Copyrights on out-of-print books - a good thing?

Great Debates
1

This came up on a newsgroup. It’s off-topic there, but on-topic here (being a GD).

The short of it is: there’s a role-playing book that’s been out of print for quite a while. There’s no plan on putting it in print, AFIAK. One person posted and said (paraphrasing): if an author or company refuses to keep a work “in print”, then he/she/it should lose all rights to the work, and it should become legal to copy it.

My first thought was, frankly, “what a moron.” I mean, if I don’t want my work published, it’s my work. Maybe I’m embarrassed at the sloppy job. Maybe I’m planning a second release. Whatever - it’s my work, and I shouldn’t be obligated to release it.

However, I thought about this, relating it to Nelson’s Project Xanadu (a modified verson of the WWW). In Nelson’s world, you couldn’t “take back” anything - if you put it on the Xanadu Web, it stayed there forever. There’s stuff like the WayBackMachine (found at http://www.archive.org/index.html if you’re interested) that essentially does the same thing.

Note that I’m not talking about items that enter “public record” - I’m talking about long works that would normally be published and fall under copyright laws. Having said this, I realize that web pages could be considered public record. But still, people have to get copyright permission before copying web pages.

So, my three questions are:

  1. Do you think it’s ethical to copy works that are out-of-print?
  2. If so, how long do you have to wait, and how much of an attempt do you have to make before you copy it?
  3. If not, how about preserving old web pages? Is this ethical?

Sorry for the length - first GD post.

2

Bingo!!!

Source: http://www.copyright.gov/circs/circ1.html

  1. Ethical? No. Legal? Not if the copyright to the work is still in force.

  2. See source above. (Gee, you can learn quite a bit if you read up on the copyright law – see http://www.loc.gov/copyright/ )

  3. Copyright applies. Ethical? See answer to first question.

3

I believe it is ethical. The purpose of copyright (as well as patents) is to encourage the creation of artistic works by giving the author a financial incentive, in the form of an exclusive right to distribute the works. In the meantime, society benefits from having the works available; and once the copyright expires, society benefits even more because anyone can use the works freely.

If the author isn’t making the works available while he holds the copyright, no one benefits until the copyright expires, decades or (at the rate copyright terms have been increasing) centuries later. The author is taking a law intended to encourage the spread of ideas and art, and instead, he is using it to hoard ideas and art.

But in my mind, the best solution would be compulsory licensing. Works that are no longer available would be legal to copy, as long as you pay a reasonable amount to the author - e.g., 50% of the retail price of the work when it was last available.

4

I don’t think the OP was disputing that from a legal standpoint a copyright on an out-of-print work still exists. I think his point was whether it should exist.

Personally, it’s a question I’ve asked myself. Like magog, I’ve had out-of-print RPG games I’d like to buy. In some cases not only is the game out of print, the company that published is no longer in business.

Or consider a story or article that appeared in a magazine. The magazine was available for sale for a limited time. Except in the handful of cases where reprint collections exist, anyone who wants to buy a copy of that work at some future time will be unable to do so.

Now in both cases the potential exists to buy a used copy of the original work. But is there any ethical difference between buying a used copy and copying an original? Neither method will put a cent of royalties in the author’s pocket.

I fully support the right of authors to collect their rewards from their work. But what is right when there no longer exists any opportunity to give them these rewards? Should I deny myself the pleasure of reading a work I want and would be willing to buy, just because no publisher currently is willing to sell it?

5

My opinion on this matter is that a copyright on an out-of-print book should be acceptable, although I’d love to see some way of encouraging people to put their works in the public domain early (maybe increasing the amount that it costs to take out a copyright on a work, and then giving people a kickback if they put it in the public domain early.)

What I would most like see removed at this point are the copyright extension laws. It wasn’t designed to be elongated to these extents, and I think that corperations are simply deathly afraid of their work falling into the public domain that they will extend it as far as possible, regardless that the public domain got them where they are in the first place. My personal opinion on the matter that copyright for any work, etc, should be a flat fifty years, completely unrenewable. Of course nobody asked me.

I’m studying to be an Intellectual Property lawyer, so I follow these threads with great interest. Any comments, flames, etc are well accepted!

6

There’s a fine line here. Suppose the book is out of print because the author/publisher no longer can afford to print it. It doesn’t seem fair to yank such a person’s property away and print it on your own just because he is unable to do so; maybe he hopes to profit from it in the future. You can always ask the author/publisher to either release their work into the public domain, or just for special permission to make some limited number of copies. Who knows, maybe they’ll be feeling generous.

