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128 Copyright, Science, and Education

Copyright is a state-guaranteed right given to creators of “literary and artistic works” (see Art. 2 (1) of the Berne Convention, World Intellectual Property Organisation 1979) to control the reproduction, distribution, adaptation or translation of their works. The term “work” includes a wide array of forms of intellectual creations, including text, photographs, diagrams, maps, movies, etc. To be eligible for copyright, a work must be original, individual, singular and new (see, e.g., Agosti and Egloff 2009).

Copyright typically lasts 50 to 70 years after the death of the last contributor of a work. Under the standard term in the European Union (“life plus 70 years”) even very old works may require individual negotiations with the rights owners before they can be made accessible digitally or parts of them re-used in a new context. If contractual arrangements between contributors of a work and the death year of at least one potential rights owner are unknown, only works before perhaps 1871 can reasonably be assumed to be in the public domain.

The well-known Biodiversity Heritage Library (BHL, biodiversitylibrary.org), providing access to the published knowledge about the species of world, has somewhat more favorable conditions. Operating under U.S.A. legislation, most works published before 1923 as well as a significant number of works published between 1923 and 1978 (see Hirtle 2011) are no longer under copyright control. This makes the public domain in the U.S.A. exceptionally rich. After 1978, however, copyright duration has largely been increased to life plus 70 years. A continuing exception is, e.g., that works created by an officer or employee of the United States Government – including, e.g., the Food and Drug Administration and the National Institutes of Health – as part of that person’s official duties are in the public domain, irrespective of publication year. However, the success of BHL cannot be simply projected into the future.

For singular cultural works such as poems, novels, paintings, or musical compositions, and where a reproduction concerns major parts of the work, the balance offered by copyright law between the rights of creators and the rights of the public for creativity and innovation is widely considered reasonable. However, the balance may already be questionable when it comes to the creative or even unavoidable (background music or company logos visible in documentary movies) inclusions of fragments of copyrighted works. Increasing IPR management and risk avoidance by companies may create a stifling and suppressive environment (Aoki et al. 2006). In some jurisdictions exceptions for educational activities (Nabhan 2009; Seng 2009; Xalabarder 2009) or fair-use doctrines allow a limited re-use of small excerpts of copyrighted materials (see, e.g., the English Wikipedia). In many other jurisdictions this is, however, not permitted (see, e.g., the German or Japanese Wikipedias), severely limiting non-commercial efforts to provide educational materials.

Ideas, knowledge, inventions, information, or data are intentionally not copyright-protected (see, e.g., World Intellectual Property Organisation 1979). The public interest, e.g., to talk about "e = mc²" prior to 2025 (i.e. 70 years after the death of Einstein) is considered to outweigh the interest of scientists to be rewarded for their work. For the most parts, scien-