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I'm All for Protecting Authors--But for How Long?
Contributor
Written by
State of the Art
January 2011
Contributor
Written by
State of the Art
January 2011

Sarah Glazer discovers a lot of great books and movies won’t come out of copyright this year and wonders if a century is too long to protect them.

For some people this New Year’s Day was really a day of mourning. It was a day to weep over the great works of literature, film, music and science that DIDN’T become available for all of us to copy freely—if you observed Public Domain Day 2011.

Lord of the Flies, Waiting for Godot, Hitchcock’s film classic Rear Window—all of these works from 1954 would have exited copyright protection and entered the public domain on New Year’s Day under the copyright law we had until 1978. That means you could have read or printed those works online for free, quoted as much as you wanted, republished or made a play or movie from them. You could have showed Rear Window, spliced it, remixed and made documentaries about it.

But under current law these works won’t enter the public domain until 2050.

In some of my earlier blogs, I’ve stood up for authors’ rights to earn a living from their intellectual property.  and railed against illegal internet copies

But I admit I was astounded at all the great stuff that will stay locked up for another 40 years or so when I read the list issued this month by Duke Law School’s Center for the Study of the Public Domain.

Before the 1978 change in the law, the maximum term of copyright was 56 years. So you can see that all those works published in 1954 would have passed into the public domain on Jan. 1, 2011. But now U.S. law extends copyright protections for 70 years from the date of the author’s death. And the copyright term for works published between 1950 and 1963 was extended to almost a CENTURY (95 years) if the copyright holders met certain conditions.

Here are just a few of the works that didn’t come out from under copyright protections this year. Read it and weep (if you were hoping to read these for free):

-- J.R.R. Tolkien’s The Fellowship of the Ring and The Two Towers

--C.S. Lewis’ The Horse and His Boy, the fifth volume of The Chronicles of Narnia

--Tennessee Williams’ Cat on a Hot Tin Roof

--Alice B. Toklas’ The Alice B. Toklas Cookbook

--Samuel Beckett’s translation of Waiting for Godot.

 

The movies from 1954 are some of our great classics. And many of them are deteriorating just at the point when we have the technology to digitize and save them—if only we had free access to them:

--On the Waterfront, starring Marlon Brando

--The Barefoot Contessa, starring Humphrey Bogart and Ava Gardner

--Hitchcock’s Dial M for Murder, starring Grace Kelly and Ray Milland

--Walt Disney’s 20,000 Leagues Under the Sea, starring Kirk Douglas

--White Christmas, starring Big Crosby, Danny Kaye and Rosemary Clooney.

 

If you’re writing about scientific research from 1954, many of those copyrighted scientific journal articles about subjects like quantum theory remain protected behind paywalls—a frustrating experience many of us are already familiar with.

This isn’t what the Founding Fathers intended, according to critics of the copyright law: “Jefferson or Madison could look at the books written by their contemporaries and confidently expect them to be in the public domain within a decade or two,” Duke’s legal experts say. The first copyright law of 1790 specified a copyright term of just 14 years with an option to renew for another14.

According to experts at Duke and elsewhere, the majority of 20th century creative works are ones where the copyright owner cannot be found. But since the law retroactively and automatically applies to such works, librarians are reluctant to digitize those “orphan” books.

“The costs here are huge: … prohibitive costs for libraries, incomplete and spotted histories, thwarted scholarship, digital libraries put on hold, delays to publication,” the Center says on its website. 

Of course, there is always another side to the story. A friend of mine who is a fan of 1960s British rock told me UK’s copyright law was bilking the aging performers of those songs.  A few years ago, Beatle Paul McCartney and British pop star Cliff Richard campaigned to extend the period that performers are entitled to royalties-- from the 50 years under British law to 95 years after their original performance. Their model? U.S. law.

