. Presenting primary sources with brief explanations and transcriptions or translations as needed is powerful. It also contains a double page of tiny type with acknowledgements, permissions and copyright statements, a fact I'll return to later. I will also come back to the wonderful Australian inclusion, To a Top Scientist which can also be found on the Letters of Note blog. As I write this a second volume is currently available for pre-order and I am keen to discover what it contains.
Copyfight, edited by Phillipa McGuinness, is a collection of various discussions and arguments around Australian copyright as it stands in mid-2015, a far more interesting and convoluted topic than might be expected. It doesn't look good for copyright now - and I'm unconvinced copyright in Australia has a "good old days". Copyright is perpetually lagging behind developments in technology and culture. The possibilities brought on by the Internet are among the latest of many rounds, once it was music recordings in wax that caused a shake-up. Unsurprisingly, quite a few of the articles in Copyfight focus on the elephant in the room, copyright owners vs. piracy, which I have no intention of discussing here. Many avoid that headline-grabbing political football of a topic and look at other issues. These make it clear that copyright reform is needed for many reasons beyond the aforementioned elephant. Copyright should encourage creation and balance the interests of creators, investors, consumers (individually) and the general public. I'm not convinced it does that nearly as well as it should.
A number of problems stood out as I read Copyfight. One was lack of fair use provisions, fair dealing does not cut it and probably never did. Several articles in this book explain some of the reasons for this, especially those by Angela Bowne and Dan Ilic. It's likely I've technically breached this many times without doing anything the reasonable person would consider unfair, I might even have done it in this post. There's another problem in copyright length - while authors and investors need the right to profit from their work, I see the extension from 50 to 70 years after death of the creator as stinking of protection of multinational corporate interests that are disconnected from original creators and encouragement of new creative works. Justin Heazlewood and Lindy Morrison show that performers' copyright offers poor protection to individual artists and smaller copyright owners, especially when crossing national borders. Felicity Fenner shows that copyright for visual arts is ambiguous and inadequate. The public inaccessibility of data and reports from publicly funded research in publicly funded institutions is another issue that is explained in detail by Hannah Forsyth. This is just a sampling of the issues.
Copyfight unearths some of the complications reforms must deal with - our laws exist in an international environment which is affected by treaties, trade agreements and international relations in a world where not all sizeable markets apply the principles of the Berne Convention. Any such reforms would then have to survive meeting the courts.
It's the copyright status of unpublished works that draws this all together. Tim Sherratt's article in Copyfight explores some of the ways that TROVE has been used to explore and understand Australia's cultural heritage through digitisation of newspapers and magazines and the impact this has had - and why most of it stops in 1954 and how even that is in risky copyright territory. Alongside these newspapers, Australian libraries and archives contain a wealth of unpublished resources - letters, photographs, diaries and more that could expand our cultural understanding if made available digitally. The Australian National Library alone contains over two million unpublished works (source, p. 50). At present, under Australian law the copyright on unpublished works never expires. ALIA's FAIR initiative provides an explanation, references and resources. Ownership of this never-ending copyright may be unclear or spectacularly difficult to determine - and there is no exception for orphan works. The holding institution may have some ability to use them, but it is unclear as to whether mass digitisation is covered (source).
Once I found several old annotated photographs in a donation to a library I was working in. The donor did not want them returned or destroyed, and the photographs, while insightful, were not of local relevance. As an alternative, I looked into donating them to the local or state library whose collection parameters they fit. The state library was interested, but wanted a donation form filled out which, amongst other things, requested that I assign copyright to them - it was not mine to give. There is no way to know whose copyright it was as the donor was not the photographer and the items did not give clues. Consequently, if the receiving library chose to keep those items their usefulness would be severely limited.
The pages acknowledging sources and copyright in Letters of Note may be sufficient for that publication, but determining and finding the copyright owners of works in Australian collections would be a greater barrier. Taking the risk that TROVE has in releasing material of uncertain copyright status might not be acceptable to a smaller institution, commercial publisher or private individual. Where copyright owners are living, such as To a Top Scientist in Letters of Note, permission might be reasonably achievable. Some copyright owners would be easy to trace. Many would not, an example given by FAIR is of a letter and recipe sent to a radio presenter where there is a theory as to the author's identity, but no certainty.
So whilst I found the reading of Letters of Note enlightening and wondered what an Australian version of this might teach, I am not likely to find out while our copyright laws remain as they are. Bring on the change.