Copyright Is A Question of Control

From Publishers Weekly:

Writing is a strange career. You spend countless hours pouring your soul on the page for no promise of pay, no benefits, and no guarantee anyone will even publish you. Then you go online and find out people think you have it too damn good. That was the recent situation when—as part of the controversy over the Dr. Seuss estate’s decision to cease publication of six largely obscure titles with offensive content—former Vox writer Matthew Yglesias tweeted that “books that are 30 years old should be in the public domain.”

Many agreed with Yglesias and wanted to go further. The top reply suggested “even 15 or 20” years would be sufficient, while others said maybe that was too much. After all, they argued, it’s not like you pay dentists or bakers for work they did years ago!

The debate was a perfect internet storm, in that it made everyone mad, was filled with bad faith arguments, and was entirely pointless. Copyright is not about to drop to 30 years, much less five. Thanks to the 1886 Berne Convention and the author advocacy of Victor Hugo, the global standard is a minimum of life plus 50. (Contrary to popular belief, this standard was set long before Mickey Mouse, though Disney did successfully lobby for an extension in the ’90s.) Still, the kerfuffle highlighted some common misunderstandings about both how authors’ careers and copyright work.

Being a novelist or poet is not like being a baker, dentist, lawyer, or any job that pays wages for services rendered. We give up wages and security in order to get copyright: the right to control the art we create and—if we are very lucky—parlay that intellectual property into some (typically modest amount of) money.

If we must think in business terms, being an author is like being an entrepreneur. Writers have ideas and work for themselves to make those ideas a reality. We build a brand. We do countless hours of unpaid work in the hopes that one day, down the road, it will pay off… or at least get us on a few panels at AWP. It doesn’t work out for most of us, as internet commentators were happy to point out—but that’s true of many industries. The vast majority of restaurants fail within a few years, yet no one claims anyone should be able to walk into a successful restaurant and use the kitchen for free.

When it does work out, it takes time—lots of time: years to write, years to establish a readership, and often years to catch a lucky break. Success tends to come late for authors. If you don’t believe me, go turn on Netflix and watch its recent hits Bridgerton and The Queen’s Gambit, based on decades-old novels by Julia Quinn and the late Walter Tevis, respectively.

Let’s say an author doesn’t ever succeed and spends their life crying over their MacBook. Well, so what? Why shouldn’t they still control their creations? This is what copyright is really about: who gets control. It’s a question that goes beyond money. 

Link to the rest at Publishers Weekly

PG doesn’t agree with everything in the OP.

However, for argument’s sake, he didn’t see anything anything in the OP that justified copyright extending for 50-70 or more years after the author dies.

As a refresher for visitors from the US, in this country copyright is based upon what is generally referred to as the Patent and Copyright Clause of the US Constitution:

[The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Article I Section 8 | Clause 8

PG notes the “limited times” language in the clause.

Yes, 2,000 years is a “limited time” in that it is less than 10,000 years, but PG suggests that’s not what the authors of the language were thinking about.

In 1790, the First Congress, which included more than a few of those who had approved the Constitution, passed The Copyright Act of 1790, An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies.

The Copyright Act of 1790 granted American authors the right to print, re-print, or publish their work for a period of 14 years and to renew for another fourteen. 

Major revisions of the act were passed in in 1831, 1870, 1909, and 1976.

The 1976 revision was the first time that the life of the author became a method of measuring the length of the copyright term. The 1909 revision’s term was of protection to 28 years with a possible renewal of 28 more years.

7 thoughts on “Copyright Is A Question of Control”

  1. <LegalNeepery>

    The fundamental problem is that “copyright” is treated for all other purposes — including, especially, enforcement and devise (although there’s an exception there for revocationtermination rights) — as personal property. Because that’s all that the common law has been able to conceptualize that creates a “personal right” that is distinct from a “fundamental right.”

    Hugo et al., in the nineteenth century, were struggling against European land law that heavily favored tranfers for a “term of years” on anything that was freely transferrable — closely related to the English/common-law concept of a “leasehold.” This ran into a secondary problem: The psychological linkage between “transfer of a freehold” (the entire title to everything) and “permission from the Crown/state to transfer a freehold.” Thus, a failure of the imagination; that’s sort of ironic among writers, but definitely par for the course among lawyers!

    This problem has only been reinforced by the rise of the law-and-economics movement in the twentieth century, which forces virtually everything into a “property rights” framework, combined with the (deserved-due-to-endemic-corruption) decline of equity as a means of dispute resolution. The neepery begins to get deeper here… far too deep for anything but law journal articles read by perhaps fifty people and actually discussed by five of them.

    There might, theoretically, be a better system. We haven’t discovered it yet. Alterations to “life plus X” will be just fine-tuning based current perceptions and interests; will not be universally applicable in the first place; and will be criticized ten years down the road as indefensible. In short, it’s a compromise, meaning that everyone snipes at it.

  2. Was the article good? As a novelist currently working on my 60th, I couldn’t get past the melodramatic, wrist to the forehead, bree cheese and wine second line: “You spend countless hours pouring your soul on the page….” I was laughing too hard to continue reading.

    • In fairness to the OP, it is entirely probable that, melodramatic as it is, she does actually think that way. Litfic writers in particular tend to view their writing as an extension of themselves, and you can tell by the way they tend to handle criticism of their work as though it is a criticism of their person.

      • Sure, agreed. A lot of genre writers think that way too. So did I until I finally realized my story or novel is only a few minutes’ or hours’ entertainment for the reader. Nothing more special than that. (grin) But that isn’t an easy lesson to pass along.

  3. Why should copyright extend past the life of the author for 50 or so years?
    1) Well, I’m 71, and I’m writing my 104th book. If I keel over tomorrow, does that mean my husband and kids should no longer should have any rights? That I’m already obsolescent and should have zero expectations for my current work to have a future?
    2) Since most of us aren’t Hemingway, who do people think will continue to keep our books available, with up-to-date blurbs and formatting and covers? Readers from past decades have posted that they were thrilled to find my books reissued in digital format–which was done by me. Publishers go out of business. Online platforms change. For those of us who aren’t Big Names, only those who control our books as our heirs can ensure that they remain available.
    3) People who claim my work ought to become theirs for free after I go to the Great Cloud should be willing for their stuff to become mine, equally with their heirs, if they get terminally uploaded before I do. False generosity with other people’s stuff deserves to be recognized for what it is: arrogance and hypocrisy.

    • Since most of us aren’t Hemingway, who do people think will continue to keep our books available, with up-to-date blurbs and formatting and covers?

      Some guy who wants to make money selling your book.

      Amazon could do pretty well if it simply stopped paying royalties on the date copyright expired. Getting 100% is a lot better than getting 30%.

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