Two Key Laws For The Public Domain Fare Differently In Argentine Congress

The Argentine Intellectual Property Act No. 11.723, which dates back to 1933, contains only one exception to copyright holders’ absolute power: the “droit de citation”, with an absolute maximum length of 1000 words or 8 bars for musical compositions, it must take into account the extension of the original work and is limited to certain non-profit uses only (education, research and the like).

In Argentina, there’s no such thing as a “fair use” judicial doctrine. Moreover, Argentina is one of those few countries in the world where Domaine Public Payant is still in force – which means to use or reuse works that have already fallen into the public domain one has to pay a “tax” that goes to a black hole known as then National Art’s Fund (Fondo Nacional de las Artes).

Recently, two collectives with asymmetric bargaining power embarked on the quest to broaden the local public domain: the humble Association of University-graduated Librarians of the Argentine Republic (ABGRA) and the powerful Ministry of Science, Technology and Productive Innovation (MINCYT).

ABGRA managed to convince a Deputy, Carlos Heller, to re-introduce at the Chamber of Deputies a bill on exceptions for public libraries, archives and museums (File No. 2064-D-2012 of 11 April 2012). A similar bill had been presented by the same Deputy on 25 October 2010 (File No. 7819-D-2010) also at request of (and drafted by) ABGRA but fell from grace and lapsed. The reason, then? The opposition of collecting agencies.

ABGRA’s new bill (which is essentially the same as the previous one) will allow public libraries, museums and archives to loan, copy and communicate to the public (within the premises) their lawfully acquired works freely and without requiring permission from the copyright owner, in accordance with and limited to their public interest goals. Collecting agencies representing book publishers and reprographic right holders (SADE and CADRA, respectively) were and still are the main contenders.

MINCYT’s proposal aims at creating digital repositories for scientific works. Recent debate in worldwide academia spins around the reasons to pay private journals to access works written by publicly-funded researchers (Prof. Stephen Shavell goes so far as to claim all academic copyright should be abolished). To date, the publishing game is played as follows: a) scientists employed at public universities publish their works for free in private journals; b) those private journals licence those works to public universities for a (non-negligible) subscription fee. In a way, proposers of the bill argue, public education is subsidising private journals.

MINCYT’s proposal would oblige all institutions that are part of the National System of Science, Technology and Innovation (publicly-funded research centres and universities) to adhere to the “open access” paradigm. The bill mandates publicly-funded research projects, papers, theses, etc. to be deposited in the to-be-created Digital Repositories within 6 months of creation or publication (in a private journal) and research data within 5 years of recollection. The Digital Repositories will be managed by the MINCYT and it will guarantee open, free and universal access to users from a single website.

The Chamber of Deputies already approved MINCYT’s bill on 23 March. Now it only remains to be approved by the Senate to become law. Backed by government and the MINCYT, it’s unlikely this bill will receive major opposition. And supporters say it could mean big budgetary savings for the state.

Links to legislation (in Spanish):

No. 2064-D-2012 (ABGRA)

No. 1927-D-2011(MINCYT)