Category: Lit/Pub

KinderGuides & Copyright:  A Tale of Wishful Thinking

An important and instructive decision was handed down this week by New York District Court in the KinderGuides case. KinderGuides is a series of children’s books that include adaptations of classic works with some commentary about the authors and the stories.  Publisher Moppet Books has released illustrated, young-reader versions of works from the public domain like The Odyssey and Jane Eyre. But when they decided to launch a series of modern American classics still under copyright, this prompted litigation by rights holders who had not licensed their works to Moppet for adaptation.

At issue were Hemingway’s The Old Man and the Sea, Truman Capote’s Breakfast at Tiffany’s, Jack Kerouac’s On the Road, and Arthur C. Clarke’s 2001:  A Space Odyssey.  The suit against Moppet was filed by a group of plaintiffs including Penguin Random House, Simon & Schuster, and the estates or trusts of the four authors.  Now, before we ask the very reasonable question as to whether the Capote and Kerouac books in particular belong on a young child’s bookshelf in any form, hold that thought while we address the copyright story because it’s a lulu.

Moppet is the business venture of Frederick Colting and Melissa Medina. In 2009, Colting was successfully sued by the estate of J.D. Salinger for publishing an unauthorized sequel to The Catcher in the Rye. The New York Times reported in January, “Given the suit field by the Salinger estate, some in publishing were surprised that Mr. Colting would publish children’s versions of copyrighted works.”

What I find particularly striking about Judge Rakoff’s opinion in this case is that we can infer from his wry rejections of the defendants’ logic a narrative in which Moppet hoped to translate personal and generalized criticisms of copyright law into a series of affirmative defenses for having broken the law.  Rakoff was unequivocal in his dismissal of all of Moppet’s arguments, using terms like “absurd theory,” “exercise in sophistry,” “no support in applicable law,” and my personal favorite, “Implicit in defendants’ argument, then, is a contention that the Copyright Act itself is unconstitutional.” Suffice to say, Moppet did not have a good day in court. But let’s look at some of the important issues.

Substantial Similarity

In order to infringe the right of reproduction in regard to this kind of adaptation, the plaintiff must show that the new work is “substantially similar” to the original. So, if a short and sanitized story about a girl named Holly Golightly contains essential elements from Truman Capote’s novel, then it will be considered “substantially similar” to the original under the law.  Bizarrely, though, Moppet tried to argue that the characters and narratives in all four of the novels were “stock” elements not protected by copyright.  For instance, it appears they tried to claim that Holly is just any “small town girl with a tough past.”

This is an inscrutable claim coming from a publisher that aims to produce and sell children’s versions of classic literature.  Because if there were truly no “substantial similarity” to the original, as they tried to argue—if the Holly they presented in their version bore no resemblance to Capote’s character living out Capote’s narrative—then, Moppet would  probably be guilty of fraud—and possibly infringement of Capote’s right of publicity—because they would be selling their customers a book that has nothing whatsoever to do with Breakfast at Tiffany’s.  You can’t have it both ways; either it’s an adaptation or it’s a different story.

From Rakoff’s remarks, it seems the defendants tried to argue that the creative expressions in the novels are “fictional facts,” which were then “summarized” in the KinderGuide books.  This is the part Rakoff called an “exercise in sophistry.”  Legitimate summaries, as one might find in a book review, literary criticism, or a Cliff’s Notes type study guide, are patently distinct from adapted retellings of the stories themselves.  What KinderGuides produced were illustrated, children’s adaptations of the novels, which makes them “derivative works” under copyright law, rather than “guides” or other forms of comment about the novels.

Derivative Works

A rights holder retains the exclusive right to prepare derivative works (§106 (2)), which includes various types of works that are “based on the original works of authorship.”  So, products like film adaptations of novels, fictionalizations of non-fiction works, sound recordings, spin-offs, sequels, and translations are all examples of works that only the author has the right to prepare or license others to prepare. And this would naturally include children’s versions of novels that were originally written for adults.

The term “based upon” can be confusing because fair uses and new expressions are “based upon” works all the time.  Here, Judge Rakoff makes the distinction by reference to a case in which a Harry Potter Encyclopedia was held not to be a derivative work:

“A work is not derivative, however, simply because it is ‘based upon’ the preexisting works. Only works that are ‘recast, transformed, or adapted’ into another medium, mode, or language while still representing the ‘original work of authorship’ are derivative.