We have some big, big problems with copyright today. The lengths of copyright terms have gotten way out of line. As posted above, the term on new works is the life of the author plus 70 years, or 95 years in the case of a work created by a company. This is thanks to the Sonny Bono Copyright Term Extension Act, which tacked on an extra 20 years so that Disney could hold on to their earliest Mickey Mouse cartoons a bit longer. As a result of this extension in favor of works already in existence, nothing will enter the public domain until, I believe, 2019, unless it’s expressly released. Never before in the history of America has this happened.

There’s a challenge to the constitutionality of the Bono act that the Supreme Court will be hearing soon (cert was granted on Feb. 19). The case is Eldred v. Ashcroft, and I reckon it has a more than decent chance of succeeding in getting the Bono act repealed. Eldred’s basic argument is that Congress doesn’t have the power to extend copyright terms retroactively. Why, you ask? Because the clause in the Constitution that allowed Congress to create copyright laws in the first place reads, “Congress shall have the power… to promote science and the useful arts, by securing for limited times to authors…the exclusive right to their…writings.” And letting authors profit even longer from works already created does nothing to promote science and the useful arts.

That’s Eldred in a nutshell; tons of info on the case here.

It would help, also, if the law reflected the time in which we live. I mean, does anyone really think that it’s necessary to protect software (which is covered by copyright, not patent law) for 95 years? Most software is useless and outdated in less than 10 years. There oughtta be a clause making software public domain after, say, 15 years at the most, or perhaps a 10 year period with an option to renew for another 10 years.

7

Okay, how about this for an idea. Establish a central registry of all copyrighted work (I assume something analogous already exists). The registry should ideally identify if the work is copyrighted, how long the copyright will be in effect for, who the current copyright holder is, and whether and how the work is available for public sale.

Now suppose I want to own a copy of some old Straight Dope columns. I go to the registry and it tells me that the columns are still copyrighted and the copyright holder is Cecil Adams. The registry tells me that most of the columns were collected in one of the Straight Dope books and I can buy a copy at finer bookstores everywhere. But the registry also tells me that a couple of the columns I want to have weren’t included in any of the books and haven’t been in print since they originally appeared in the Chicago Reader years before.

Now under current law, I’d be out of luck. But I think it should be possible for me to pay a nominal fee, which would be forwarded to Cecil, for the right to reproduce my own copies of these columns. The burden of the actual reproduction would still be on me (I’d presumedly find back issues of the Chicago Reader at a library and make photocopies).

8

I have a few observations to make on issues raised by various posters to this thread:

(1) It costs nothing to claim/obtain a copyright. An artist’s work is considered copyrighted, and protected by such law, from the moment of its creation. Thus even unpublished works are considered copyrighted. It is possible to register and submit original works to the Library of Congress for a nominal fee; this probably provides additional safeguards to the existing copyright, but it is optional. (Little Nemo: AFAIK, this is as close as we get to having a central repository of copyrighted works.)

(2) Copyright law is not intended to give artists a financial incentive to produce artistic works. If that were the case, I should be rich by now! It is intended to protect the original artistic works – the “intellectual property” of the author – from misappropriation by other people, in the same way the things in your house are protected from theft by criminal law.

(3) The creation of an artistic work is a separate process from the promotion of that work in the public arena. I don’t write novels because they will be published and I will reap the financial rewards. I have no assurance that either of those things will happen; I write just because I like to write. If I can’t find a suitable publisher, or choose not to seek one out, or my publisher says, “We did a limited run but it didn’t sell too well; we’re not going to print any more copies”, I don’t think that constitutes “hoarding” of my artistic ideas, nor I don’t think I should somehow be compelled to surrender my copyright as a result.

(4) It is understandable that a person might like to have a copy of a work which is out-of-print. But wanting a work is not the same as having a right to obtain it by any possible means. If it’s not in print any longer, and you can’t find an existing copy, then you’re just SOL – or you do something unethical to get a copy. Believe me, I know how that feels, but there it is.

