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.
Charlotte Skeoch: Review: The Royal Ballet's Romeo and Juliet
Public domain - Wikipedia, the free encyclopedia
Copyright Term and the Public Domain in the United States
WHEN WORKS PASS INTO THE PUBLIC DOMAIN
Public Domain - Creative Commons
>>>Every great artist, musician, poet, writer, inventor, stands on the shoulders of giants. Can anyone point me to any ideas and expression left in the world that can be proven to be 100% original? By extending copyright too far, we actually inhibit the creative process and collective construction of ideas by preventing folks from building within their discipline upon the foundation of ideas that came before them. This not only limits free speech expression, but ultimately inhibits innovation and ingenuity over the long run.
>>>If we are to extend copyrights for such long periods, then we need to have some mechanism for expanding limited public licenses to access these works. While there is the concept of "Fair Use" (eg, limited use of a work for purposes such as commentary, parody, teaching), the courts and regulators have been shrinking their interpretations of what uses fall within "fair use".
>>>Indefinite copyright terms may actually help us lose our last remaining competitive advantage on the world stage: our "creative/knowledge economy." We may not manufacture much here anymore, but we sure do create, design, write, sing, film, and perform. Through long copyrights, we deny ourselves inspiration from millions of muses that have come before who could spur our creativity and innovation to new heights....
This "Science" includes art and literary work, whereas "useful arts" mean inventions.
There aren't any competing ideals. If you want to incentivize and reward innovation and art then you can give those innovators and artists a prize at your own risk or hire them instead of damaging the rights and freedom of the rest.
Either I'm missing something fairly obvious or the author of this piece is not quite the expert she purports to be.
Once again, the politicians side with the 2% against the 98%. Heaven forfend that corporations like Disney (corporations are people, too, according to the Mittster, and the Supremes) shouldn't be allowed to continue to milk their cash cows for all eternity, even though the actual people who did the creative work are long gone. And yet most of their good ideas have been taken from the public domain. Hypocrisy, thy name is Disney.
The author also states that Public Domain "feeds creativity." This would also be true if squatters were to claim Mr. Kringle's inherited land and occupy it and bring their art supplies and paint pictures in it and sell them and use the proceeds to put food on the table and subsidize a new "creative" subculture. There's only one problem though: IT'S NOT THEIR PROPERTY.
Either we believe in property rights--real property, intellectual property, any kind of property--or we don't. To choose an arbitrary number (oh, I don't know, 70 years after an artist's death) after which his or her rights (via his or her descendents) to said property are suddenly and completely relinquished is nothing but legally sanctioned thievery.
When Disney characters (some of whom Disney took from earlier creative works by others) have been in the public face for decades, it is absurd that they should continue to be privately owned - as the song "Happy Birthday" is even today. It is even more absurd when the owner is the stockholders of a faceless corporation that did *not* create the work.
Why is it any more absurd than a family continuing to own a house for this same number of decades? Because the house is not in the "public face"? What if the house WERE in the public face for as long as the song "Happy Birthday" (say, for argument's sake, a famous "Haunted House" or the like)? Does that mean that one day it should stop belonging to the family that owns it and suddenly, at some arbitrarily determined point, be owned by the public (whatever that means, speaking of "faceless" entities) rather than the descendents of the original rightful owners?
No: either there's such a thing as intellectual property and it's as legitimate a right as real property or it should be called something else that reflects the fact that when one supposedly owns the rights to a song or book it's not really ownership but a kind of long-term lease of the products of one's imagination and ingenuity. Then at least it would be labeled more accurately and the eventual co-opting of it by a "public" that supposedly has more of a right to it than the descendents of the entity who originally created it would be legally sanctioned. As things stand, it's nothing short of out-and-out thievery.
Of course, I will be 101 years old in 2051. But I guess, in Congress's view, that's a "limited time."
ironic
Who's she trying to fool? In rebuttal:
"Within days of the suit’s filing on September 12th [against HathiTrust], the Authors Guild, its members, and others commenting on its blog had developed strong leads to dozens of authors and estates holding rights to the first 167 works listed as “orphan candidates” at HathiTrust’s website. Four living authors were on HathiTrust’s list. So were significant literary estates, such as those of Pulitzer Prize winners James Gould Cozzens and Walter Lippmann and the philosopher Sidney Hook. Foreign authors were also on the list, including André Missenard, who died in Paris in August. At least three of the works are still in print. Simple Google searches turned up most of the leads in minutes, including one that led to the author of “The Lost Country,” J. R. Salamanca."
http://www.teleread.com/copy-right/authors-guild-adds-international-writers-groups-to-hathitrust-lawsuit-says-universities-acting-as-pirates/
Hardly a benign enterprise. Jenkins is giving a biased opinion. As for me, as a writer, my bias is to keep the copyright with me and my estate for as long as possible.
Jeff Bursey,
author of
Verbatim: A Novel
No where in the express words of the Constitution are the Author's heirs protected. The constitutional authority starts with a concern for the promotion of the Arts. Longer copyright terms begin to make those words meaningless, and protecting heirs of the Authors is outside the scope of the express words in the Art 1, section 8.
The point of copyright law is to encourage artists to create by letting them profit from their labor. Ultimately we all benefit from that creative incentive.
We'd be better off without any kind of restriction.
The world of copyright has being wrenched from safety by the efforts of pliant know-nothings like the elected Sonny Bonos of the world, and others addicted to the steady 'kudzu'-like stream of un-earned income from the work of others. And they are not done yet. The food of our minds - information - is being hijacked more and more every year by a coin-operated Congress; strangling the future of intellectual pursuit for all upcoming generations of your family and, indeed, all the families of earth.
Follow the dots and you'll come to a never-before seen barbed-wire fence; on the other side of which there is no longer any public space. For a chance to day-dream about becoming a billionaire, we have surrendered the 'common good' to desires of possession, and the most selfish within ourselves.
And the Wind Gone Down issue was whether or not it was actually a parody, not an infringement case per se. Parody is protected.
ask these guys about "commercial value": Gregor Johann Mendel, Vincent Van Gogh, Henry David Thoreau
Van Gogh couldn't even sell in his lifetime - it is hardly "valueless" today. NO ONE can say what will or will not have value in the future. The only reason there is a demand for IP is that is valuable. Digital markets and new technology will assure that demand. If you want IP - buy it and support living creators and get something really different. The only thing that inhibits "creativity" is when artists, writers, photographers, inventors are unable to support themselves with their own work.
WSJ put it plainly back in 2008 when the Orphan Works was being "pushed" on Americans - over and over they tell you it's about Google, Microsoft, Yahoo and "other internet firms" were looking to utilize the MONETARY value in visual IP for profit without fear of any real penalties. http://www.marketwatch.com/story/web-firms-bid-for-copyright-clarity-left-hanging?dist=msr_1
http://www.marketwatch.com/story/web-firms-quietly-win-copyright-victory-in-congress
Any way you look at it - it's just an attempt to get someone's else's work for nothing and bless everyone that supports IP creators and can see thru all the lies.