The confusing morass of copyright laws

Copyright law has always been a confusing arena, but recent developments have grave future consequences.

We begin by noting that most of the world lives under different copyright laws: European Union, Commonwealth, Japanese, and other dispensations differ widely. See the CEIC’s writings for a record of details relevant to mathematical publishing. For instance, under Canadian copyright law, known as “Cancopy,” library use often generates royalties which the government gave away to publishers without individual ability to demur. Margaret Atwood does see them; small fish do not. Originally copyright was the concern of printers eager to protect their investment. Copyright for authors for 14 years, once renewable, was granted by the UK’s 1709 “Act of Anne”. For most purposes we would be better off if this were reinstated.

For example, as Robert Nagle observes in an online article, the international Berne Convention agreed that all images by artists who had died 70 years or more ago would be in the public domain. At the same time, as a result of the U.S. court decision Corel vs. Bridgeman, it is legal for people to copy any image of a public domain painting provided it is a “faithful” reproduction. Thus artists could lose control of their creations unless they are the first to publish a quality photograph of it. Also, if an artist died prior to 1937, then photographs or scans of this artist’s works are in the public domain no matter when the photograph was actually taken.

However, in the U.S., a painting is automatically in the public domain if the artist died 70 years ago except in cases where the artwork was originally published between 1978 and 2003. In that case, the artwork will not belong to the public domain (at least in the U.S.) until the year 2047. So in other words, one must first verify that an artwork was photographed or reprinted prior to 1978. How can one possibly do that?

Confusion over this issue has led to a serious dilemma for the Wikipedia project. Because Wikipedia’s servers are hosted in Florida, they must comply with the stricter regulations passed by the U.S. Congress. As a result, many images on Wikipedia pages (and Wiktionary, Wikibooks and other members of the Wiki family) are now unavailable in the USA, even though those images are freely available almost everywhere else in the world.

Confusion over copyrights also plagues Google’s efforts to scan and index millions of books, as Lawrence Lessig observes in a recent New Republic article. Google originally planned that if the book was in the public domain, then Google would grant readers full access and even permit downloads, but if it was protected by copyright, then Google would only permit one to see a few lines near the search target. If the work was still in print, then Google would request from publishers instructions on how to handle the text. But the Authors Guild and the Association of American Publishers argued that when Google scans these books to build its index, it made a “copy” of them, requiring explicit permission from the copyright owner. They argued that it doesn’t matter that Google scans these works simply to index them, or that Google would never distribute copies — Google must have permission to scan, otherwise it is guilty of piracy.

For the 16% of the 18,000,000 books Google wished to scan that are in the public domain, there is no issue, nor is there much of an issue (other than haggling about the price) for the 9% that are still in print. But for the 75% that are out of print but in many libraries, the rule claimed by these organizations is fatal to Google’s effort. Fortunately, Google was able to reach an out-of-court settlement — Google would pay for the right to make available the roughly 20% of books whose author could not be available; for others, the public would pay to access the full book, with funds granted to a new non-profit organization that would pay royalties to those authors who want them.

But there are complications with this arrangement. Journal articles are handled differently than books, and the terms are very complex. Lessig relates that just after his wife had given birth to their third child, the child fell into a state of lethargy, with symptoms suggestive of jaundice. While waiting to see a doctor, he accessed through Google a journal article that discussed jaundice and complications. But in a critical part of the article, a table was missing; in its place was the notice “The rightsholder did not grant rights to reproduce this item in electronic media.” As Lessig asked, “Before we continue any further down this culturally asphyxiating road, can we think about it a little more? … Before we release a gaggle of lawyers to police every quotation appearing in any book, can we stop for a moment to consider whether this way of organizing access makes any sense?”

It is clear that this morass of copyright rules must be greatly simplified. Lessig, for instance, recommends that we shift to copyright owners some of the burden of keeping the copyright up to date, by requiring them to register their work after an initial fixed period of time. Failure to explicitly register the work would permit it to pass to the public domain. Governments should not operate these registries, but instead simply establish protocols for services that compete to hold these registries (similar to the system of handling Internet domains). Lessig also recommends that for any compiled work more than 14 years old, the law should secure rights to preserve the work without burden to the owner. Other details of Lessig’s proposal are given in his
New Republic article.

In any event, the present bloggers agree that this issue must be addressed in the next few years, before an explosion of digital work greatly amplifies the current clumsy state of confusion. Authors and publishers deserve a clear-cut and transparent means of protecting legitimate work and value added (it is worth noting that for legal purposes you may not be the “author” of the article or book you slaved over). The public deserves an equally transparent means of accessing work at a reasonable cost. The longer we wait before acting, the nastier the mess will become.

Even now, it is already far from simple. It took one of the present bloggers and his coauthors under a year to determine the content of Pi: a Sourcebook, but four additional years to trace copyrights, obtain permissions, haggle over fees, and so on. Luckily in most modern cases the copyright was held by journals, not individuals, so at least there was a clear place to look. In one case, the British museum had to be paid for an image of the Rhind papyrus, circa 1650 BCE. In two cases, copyright issues changed the content of the book, as the permission fee the copyright holder requested was too outrageous to pay. These disputes were exhausting and seriously detracted from the substance of the scholarship.

Since we originally posted this on 28 Jan 2010, an interesting essay that deals with this topic (among several others) written by Charles Leadbetter appeared on the Edge.org website: Edge article. Here is a brief summary of his conclusions:

If content in the cloud is entangled in copyright and other forms of intellectual property then it will become increasingly difficult to mingle, match and collaborate. The creative potential of the web, to create new mixes, will be vastly reduced. To promote more open cultural relations on the web we should focus on:

1. Finding collaborative solutions to the problem of orphaned works, perhaps by allocating them to forms of collective ownership, which would make it far simpler for people seeking to enjoy or adapt the content to negotiate rights. The collective owners would own the rights and hold money for the original rights holders.
2. Governments should resist attempts to extend copyright terms.
3. The copyright regime should increasingly put the onus on rights holders to justify their need for copyright and to pay for extensions. Any work not re-copyrighted after the expiry of its original term would automatically fall into public ownership rather than being orphaned.
4. The presumption should be that all cultural products are in the public domain after a basic period of copyright or intellectual protection has expired.
5. New forms of creative licensing are required, modelled on open access and creative commons, which are designed to allow sharing but also to clearly apportion credit to original work and authors.
6. Most media industries will need new business models, which are tailored to allow more interaction with content and more peer-to-peer distribution. Countries that experiment successfully with these models will lead the next wave of cultural and creative industries.
7. Finding ways to create more Pro-Am cultural exchanges which bring together the best of professional and amateur content.

Other references:

1. John Ewing, “Copyright and Authors,” 22 Sep 2003, available at Online article.

2. “The Statute of Anne,” 1710, available at Online article.