Supreme Court to decide: can Congress take books out of the public domain?
Sometime in the future…
“I’m here to collect fifty dollars in royalties.”
“Royalties? For what?”
“You posted a YouTube video featuring your children seeing a song owned by client.”
“What? What song?”
“Jingle Bells? Listen, this must be a mistake…I looked it up before we posted. That song was published in 1857! It’s in the public domain.”
“It was. Congress reinstated the copyright, and the people I represent, DeadGuyMusic.com, purchased the rights for the USA. Your lovable tykes; performance infringes upon my clients’ legally established domain. If you do not pay the $50, we will be forced to bring federal charges.”
“I…I guess I’ll pay it.”
“Thank you. I’m off to shut down Ms. Patel’s third-grade class performance of The Wizard of Oz.”
“No, they are just reading the novel out loud. I also represent DeadGuyBooks.com…”
Could this happen?
Could Congress take books out of the public domain?
That’s one of the things that the Supreme Court will look at this term…and possibly very soon.
It could hypothetically really affect the books we read.
Many, if not most, of the books I’ve read on my Kindle are free public domain classics.
Public domain books in a case like that have typically been under copyright protection at some time, but have fall into what is called the “public domain”. At that point, they belong to the public…anyone can publish them without having to obtain (typically pay for) the rights from anyone.
That’s the basis of Project Gutenberg:
That great organization has volunteers digitize books that are in the public domain, and then distributes them for free as e-books.
Once a book falls into the public domain, it stays there.
At least, it used to stay there.
The problem is that the USA has some kind of convoluted copyright laws…we used to require a specific way for a copyright notice to be displayed, people used to have to renew the copyrights, and so on.
If you think that doesn’t matter, ask George Romero. When Night of the Living Dead was released, a distributor changed the title…and replaced the “title card”. The copyright notice had been on the original title card, and so it was released without a notice by accident.
Since then, anybody who wants to do it can release Night of the Living Dead…and they have, in some really shoddy editions (and some good ones, too). The loss of copyright also meant that other people could do derivative works…no, I’m not talking about all those other zombie movies out there. If you want to make a musical of Night of the Living Dead, and it’s in the public domain, you don’t have to get permission. There was an interesting internet version done in many animation styles (called Night of the Living Dead Reanimated).
That may sound bad (or good) to you. When something falls out of copyright, people can do anything they want with it. I’ve talked about the idea before of copyright being permanent, but this is something different.
The issue is that we sign international copyright agreements, which is important to protect our citizen’s intellectual property. If anybody could distribute the latest Hollywood movies abroad with impunity, that would be really bad for our economy. Many of our movies make most of their movie outside of theatres in the USA nowadays.
We run into a situation with that: the “rule of the longer term”. Effectively, we may agree that if a work is still under copyright under some other country’s rules with whom we have a treaty, we will have the book be under copyright in our country.
That’s fine, although complicated. We don’t have the longest terms (Mexico beats us, for one), but we could still make that work.
The weird thing is that Congress reinstated some copyrights under that situation.
Things like Peter and the Wolf were put back under copyright protection in 1994.
So, let’s say you were a music publisher, and you put out the sheet music for Peter and the Wolf when it was in the public domain.
Now it isn’t.
You’d have to stop selling your sheet music…or pay royalties on it.
Things take a long time to get to the Supreme Court…so they should be deciding this in 2011.
There are people who make their living (or try to) selling public domain e-books. That’s in addition to the free ones we get, of course. Nothing illegal (or wrong, in my opinion) about that. If you buy an obscure paperbook at a garage sale and go to the trouble to digitize it (assuming it’s in the public domain), I don’t see a problem with you wanting compensation for that.
If the Supreme Court says that it’s okay for Congress to restore copyrights, all of that gets risky (even if it’s unlikely they will restore the copyright to, say, A Study in Scarlet or Alice in Wonderland).
What if the Supreme Court says its unconstitutional for Congress to have restored copyright?
We might have to drop out of some international treaties. We might have to rewrite our copyright laws to be match other countries.
What happens is some other country then retroactively makes their copyright go back 1,000 years?
Do we match it?
Copyright has been getting longer over time as the “shelf life” value of creative works has gotten longer.
Whichever way this goes, it’s going to be interesting to see how it affects what we can read.
gives you more in-depth background.
This post by Bufo Calvin first appeared in the I Love My Kindle blog.