Since its codification in Britain in 1710, the length of copyright protection has continued to be extended, from an initial 14 years to today’s 70–120 or more years.

Before 1790

In Europe in the early fifteenth and sixteenth centuries, as printing began to spread, copyright only existed as a monopoly granted by royalty to specific printers to cover specific works. It was not a general rule of law that covered all written work, much less all printed texts. In England in the seventeenth century, the Stationer’s Company–a private organization, albeit one with government recognition–gained the absolute right to manage and grant the right to copy printed texts. The first recognizably modern version of copyright in England, and the one to which modern American copyright can trace its roots back, was the Statute of Anne, passed by the British Parliament in 1710.

In early modern France, royal decrees before the eighteenth century established the duration of copyright to last in perpetuity, at least until rights were sold to a publisher (which would then limit the duration). Remnants of this focus on authors can still be seen in the sense of the “droit d’autor” and artistic “moral rights.” Post-Revolution, rights were limited to the lifetime of an author plus 5–10 years. The notion of literature as public property at heart, but granted to people for a length of time, was entrenched in the system.

As of 1710, the Act granted monopoly rights to publishers for the period of 14 years, for the express purpose of encouraging “learned men to compose and write useful books.” This Act effectively created the legal category of the “public domain,” since once the 14 years expired, texts could be copied by anyone and belonged to no one (or to the public at large). The Lords confirmed the limited duration of copyright in Donaldson v. Beckett in 1774, a decision inherited in the United States as part of our common law (even though the Statute of Anne itself did not apply to the colonies).

1790: 28 years

In 1790 in the United States, the first Copyright Act of 1790–closely modeled on the Statute of Anne–created a copyright term of 14 years from date of recording, along with the potential for renewal by surviving authors for another 14 years. Total protection, then, consisted of a maximum of 28 years.

1831: 42 years

In 1831, a revision to the Act extended the initial potential copyright period to 28 years, with the potential to extend it for another 14. The maximum thus became 42 years.

1909: 56 years

Image via Wikipedia

In 1909, Congress reformed copyright again, changing the duration to be an initial 28 years, followed by a possible extension of another 28. Total potential protection, then, was now 56 years.

1976: life + 50 or 75 years

The 1976 revision was, arguably, the most radical change to the law in 200 years. Copyright was changed to be the lifetime of an author plus 50 years, with works for hire (those that were commissioned or were produced at the behest of a corporation) protected for a total of 75 years. Fair use was codified specifically in statutory law at this time too, although the specifics of application were left to the courts. Much of the goal of this Act was to bring the United States in line with the rest of the world.

1998: life + 70 or 120/95 years

In 1998, the Copyright Term Extension Act extended the length copyright again, to the life of the author plus 70 years, or, when considering corporate “authors,” 120 years after creation or 95 years after publication, whichever is earlier. Additionally, this Act also covered works created in 1923 or later, applying the new durations to those works.

Related articles

• Copyright and Fair Use — Information & Library Services (umuc.edu)
• You do not get an “A for effort” with copyright

Alice in Wonderland, from Google Books

Randy Pickerhas a fascinating post on the Faculty Blog of the University of Chicago’s law school of the copyright status of scans (by Google, for example) of public domain works. Does the effort of digitizing the work qualify as enough original effort to create a new copyright?

Where does that put Google (and Dover) with its digital scanners? We are starting to see skirmishes over photographs and scans of public domain works. The British National Portrait Gallery got into a spat with Wikipedia when Wikipedia uploaded onto its website digital images created by the NPG of public domain works in its collection. Actual caselaw is scarce, with Bridgeman Art Library v. Corel Corp., a 1999 federal district court decision, as a leading case. The court characterized the dispute as one over “‘slavish copies’ of public domain works of art” and concluded that such copies lacked the spark of originality and therefore could not be copyrighted. via The University of Chicago Law School Faculty Blog: Scanning the Public Domain.

In my (limited, provisional) opinion scanning works and putting them online is indeed essentially a “slavish copy.” Even the OCR of the text into a searchable format–which might well require effort and inventiveness–would not, in my mind, produce text that was any more copyrightable than the original public-domain work. It doesn’t matter how much effort Google or others invest–only creative effort is rewarded, not effort generally. Perhaps the manner in which Google displays the works might be protected intellectual property (but maybe not); certainly the software used to scan, OCR, and index the text has a good chance of receiving protection. But the text itself? I don’t think so.Picker points out that Google has tried to include language to try to protect their effort and limit the potential uses of the file:

That isn’t to say that an owner of such a digital file couldn’t try to control use of it through some means other than copyright. Go to Google Book Search and download Alice in Wonderland. The first page is from Google, not Lewis Carroll, and it offers a strong defense of the public domain: “Public domain books belong to the public and we are merely their custodians.” Then we get to the next word “nevertheless” and you can guess what follows: digitization is expensive — as indeed it is — so Google has imposed a series of limits on how the digital file can be used.

