Sat

Aug 18
2007

Peter Brantley

Peter Brantley

Copyright Tangles

As more and more books become digitized though projects like Google Books Search, Microsoft Live Books, and the Open Content Alliance, there have been renewed investigations into attempting to determine how much of the published literature can be declared public domain, vs. in-copyright. In the U.S., the standard cut-off is a 1923 date of publication (before which works are in the public domain), but many more works from that time forward until 1963 might actually be in the public domain, if their registration was not renewed. The determination of what is - or what is probably not - in the public domain is so complicated that Cornell University Library's IP counsel, Peter Hirtle, has prepared a helpful copyright table listing the permutation of possibilities.

The table, despite its complexity, is nearly formulaic, if one has the data available on registration. Increasingly, organizations that are concerned with copyright status information are attempting to produce copyright registration renewal databases, including e.g., Google, OCLC, and Stanford; Stanford's is available publicly and has already seen significant use.

Unfortunately, careful analysis of copyright legislation reveals that even having sufficient data on registration renewals is not enough -- there are complicated issues intrinsically bound to the business of publishing which significantly complicate analyses, particularly the moment they consider the international context.

Testament Book CoverRecently, Peter shared an illuminating example of on such complex case, brought to his attention by his colleague, Elizabeth Townsend Gard, who is now at Tulane. Here's how Peter states the problem:

"Vera Brittain's Testament of Youth was published by Macmillan in New York in 1933. If you check Stanford's terrific renewals database, you will not find a renewal record for it. Published in the US, and not renewed: so it is in the public domain - right?

WRONG. Vera Brittain was a British author, and the work was first published in Britain. That means that copyright in the British and American texts was restored, and the work is still protected by copyright."

It's clear that for any book, the international rights aspects have to be considered before any domestic determination can be made. How will it be possible to ask the requisite questions in a useful - and automated - fashion? Obviously more comprehensive data will have to be gathered and linked with existing information on registration data.

Here is Peter's analysis of how works such as Vera will ultimately have to be considered:

I suppose one could try to match the titles in one's local catalog to the [OCLC] WorldCat database (on the assumption that there is a record for every edition in WorldCat). If there is only an American edition, it might suggest that copyright restoration could not apply. But what if the title was changed for an American edition, or the title was first included as part of a foreign publication, or the US publication was much later than the foreign publication? How can we know with certainty that the US edition was either the only edition, or was published first? Similarly, how can we know if publication in the US occurred more than 30 days after publication abroad? If the foreign title applied for an ad interim copyright, it would be suggestive that the publication outside the 30 day window (since there was no need to apply for such protection if the work was published in the US within 30 days). We might easily conclude that copyright has been restored. But the absence of an ad interim copyright would not conclusively prove that publication in the US occurred less than 30 days after publication abroad. And the ad interim copyright registrations are in the original registration volumes - not the renewal databases. Once again we are in a situation where we can prove that something is still protected by copyright - but we cannot prove that it is in the public domain.

Addled yet?

So here are Peter's list of underlying questions raised by the Testament of Youth case that need to be answered for more conclusive rights determination:

  • How can we distinguish between those works that were only published in the US versus those that also were published abroad?
  • How can we determine which publication occurred first?
  • How can we determine the nationality of the author at the time of publication?
  • How can this be automated, rather than having trained professionals examine individual titles on a case-by-case basis?

The complexity of resolving these issues is just one reason that the opportune work of legal scholars such as Pamela Samuelson of the University of California Berkeley, who recently authored a paper entitled "Preliminary Thoughts on Copyright Reform," have to be supported and encouraged by the widest set of concerned organizations possible, and placed into an international, not just U.S., context.


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Comments: 3

  Michael R. Bernstein [08.18.07 05:27 PM]

Don't forget the aside from name changes, books might be consolidated or split into multiple volumes (with their own names) for foreign publication.

"How can we determine which publication occurred first?"

This question is made even more complicated because the 'official' publication date might be off by a few months compared to when books were actually available to the public, or when they actually started coming off the presses. Here is a contemporary example:

Q: How do I know if I have a first edition of A GAME OF THRONES? Which was the first edition, anyway? What is it worth?

A: There have been five hardcover editions of A GAME OF THRONES published in English to date.

The Bantam 1996 edition was the true first, as I see things. It had a silver foil cover with an embossed throne but no other illustration. That one has become quite valuable, and seems to sell for $200 to $600 (depending on condition), the last time I checked.

The HarperCollins/ Voyager 1996 edition was the British first. Its official publication date was earlier than that of the Bantam edition, but Bantam went to print several months early to hand out copies at the ABA, so I consider theirs the true first.

From http://www.georgerrmartin.com/faq.html

  Glenn Alvarez [08.19.07 02:04 AM]

What a lot of people do not focus on is the quantum of loss that the general public experiences when potentially copyright-free content is not allowed to be free because there is a lack of clarity about its status.

  bowerbird [08.19.07 10:22 AM]

if our "elected representatives" had any balls,
this thicket would be amazingly easy to clear:
declare _everything_ not now available in print
to be in the public domain via eminent domain.
if you own copyright on something out-of-print,
you either have to put it into print immediately,
or prove ownership for an eminent domain payment.

it's silly to have content in a gray legal area;
use the system to make it either black or white.

-bowerbird

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