Copyright protections for books have had the effect of driving the vast majority of them from public view. Meanwhile books in the public domain are surprisingly visible in places like Amazon.com. So says law professor Paul Heald, who’s been testing this idea. He explains to Bob the negative effects of copyright extension and the not-so-threatening reality of the public domain.
BOB GARFIELD: Let’s say you’ve just written the great American novel, as [LAUGHS] I recently did. Assuming you publish it this year, as I plan to, and then you tragically expire, as I don’t plan to, your masterpiece will still be protected from copyright infringement until 2082. Today, the 14-year term our founding fathers originally established has been extended to the author’s lifetime plus 70 years. Why? Because in 1998 lobbyists for some beloved vermin convinced Congress to, yet again, extend the copyright term.
MICKEY MOUSE: Hello, Minnie.
MINNIE: Mickey Mouse, you're late for our date,
BOB GARFIELD: Paul Heald, a professor of law at the University of Illinois, has evidence that the long copyright term, brought about by Mickey and Minnie, silences a whole lot of other voices. Heald looked at 2500 newly-printed fiction books, selected at random from Amazon’s warehouses, and found that while there were a great number of books available that were published prior to 1923 and are now in the public domain, 1998’s copyright extension resulted in a sharp drop in availability for books published after 1923. In fact, going back to most of the 20th century, surprisingly few titles are available.
PAUL HEALD: Only 25 of those 2500 books were published during the decade of the 1950s; 75 of those books [LAUGHS] were actually published during the decade of the 1850s. There was about four and a half times more books actually published in the 1950s than there were in the 1850s [LAUGHING].
But it holds in general that these older works are significantly more available and that we have as many books from 1900 to 1910, new editions of them, available on Amazon as you do books from the year 2000 to the year 2010.
BOB GARFIELD: It’s very easy to see why Disney doesn’t want Mickey Mouse in the public domain, ‘cause it’s still ringing the cash register. But how do we quantify what is lost when material doesn’t go into the public domain?
PAUL HEALD: Well, that’s a good question. As far as the cost issue goes, my wife’s a choir director and she sees it quite starkly in the prices of sheet music that she has to buy for the choir. So if it’s a public domain piece, she can photocopy at about, you know, three or four cents a page. And it’s more like 50 cents to a dollar a page if she’s having to buy the sheet music. So I mean, you can sometimes put a dollar figure on it.
It’s very hard to put a dollar figure on, for example, situations like the famous PBS documentary, Eyes on the Prize, which came out in the early ‘90s, I think the most highly regarded documentary of the civil rights era. It’s very expensive to make a documentary, right? You have to get all sorts of rights and, and photographs and film footage and, especially, in this case, music because, you know, there really is a soundtrack that we recognize that sort of goes with the civil rights movement. And it was very expensive for them to get any sort of long-lasting rights to the music. That caused the, the documentary basically to disappear. PBS couldn’t show it on TV because there were no licenses. And this tremendously important work essentially was lost due to the fact that the copyright owners were unwilling to license the background music at a reasonable cost.
BOB GARFIELD: When Disney and other copyright holders were lobbying the Congress for the extension of the copyright protections that they enjoyed, they brought with them a, a fairly long list of really frightening-sounding consequences if copyright should fall precipitously into the public domain. Can you tell me what can go wrong when rights holders lose those rights prematurely?
PAUL HEALD: Economists siding with the publishing industry came up with a number of arguments, one of which is that works would be tarnished and debased by inappropriate uses. And, and the examples almost always involve pornography: What would happen if we had a Superman porn movie or a Mickey Mouse porn movie?
The second is that works might be overused, not that they would be used inappropriately but just used too much; the song would be played too much in the background of advertising and we’d become sick of the song and no longer want to consume it. It would be worn out.
The third argument, and the one that Congress seemed most interested in and found most plausible, is really quite exactly the opposite, and that is that without owners, works, in fact, would be less available and that we should continue to extend copyright terms to ensure that there are owners out there, to make sure that the public continues to encounter and see these works.
BOB GARFIELD: But the Amazon research that we were discussing earlier seems to tell an exactly opposite story, that being in the public domain actually increases the shelf life of literary work.
PAUL HEALD: Right, at least as far as fiction works goes. This is what we’re going to continue to find.
BOB GARFIELD: And one of the great arguments against excessive extension of property rights is that innovation will be suppressed if the status quo is afforded too much economic protection. Does that argument apply to literature?
PAUL HEALD: One example of this – I’ve got a nice grant from Google to study the market for audio books. So one very simple thing we looked at was the most popular 20 books from 1913 to ’22, all in the public domain. Not surprising, there [are] audio book versions for all of them.
If you look at the most popular 20 books from 1923 to 1932, all protected by copyright, only 16 of them have audio book versions. So the ability to sort of make just a derivative work, like an audio book, from an existing work seems clearly to be stifled by the length of copyright that we currently have in force.
BOB GARFIELD: The Internet has obviously changed a lot of thinking about intellectual property. Would you care to make a prediction as to what Congress will do next to try to reckon more with current digital reality?
PAUL HEALD: This current extension expires in 2018, so the lobbying will start up pretty soon to extend another 20 years. Now, there was no empirical research available to Congress in 1998. There is now. Whether that makes a difference or not, I don’t know, Congress doesn’t seem to care as much about academic research in this area as other countries.
For example, England recently came out with what’s called the Hargreaves Report, which basically says that the U.K.’s not going to do any more tinkering with the Copyright Act in the absence of empirical research. American copyright owners failed to convince the Japanese Diet to extend copyright protection 20 years there, because they weren’t able to provide any sort of hard numbers suggesting that this would be a good thing for the Japanese people. So maybe Congress will take a cue from other legislatures around the world –
BOB GARFIELD: Yeah, of course, they will.
Congress cares deeply about scholarship and empirical evidence.
PAUL HEALD: Sigh.
BOB GARFIELD: Well Paul, thank you very much.
PAUL HEALD: Well, thank you for having me. It’s been great.
BOB GARFIELD: Paul Heald is a professor of law at the University of Illinois and Professorial Fellow at the Centre for Intellectual Property, Policy and Management at Bournemouth University.