Here, though defendants’ Guides add additional material at the end, specifically a few brief pages of “Analysis,” “Quiz Questions,” and information about the author, they are primarily dedicated to retelling plaintiffs’ stories. Two pages of analysis do not convert the Guides overall – which are largely composed of “Story Summaries” – into something that no longer “represents the original work of authorship.’”

We see this happen with some frequency in the digital universe where repurposing content is relatively cheap and easy. A party wants to capitalize on the brand value of a notable work by making a use that infringes copyright, but they hope that some minimal measure of addition or change to the original work will meet the standards of fair use.  In fact, Rakoff’s opinion states that Colting and Medina “‘went to great lengths’ to achieve fair use protection,” implying that they made decisions based on how they believed fair use works (or how an attorney mis-advised them) but with little understanding of the actual doctrine.

Judge Rakoff held that defendants would be unlikely to prevail in weighing all four factors of the fair use test, stating, “Fair use…is not a jacket to be worn over an otherwise infringing outfit. One cannot add a bit of commentary to convert an unauthorized derivative work into a protectable publication.”  Even with my limited experience in the world of copyright law, I can imagine that quote will be cited in many fair use cases to come. It is one that should resonate with bloggers, YouTubers, and other digital-media creators who frequently imagine various uses to be fair uses when they are not.

Copyright is Not a Use-It-Or-Lose-It Right

One of the most important lessons in this case is revealed in the consideration of the fourth fair use factor, which weighs the potential market harm to the original works of authorship. While it is reasonable to think that a children’s version of a classic novel should have either no negative impact—or even a potentially positive impact—on sales of the original works, this is not the question on which the matter turns.

The exclusive rights in copyright, including the preparation of derivative works, are a not a use-it-or-lose-it proposition.  The author retains the right to change his mind and, for instance, prepare derivative works at any point during the term of copyright protection.  That right includes preventing the preparation of derivative works that the author or his assigns believe to be inappropriate uses of the original works.

Based on Judge Rakoff’s opinion, it seems that Colting and Medina were of the opinion that because the rights holders of these novels had not yet prepared children’s versions of these decades-old books, that some sort of limit had been reached, which should allow them to create their KinderGuides versions.  This reads as an attempt to argue that the defendant’s opinion that copyright terms are too long is the same thing as an affirmative defense for infringement.  “Indeed, the fact that any given author has decided not to exploit certain rights does not mean that others gain the right to exploit them,” stated Rakoff shortly before he opined that the defendant’s argument in this regard is tantamount to calling the copyright act unconstitutional.

Value to the Public

This rather arrogant assumption that the right to exploit a work in a specific way should devolve from the rights holders as a consequence of non-exploitation raises a question of value for me that is separate from—but adjacent to—the copyright issues.  As a parent who is reasonably well-versed in the literary arts, I’m skeptical about the value KinderGuides would be providing in this particular case.  If Kerouac-Lite existed, I don’t see why I would buy it for my kid.

As described in an older post, I remember being a new parent in the 1990s when the market exploded with billions of dollars worth of products and services designed to mold our children into geniuses.  It became necessary to step back from all that frenzy and think about which choices are truly in the interest of the child in contrast to those which more likely appeal to the egos of the parents.

In fact the 2016 New York Times headline announcing Moppet’s foray into American classics virtually echoes this tension between parent ego and child education.  Forget ‘Pat the Bunny.’ My Child Is Reading Hemingway, it says.  The notably careless mention of Pat the Bunny, which is a pre-reader’s tactile book, brings back memories of getting swept up in the marketing of things my kids don’t actually need.  One does not segue from Pat to Papa quite so rapidly.  And my instinct is that one shouldn’t.

My personal view in this regard is that children’s versions of works that may be described as foundational building blocks of literature and culture—The Odyssey, the Bible, Shakespeare, Norse Myths, Little Women, etc.—can be tremendously valuable.  While the 6-12-year-old is still learning fundamental literacy like spelling and grammar, this is a good time to introduce simplified versions of ancient stories and themes they will later discover resonating throughout their reading experiences. At least that’s the hope.

But publishing children’s versions of novels like On the Road or Breakfast at Tiffany’s in particular smacks of market opportunism with dubious educational value, especially in contrast to the wealth of great literature written purposely for children.  It’s not that it wouldn’t be possible to legally write the children’s version of a story about an “American geisha” (as Capote described Holly Golightly), so much as one has to wonder why one would do so.  Thankfully, Judge Rakoff offers a sober and informative opinion regarding KinderGuides’ efforts before they get any ideas about the works of Anaïs Nin.