But whatever they try, I just don’t think legally  they’ve entered the realm of copyright — contract law, maybe, but not copyright. Of course, there’s ongoing efforts to strengthen copyright protection and extend it, but failing that — simply digitizing books, however much work it requires, simply shouldn’t meet the minimum level of creativity required for copyright.

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• Violating copyright was defined as “infringement,” not “theft” (and remains so today).
• Before the Act, printers, not authors, were the ones granted monopoly rights over works.
• The United States, before and after the Act, was the source of many illicit reprints of British texts–since America did not get similar copyright rules until much later.
• Copyright was designed to create an incentive to create, but to still permit an eventual public benefit by expanding the public domain.

Want more discussion on how copyright ought to function? To commemorate the anniversary, the British Council asked just that question:

The world’s first copyright law was passed by the English Parliament on 10 April 1710 as ‘An Act for the Encouragement of Learning’. Its 300th anniversary provides a unique opportunity to review copyright’s purposes and principles.  If today we were starting from scratch, but with the same aim of encouraging learning‚ what kind of copyright would we want?

via Copyright 1710–2010 « Counterpoint.

There are a number of interesting ideas in there that are worth thinking about, including:

• Cory Doctorow’s proposal that copyright law ought to “recognize and celebrate the wonderful thing that is copying.”
• Mark Shuttleworth suggests, “It’s time to get creative about the incentives for creation.”
• Alex Fleetwood writes, “Copyright has become synonymous with the protection of endangered cultural industries.”
• Lawrence Lessig believes that the “problem that we are confronting is the result of a law that has been rendered hopelessly out-of-date by new technologies.”

It may seem unfair that much of the fruit of the compiler’s labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not “some unforeseen byproduct of a statutory scheme.” … It is, rather, “the essence of copyright,” … and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but “to promote the Progress of Science and useful Arts.”

from Feist Publications v. Rural Telephone, 499 U.S. 340 (1991).

The history of copyright is complex, but in my research to the disputes before and after the Statute of Anne (also known as the “Act”) passed the British Parliament in 1710, copyright — when it finally existed — was not “theft,” but “infringement” of one sort or another, at least under the law. Still, there were arguments then on this that were quite similar to the ones we have today, and claims of “piracy” of intellectual property have a long history.

Before the Act (but after the invention of movable type), printers were granted exclusive — and often effectively perpetual — monopoly rights in England to control reprinting and copying of books. (There were no such laws that applied in the United States until much later. America was the source of many illicit, although not illegal, reprints of British works.)

The Act changed this, and put rights in the hands of authors for the first time (although printers could purchase the rights from them), but only for a limited duration.

Printers nonetheless tried to argue for a perpetual copyright, saying that common-law precedents from before the Act should take over once author’s rights expired. Instead of falling into the public domain, the rights should go to the printers.

While this was based on English common law, it was also grounded in an idea that so-called “natural law” put creations of the mind on the same footing as tangible or real property, and thus that ownership should be perpetual. Much of this drew from theories like those of English philosopher John Locke that “sweat of the brow” created property rights. That is, by investing effort — farming, hunting, manufacturing — an individual thereby gained ownership rights. This is the same philosophical strand that still emerges today in very similar arguments, but that has been firmly rejected under U.S. law.

In England, the House of Lords rejected this argument in Donaldson v. Beckett, 1 Eng. Rep. 837 (1774), holding that the Act extinguished even the possibility of such a perpetual copyright (if it had even ever existed, which is still debated). The U.S. Supreme Court held similarly in its first copyright case, Wheaton v. Peters, 33 U.S. 591 (1834), and has continued to do so.

The goal of copyright is not to reward creators for their efforts. Copyright does not come into being because authors labor over their novels. Instead, the point is to create an incentive to create, while leaving open the eventual public benefit:

The law was meant to provide an incentive to authors, artists, and scientists to create original works by providing creators with a monopoly. At the same time, the monopoly was limited in order to stimulate creativity and the advancement of “science and the useful arts” through wide public access to works in the “public domain.”

via A History of Copyright in the United States from the Association of Research Libraries.

Although there is ongoing disagreement still if this is the way copyright should function, nonetheless under the law as it now stands, investing effort into a creation does not create a property right akin to the rights in tangible objects. However natural and fair it may seem, rewarding effort alone is neither the goal nor the basis of copyright law.

