Nathan Bransford, Author

Wednesday, May 23, 2007

Infinite Copyright vs. Public Domain?

Earlier this week the NY Times featured an editorial by Mark Helprin which argued for infinite copyright -- if you write a book, the rights will stay with you and your heirs until your list of begats is longer than the Book of Genesis. (Ah, Bible humor.... Never all that funny.)

Helprin notes that if you own a house it's yours forever, but write a novel and your ownership is limited:

"Were I tomorrow to write the great American novel (again?), 70 years after my death the rights to it, though taxed at inheritance, would be stripped from my children and grandchildren. To the claim that this provision strikes malefactors of great wealth, one might ask, first, where the heirs of Sylvia Plath berth their 200-foot yachts. And, second, why, when such a stiff penalty is not applied to the owners of Rockefeller Center or Wal-Mart, it is brought to bear against legions of harmless drudges who, other than a handful of literary plutocrats (manufacturers, really), are destined by the nature of things to be no more financially secure than a seal in the Central Park Zoo."

I thought the article was interesting, and immediatley I started tabulating a list pros and cons.

To wit:

You wrote it you own it, right? Shouldn't your heirs benefit from your life's work rather than the companies who suddenly have the right to print up your work for free?

Here's another argument for longer copyright, and for this I need to tell an anecdote: I was trying to sell an out of print work by a great and very dead 20th Century writer, and a publisher was all lined up and ready to go. But then we discovered that the work was in the public domain, and because they didn't have exclusivity in the marketplace (there was a cheap pamphlet of the work for sale on Amazon) they didn't think it was economically viable to proceed. So the book went from potentially being promoted and sold in bookstores by a reputable publisher to languishing out there in a corner of the Internet waiting to be discovered.

Without the financial incentive of exclusivity, publishers may determine that it isn't economically viable to produce and promote some more obscure works, and works in the "public domain" may actually end up being no more available to the public than they would be if they were under copyright. So one could argue that the public doesn't always benefit from public domain.

Do you really want to try and track down the heirs of someone who died 400 years ago in order to secure permission to use a passage of their work? Also, public domain is great for classics because publishers have to compete to produce the best edition, which has resulted in some awesome scholarly editions of old books. We all benefit from having thousands of editions of Shakespeare's plays, right?

And then there's Google. Google is in the process of digitizing pretty much every work in the public domain ever published, and now it will be easier than ever to find published books that up until now were collecting dust and keeping that creepy guy in the library stacks company. The public domain is going to be more accessible than ever.

So you tell me: should there be a time limit on intellectual property, and if so, what should that limit be?


Len said...

Should I write something that people will still want to read or see or listen to despite my residence in Valhalla, I'd still like to think that, eventually, my descendants will have to get a job.

I'd be interested in hearing from an attorney on this, especially one who specializes in intellectual property rights. My sense is that Helprin's analogies are not apt or on point. A corporation is not the property of an individual, but the property of individual shareholders who can dispose or transfer their interests in the company in a number of ways. Real estate, of course, is perpetually subject to taxation simply for existing.

I'm still puzzling through this one, although it strikes me that society as a whole benefits more from free access to great works of art than it would from free access to somebody's house. The underlying limits also apply to patents. An unlimited life for patents would make the production of generic drugs--as an example--impossible.

Of course, Shakespeare, Michaelangelo, and Mozart have no direct descendants. Is that where the natural limit on copyright would come from?

Scott said...

How's this for a firm answer:

Why not have it both ways? As long as an heir or family trust or whatever renews the copyright, the copyright exists with the family. If the copyright is allowed to lapse, then it goes into the PD.

I've benefited a lot by public domain works. I can choose the edition of the classic I like best (or, especially in school, the cheapest).

I also really like old B movies. Since many of those are now coming into public domain, they are available, and cheap. They might not get beautiful releases, but they're cheap.

And, I've downloaded a bunch of those digitized books from Google. They're great for researching my next project.

Another thing you might not have considered: if copyrights are infinite, how will future students study them? The price of the Norton Anthology of 22nd Century Classics will be out of a student's range because each anthologized piece will be subject to a licensing fee if it's included.

And, maybe some future ancestor of a brilliant writer might inherit the copyright of a work that he believes is vile, blasphemous, boring, embarrassing, or whatever, so he refuses to let it be published, as do HIS heirs, and a great work passes into dust.

Of course, that could happen with my suggestion of letting the family renew copyrights too.

Easy question. No easy answers. But I still like my suggestion.

Jennifer McK said...

I am going to watch the comments on this one. I straddle the fence. I'd like my children to have the rights to my books, but I also like being able to quote a passage from a book without being sued.
It isn't an easy question.

Anonymous said...

The book is only alive when it's being read.
Whatever makes than happen is the way to go.

Dan Leo said...

twsjyWell, if the future is anything like what Cormac McCarthy describes in "The Road" I don't think we need to worry about these issues.

Dan Leo said...

PS that little "twsjy" at the beginning of my previous profound comment is not some new internet acronyn, it's just me attempting to type in one of those damnable word verifications without suitable caffeination.

whitemouse said...