Google Books & The Semantic Maze of Fair Use

Photo by author.

This week the Supreme Court declined to consider the Authors Guild v Google case, which lets stand the Second Circuit Court ruling that Google’s use of scanned published works for its search tool Google Books constitutes a fair use.  Various pundits and advocates have hailed this as a victory for the fair use principle.  In fact, I saw a headline the other day on Facebook that began with the words “Fair Use Wins …”, and although the decision is unquestionably a win for Google, the fair use principle actually remains mired in a semantic confusion about which the high court might have at least provided some clarity.  It’s all about the word transformativeness.

The fair use doctrine was added to the Copyright Law as part of the 1976 Act, and its original intent was to protect various types of expressions—commentary, parody, education, artistic remixes, reportage, etc.—that by necessity made limited and conditional uses of copyrighted works.  I’ve written longer posts about fair use doctrine in general, and won’t repeat all that here, but readers will remember that there are four interrelated factors to be considered* in assessing whether a use constitutes a fair use.  But in 1994, in a landmark case that was heard by the Supreme Court called Campbell v Acuff-Rose Music, the fair use doctrine grew a new appendage called “transformativeness” that has, in the age of the internet, not only become something of a fifth factor that seems to override consideration of the other four, but also has not been clearly defined as a term of art in legal practice.

As I continue to learn from my attorney friends, some of the words we use in everyday language become terms of art in the legal world, which generally means that court rulings have shaped, narrowed, or expanded the dictionary definition of key terms.  For instance, based on the current ruling by a federal court, the word articles can only mean “physical objects” with regard to the International Trade Commission’s authority to prohibit the importation of illegal goods.  So, if Congress wants to grant that body the authority to restrict the importation of digital data for illegal purposes, they’re probably going to have to rewrite the law.  (More about that another time, perhaps.)

The concept of “transformativeness” in fair use parlance was introduced by Judge Pierre Leval in his paper “Toward a Fair Use Standard” published in the Harvard Law Review in 1990, and coincidentally it was Leval who wrote the decision in the Second Circuit’s ruling in Authors Guild v Google.  But even though the “father of transformativeness” himself has ruled in this case, there is still much confusion about the term and what it means when considering fair use. As Thomas Sydnor of the Center for Internet, Communications and Technology Policy at the American Enterprise Institute writes about the situation:

“As cases applying this judge-made “transformativeness”-based approach to fair use accumulate, that term becomes increasingly incoherent, inconsistent, and counterintuitive. Collectively, its incoherence(s) now threaten to turn what was once a productively flexible multi-factor balancing test into little more than a perfunctory recitation of factors ending in judicial ipsa dixit – “because I said so.” Under such circumstances, rule of law cannot persist.”

Sydnor further points out that the word transform already exists in the 1976 Copyright Act in reference to the preparation of “derivative works,” which is another term of art to describe works such as spin-offs or adaptations into other media. These rights belong exclusively to the copyright owner of the original work and should not be confused with the more casual way we might use the word derivative to describe, or even criticize, a work that is mimicking some other work.  For instance, the above-mentioned Campbell case involves a work of parody that we might describe in common language as derivative, but not so in the context of copyright law.

Campbell v Acuff-Rose Music involved a new, expressive work, specifically 2 Live Crew’s raunchy parody of the song “Oh, Pretty Woman” co-written and originally performed by Roy Orbison.  The court held in Campbell that “the more transformative the new work, the less will be the significance of other factors.”  In this case, the court is referring to the extent to which 2 Live Crew “transformed” the original song to make a new song.  By contrast, though, Google does not “transform” any of the original works to create new expressions but instead uses the contents of the works to create a new search service called Google Books.

So, with these two rulings, we are looking at two significantly distinct definitions of the word transformativeness.  The first refers to modification of an expressive work in order to make a new expressive work.  The second implicitly refers to transformation of the external world (society) by the introduction of some new capacity (i.e. function) it did not have before.  This is particularly relevant because the language used by SCOTUS, asserting that “transformativeness” should “lessen the significance of the other factors,” can only rationally be applied—if the spirit of fair use doctrine is to be kept intact—to the first definition in which an original work is “transformed” to create a new, expressive work.  In the second usage of the word, in which the external world is assumed to be transformed by some new functional use, then “transformativeness” becomes too heavily weighted against the other factors, thus giving (for instance) a giant, wealthy service provider extraordinary latitude to define just about anything it does as socially “transformative.”

