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Monday, 30 January 2012

Sublime threats and ridiculous consequences as the works of 3 great English writers enter the global public domain

Copyright enforcement may be seen as a global problem, but drafting new obligations like ACTA via the back door of a "trade agreement" in secret and outside of the world bodies responsible for overseeing global intellectual property treaties and the trade in copyright-protected works risks overlooking the complexity of the problem.

When global music companies talk about piracy they're imagining systems to block the spread of Lady Gaga, oh how I wish this could be achieved.

But it's not simple. Forget well-known works of famous musicians, how is an internet service provider supposed to distinguish between songs smaller bands have chosen to release for free, and those being pirated?

In fact forget music all together. Let's have a look at a few works from three famous 20th century English writers to highlight the intricacies of enforcing copyright in a global domain.

Two great books about flawed economic and social models

Two books by one English writer together offer an allegory about a flawed economic model and the overbearing social consequences of the price of intrusive monitoring and enforcement.

Although documenting Stalinism, the lessons in Orwell's Animal Farm and Nineteen Eighty Four could apply equally to copyright.

Like Animalism, copyright is a system that should protect all creators.  But, as in Animal Farm, the pigs of the publishing industry - the ones who decide the rules amongst themselves - are running the farm for their own ends.

Moving on to Nineteen Eighty Four, a system designed for common social good can only be enforced with a policeman - in the form of Big Brother - in every home, street corner and gymnasium.

In an era where very low barriers to self-publishing make us all both copyright owners and capable of serious infringement, fundamental questions about enforceability and proportionality are being raised.

Will a system of copyright which attempts to detect and punish every minor infringement ever work? At least not without the threat of disproportionate punishment alongside the ability of Big Brother to monitor every web server, internet connection and home computer.

The peril in the public domain for online publishers

With great joy I found both Orwell's classics have entered the public domain and are available as royalty-free copyright-free e-books online.  They are available to download legally, but there's a snag.

If you're reading this in South Africa, Canada or Australia, it's OK for me to tell you where to find such services.  Hint: one's in Canada and one's in Australia.

The catch: whilst the books are out of copyright in many countries, the copyright isn't due to expire in Europe until 2020, 70 years after the death of Orwell.

And, thanks to the Copyright Term Extension Act in 1998, copyright isn't due to expire in the USA until 2040 for Animal Farm and 2044 for Nineteen Eighty Four, 95 years after publication.

Sublime over-reactions: the extradition threat

Now you may well be sat there in Toronto, Durban or Perth, but I am fearful of linking to either of the legal services I found hosting a copy of Orwell's work.

Neither service seems to block access from overseas jurisdictions where the work remains in copyright.

As I discovered when researching the case of Richard O'Dwyer, facing extradition to the US for hosting a website linking to copyright-infringing content, the USA appears to be laying claim to jurisdiction on all .net and .com web addresses.  And that will include slightlyrightofcentre.com.

Whilst my local law enforcement authorities may look kindly on a minor transgression, there's an admittedly remote possibility I end up being whisked off to face questioning in Los Angeles for stealing the work of a great English novelist; and, in doing so, denying publishing pigs in Oceania's American lands the opportunity to milk the last few drops from this cash cow.

Yes, the pigs learned to milk the cows themselves in Animal Farm, side-lining the authors humans in the process.

Ridiculous consequences

In fact, taking the logic in the O'Dwyer case - linking to infringing content can itself be infringing - maybe I shouldn't even mention the names of the websites where these out-of-copyright classics can be found.

Naming the sites will allow those sat there in the land of the free to use Google to hunt-down infringing copies; I'd be aiding and abetting in the crime!

There's a UK public domain e-book project offering free and legal out-of-copyright e-books. But I can't link to this either, as it contains a book called Lady Chatterley's Lover by another English novelist, an alumnus of my alma mater, David Herbert Richards Lawrence, or D.H. for short.

But not on grounds of taste and decency.

We wouldn't want to block anything from public consumption just because it's obscene! (A position, incidentally, I agree with. Just thought I'd get that in, there.)

Lady Chatterley entered the public domain in Europe in 2000, 70 years after the author's death.  Yet a book infamous for censorship can't be downloaded legally from royalty-free sources in the USA until at least 2023 on copyright grounds.  It could be as late as 2048, 120 years after authorship, depending on when it was first published in the US, I'm a bit short on information to make a definitive call.

