Supreme Court to decide: can Congress take books out of the public domain?

Supreme Court to decide: can Congress take books out of the public domain?

Sometime in the future…

“Mr. Cratchit?”


“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.”

“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,, 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.”

“The musical?”

“No, they are just reading the novel out loud. I also represent…”

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. ๐Ÿ˜‰ 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’veย 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.


National Law Review article

gives you more in-depth background.

This post by Bufo Calvin first appeared in theย I Love My Kindle blog.ย 


7 Responses to “Supreme Court to decide: can Congress take books out of the public domain?”

  1. tuxgirl Says:

    Hmm… sounds like I should go ahead and write a script to download all contents of to my personal machine. I would do, but most of the stuff that they have and is missing isn’t stuff that’s likely to get re-copyrighted…

    So, do other countries agree to respect our copyright? For example, Canada and Australia have different copyright terms than we do. How do they handle this situation?

    Personally, I think copyright term is too long. I also don’t understand how we can justify retroactively increasing a copyright term. The purpose of copyright (according to the US) is to encourage creativity. If something creative has already been made, you are not encouraging its creation by increasing the length of copyright on it. Due to its creation, we can infer that the shorter length of the term was not a disincentive to its creator, so adding more now isn’t going to incent them to create more (especially if they’re dead).

  2. Edward Boyhan Says:

    The NYT has an oped in the International Herald Tribune
    about this very issue — seems to favor the SCOTUS reigning in congress.

    You and I will have to disagree here. I think intellectual property (IP) protection is badly broken in the US in light of technology changes over the last half century. I think that the DMCA, the recently passed patent law revision, and the decision many years past to grant patent protection (instead of copyright protection) to software are/were ill-conceived. The current patent war upheaval in the technology industry is just the latest example of how things have gone badly awry.

    We need to go back to first principles and think about what we are trying to accomplish with the four legs of IP protection (copyrights, patents, trade marks, and trade secrets). Perhaps this four-legged approach is wrong for this modern age? Too much horse-trading in DC over who gets the rights to what is ceding too much power to large corporations. IP protection should not be perpetual — in some cases (medical science, drug research) the terms should be extended. In others (copyright and certain trademarks) terms should be limited.

    For copyright I am firmly of the belief that the creator of the content should have an absolute right to his content, and he can assign it to no one else (which means author deals with publisher would be markedly different). The right to the content rests with the author for his lifetime after which it goes into the public domain. In particular the rights could not be left as a legacy (perhaps with a few exceptions for spouses and young children). When an author creates a work, he/she should be the major beneficiary of what economic benefits flow from the work — it’s how he supports him/herself during his/her lifetime (with some limited exceptions for spouses and young children — but in no case should the work remain out of the public domain beyond the lifetime of the spouse and/or the children achieving their majority).

    Certain aspects of innovations (like user interfaces) should not be patent-able.

    Clearly these ideas are radical — they are but discussion-point strawmen — the ip-protection system is broken — it needs a rethink from first principles in light of new technologies..

    • bufocalvin Says:

      Thanks for writing, Edward!

      I think we both agree that the copyright and other intellectual property laws in the US could use revision.

      I also agree with you that we disagree over how. ๐Ÿ™‚

      That’s fine with me…you present your points well.

      The biggest problem I have with a “lifespan” based system (such as the one we have now for books first published in the the USA since 1977) is that it is inherently ageist. Someone who writes a song when they are twenty years old is statistically likely to be able to make money from that song for a much longer time than someone who writes a song when they are ninety. That seems unfair.

      One of the key things that has changed over time is the shelf life value of intellectual property. In 1966, what was the market value of a song written in 1921? How does that compare to the market value of a song written in 1966 today?

      I’ve never understood the idea that after a certain amount of time, the state takes away the value of something that was created. I’ve used this analogy before, but what if someone built a house. Would we say that after your children died, the state automatically takes it away from your descendants and anybody can live in it?

      At this point, I think we’ll agree that what we have now should be rethought thoroughly…in particular, in the light of a global market and how we will interact with other countries on IP.

  3. Man in the Middle Says:

    Another blog pointed out today that lengthening copyright durations and the DCMA are examples of ways our government has bailed out Hollywood in recent years. I have to agree to this extent: if it is left up to Disney, Mickey Mouse will NEVER be in the public domain. Why that would be good for anyone other than Disney, I can’t imagine.

    • bufocalvin Says:

      Thanks for writing, Man!