This topic came up in another discussion group several years ago, but regarding something in the music industry. The Swedish pop act, Roxette (stop snickering!), put out their first album, Pearls of Passion, on vinyl (not CD) in 1986. IIRC, this LP was released only in Sweden and Canada; or maybe the singles were released in both places, and the LP just in Sweden. No matter. It did well enough for Roxette to continue, put out Look Sharp! in 1988, and become an international success. As a result, the first LP became a hot item and it was/is virtually impossible to find a copy by any legal venue. Someone like myself, who did not know about the first album until much later but wanted to find it, was out of luck.

Then in the mid-90s, Roxette was considering re-releasing POP on CD. At one point Per Gessle, the male half of Roxette who plays guitar and holds the copyright on 99% of their songs, decided that he was not going to give his permission for the CD release to the record compan. He felt that the material on POP was under-par, relative to the music which came after, and did not wish to re-introduce it into widespread circulation. He certainly didn’t need any more money; he’s the richest man in Sweden after the king, or maybe in spite of the king. Anyway, many POP-deprived Roxette fans were upset by this because they felt they were owed, or deserved to have, this work made available to them, but copyright laws have nothing to do with what fans/consumers want. They allow the artist to exert control over his work at any time while the copyright is in effect. Per was the controlling artist, and so the decision was his, and his alone, to make. Copyrights should not be used to compel artists to do anything with their works.

(Postscript: in 1997 Per relented and EMI released the album on CD.)

9

Gonna have to beg to differ on this one. The ultimate goal, of course, is not making money for artists; the public benefits when more creative works are being produced. So, ultimately, the goal of copyright law is to encourage artists to create. Thus, the law of copyright gives an author/artist/creative person a sort of “monopoly” in the works he creates. The purpose of granting that monopoly power is to allow the creator to profit and benefit from his work, by preventing others from swiping it. If creators cannot profit from their work, no one will create anything.

The purpose is stated right there in the Constitution. “To promote science and the useful arts”. Surely you’re not saying that an artist paints a painting just so he can tell others that they can’t copy it?

10

Max Torgue: I am curious, what exactly do you propose as the amount of time that’d work best before a copyright runs out? I am definately of the mindset that software should be public domain after a short period of time, and would even include provisions that allow kickbacks if the source is released too, but I’d like to hear more opinions on this issue. Yours seem very similar to mine. :wink:

11

Jerevan brought up a good point I left out of my previous post. My hypothetical registry would also contain a means for the copyright holder to intentionally withhold his work from reproduction.

I’d also like to point out that my registry would apply to musical works. If something like my idea existed it would have made it possible for Napster to operate without ethical issues. People could have downloaded and made CD’s and paid royalties to the artists for doing so.

12

Something that I was considering when thinking about software copyrights involved a particular area, namely entertainment software. Often they will CONTINUE to profit from software after about ten years… Maybe the solution here is to simply allow five more years to be (expensively) bought, and then just allow them to fend for themselves, and hope that classics continue to have attension paid to them by their owners.

13

Netbrian: If I may answer your question… Thomas Jefferson intended copyright terms to be about 19 years, as he felt one generation shouldn’t be able to bind the next (people didn’t live quite as long then). That sounds good to me.

14

Life plus 70 years is way too long. I do, however, understand that it’s more than a little upsetting to see one’s work fall into the public domain during one’s lifetime. Still, I don’t think it’s right to allow the heirs of an artist to control that artist’s works for a full lifetime after his death. Life plus 20 seems plenty generous to me. Twenty years is long enough that the right can prosectively be sold and exploited by the buyer; the heirs would probably have a very hard time finding someone to buy the work if the buyer could only exploit the rights for, say, five years.

Software, as I mentioned in my first post, should be a special case. The ten-and-ten idea seems a perfectly fair system to me. Patents (protection for useful articles) currently last 20 years from the date of the filing of the application; software, I reckon, is much like a useful article, and should be subject to a similar term.

And it’s Torque with a ‘Q’, fercryinoutloud.

15

Oh no, of course that’s not what I meant. But even if copyright law didn’t exist, I would still consider the works I create to be “mine” and resent attempts by other people to claim or use them without my permission. In this sense, copyright law just backs up an existing perception of ownership; it certainly doesn’t create that perception. To continue my earlier comparison: in this same way, anti-theft laws just back up the commonly held and long-standing notion that the things in your house are “yours”.