Compare Google to other companies, like ProQuest or Elsevier. These two (among other companies) charge “exorbitant” fees to libraries for access to research materials. I think anyone who has ever worked in a library would agree that the costs of access are frustrating and increasingly impossible, and take a larger and larger chunk of library resources, even as library budgets are shrinking. Negotiating with them is an ongoing challenge, and the tools they provide — while powerful — are nowhere near the level modern technologies should allow. Contrast this with Google, which “has given us Google Scholar, Google Books, newspaper archives, and more, often besting commercial offerings while being freely accessible.”

Google Books has revolutionized the way many students and professors approach historical research. The size of one’s local library is no longer a limitation to the kind of research work one can do. I am no longer dependent exclusively interlibrary loan to get access to books my university lacks. Even if I eventually I want to actual, physical book, with Google Books I can see if it will be useful before I waste the time  (or the very limited funds I have currently to buy it myself).

Cohen also points out, however, that for all the utility of the service, Google “remains strangely closed when it comes to Google Books.” Cohen writes, “The real problem — especially for those in the digital humanities but increasingly for many others — is that Google Books is only open in the read-a-book-in-my-pajamas way.” Google has chosen not to maximize access to public-domain books, or abandoned books. To do so would potentially revolutionize the entire sphere of intellectual property and the publishing industry — the kind of revolution Google is famous for in other spheres, but which it has not chosen to push now. The current settlement may indeed be problematic, but it is not revolutionary. Cohen notes:

We should remember that the reason we are in a settlement now is that Google didn’t have enough chutzpah to take the higher, tougher road — a direct challenge in the courts, the court of public opinion, or the Congress to the intellectual property regime that governs many books and makes them difficult to bring online, even though their authors and publishers are long gone. While Google regularly uses its power to alter markets radically, it has been uncharacteristically meek in attacking head-on this intellectual property tower and its powerful corporate defenders. Had Google taken a stronger stance, historians would have likely been fully behind their efforts, since we too face the annoyances that unbalanced copyright law places on our pedagogical and scholarly use of textual, visual, audio, and video evidence.

via Dan Cohen’s Digital Humanities Blog » Blog Archive » Is Google Good for History?.

Much as I would have liked to see the IP regime change and to see Google leading the effort, perhaps such an attempt is unrealistic. Google understands Web data. It’s engineers understand electronic sources, hyperlinks, software, and PDFs. Their approaches and algorithms have revolutionized Web searching. But the people at Google have less of an understanding of the kind of research and writing done in the humanities, the books historians write, and the articles and research we produce. Cohen writes:

Because Google Books is the product of engineers, with tremendous talent in computer science but less sense of the history of the book or the book as an object rather than bits, it founders in many respects. Google still has no decent sense of how to rank search results in humanities corpora. Bibliometrics and text mining work poorly on these sources (as opposed to, say, the highly structured scientific papers Google Scholar specializes in). Studying how professional historians rank and sort primary and secondary sources might tell Google a lot, which it could use in turn to help scholars.

Google has managed to move into new areas before, from search to building hardware and software (the Nexus One), for example. Why couldn’t they learn from the humanities and not just from other engineers? Advertising, after all, is already a combination of engineering, humanities, and business — so why couldn’t Google developers learn from history scholars to improve their search algorithms for Google Scholar and Google Books?

I’m excited to announce that starting today, Google Books will offer free downloads of these and more than one million more public domain books in an additional format, EPUB. By adding support for EPUB downloads, we’re hoping to make these books more accessible by helping people around the world to find and read them in more places. More people are turning to new reading devices to access digital books, and many such phones, netbooks, and e-ink readers have smaller screens that don’t readily render image-based PDF versions of the books we’ve scanned. EPUB is a lightweight text-based digital book format that allows the text to automatically conform (or “reflow”) to these smaller screens. And because EPUB is a free, open standard supported by a growing ecosystem of digital reading devices, works you download from Google Books as EPUBs won’t be tied to or locked into a particular device.

via Inside Google Books: Download Over a Million Public Domain Books from Google Books in the Open EPUB Format.

This kind of access shows some of the potential of the public domain to allow for innovation and reuse. Thank Google — and Google advertisers, of course — for making it free. (They could legally sell public-domain works — there is no legal requirement that such access be free and open.)

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What does it mean to our culture that we have imposed the most draconian restrictions on the reuse of intellectual creations than at any other time?

1. We are the first generation to deny our own culture to ourselves.

2. No work created during your lifetime will, without conscious action by its creator, become available for you to build upon.

via The Public Domain in 2 Twitter sized bits.. | The Public Domain.

Mike Masnick at Techdirt adds to this:

For people who don’t recognize the importance of the public domain and the nature of creativity, perhaps this seems like no big deal. But if you look back through history, you realize what an incredibly big deal it is — and how immensely stifling this is on our culture. And then you realize this is all done under a law whose sole purpose is to “promote the progress” and you begin to wonder how this happened.

via Copyright Length And The Life Of Mickey Mouse | Techdirt.

