According to Ben Franklin, the only certainties in this world are “death and taxes”. Since a discussion of taxes is far too complicated, that leaves me with no alternative but to turn to that other certainty in life, and examine how it relates to copyright.
While it may seem a bit macabre to think of it this way, in fact a person’s creativity expressed through writings, music, art, photography or the myriad of other creative forms protected by copyright is like a “celebration of life”. The work lives on, protected for a period of time after the author’s passing (known as post mortem auctoris, or pma for short) that generally covers the minimum Berne Convention requirement of 50 years pma, or now more often the new international standard of 70 years pma (adopted by more than 65 countries including the US, UK, Australia, the countries of the EU, Singapore, and a number of Latin American countries, and soon Canada). In Mexico, the term of protection is 100 years pma.
A copyright protected work enters the public domain at the beginning of the year following the expiration of the statutory period of extended copyright protection that starts with the year of the author’s death. The length of protection enjoyed by a work is therefore essentially dependent on three factors (1) whether an author produced a work early in their career or later (2) the life-span of the author and (3) the statutory period of pma applied by a given jurisdiction.
This period of copyright protection provides the estate of the author with an ongoing revenue stream, to the extent that the works remain popular and generate royalties. The period of exclusive exploitability of the work also increases present value given the ability of the rights-holder (who may have licensed the rights from the author) to continue to earn a return on investment well into the future, and thus incentivizes the creation of, as well as investment in, new content.
There has long been a lively debate about whether the extension of the period of copyright protection (e.g. from 50 to 70 years pma) increases creative output as a result of the additional economic incentive provided. A good summary of the arguments for a longer term was produced by Prof. George Barker in 2015 at the time that Canada extended the term of protection for sound recordings from 50 to 70 years[i]. Barker concluded that because of the additional revenues generated over the additional twenty year period, “copyright term extension for sound recordings and performances will both increase the incentive and the capacity to invest in new sound recordings”. Others have a similar take on the value of copyright. In the words of blogger Neil Turkewitz, for example;
“Copyright isn’t really an incentive to produce, or at least its role is marginal. It is more an incentive to invest in production — a person’s ability to invest his or her own time, or a third party investing financially based on the possibility of financial returns. It’s what separates professional from amateur productions. It’s what creates jobs. It’s what allows artists to hone their craft…to take a year off to write, to spend time in the studio.”
If the incentive provided by copyright protection results in greater investment in the production of content, it follows that extending the term of protection for an additional period will encourage more of this needed investment because of the longer period of exclusivity during which the investment can be recouped.
Thus the concept of post mortem auctoris provides a direct link between the inevitability of our limited time on earth, death if you will, and the principles of copyright. My exploration of this connection might have stopped there—and been a very short blog—had it not been for a website in Canada called Afterlife. As reported by CBC News, a class action lawsuit is being launched against Afterlife on behalf of bereaved families who found the obituaries of their loved ones copied and pasted on to Afterlife’s site—with the goal of selling flowers and “virtual candles” to mourners. There seems to be no limit to human ingenuity, or sense of what is tasteful or (in)appropriate, when it comes to digital marketing. In the case of Afterlife, the company’s modus operandi consisted of harvesting obituaries from newspapers and the websites of funeral homes and posting them on its site without the permission of the families concerned, with a view to making a buck or two. Apart from questionable taste and exploitation of grief, this looks like a pretty clear case of copyright infringement since most obituaries, unless they are a simple recitation of facts (tombstone data so to speak) can be considered literary works with the copyright held by the author. Copyright also could apply to many of the photographs that accompany an obituary.
It appears that the Afterlife site is no longer active, although visitors to it are redirected to another similar site called Everhere, whose lead is “Where Loved Ones are Eternal”. I suppose one can make an argument that the website is offering a service to some by providing a platform for the posting of an obituary, thus giving the notice greater reach. The Everhere site encourages users to post obits and even allows one to subscribe to a daily feed of death notices from a given city.
Since just about nothing in this world—and certainly nothing in the digital world—comes free, the website has to generate revenue somehow, thus the sale of real flowers and virtual candles. It’s the same equation as with internet intermediaries such as Facebook or Google Search. If you don’t want to use these services you are not obliged to do so, but if you do, under the current Terms of Service, you will “pay” by giving up privacy and providing access to your likes and dislikes to a vast array of advertisers who compensate the intermediaries for access to this data. However it is one thing to voluntarily access a social media platform or an internet-based service like Afterlife or Everhere, but it is quite different to have personal data and content, especially information related to the loss of a loved one, posted without permission (one could say hijacked) on a commercial site.
Given the ongoing fair use debate in the US over “transformative use”, an argument that has been used by those taking copyright protected material without permission or payment and using it in a (somewhat) different way, one wonders if Afterlife’s appropriation of the content for informational purposes would constitute fair use if put to a test in the US. The most recent example of this application of this doctrine is a court decision in Virginia that permitted the Northern Virginia Film Festival to post on its website a time-exposure photograph taken by photographer Russell Brammer. The photograph was lifted without permission from Brammer’s site on the internet but the judge ruled that the use was “transformative”, and thus a fair use, because it was non-commercial and “informational” (i.e. used to promote the film festival) rather than “expressive”. This startling decision is under appeal.
Canada does not apply the fair use doctrine although some of the “tests” outlined by the Supreme Court of Canada to determine whether use of copyrighted-protected content falls within legislated “fair dealing” exceptions are not dissimilar to the questions asked by US courts to determine fair use. Now that the class action suit against Afterlife has been certified by the Federal Court of Canada, perhaps we shall have a chance to find out the outcome in a Canadian context.
Far from being a deadly subject (pardon the terrible pun), copyright has an infinite capacity to expand the expression of human creativity through providing incentives that last beyond the grave. At the same time, it provides an interesting case study through which to explore the capacity of human ingenuity to profit from the work of others, even if the works that are appropriated are obituary notices.
© Hugh Stephens, 2019. All Rights Reserved.
[i] In the case of sound recordings, the clock starts ticking when the recording is “fixed” (published) rather than when the artist dies.