If the courts are going to apply this second definition of “transformativeness,” then it seems the consideration ought not to carry any more weight than the other factors because the second definition provides a basis for large-scale, corporate-funded uses of millions of works in a way that the first definition does not.  In other words Google Books may be deemed a fair use in the end, but it is not sensible that the application of “transformativeness” in Campbell be applied.  As it stands, the courts appear to be giving the same weight to “transformativeness” while using two very different definitions of the word.

Semantically speaking, I would argue that transformative is not exactly the right word to use when one specifically wants to describe some measure of modification to an existing thing like a creative expression.  The term is problematic because it begs exactly the confusion we now have in the courts—because transformative more properly describes the effects of an invention or expression to the external world (e.g. electricity was transformative in that it made modern society). While it would not be wrong in common parlance to describe, for instance, Jeff Buckley’s rendition of Leonard Cohen’s “Hallelujah” as “transformative,” even this usage would generally tend to convey that both song and listener are in some way transformed.  But in law, this is too vague.  This is why the attorneys refer to a term of art –a definition that is established within the language of the law that may or may not conform to everyday usage.  Sydnor points out that Leval himself provides little guidance in this regard when he quotes the judge thus:

“The word “transformative” cannot be taken too literally as a sufficient key to understanding the elements of fair use. It is rather a suggestive symbol for a complex thought….”

 “[T]he word “transformative,” if interpreted too broadly, can also seem to authorize copying that should fall within the scope of an author’s derivative rights. Attempts to find a circumspect shorthand for a complex concept are best understood as suggestive of a general direction, rather than as definitive descriptions.”

Right. I’m no legal scholar, but I think the concept “transformative” is a troublemaker.

Because the precedent SCOTUS ruling in Campbell is based on the use of “transformativeness” to describe the modification of an expressive work, it would make sense to settle upon this definition and to seek another term for considering functional uses akin to Google Books. As CEO of Copyright Alliance Keith Kupferschmid writes in a post on the organization’s website:

“The fair use doctrine is an equitable doctrine, but in functional use cases it hasn’t worked that way because the transformative use test is ill equipped to effectively balance the competing interests at stake in these cases.  Fair use analysis should take into account not only the interests of owners and users but also the underlying policy objectives of the copyright law.  To account for these factors in a reasonable and balanced way, it is time for the courts to begin using a functional use test.”

Unfortunately for rights holders, the confusion about “transformativeness” that leaks into general consciousness results in a casual logic, which assumes that simply changing the context of a work, like placing a photograph on one’s Facebook page, is “transformative” enough to make a use fair.  Google Books is a misstep in that direction, and if this becomes the application of fair use, then that’s the ballgame.  There are no copyrights left. I can take your songs or images, put them on this blog, call it “transformative”, and get away with it.  That may be an attractive proposal to the internet industry, but it is far from the original intent of fair use doctrine in the copyright law, which was to protect expression, and it would have disastrous effects on the professional creative industry as we know it.

*Changed from original publication, which stated that the factors are considered by a three-judge panel.  As pointed out by Anonymous commenter, this is only true in an appellate court. A mistake I made in haste owing to the fact that many famous fair use cases are famous because they’ve gone to higher courts.

Don’t Blame Disposability on Copyright – Part II

In Part I of this essay, I responded to a post written by Parker Higgins for Techdirt, criticizing him for trying to pack a big, unexamined conclusion into a small article. Asserting, as Techdirtians are want to do, that copyright is the omnipresent saboteur in our otherwise grand, digital machine, Higgins blames copyright’s complexity and length of terms for causing important works of the 20th century to “disappear,” thus harming historical journalism and other endeavors.  He cites a number of what I believe to be unrelated and ill-considered examples, several of which I addressed in Part I. But I left out the most compelling of Higgins’s citations—the work of Paul J. Heald, law professor at the University of Illinois—because it demands a best attempt at a more thorough response on its own.