Cynics called it “the Beatles extension.” But elderly musicians without pensions, like  Herbie Flowers, who played bass on Lou Reed’s recording of Walk on the Wild Side, pointed out that royalties would cease “just at a time when I will need it most.”

In 2009, the European Parliament gave musicians like Flowers a partial victory when it voted to extend the term of copyright protections for performers and record producers to 70 years. 

Of course the extension was not welcomed by those who restore and sell old recordings. “You can say good-bye to independent European vintage CD reissues,” one of them warned

 

How long do you think copyright protection should extend? Should we go back to a mere 14 years? Stick with 95 years? Or ratchet down to somewhere in between?

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Comments
  • Kate Gould

    I think writers' rights should be protected so their work isn't stolen, but I think 95 years is extreme.  I agree with Elaine Showalter on this - you'd think that people would be pleased to see work published that might have remained unread. Publishing obscure writers is an area I'm developing with my own publishing company and sorting out who owns what is nigh on impossible.  Does anyone know what the situation is regarding publishing writers in ebooks?  Do the same rights restrictions apply?  I've contacted the US copyright office and various publishers, but no one actually seems to know the answer.

  • State of the Art

    Elaine Showalter, the distinguished feminist literary critic, has just brought to my attention her blog on the nightmare of getting permission to include works by long-dead authors in her new anthology, The Vintage Book of American Writers.  Her anthology includes works by some of the talented but long-forgotten writers she discovered and highlighted in her celebrated literary history of American women writers, A Jury of Her Peers, in which she covers over 350 years of writing in America.

    As she describes the process, “it was really an education in Dickensian bureaucracy, greed, control freakery, inefficiency, lying, and the blindness of copyright holders to realities of all kinds. I thought that many executors would be happy to have some long-forgotten story or poem by an obscure woman writer republished, and see it as an opportunity to find new audiences. With a few stellar exceptions, not the case.”

    Showalter describes permission editors who asked for exorbitant sums for negligible works, authors’ representatives who wanted to vet her brief introductions to the selections and demanded to know who came before and after them in the book. Some even demanded revisions to Showalter's introductions, objecting to some of her critical statements. “I finally had to drop twenty of my original 100 writers because they were too expensive or just inaccessible,” she writes.

    It seems a shame that someone trying to introduce us to wonderful writers we've never heard of (and won't get to read if their works are out of print) should be so frustrated in this effort. It's a loss for us, the readers, and no gain to the author's estate if this is the outcome.

  • This is a complicated issue but basically I'm in agreement with Eliza on this one--artists and creators should be paid for their work. The problem is that too often it is the publishers and lawyers who are making the money, not the artist or their family.

     

    I say this from both sides of the desk. I’m an audio publisher and sometimes we have to forego a project we’d like to do because the estate of a writer wants entirely too much money for our limited runs. Like so many other things in our country these laws favor the corporation over the individual. Families and creators who have their acts together then have to behave in a similar fashion to the larger corporations in order to survive thus making it difficult for interaction with independent publishers, filmmakers, musicians, etc. to work with the material.

     

    On the other hand as a writer I’d like to be paid for my work and not get ripped off. And as a family member of an author I’m in the midst of doing copyright searches for my grandfather’s prolific output of adventure stories. Between the giant mega-corporation that owns some of his work and the copyright mills that are out there grabbing whatever they can find and reprinting it in cheesy formats it’s pretty discouraging. He never made much money off his work and his family certainly never benefited but other larger entities and the people who own them are. It’s hard for authors to be found? Yeah, well try pinning down the copyrights on your own without a phalanx of lawyers to figure out who owns what from all the agreements signed and corporations that changed hands. This is a hot button issue for me!

  • Elizabeth Marchat

    In a world where everything is bought and sold, why would intellectual rights be any different? If someone wants something I created let them buy it. If I write it, I own it until I sell it or die, and then it should be part of my estate to be handled as I directed. If it costs the government to record the first copyright, okay, but I'm recommending copyright in perpetuity. JMHO, Eliza