The changes and restrictions of copyright are unprecedented. Yet our technological progress — and cultural output, at least — has grown exponentially over time, even as our IP restrictions have increased. Is there a correlation or connection?

I believe over-restrictive copyright hampers innovation, but I also believe it’s not a simple equation. It’s about balance, and I’m looking for evidence to find the “sweet spot” that balances the rights of creators with the utility to end-users.

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Randy Picker responds by saying:

We should review how the public domain works. The public domain is sold every day. Every time you buy a copy of Hamlet you are paying for a public domain work. I do H.G. Wells’s The War of the Worlds in my copyright class on this starting with Project Gutenberg — free, of course — and then heading to Barnes & Noble and Amazon, where the prices range from $2.50 to $13.95 see slides 3 to 13. That is precisely the nature of the public domain: anyone can use it for whatever they want, including selling it. The AP is fully within its rights to sell public domain content just as Amazon does every day.

via The University of Chicago Law School Faculty Blog: The Associated Press: Selling the Public Domain?

To restate: there is absolutely nothing legally wrong with the AP licensing or selling public-domain content. To paraphrase concepts from the open source world, public-domain content is free (as in speech, “libre”) not free as in beer.

As Picker puts it, “Public domain content is outside the copyright system. Again that is its nature.”

You have no right to access of public-domain materials (perhaps unfortunately). You have no right to get them without paying. Instead, such materials are free for anyone to use in any way they wish. The AP can sell the material. You can sell the content. Anyone can do with it what they wish.

(A side note: a license by the AP to such content may be invalid, in the sense that once you have it, you can do with it as you wish — although potentially you may still breach a contract you have with the licensor. Picker, for example, writes, “Ordinary rules regarding contracts and licenses should apply to circumstances under which someone is given access to public domain content.” I can envision counterarguments. In other words: it’s complicated. Thus the existence of lawyers.)

Bizarre? Unfair? Strange? Perhaps. But consider that the protections of copyright are a modern addition to the world. Pre-18th century (to grossly simplify things), if you sold your manuscript, you sold the “copyright” as well. All intellectual creations were, in a sense, in the public domain (although the concept didn’t quite exist — without modern copyright, there is no concept of “public domain” either — there is simply one state, not too).

Modern copyright changed this, and arguably encouraged creation — but it also locks up works in various ways as well. Thus the need for a balance, I believe, between the protections of intellectual property (which is not quite like ordinary property, which is why you only “infringe” IP) and the dizzying freedoms of the public domain.

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Legal Research Plus brought this to my attention, originally from the Daily Journal:

… Several months ago, …  Irvine attorney [Ed Connor] learned the California Supreme Court had given his 143-page brief to the legal information service LexisNexis, which was making it available online for a fee.…

via LexisNexis and Westlaw violating copyright? « Legal Research Plus.

This idea — that the courts are turning over attorney work product to for-fee services, which then resell them (or merely make them available?) to customers — is an intriguing one. Do briefs filed with the court become public domain? Or do the original author-attorneys retain copyright? Even if the writer (or their employer in some cases, since briefs are likely works-for-hire) retains copyright, does fair use apply to Lexis/Westlaw’s actions? As I said, an interesting idea.

Personally, from a public-policy perspective, I would be inclined to favor allowing LexisNexis, Westlaw, and anyone else to provide access to court-filed attorney briefs. I am bothered a bit about the resale factor — but only because there does not seem to be a free (as in without cost) option for accessing the briefs. I do not believe the public benefits from applying a copyright approach that denies access to the briefs. We are all better off if we can read them.

But like other situations in which I advocate “open access,” there should be more public access than simply LexisNexis and Westlaw’s extremely expensive service.

I’ll be interested to see if this issue goes anywhere in California, or if it just disappears.

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I have been rereading the legislative history of the 1909 Copyright Act.  I have come to the conclusion that 100 years ago we were smarter about copyright,  about disruptive technologies, about intellectual property, monopolies and network effects  than we are today. At least, the legislative hearings were much smarter.  The hearings I am looking at took place in 1906 — thanks to the wonder of Google books you can read them yourself, if you are really nerdy.

via Were we smarter 100 years ago..? | The Public Domain.

Themes from then and now certainly recurred, but there seemed to be a better balance among the business interests as to the pros and cons of various copyright restrictions. For example, here is an argument from the representatives of the recording and player piano industries that their technologies actually encourages the dissemination and sales of music — reminiscent of arguments by many today:

The whole of the article is worth reading, if only to remember that our current system was hardly inevitable, and that many pro-business arguments can be made for a different approach.

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