Copyright and book availability

August 2nd, 2013 at 11:00 am by David Farrar

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Rebecca Rosen writes:

Last year I wrote about some very interesting research being done by Paul J. Heald at the University of Illinois, based on software that crawled Amazon for a random selection of books. At the time, his results were only preliminary, but they were nevertheless startling: There were as many books available from the 1910s as there were from the 2000s. The number of books from the 1850s was double the number available from the 1950s. Why? protections (which cover titles published in 1923 and after) had squashed the market for books from the middle of the 20th century, keeping those titles off shelves and out of the hands of the reading public.

Heald has now finalized his research and the picture, though more detailed, is largely the same: “Copyright correlates significantly with the disappearance of works rather than with their availability,” Heald writes. “Shortly after works are created and proprietized, they tend to disappear from public view only to reappear in significantly increased numbers when they fall into the public domain and lose their owners.”

This shows the importance of getting the balance right with copyright. Imagine if books never ever entered the public domain?

Absolutely books should be subject to copyright for a significant period of time, to allow the author to benefit from them.

But the current lengths of copyright are life plus 50 years in NZ and life plus 70 years in the United States. Both are far too long.

I’m tempted to say that copyright should expire upon the death of the author. However people might start shooting authors in order to get their books for free :-)

I think it is fair to say the the family of an author shouldn’t suddenly have their income disappear, the moment the author dies. But ridiculous to have to wait 50 to 70 years for a book to go public domain. I would think 20 years is about right – long enough for any young children to be supported as they become adults, if say their author parent died suddenly.

What do readers think should be the term of copyright? Comment below and/or vote in the sidebar poll.

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35 Responses to “Copyright and book availability”

  1. PaulL (5,874 comments) says:

    10 years. Not based on author’s death.

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  2. Fentex (867 comments) says:

    it is fair to say the the family of an author shouldn’t suddenly have their income disappear, the moment the author dies. But ridiculous to have to wait 50 to 70 years for a book to go public domain. I would think 20 years is about righ

    I think this is tricky ground to stand on – by saying this one seems to express the opinion that copyright is a property an author owns as an asset to them and their heirs.

    If that is granted then what is the argument that their property should ever be given over to the public? Do you think this is true of your home and investment properties? Any artwork you hang on your wall?

    Most people support the general concept of copyright because they find it hard to conceive of authors profiting in it’s absence and fear a loss of art.

    Personally I think if one argues for a pragmatic need to have copyright without proceeding from the premise that it is property it ought not be tied to the authors life span. A single well defined period, full stop.

    And, if one continues on that pragmatic track (not looking for the argument here, just working on the premise the law does not accept copyright as a property but as a grant instead) then I think it ought be more on the 20 ~ 30 year range.

    Most published works make the vast majority of their profit in the first ten years and arguments predicated on a need for freeing contributions to the cultural well spring would seem to me to militate getting them available promptly after the generation of their creation.

    Although personally I think, whatever period or logic one uses to justify it copyright should require deliberate registration after at least a first period of grace so that non-commerically exploited or viable work is recycled as quickly as possible.

    This would be consistent with the concept of copyright as property as well just as unclaimed and unworked land can be occupied.

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  3. Monique Angel (252 comments) says:

    Oh God. Can I point out the obvious: When you start wanting to put things in the public domain, “because it is a nice thing to do”, then you are veering dangerously left.
    Leave it at 70 years. Honestly, who cares? Books are cheap and plentiful. have accumulated thousands of books trawling though second hand sales and new books go to libraries very quickly.
    It’s just another erosion of property rights.

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  4. davidp (3,540 comments) says:

    I’m with PaulL on this. How many books (or films, or songs) earn more than a trivial amount of money more than a couple of years after initial release? Almost none I suspect. Of the films released over the last 50 years, the only ones that would still be earning more than a pittance two years after release are probably the Star Wars films. And that’s only because Lucas keeps changing them. The idea that a book is going to support a family 70 or 80 years after release is only true for a very few books… Hobbit books for instance.

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  5. Kimble (4,383 comments) says:

    10 years is too short if you consider the ‘sleeper’ publication. The author of those works may not get any return from their work until 25-30 years after it was published and then rediscovered.