Now, there's also a US public domain e-book project.  Obviously I wouldn't face extradition for linking to a site obeying US copyright law, but could I be committing an offence here in England?

Well, yes and no. On account of writers such as P. G. Wodehouse, another English gent born not 10 miles from the Open Digital office.

Wodehouse lived to the grand old age of 93. On account of his longevity, his books won't enter the pubic domain in Europe until 2045.

But, since he started young, works such as Piccadilly Jim, first published in the USA in 1917, will enter the public domain in America in 24 day's time. Some of his earlier books are already in the US public domain, but it would be unlawful to download them here in the UK.

Laws today are proportionate and reasonable

I say yes and no because UK copyright law is actually quite reasonable and proportionate.  Cases of accidental or minor infringement have not been prosecuted, and I'm reasonably confident linking to e.g. Project Gutenberg will be fine... For now.

But there remains immense pressure for new laws to be rushed, despite there being no consensus as to the scale of the problem, never mind the solution.

Such is the complexity with a few works from three globally-recognised writers. Imagine the challenge determining the copyright status for lesser-known works where the author's date of death isn't easily retrievable from Wikipedia, or when the date of authorship or publication can't be ascertained.

Shrinking the public domain

Copyright law is territorial, therefore it makes no sense at all to extradite someone for infringing copyright when their actions could have been perfectly legal in the country of residence.

We expect to be governed by the laws of our country of residence, and compliance to these laws can only be tested in our own court system.

Such enforcement over-reach risks a chill.  As the threat of trans-jurisdictional action grows, projects like Gutenberg may be forced to implement costly country-specific blocking systems and act with extreme caution, only allowing access from countries when the site owners are sure the works are safe to publish.

And this could kill a volunteer-effort organisation attempting to make public domain works accessible to the public.  It is not realistic to expect hobbyists and self-publishers to get to grips with the copyright rules of every territory around the world.

The net result will be a shrinking of the public domain, with royalty-free works not becoming available online until the copyright has expired in all territories.

Why should you care about the availability of public domain works and projects such as Gutenberg and other free book projects?

Put this the other way around. Why should you pay for a book after the copyright has expired?  There's no guarantee that publishers selling out-of-copyright works are doing anything other than lining their own pockets, leeching off the hard work of others without a penny of reward passing to the poor, cash-starved great grandchildren of the original author?!



  1. As a published author, I have decided to bequeath all my work into the public domain upon my death, or fifty years after publication, whichever comes first. As an act of "Spitting at the Devil", I intend to write a few copyright free books just to thumb my nose at Disney.

    Not like anyone may be interested. I'm no Orwell. Still, perhaps we writers can do our part to demonstrate that the antiquated system the US government is struggling to uphold runs counter to the notion of a free exchange of ideas, and must be defeated.

    1. @MaskoftheWarrior. Don't do that. (1) A court may consider your action unreasonable and "the public" won't be represented to support your wishes, and (2) We've recently seen lots of examples where governments have removed works from public domain again.

      Donate the copyrights to an appropriate charity/non profit instead and let them handle the legal issues.

  2. I say: burn all libraries and discotheques, and start copyrighting all the recipes in recipe-books, asking supermarkets to investigate the non-infringing use of the ingredient's they sell (i.e.: "Let's have a look at that spaghetti sauce recipe, m'mam."). It's the logical follow-up to this form of thinking.

  3. > The catch: whilst the books are out of copyright in many countries, the copyright isn't due to expire in Europe until 2020, 70 years after the death of Orwell.

    and yet you say UK copyright law is 'quite reasonable and proportionate'.

    I have to disagree. It is not acceptable that there have been 70 years worth of monopolistic protection that in no way directly benefited the author nor encouraged him to create more literary works.

  4. I was actually referring to the sanctions against alleged infringement, not the length of protection term. Although there is a rational argument for novels and books by a single author or small group of authors to have far longer protection terms than say software source code. And even then, open source software and copyleft relies on legal protection so the argument on protection terms is not easy - but clearly there are issues with 70 years beyond the death of the author, for any work.

  5. It's a tiny nitpick in the grand scheme of things, but, "Piccadilly Jim" and anything else written and published before 1st Jan 1923 is already in the US public domain. However, nothing new will enter the US-PD until 1st Jan 2019, when books published 95 years previous (that is, during 1923) will go free. Also, the copyright duration is rounded up to the nearest year, so there's just one release each year, the month and day of first publication don't affect the outcome.

    See also: http://www.law.duke.edu/cspd/publicdomainday


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