Technically, Higgins cites Rebecca J. Rosen, writing for The Atlantic about the professor’s statistical research. Heald looks at the availability of published books via Amazon and concludes unequivocally that “copyright makes books disappear.”  To support this claim, he cites his research data, which revels peaks in the availability of books in the public domain and in the availability of very recent books, with a sharp decline in the availability of books from roughly the 1930s to the late 1990s.  And while it is true that this period roughly corresponds to works still under copyright (1923-present), it’s not entirely clear that Heald’s research reveals either a relevant lack of availability, or that that copyright is the catalyst to explain his findings. I have read the part of Heald’s paper that deals with books (he also addresses music) and admit that my reading may err, but I think we should be careful, for instance, about how we interpret summaries of Heald’s work like this one by Rebecca Rosen:

Heald says that the WorldCat research showed, for example, that there were eight times as many books published in the 1980s as in the 1880s, but there are roughly as many titles available on Amazon for the two decades.

To an observer who chooses to look solely at the quantity of available works as a percentage of the total works produced in a given period—and who might have a nascent beef with copyright—this statement may seem rather compelling.  But how many factors are being left out of the equation?  Maybe quite a few.  Heald’s data set comprises a little over 2,000 works sampled at random, which in itself seems like a flaw because a random sampling of ISBN numbers querying the Amazon database should naturally produce a higher percentage of public domain books simply because there are vastly more editions of books not under copyright. Heald does account for multiple editions in winnowing his initial sample of 7,000 titles down to the 2,266 books studied, but he does not seem to account for the probability of skewing toward public domain works by percentage in the initial, random data acquisition.

Additionally, although the researchers seem to have done their best to randomly sample comparable commodities (e.g. fiction novels to fiction novels),  Heald’s findings do not appear to account for more nuanced factors, like the certainty that a higher volume of short-lifespan works was produced in the the 1980s compared to the 1880s.  He acknowledges that total volume would naturally be higher in the 20th century than in the 19th, citing changes in printing technology, but he does not appear to look at the nature of the works themselves and then to ask how much of the sloughed off volume represents natural disposability (i.e. for which there is no sustainable market demand). Heald does address generalized demand in his paper but in a way that also appears flawed, about which more in a moment.

One detail that leapt out for me in Heald’s data is a marked drop in the relative availability (by percentage) of new books available that were originally published the 1980s compared to the rest of the otherwise fairly flat mid-20th century.  Presumably, copyright is a constant from 1923 to the present, so the dip in the 1980s compared to the other decades of the century is likely explained by other factors—factors that may apply throughout the results across the entire range of study.  Hence we should be very wary of a pull quote like this one used at the beginning of Rosen’s article:

A book published during the presidency of Chester A. Arthur has a greater chance of being in print today than one published during the time of Reagan.

Again, that sounds intriguing but may not say quite what we think it does. Based purely on anecdotal knowledge of the 1980s, Heald’s data revealing a noticeable decline in relative book availability would seem to coincide with a decade marked by “conspicuous consumption,” a time when publishers would have been very likely to produce a high volume of relatively disposable works in both fiction and non-fiction. For instance, did the 1980s see a sharp increase in one of the most disposable genres—that guilty-pleasure among women readers known as the romance novel? Certainly, according to Wikipedia, 1980 happens to be the year that Harlequin Romance launched its North American product line. Romance novels as well as books like trade-paperback mysteries, self-help, and diet books tend to have very short lifespans book-by-book; and if publishers did increase their output of these types of products in the 1980s, it could explain part of Heald’s data and have nothing whatsoever to do with copyright terms.

So, the statistical expression “greater chance,” can be very misleading.  If, for example, 60% of the works from 1881 are available compared to 20% of the works from 1981, then the pull quote cited by Rosen is factual but meaningless, particularly as it may or may not inform us about the role of copyright. The conclusion can be accurate but still not tell us whether or not we have a greater number of works available from 1981 than from 1881, to say nothing of the theoretical market value of the unavailable works from the latter year.

Even where Heald limited his data set to works of fiction, his paper does not indicate what kind of fiction is being sampled. And this is a general caveat I would propose when interpreting the entire study:  that without corresponding Heald’s data with some relevant market-research information (i.e. what people are reading and why), we are not learning the kind of information required to draw sound conclusions about the role of copyright.

Consider, for instance, that the most ardent readers among Baby Boomers and Gen-Xers have read many of the books of the 20th century and may even still own copies of their favorites. Hence these most voracious readers are apt to seek out the most contemporary literature and perhaps older works they never encountered, but they’ve already done many of the books of the mid-20th century.  So, what are millennials reading today, either by choice or by requirement in schools and universities? Because there is no question that this generation, for better or worse, has a very different relationship to culture, literature, and media in general than their parents and grandparents.  I know my own kids’ school experience has (much to my chagrin) been lacking in required reading of books we would call the 20th century canon. Does this hold true in public schools across the country?  If so, how can this, or any other ethnographic study, not be considered in concert with research like Heald’s?