    Movies made from the work can spur interest in the book and lead to a massive increase in sales.

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  6. SteveO (76 comments) says:

    Copyright automatically should be seven years. If, after seven years you want to maintain your copyright then you can do so for a further seven years upon payment of say $100 to some yet-to-be-defined copyright agency. After 14 years you can extend for another seven years for $1000. After 21 years a seven year extension will cost you $10000. 28 years, $100000. And so on ad infinitum.

    Obviously Disney and J.K Rowling would consider it worth purchasing more copyright extensions than John Obscure and, if the proceeds went to some yet-to-be-defined worthy cause, nobody would begrudge them that. But the vast majority of books, most of which only generate what little income they ever earn in the year or two after publication, would drop into the public domain a reasonable 7 or 14 years after publication.

    None of which is compatible with the Berne Convention or whatever currently guides copyright law but you didn’t say it had to be.

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  7. Jack5 (4,595 comments) says:

    Twenty years would be about right.

    While we are on book copyright, does anyone know if the agreement still exists between American and British publishers on carving up the world for sales? In NZ we had to buy British editions of books, as they did in Britain, Australia and India and several other places. Canada and the US and the Americas, and I think Japan, had to buy American editions

    Depending on the pound-US dollar exchange rate this meant that sometimes New Zealanders had to pay more for their books than they could by buying (by mail then) from America.

    I hope Amazon’s success torpedoed that agreement – for ever.

    The way it was defended by the publishers was that when an author sold copyright to the publisher that gave them full rights of where and when the title could be sold, and the publishers claimed it was their right to sell an American (or in the US case, British) publisher the sole distribution rights for the buying publisher’s territory. Presumably, this is still how translated-titles sales work.

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  8. PaulL (5,874 comments) says:

    @SteveO: +1

    @Jack5: I think the parallel importing laws broke that particular cartel. Not 100% sure though. Certainly Amazon has.

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  9. Kimble (4,383 comments) says:

    I reckon the work could enter the pubic domain when the public “owns” it.

    So when a work is so well-known that it is part of the language, significant portions of public life are influenced by it, or there is more in the collected work that comes from the public domain that is not subject to the original authors control and that is recognised by the public as an integral part of the work.

    On this last point, consider a work of fiction that inspires a deluge of fan-fiction on which the authors waive copyright. That fan-fiction becomes more popular than the original, and the public cannot distinguish between the original and the rest of the works in the same universe.

    As this could happen with some works instantly, combine it with a minimum initial period for commercial reasons.

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  10. Kimble (4,383 comments) says:

    SteveO, what would the $100 cover? Every Dilbert cartoon, or only a single one?

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  11. Kimble (4,383 comments) says:

    Oh and who gets paid?

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  12. PaulL (5,874 comments) says:

    @Kimble: I think the point is not really the high profile works that become part of public culture. The issue is the wide range of obscure works and thoughts that go out of print after a short period, but that then spring back to life when copyright expires. The hypothesis is that these works aren’t actually making any money for anyone, and their contribution to the sum of human thought is less than they could be if the copyright period were shorter.

    Ideally a policy would determine a point at which a work was going to have a future return of zero or near-zero, and move it to the public domain. Since this work wasn’t going to make any money anyway, nobody is losing anything and lots of people are gaining (even the original author, who is now getting publicity they weren’t before).

    The obvious flaw is that nobody can reliably determine that point. So we have to find another way. My view is that the easiest way is just to pick a fixed timeframe – 10 years as an example. But I quite like SteveO’s idea that you can pay to renew – this then self-selects the works that actually have a commercial return without the need for some central government agency that works it out (almost certainly works it out wrong). This is basically a market mechanism / distributed mechanism where people can make their own judgments on whether to renew or not. It still has winners and losers – some people might not renew then find their works turn out popular – but it is probably fairer than most arrangements I’ve seen proposed.

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  13. Simon Lyall (101 comments) says:

    The period for New Zealand crown copyright is 100 years. Up until 1995 it was 50 but it got doubled for some reason.

    As a result nothing produced by the Government will come into the public domain for another 30 years. This includes virtually all photographs and official publications produced since World War 2.

