'Til the End of Eternity?

Copyright law gives authors and publishers exclusive rights for a "limited time," to encourage them to create and distribute works. So what is entering the public domain in the U.S. this year? Not a single published work. Why should you care?
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Who owns Lolita? Not the girl, of course -- Humbert Humbert tried that and look where it got him. In 2012, who owns the book? Or at least the copyright in the book? And for that matter, who owns The End of Eternity, The Body Snatchers, Inherit the Wind, Tolkein's The Return of the King and C.S. Lewis' The Magician's Nephew? Even, ironically, Why Johnny Can't Read? As recently as 1978, the answer would have been "You do. We all do."

Back then, the copyright term was 56 years (you got 28 years and could renew for another 28). That means that works published in 1955 -- and all of these books were -- would have entered the public domain on January 1 2012, free for all of us to use. You could have published new editions or translations, posted chapters online, turned Lolita into an opera or The Body Snatchers into a ballet. You could have sent a digital copy to a friend -- all without asking permission or breaking the law. Now, none of these works will enter the public domain until 2051.

Copyright law gives authors and publishers exclusive rights for a "limited time," to encourage them to create and distribute works. The copyright term is limited by design: when it ends, these works enter the public domain, so that the public can fully benefit from them. Unfortunately, copyright terms have been repeatedly extended. Though the Constitution insists on "limited times," those limited times have been getting longer and longer. The first copyright statute gave an initial term of 14 years. Now? The copyright lasts for the author's life plus 70 years. The worst thing is that Congress has applied these copyright extensions retrospectively -- to books already written -- as well as prospectively. Books from 1923 won't enter the public domain until 2019.

So what is entering the public domain in the US this year? Not a single published work. Not this year, or next year. In fact, no publication will enter our public domain until 2019. (Until then, Johnny won't be reading any new public domain books.)

So why should you care? Maybe you already own the books I mentioned. What's the fuss about?

It matters for price. As studies have shown, not only are public domain books cheaper, they are available in more editions and in more formats. (Importantly, there is another benefit: when books are in the public domain, anyone can make Braille or audio versions for visually impaired readers. No permission required. And if you think no one would object to such uses, sadly you would be wrong.)

It matters for creativity and free speech. The public domain feeds creativity. Authors build on the cultural artifacts around them. The Waste Land is anything but: it's a fertile bed of references to dozens of earlier works (from Homer, Virgil, Shakespeare, Kyd, Chaucer, and Milton, to name a few). Michael Chabon -- one of my favorite authors -- describes how his novel Summerland builds on public domain sources such as American folktales, and stories from Greek, Norse, and American Indian mythology. Some claim that Lolita was borrowed from an earlier story of the same name; pointing in the other direction, Nabokov's heirs sued the publishers of Lo's Diary (a retelling of Lolita from the girl's perspective) for copyright infringement. Examples could (and do) fill volumes. In a brilliant article on the subject, author Jonathan Lethem calls it "the ecstasy of influence."

What happens if these underlying sources are copyrighted? As Judge Richard Posner pointed out, "Romeo and Juliet itself would have infringed Arthur Brooke's The Tragicall Historye of Romeo and Juliet... which in turn would have infringed several earlier Romeo and Juliets, all of which probably would have infringed Ovid's story of Pyramus and Thisbe." You get the point -- without a rich public domain, much of literature would be illegal.

Alice Randall discovered this when she wrote The Wind Done Gone. Randall is an African-American writer who wanted to retell Gone With the Wind from the slaves' point of view, in order to criticize its romanticized depiction of slaveholding society. Gone With the Wind -- published in 1936 -- would have been in the public domain by now had copyright terms not been extended. Anyone could have done what Randall did without fear of interference. Now it is copyrighted until 2031. (Yes, that's right. Gone With the Wind is still under copyright.) Margaret Mitchell's estate sued Randall's publisher for copyright infringement. And at first they succeeded - the book was banned by a Georgia court. Only on appeal did a higher court overturn that decision and vindicate Randall's First Amendment right to parody Gone With the Wind. But to get that right, Randall had to go to court -- no small barrier for a would-be parodist. (I know how hard that struggle was because I was part of the legal team defending her book.)

It matters for access. Here is the real tragedy. In many cases, despite all of these extensions, no one is benefiting. The expansive copyright term may be great for a few works making money years later. But the vast majority of books exhaust their commercial potential relatively quickly -- when the copyright term came in renewable terms of 28 years, copyrights for 93% of books were not renewed. A Congressional Research Service study found that only 2% of works between 55 and 75 years old continue to retain commercial value. For the other 98% of works, there is no benefit at all from continued copyright protection. But the public -- at least those members of the public that don't live in the Library of Congress' stacks -- loses the possibility of meaningful access. In fact, in many cases the copyright holder cannot even be found. For these so-called "orphan works," the effect of term extension is truly ironic. Copyright, intended to promote access to creativity, ends up, in Justice Breyer's words, condemning books to "a kind of intellectual purgatory from which [they] will not easily emerge."

Imagine the digital Library of Alexandria. All of the world's books, searchable online. Not just the titles; you could search the full text of the books and find more than you ever would have thumbing through the stacks. To quote The Six Million Dollar Man: we have the technology. But we don't have the books. Google's attempt to build a search engine for books is the subject of an ongoing legal battle. (The case is complex and deserves its own blog posting.) More depressingly, when HathiTrust, a partnership of research libraries, tried a much more modest endeavor: to make a digital library of only orphan works available to only a limited community of faculty and students, it too was slapped with a copyright lawsuit (still pending, and meritless in my opinion).

Lolita is free from the hands of Humbert Humbert. But for better or worse, Lolita, thanks to Congress' actions, will remain in the hands of Nabokov's heirs for decades to come. So will thousands of works dating all the way back to 1923. Copyright doesn't last for eternity. It just seems that way.

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