Meanwhile, some rudimentary searching on my own reveals that works from both best-seller and best-books lists of the 1980s are certainly available via Amazon. Though I admittedly did not search every title, it seems that we can find Amy Tan, Toni Morrison, Umberto Eco, and even Danielle Steele, if we are so inclined.  Hence, it appears that Heald’s research may tell us nothing about the rate of availability, decade by decade, of what we might generally agree to call “significant writings.” If that’s a fair assessment, it does not entirely dismiss all of Heald’s findings, but it does suggest that reporters and pundits should be leery of interpreting his data to support the “disappearing 20th century” claim.

Still, if it is true that the availability of “significant writings” from 1980 is actually not that different from the availability of “significant writings” from 1880, this may support Heald’s stated objective in his paper, which did not apparently set out to prove that “copyright makes works disappear.” Instead, Heald’s stated proposal is to refute the assertion that present copyright terms are necessary to keep works in the market.  This may sound like the same hypothesis, but it isn’t.  Setting out to prove that a copyright term of 95 years (for publishers) is unnecessary to keep works meaningfully available is not synonymous with setting out to prove that this length of term “makes works disappear.” It seems Heald began with the former thesis and then shifted to the latter based on what he perceived as “startling” evidence in his data.

One could argue that mechanisms for publishing works in the public domain are as effective as mechanisms for publishing works under copyright and that the public is at least equally served by either regime.  As long as desired works are available, then they’re available.  But, the argument Heald is making is that the current terms are underserving the public because publishers hold copyrights on works still in demand, but also refuse to publish these works.  If this is true, then Heald is presumably correct that the terms of copyright on these unavailable works provide no benefit to anyone.

But in order to make the assertion that publishers are choosing to sequester a relevant volume of books in demand, he needs to prove at least two things:  1) demand for the actual works in question; and 2) that the copyrights on these works are still held by the publishers and not by the original authors.  And if those facts can be demonstrated, one must then make an argument for reducing the length of terms without running afoul of copyright’s incentive to create and publish the most “significant writings” in the first place.  To put that another way, we’d want to ensure we do not fail to incentivize the next Joyce Carol Oates just so that some e-publisher can make a few dollars off books that had earned a natural disposability in the market. Perhaps that is a term length shorter than 95 years, but it seems to me that Heald’s research provides no guidance as to what that revision ought to be.

The Demand for Missing Works

Heald’s research makes no effort to answer the second question I posed above, which is to ascertain the actual copyright status of the books presently unavailable.  This is particularly relevant because with many of the aforementioned short-lifespan books (e.g. trade paperbacks), the exclusive copyrights revert back from publishers to authors rather quickly. And since Heald’s data makes no mention of the types of books selected at random and does not factor for current copyright status of any of these books, it seems unreasonable to draw his conclusions about the motivation of publishers to keep works unavailable based solely on his findings.

On the other hand, Heald does make an effort to ascertain whether or not there is a demand for the unavailable books, and he states clearly that if this demand does not exist, then concerns about unavailability are irrelevant.  But, again, in attempting to determine demand for these works, it looks as though Heald is using information that does not point to a demand for missing works since there are no missing works in the data set and, again, he foregoes market research altogether.

Heald compares the used books available on abeboks.com by decade to the number of new books available on Amazon by decade. The assumption is that the inventory of a used book dealer is an indicator of consumer demand, which is reasonable, but the data reflected only demonstrates that, for instance, there is an availability of used books from the 1970s that is greater than the availability of new books from the 1970s.  Of course, neither line graph tells us anything about sales of either used or new books from the 1970s (to say nothing of which books we’re talking about), but Heald asserts that the gap between the available used books and available new books represents an unmet demand for titles that could be, but are not, sold as new books.

So, without seeking more detailed market information, it seems very hard to leap to the conclusion that an unmet demand for newly published mid-20th century books exists, let alone that copyright is the cause of the problem. After all, his conclusion suggests that a publisher might see profitable demand for one of its titles yet decide not to republish that book for inexplicably self-defeating reasons.  I’m not the most savvy businessman in history, but if I had to decide whether or not to spend money to publish some of my titles from the 1970s, this data would not be sufficient to make that call, not especially without knowing what 1970s titles from that inventory at abebooks.com is actually selling. Meanwhile, once again, I find titles from both best-seller and best-books lists available at both Amazon and abebooks.com.