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  14. Nigel Kearney (864 comments) says:

    If the author or their estate is still able to earn significant income from the work, they should be allowed to do that. If not, the term doesn’t matter because there will be no great interest in prosecuting breaches. So the term should be fairly long and I think 50-70 years is about right. Remember this will apply to movies that go to DVD, re-runs of old TV shows and so on. This income forms part of the business case for making them in the first place.

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  15. SteveO (76 comments) says:

    On a related, but not identical note, I see the Australian Government House Standing Committee on Infrastructure and Communications released its “Inquiry into IT pricing” report earlier this week. Amongst the copyright related recommendations were:

    - remove parallel importation restrictions in the Copyright Act 1968
    - amend the Copyright Act to “clarify and secure consumers’ rights to circumvent technological protection measures that control geographic market segmentation”.
    - educate Australian consumers as to the extent to which they may circumvent geoblocking restrictions.
    - lots of other recommendations that make it clear they don’t like geoblocking.

    Full report here: http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=ic/itpricing/report.htm

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  16. UglyTruth (4,019 comments) says:

    Absolutely books should be subject to copyright for a significant period of time, to allow the author to benefit from them.

    Authors were obtaining a benefit from writing books long before copyright arrived on the scene.

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  17. Weihana (4,496 comments) says:

    Agree with PaulL. 10 years.

    Whether the author benefits or not is a secondary issue. It is only important that they benefit insofar as much as that is significant in contributing to the incentive to create in the first instance. Kimble’s argument about the “sleeper” publication ignores the fact that people are unlikely to publish on the off-chance of being rediscovered 25-30 years later so whether or not they benefit from that is not a public concern. They will just as likely publish on the hopes that it will be a best-seller at the outset.

    Copyright should fundamentally be regarded as a utilitarian principle, not some sort of inalienable property right that belongs to the author until some vague period where it becomes “part of the language”.

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  18. Weihana (4,496 comments) says:

    Nigel Kearney (413) Says:
    August 2nd, 2013 at 12:54 pm

    Remember this will apply to movies that go to DVD, re-runs of old TV shows and so on. This income forms part of the business case for making them in the first place.

    “Business case”? You make it sound like some sort of objective science… we’re talking about creative products for which the case for investment depends primarily on a subjective appraisal of the material. If the material sucks no amount of DVD sales is going to make up for it bombing at the box office and an awful TV show may never have anyone interested in ever watching it again.

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  19. gazzmaniac (2,317 comments) says:

    What about “abandonware” – old software that nobody would ever pay for, that the authors no longer sell, and nobody really even uses any more? I am thinking in terms of MS Windows 3.11, older versions of DOS, old games (>15 years).
    While there are plenty of abandonware sites around, they are technically illegally sharing software (unless they’re in Russia) if they don’t ask permission. What’s worse, is that some older developers do actually follow up to get their games removed from sites. This is despite the fact that you can’t even buy copies of most of those works!

    I don’t think there is any reasonable person out there who would think that a 20 year old (ie 1993) version of Autocad would be of any use to anyone except for someone interested for historical reasons. And while there might be a limited market for old games, again it’s really only for historical interest. The obvious exception is some (certainly not all) scientific software, however the source code or the general principle of how it works for the software is often in public domain anyway (ie in scientific literature*) and there is nothing stopping somebody else recreating the software and selling it themselves provided that it is appropriately referenced.

    It is my opinion that if you cannot buy a piece of software any more, or that if the software you can buy is so significantly different that it might as well be a different piece of software (again, think Windows), that the vendors really should just give up their copyright.

    *There is also a growing problem with scientific literature becoming unavailable because of big journals charging far in excess of what they should be for their issues, and defending it with copyright. One of the big problems is that it is difficult for new journals to get off the ground, since academics invariably want their literature published in the “best” journals and don’t consider even sending to the lesser ones. It is not how the academic system is meant to work, since instead of increasing availability of science it actually has the effect of only allowing people who can afford it to see it. Journals were originally set up to cover the costs of their production (which is quite high when you consider that papers must be peer reviewed) but it is excessive to charge $2000+ for one magazine. Many university libraries can only afford one copy of certain publications, and people cannot photocopy them. IIRC there was a high profile arrest last year of someone in the USA who is now facing 20+ years in jail for illegally downloading journal articles for publication on the internet.