So your point is well-taken, that the Constitutional intention of copyright law is to promote the arts by encoding this notion of ownership in the law, but IMO (and experience) the reality is that copyright law doesn’t have much influence, one way or another, on the creative urge or process. When I’m writing, the farthest thing from my mind is the realization that every word I type is protected from theft by copyright law, or that copyright law will support my efforts, if any, to profit from my work. The idea that artists should be allowed to profit from the production and use of their works is far younger than the creative process itself. Creators will create, with or without copyright law. I mean, surely you aren’t suggesting that the Arts didn’t exist until copyright law came along?

Little Nemo’s ideas are interesting. They would resolve the financial/royalty issues surrounding Napster and the hypothetical situation involving an out-of-print Cecil Adams column, but I think these suggestions miss a key point: copyright law protects more than the ability to profit from the work. In registering works in this hypothetical repository, I wouldn’t want to decide then whether to permit my works to be reproduced at some vague point in the future. If you want a copy of Cecil Adams’s out-of-print column, then you should have to ask Cecil whether you may reproduce the earlier printing, and he should be permitted to say “yea” or “nay” to your request – because you, the audience, do not have any intrinsic right to this work, and Cecil’s decision may be influenced by factors other than the financial compensation you offer. My story above, about Per Gessle of Roxette and their first album, illustrates this. Money is neither the only nor the ultimate motivator.

16

I think it is ethical. I have copied substantial portions of out of print technical books that I wanted to study.

I’m uncertain.

Yes. Somehow on the web one feels that “anything goes.”

17

Out of interest, what was the book?

I think that there should be a “rolling” copyright. If you reprint a minimum no. of copies, then the copyright is renewed for another 10 years.

18

This issue comes up a lot in my book club. We read a lot of children’s literature published in the first half of the 20th century. In most cases, the authors are deceased, so I’m speaking here about copyrights held by the publishers rather than authors.

As you might imagine, many of these titles are out of print, and because children’s books tend to have a shorter library shelf-life, they are often difficult to find. The internet has been a valuable resource to fans of this period literature. Book sales and swaps are common, and listservs and web sites were created for the express purpose of getting collectors in touch with one another. The population of collectors I’m describing isn’t collecting in the sense of finding rare books to put in display cases – these are readers who are drooling to get their hands on Judy Bolton #11, in order to find out what happens between #10 and #12.

Some of these books – tattered, ex-library copies, were selling on e-bay for hundreds of dollars. In addition, book clubs were sometimes tempted by illegal means of obtaining photocopies. Not for sale, simply to read. Still illegal. My book club created “round robins” where books were mailed around a large distribution list, which I always thought were rather noble, in that the owner of the book was risking the theft or loss of that book in order to let others read it, often with more than 100 participants.

In the past five years or so, many of these books have come back into print, often via smaller publishing companies that were able to secure the rights to these works. The orignal Nancy Drew reprints, Judy Boltons, Beany Malones, etc are now available again for legal purchase.

My point, in all of this, is that I speculate that the internet played a substantial role in bringing these books back into print. Publishers were able to see a market for these books, based on the high demand on sites such as e-bay, as well as get a sense of the number of people willing to engage in illegal methods of obtaining copies. In a weird way, the illegal copying helped get the books back into print because it demonstrated a future market in a fairly concrete way. Prior to the internet, I’m not certain how anyone would know that there is a fairly small but steady demand for Janet Lambert titles.

What is my point again? Hmmm, in most cases, I don’t think that the number of instances of a law being broken should dictate whether or not that law is a sound one. However, in the case of copyright, there seems to be potential for publishers to use this as a tool to influence future printing decisions. At this point in time, this system is under considerable strain and I suspect something is going to give in the very near future. My general impression is that companies could and should be doing more to put more works back into print, or risk increasing losses due to illegal activity. This is based on my belief that companies (unlike individual authors) are looking at profit as the bottom line. They (the companies) invested money into these works, and should have the means and rights to continue to make money from them. There comes a point, though, and I don’t think it takes nearly as long as 95 years, where they ought to fish or cut bait – reprint, or public domain.

19

OK - I can understand this. However, should the act of preventing the work from entering public domain be the responsibility of the copyright holder? And would this apply to non-published works as well?

For those interested, this was taking place on rec.games.frp.gurps, and the book in question was GURPS Bunnies & Burrows. Fun game, from what I’ve heard.

20

They will, to an extent. But look at Hollywood movies - would studios spend hundreds of millions of dollars to produce American Beauty or A.I. if copyright didn’t allow them to make their money back?

The same can be said of software, and even prescription drugs (drugs are patented instead of copyrighted, but it’s the same underlying issue).