But, it is at this point that Heald seems to depart from the question of general availability, relative either to demand or to production volume by decade, and instead shifts his focus to e-book availability as a measure unto itself.  He writes:

“In 2014, 94% of 165 PD best sellers (1913-1922) were available as ebooks compared to only 27% of 167 best sellers (1923-1932) were made available as ebooks by publishers.”  

Again, this seems remarkable at first, but we should notice, as I say, that Heald has shifted focus from general availability to availability via a specific platform. After all, lack of availability to date in eBook format is not equivalent to lack of availability period. And Heald proves this point himself in citing three particular titles thus:

“In the absence of copyright, surely one could find a publisher providing eBook versions of popular classics like The Gulag Archipelago, Gentlemen Prefer Blondes, and The Magnificent Obsession.”

Surely one could find publishers pleased as punch to freely create eBooks from these works, and for good reason:  that all of these books have deservedly retained their market value. And this is precisely why consumers can still buy print copies via Amazon or in a bookstore, find used copies via multiple sources, borrow them from public libraries, and buy all three as audio books from Audible.com  The fact that the publishers have yet to make these titles available in eBook format—and there are likely a variety of practical reasons for this—is no excuse for describing these works as “unavailable,” let alone to blame copyright for that false claim, and then to allow this assertion to be exaggerated by pundits and reporters as the “disappearing 20th century.”

Additionally, if one takes a step back, Heald would appear to be making a case for an opportunistic e-publisher (who never contributed anything to the creation of the work) to now reap financial reward from a book by Alexander Solzhenitsyn, of all people, and disenfranchise his sons from any controlling interest in a work published about the time they were born.*  And we would do this for a book that is quite clearly available to the market via multiple sources.

While it is certainly true that simply having all works enter the public domain much sooner would lead to a spike in general availability in mid-20th century books, I think it would take a far more nuanced examination to determine whether that untapped “abundance” would justify diminishing the copyright terms for authors of works whose maintained availability may have a great deal to do with their widely accepted value to society.  At the same time, niche audience works can be restored to public availability by means other than copyright term revision.

One of my dear friends is the son of the author Michael Avallone, who wrote the Ed Noon detective series between 1953 and 1988.  This is the kind of book series that lives in its time and place and then typically goes out of print. But as the co-owner (with his sister) and steward of his father’s copyrights, David Avallone has been able to resurrect Ed Noon, republishing the works as eBooks, and growing a contemporary fan base for the character using social media. This is more a personal project for David than a business venture. In particular, after Michael passed away in 199, the ability to bring back Ed Noon thanks to digital technology has been a very meaningful way for David to give his father’s voice new life, not only for older fans who remember the series, but for a new generation of readers who never heard of Ed Noon.

In theory, if Avallone’s copyrights had expired, it’s true that Amazon or some other on-demand publisher would be free to make these books available—if they could even lay hands on the source material—but the whole venture would be of lesser value, I think, than it is under the management of a loving heir who tweets out Noon-isms twice a day to entice readers. Conversely, if none of this were possible because the copyrights were still in a publisher’s hands who simply chose to let the works be dormant, this would be a shame for both David and for presumptive readers, but it would still not justify claims that a whole century’s worth of literature remains inaccessible. If anything, perhaps it suggests a kind of “use it or lose it” reform to corporate-owned copyrights, but no doubt real copyright authorities would have various opinions about that.

I don’t mean to suggest that Professor Heald’s work is to be dismissed outright, only that the data seems incomplete relative to the conclusions being drawn.  There are certainly more qualified statisticians, copyright scholars, and publishing professionals than I who may criticize or support his findings and determine to what extent they tell us anything about the role of copyright as a barrier to access.  But speaking as a generalist to the general reader, I’ll maintain that we should not simply buy the stuff is disappearing because of copyright story presented so casually in posts like the one by Parker Higgins. Stuff is appearing, disappearing, and being resurrected at an extraordinary rate thanks entirely to digital technology.  The extent to which copyright and its limitations foster or hamper the most beneficial results of all this churning media is not a simple question to answer.

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* I do not know the current copyright status of The Gulag Archipelago; I mention this as an example in principle.