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  20. PaulL (5,874 comments) says:

    @Nigel: I’m not really happy with a policy of having a long period, but have “no interest in prosecuting breaches”. That doesn’t provide certainty, so nobody would use those obscure works for anything. Which is a loss.

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  21. Weihana (4,496 comments) says:

    gazzmaniac (1,665) Says:
    August 2nd, 2013 at 1:43 pm

    IIRC there was a high profile arrest last year of someone in the USA who is now facing 20+ years in jail for illegally downloading journal articles for publication on the internet.

    You don’t mean Aaron Swartz? Computer genius. Committed suicide.

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  22. gazzmaniac (2,317 comments) says:

    That’s the one. You are right and I am behind the times.

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  23. berend (1,634 comments) says:

    Maybe we should research first why books disappear. I suspect after having written a book, it’s a sunk cost. So people just hang on to copyright in case it ever pays off, although it may never.

    Hanging unto copyright is free. What if we make this a fee of let’s say $100 ? If it costs something, we get a more rational and economic decision making process.

    UPDATE: I see SteveO has an extended version of this. SteveO +1!

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  24. UglyTruth (4,019 comments) says:

    Imagine if books never ever entered the public domain?

    No great loss. Fair use is fair use regardless of copyright issues.

    Copyright is just another example of the state protection racket, from which you get corporate predators like the RIAA and related issues like the Dotcom fiasco.

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  25. bhudson (4,734 comments) says:

    Does Labour still promote the policy that artists should be paid a commission if someone onsells a piece of their art they own?

    How would they square that against copyright policy for books, music and video?

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  26. Weihana (4,496 comments) says:

    berend (1,446) Says:
    August 2nd, 2013 at 1:51 pm

    Hanging unto copyright is free. What if we make this a fee of let’s say $100 ? If it costs something, we get a more rational and economic decision making process.

    Interesting idea. Though you don’t have to distribute many copies in order to justify the expense. $100 doesn’t exactly correlate with widespread distribution.

    Edit: I see SteveO’s extended version with increasing fees as time passes. That makes sense.

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  27. RichardX (321 comments) says:

    I believe part of the issue is not with the copyright holder but with the publishers / distributors

    The ‘sunk costs’ Berend refers to are more likely to be sunk by the publisher as the production / distribution costs of producing an physical book.

    With the advent of ebooks, there should have been a paradigm shift of ‘out of print’ books becoming cheaper and but still able to return royalties to the copyright holder

    I’m not talking about books from 10 or even 15 years ago but in some cases books from say 5 years ago that a) is already in an electronic format for production purposes and b) had the initial print run remaindered so is unlikely to ever be reprinted.

    The copy right of such a book is almost valueless whether it is held for 20, 50 or even 100 years

    If however, between the copyright holder and the publisher, a deal was made for the ebook version to be sold for a couple of dollars, everyone benefits and the copyright may have a value

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  28. Martin (9 comments) says:

    “I think it is fair to say the the family of an author shouldn’t suddenly have their income disappear, the moment the author dies.” What?

    Let’s recast the sentence: “I think it is fair to say the the family of a builder shouldn’t suddenly have their income disappear, the moment the builder dies.” Why does an authors family deserve ongoing revenue, but not a builder’s?

    I.e.: If the author cares about their family shouldn’t they simply take out life insurance? That’s what most people are forced to do…

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  29. PaulL (5,874 comments) says:

    @Martin: it probably goes to the concept of whether copyright is a property right or not. If your father owned a house that you live in, and he dies so we decided that the house was now public property and you needed to move out, you might be a little peeved. However, if your father had a lease on that house, and the lease agreement said that when he died it returned to the government, well maybe that’d be OK. The question is whether copyright is like owning a house or like having a lease on a house.