Your house is not being used by anyone willing to pay the admission fee. Your book is being used by anyone willing to buy a copy. Intellectual property isn't the same as an object you own.

After you're dead, the people who "own" the book are all the people who own a copy of it. It becomes society's book, which is why I have no problem with defining it to be in the public domain.

If I write the book, there's no reason why my great-great-grandkids should benefit from the continuing appeal of my brain's output. They can have whatever monetary inheritance is left over from my estate. That's the bit that is "theirs". The story belongs to whoever has read the book.

Anonymous said...

Well, aren't patents continually expiring? If drugs always belonged to their pharma companies, we wouldn't ever have cheap generic alternatives that many people (especially in poorer areas) rely on... right? Also, patent expiration motivates drug companies to keep creating new drugs - if the companies could perpetually cash in on their old successes, we could lose the benefits of innovation.

Now, the literary world is very different, of course, but there's a potential analogy there.

As for novels, I think that our intellectual property can belong to us while we're alive but then should become public domain. It's probably for the best. But that's just my little opinion :).

S.F. said...

Part of me feels that even 70 years is too long. Descendents might retain intellectual control for that long or longer (you know, yes you can publish it in French, no you cannot add a nude scene) but my kids should only get the money for the books, merchandise etc already sold or negotiated in the next ten or twenty years after my death. After that, get a job, invest wisely, write your own damn book. If I'm a million-bestselling author they have enough cash already. If I'm not, then they're gonna have to learn to stand on their own feet anyway. I don't want my kids to starve, but I don't want 'professional descendents' either.
And as an ego-centric writer, the idea that if someone wants my stuff, they can just download it anytime after that makes me happy - 'cause my stuff might date quickly and people may as well enjoy it while they can.

Though if I died young, and left a young family, I can see a benefit in 70 years. Just long enough to ensure my spouse was looked after to the best of my posthumous ability. Something tells me this may have been the original intention

Michele Lee said...

I'm pretty happy with the current laws. I mean, 70 years after I'm dead my heirs won't even have known me. There's even a chance I won't even like them *grin*

I'm much more concerned with keeping my rights in the hands of my mate (who is not legally married to me) and out of the hands of the resst of my family who I am estranged from (and who wouldn't hesitate to squash my "evil, satanic" work, even if it harms the wellbeing of my children).

Twill said...

I think 70 years after death is *way* too long. Realistically, most works end up in the possession of a corporation anyway (profit or nonprofit). The future value of anything to a corporation is discounted at some rate. Anything over 25-30 years out makes very little difference to the present value of a property.

In essence, extending copyright is a giveaway of the public's ownership of common ideas to a corporation.

ian said...

I have to agree with Scott here.

Copyrights should be eternal AS LONG as they are renewed. They could be legally transferred as part of a will, for example, or other instrument. Maybe the rights office would send you out a reminder, like when your vehicle tags need to be renewed. If you take care of it, you're set for the next period, whatever that might be. If not, you're SOL. Alternately, your heirs could choose to let the copyright lapse.

Works for me.


Happy Days said...

Totally off the subject but have you seen the poll on 101 Reasons?

The question is "What is the longest you have ever waited for a response to a query?"

One of the front running answers is

"Seven minutes. Nathan said no."

Although I've never subbed to you, I voted for you. Keep that in mind when you get my ms, will you?

Stephen Parrish said...

I agree with Whitemouse. After I die my "intellectual property" dies with me. The 70 years tacked on by law, benefiting people who never knew me, is quite generous already.

L.C.McCabe said...


I would much rather prefer something like 70 years from date of publication and not have to deal with the byzantine rules of X number of years after the death of the creator.

That's because when I wrote my Master's thesis it was easy when I was dealing with only U.S. Copyright law and things from the 19th century. I was lucky that my literature survey was concluded in 1923, because after 1923 the rules regarding when things pass into public domain gets convoluted.

The only things that I needed to seek permission to include in my thesis were a few modern illustrations, all the artists were alive and it wasn't difficult to identify whom to contact. However, having to determine the year of someone's death and then do addition is onerous, as is trying to find current owners of a copyright that was written over eight decades ago is not always easy. Publishers may have gone out of business and it might be difficult to identify who are the heirs to a writer's estate.

Honestly, copyrights were never intended to be granted in perpetuity.

Trying to determine when something written after 1923 goes into the public domain is migraine inducing.

I hate it, and I blame Sonny Bono for changing the federal copyright law.


dan said...

Copyright should be author's till the author dies. Then, public.

What do my heirs have anything to do with it? What have they or would they have done to deserve it? This is America, we don't believe in dynasties (or, we shouldn't). My great grandkids should write something of their own if they want royalties. My own stuff should be available to anybody.

At the moment, naturally, it is available to nobody, being only on my hard drive. :)

Luc2 said...

Do you really want to try and track down the heirs of someone who died 400 years ago in order to secure permission to use a passage of their work?

This can be settled by rules, IMO. If heirs record their names at some sort of copyright-heirloom register, they retain those rights. If they forget or choose not to enter their names in the register, they forfeit all rights.