      There is no question that Disney had an impact on the Copyright Term Extension Act in 1998. They may be the company that has the strongest corporate strategy of protecting and extending the value of its creative properties. That’s a big reason why Mickey Mouse still has value more than eighty years after the first cartoon.

      I’d challenge the idea that it was a “government bail-out”, though. That suggests the ship was sinking. That wasn’t the case for Disney in the late ’90s…they really reinvigorated their live action business prior to the extension with Glenn Close in 101 Dalmations.

      As to who (or what) would be helped by maintaining the copyright:

      • Children. While putting Mickey Mouse in the public domain would mean that kids would be able to see Steamboat Willie for free, it would also mean that there would be shoddy reproduction, poorly animated and written new cartoons, and legal Mickey Mouse pornography. While Mickey Mouse hasn’t always been entirely G-rated, Disney has maintained that part of the character. Certainly, that may be because it is good for their bottom line, but that motivation for protectiveness largely goes away if he is in the public domain
      • The economy. One could argue that small companies could make money by streaming Mickey Mouse online, and certainly, some people make money from public domain books and movies. However, PD is often available for free, and reproducing it is done by very small scale operations. A huge multinational corporation like Disney hires a lot of people and pumps a lot of money into the economy. Taking away one of their properties simply because an arbitrary time period has passed doesn’t help. I would guess it would take more than a million PD versions of Steamboat Willie online to equal the economic effect that Disney has. At this point, intellectual property is one of the things the USA is good at exporting…you don’t want to diminish that value
      • The cultural legacy. Don’t like that a company is going to publish Tom Sawyer with one character’s name changed to “Slave Jim” (which is inaccurate, for one thing)? Don’t let intellectual property fall into the public domain
      • Artists. If their works have more value….their works have more value. ๐Ÿ™‚ ,

      I can give you counterarguments for all of these, of course. ๐Ÿ˜‰

      It’s a complex topic. Public domain contributed to the creation of The Wiz, Wicked, and Forbidden Planet. However, I wouldn’t argue that those works would not have existed if they’d had to license the rights from somebody…

  4. Man in the Middle Says:

    I thought the original idea behind copyright was to ensure individual content creators and their immediate heirs benefit from the success of the content.

    However, once that benefit is extended beyond the author’s lifetime and that of his immediate direct dependents, such a benefit can become an unfair tilting of the playing field for the competiion of later generations. The American ideal is that anyone can become the next Steve Jobs. But when some kids are born already millionaires, and other kids start with nothing, that ideal may not reflect reality as well as we’d like. That’s the main reason I favor inheritance taxes – that, and the idea of only having to pay it after I’m dead.

    • bufocalvin Says:

      Thanks for writing, Man!

      Nope, no mention of immediate descendants in early copyright in the USA. The 1790 act granted copyright for fourteen years, with a renewal of another fourteen years…if the author was still alive when the first term ended. No mention of children. If you happened to live more than 28 years past your copyright registration, you also lost the rights to it.

      I’m going to leave alone the question of wealth distribution…it’s certainly a fertile ground for discussion, but I’m not sure it fits this question…and it could bring up a lot of impassioned discussions about current affairs that are beyond the copyright question.

      One of the original motivations for copyright was for map makers. Making a map was a dangerous thing to do in the Eighteenth Century…you actually had to go out and look at the coast, for example. ๐Ÿ™‚ If you made a map of the coast and a possible cost of years and lives and everybody just reproduced it and sold it, there wasn’t much motivation to make that map.

      We can look at a few possible philosophies of copyright:

      1. There should be no copyright. Authors should create for the joy of creation, and what they create belongs to the society
      2. Authors should be able to make money on what they create for a limited time…then what they create belongs to the society
      3. Authors own what they create, and they can sell it to other people, in a manner similar to building a house. There doesn’t come a point when it belongs to the society

      There are arguments for all three of these, and they aren’t terribly hard to find.

      There is no question that the US Constitution (which was codifying what had been basically a suggestion in the Articles of Confederation, which was in turn inspired by the Statute of Anne in England) falls into the second category of thought. It was creating a national policy, similar to what is being sought for sales tax today, to unify what had been different state statutes.

      Having unlimited copyright terms would probably require amending the Constitution (since it says “limited”), although I think Jack Valenti suggested copyright be for something like “one day short of eternity”). ๐Ÿ™‚

      It’s unlikely to happen (amendments are hard), but I think the terms will continue to lengthen as the value of older works continues to increase. We can disagree about whether or not that’s a good thing :), but that’s my guess on the trend.

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