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  30. Alan Wilkinson (1,816 comments) says:

    I’m with Paul’s 10 years too. It’s more than adequate for computer software and reasonable for most literature. It doesn’t take long for printed books to be “remaindered” these days. And non-fiction will probably need to be revised and updated within that time limit. There will be some “classics” which sell well for longer but I doubt publishing competition after a decade will make much of a dent in the author’s wealth.

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  31. Martin (9 comments) says:

    @PaulL A nice analogy: thank you. Given that copyright grants control over the right to make copies (an action), I don’t see how it can be considered a ‘property’ right, though. And as it effectively grants a monopoly over the action for a limited period, I would argue that it’s rather more like a lease. One that affects other people in society negatively, as it confers control over what they can and can’t do…

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  32. PaulL (5,874 comments) says:

    @Martin, that is true. But it also has aspects of a property right – someone creates something, and then has a right to make money from that something that they created. Why should that right to make money terminate simply because the person who originally held that right died? To put it another way, do I have the right to sell that copyright to someone else, to novate it, to leave it to my descendents in my will?

    That’s broadly why I suggested a fixed timeframe rather than “author’s death + x years,” as the latter doesn’t really make any sense to me. So then it would be like a fixed lease, and that fixed lease is itself a property right – I can sell that lease or assign it to someone else such as my heirs.

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  33. Disraeli Gladstone (5 comments) says:

    I feel like this collection of comments doesn’t contain a whole lot of creative people in it, does it? Because it seems to be solely with notions of making money and concepts of property rights. These are important to authors. Writers have to eat and support themselves. Without copyright protection, they’d have to take “proper” jobs to ensure a reasonable standard of living. So yes, money is important.

    However, copyright is also important insofar of the fact that the books are the author’s works. They have put their blood, sweat and tears into it. Some may be phoned in and be utter rubbish that they feel no connection to. However, some are deeply personal and important to the author. If you reduce copyright to twenty or fifty years, then the author could still be alive when the protection on the work becomes a free-for-all. Imagine you owned a family heirloom or a prized possession, and when you’re still alive, it is thrown out onto the street for people to do with it as they please. Maybe break a bit off. Maybe twist it into something else. A lot of people would be pretty upset.

    That’s what authors would be facing constantly if copyright was anything less than life. At least currently, they can control (along with their publishers) what happens to their works. If they don’t want to see a film adaptation, they can stop that. If they don’t want John Doe writing his own fan fiction and then publishing it for monetary gain, they can stop that. Without copyright protection, they can’t.

    Sure, some of you might say, “well, if it’s so important to an author at a personal level then why put it out there in the first place?” But that’s just goes back to the original point. An author has to eat. He has to sell.

    Copyright has to be at least life. Life + 20 years is probably the ideal length. But I don’t really see a huge different between +20 or +50. I don’t think there needs to be any reforms on the matter.

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  34. Jack5 (4,595 comments) says:

    One reason authors and publishers want long periods of copyright may be that second and later printings of books are cheaper than first printings. The overhead of editing, print setup and so on have been done. More important, the publisher now has guidance on how many to print, which is critical to profit or loss on a book. A small and continually rising backlog usually builds up before the reprint order is given.

    Authors usually benefit, too, because under publishing contracts, reprint royalties are often higher per copy in printings after the first.

    Depending on the book type, publishing can be a fairly high risk, moderate profit type of business, much like writing, where only a few per cent of authors make even minimum wage per hour for their work.

    So against the benefits of cheaper, out-of-copyright works, we have to balance the need for publishers to make profit from some titles to keep bringing out many titles. Books in print or electronic form are a pillar of our civilisation.

    Still, I think 20 years from first publishing wouldn’t be a bad length of copyright. This would give cover for most publishers. For special cases, such as dictionaries that continue over a century or more, other types of existing trade protection probably would stifle rip-off merchants.

    Or we could look at renewable copyright, where it costs a publisher to renew protection after, say, 20 years, for another 20 years, or perhaps 10 years. Trademark protection operates on these lines. Or there could be copyright clauses so that if an author wrote a well revised version, the 20 year umbrella existed from the publishing of the revised version.

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  35. wrightingright (138 comments) says:

    NO COPYRIGHT! So called “intellectual property” is an attack upon true property rights.

    http://mises.org/document/3582/Against-Intellectual-Property

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