In principle, I think heirs should be entitled to these rights. I think the analogy to houses is correct. If you don't want to leave it to your children, put a specific clause in your will, and leave it to mankind. It will be interesting to see the legal battles over the definition of "mankind" after aliens take over the world.

Anonymous said...

If copyright dies with the author how do you handle posthumous works?

If copyrights are forever I expect royalties for all of Shakespear's works (my ancestor). See you in court if you refuse.

Just a few problems I can see.

Maya Reynolds said...

Anonymous: Go to to read about copyright for posthumous works. The widow(er) or children can seek copyright for works not published before death and, in fact, are entitled to renew that copyright before it expires.

Anonymous said...

Maya, we're talking about changing the law so the current law does not apply. One of the proposed options (Dan's post for example) was that the copyright dies with the author. What happens in the case that an author has finished a book, perhaps got an advance and then he dies? If the copyright dies with the author the work is now in the public domain. DO older writer suddenly stop being able to sell their work?

Maya Reynolds said...

Anonymous: You're making my point. Copyright CAN'T die with the author. It's an asset that the widow(er) and minor children should have a right to exploit. There's isn't a legislator in the world that would deny the surviving family the right to those assets. Future generations maybe, but not the survivors.

Shawn said...

Cory Doctrow has lectured at length about the insanity of the eternal copyright.

The logic behind the US congress extending legacy rights longer and longer can be summed up in two words:

Mickey Mouse.

No congressman want's to vote for public domain "Mickey Mouse giving the finger" windshield stickers or "Micky Mouse with his arm around his gay lover, Ricky Rat" T-shirts.

And this was Corey's lecture BEFORE Hamas started using Mickey to brainwash future terrorists. Now? Fuggedabowdit!

You can save your sacrilegeous merchandise for Public Domain Jesus, apparently, but lay off the rodent.

Anonymous said...

Maya, you're missing the point of the discussion. The question is do the copyright laws change and if so how? Do they give an infinite life or a zero life or something in between.

I'm arguing for something in between by giving examples of the problems with zero or unlimited copyrights. I hope you are right that congress won't make it zero but relying on congress to do what is right or reasonable doesn't seem to be the way to bet.

Extending the copyright to an indefinite amount of time also has problems.

Zen of Writing said...

I think if the tax system were applied more fairly -- I live in the U.S. but I imagine this applies to many places -- the comparison to Walmart would not be as easy to make.

I do think that the copyright protections could be lengthened, to account for longer life expectancy, but not indefinitely.

Williebee said...

For those who think eternal copyright is a good idea, I'd have to point you toward Spider Robinson's short story from long ago,Melancholy Elephants.

To sum up: We are working on living forever. There are 88 keys on a piano, only a few more on your keyboard. Math will catch up to us eventually, and we'll be stuck with nothing left, that is original, to say.

btw, Mr. Bransford, I found my way were from AW, and thanks!

ithaca said...

Might be something to be said for longer-term copyright.

As things stand, we know that great works of literature are not always immediate bestsellers. Most of the money they make does not come the way of the author. Plath died after a bitterly cold winter in a poorly heated flat, with two small children to mind while she wrote a work of genius -- the head in the oven paid other people's mortgages.

Suppose we look at the transformation of the finance industry in the last 20 years. The big change has been the development of financial instruments such as options and derivatives -- one can buy the right to buy a commodity (or a currency) at a specific price by a certain date, and these options can themselves be traded. Suppose for the sake of argument that one had this sort of instrument for an asset like eternal copyright to Ulysses. No individual, of course, will be around to collect if the bet pays off -- but we have institutions (universities, for instance) that are expected to be around for the foreseeable future, which maintain portfolios of assets to build their endowment. Might it not be better if a writer who wins critical acclaim but not vast sales could sell an option on some or all of the future copyright to his/her work?

If there were a market in which such options were traded, of course, this in itself would have an effect on the current market value of the author -- just as the auction prices of works of art, though not directly benefiting the artist, raises the price of new work.

The problem of tracing copyright owners doesn't seem very bothersome. One could agree that if one used material one paid a fixed fee to a public depository, to be claimed if the owner appeared.

Anonymous said...

I like the old 26 years and you're outta here law. Patents do not last forever, why should copyrights? You probably remember some of Louis Lamour's western crappies went out of print and pubs started releasing them without his permission. He sued instead of writing a new potboiler, and lost. That is the way it should be. Put a limit on it.

If copyrights lasted forever you would not be able to read anything by Dickens or Thomas Hardy except in used or library editions.

Matthew Buckley said...

I have two books published, and I would love to see copyright last no longer than 15 years, I would be fine with much less. I think that as the publishing industry awakens to new models, they will discover there is in fact many ways to make a living without relying on the ability to lock down information for 150+ years.

Look at Google. They started as an internet search engine company. How much do they charge for an internet search? $0. They give away their main service and find other ways to make gobs of money. The same thing can be done (and has been done by a select few) in the publishing industry. I personally look forward to the day where the work produced by authors and other artists is more 'open' to the general public.

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