Library Books Once More



Weimar 2004, Anna Amalia, afternoon after...

REV. 3/13/2013

There are burning issues here, at least as far as efficiencies in research methods based on electronic library books can be considered a burning issue. It is more like a campfire in the rain. Obviously, English departments would still graduate their seniors, hire teaching assistants, and grant tenure, even if an electronic library continued to limp through electronic space with only the books published before 1923 available. An electronic library of 12 or by now perhaps 14 million books is of marginal interest to web users at large. By the same token, just how many people actually did use the library at Alexandria. What was the percentage of commerce in grains or oil or wine compared to the commerce in books and ideas.

Books published after 1922 have become hostage to a strange and bizarre theory of property. Below, I shall attempt to sketch out some of the details gleaned from a number of sources - facts generally - so in no danger of infringement. To set the scene: for some time, The Law has concerned itself with the rights of authors, exclusive rights, over their writings, the fruits of their labors, as it were.

The Law has lurched about a bit: from private deals with rulers to protect important publications (15-16 c.), to a general sense that authors have rights over their work (17 c.), to specific statutes that enshrine that right (18 c.). If we draw a timeline from the English laws in the 18th c. to the present, roughly at halftime, all sorts of artistic works were added to the statutes: musical compositions, photographs, drawings, plays, sermons, and any number of other things. Pamphlets, periodicals, and music make up 75%, books 4%. When that game ended in 1976, a new came was started with the Copyright Act of 1976. One the new timeline we are merely in the opening minutes, but the action has been fast and furious. I have alluded in the previous installments to some of this action. Yet it is best to stay centered and not engage in vapid generalizations based on personal preference, as is my wont.

For this reason I prefer to comment on a text on The Law, IP law to be specific, Posner and Landes, "The Economic Structure of IP" (op. cit.).

The book is infuriating in many ways. There are many extremely clever, helpful, even brilliant analyses extending over pages. Then there are also long sections that are based on premises that have to be rejected out of hand after reading the first paragraph. There are hypotheticals so absurd that one wonders about the intellectual climate in The Law.

For example, Posner (and Landes - henceforth P&L) suggest that much that is wrong with copyright could be fixed by requiring periodic short term renewals of copyright as is the case with patents, something that was abolished. This would insure that valuable properties are protected while books not expected to ever make a dime can be let slip gracefully into the public domain, (the electronic public domain I would add) there to seek social value, having failed to achieve economic value.

The problems this would solve are myriad as P&L enumerate, everything from current addresses for copyright holders to untrammeled access to non-commercial properties for education. After scoring a resounding intellectual coup with this suggestion, one could expect a new chapter to start having put this issue to bed. Yet, that is not the path of legal writing - the meandering text will have to stop at any number of unlikely, possible absurd scenarios before dissolving into air - at the doorstep of Congress and Sony and Disney.

Since our judicial system is adversarial, one can assume that every argument has a counter argument. Over time, it must become ever more difficult to have a clear idea, which of two competing arguments is actually superior. I can imagine that one argument convinces until the other argument is heard, which convinces until the rebuttal. The only path of integrity then it to consider all arguments, even unlikely ones. Decisions may then be made based on factors that have nothing to do with the arguments which have given the proceeding merely a mantle of plausibility. Since the arguments presented by the litigants are self-serving spin, some source of justice outside the arguments must be activated.

This is the path that P&L take with renewal of copyright. The requirement of renewal was scrapped in 1992 for reasons that are not crystal clear but several reasons have been enumerated. There was the headache of paperwork, (read: gross mismanagement) by the LOC and the music industry, removed with one stroke. There are problems with international copyright, the language problem which persuade many countries to abandon the idea of renewals (Berne Convention). There were also cases where renewal was not submitted and widows and children were left without royalties well into the middle of the 21st c. There was the fact that renewal rates were rather low so the choice was between abolishing copyright or abolishing the renewal of copyright. Congress made copyright automatic, removed all notion of renewal and set the time limit as close to perpetual as one can without actually using terms like perpetual or indefinite. This allowed the Supreme Court to slip out the back door on this one.

The economic analysis of P&L identify costs with the long duration of copyright and with the undifferentiated application of copyright to virtually all expression. Yet to simply say that the system is screwed up beyond repair and turn to something else is not possible for a judge and a professor of property law. A scientist would be tempted to switch fields. With The Law, the issue will have to be jawboned into all sorts of unlikely corners. There must be a strategy involved; perhaps it is a wager that the reader will be affected by reverse psychology. But then there are the actions of Congress!?

Indefinite Renewal

The first infuriating assumption surrounding P&L's suggestion to reintroduce renewal is that the renewal be "indefinite." They do not say that renewals should be required until the current "life plus 70" is reached, or for 120 years, or extended to "life plus the combined ages of Supreme Court Justices." They posit indefinite renewal, probably because there will always be a strong willed push to extend the term about to expire. Given what little I know about Elred I don't see what could make this fly. Why even go there? We are headed for the unlikely corner.

This also leads to arguments and examples that would give most literature people a bad case of acid-reflux:

"Under a regime of indefinitely renewable copyright instituted in 1500 AD., most of the poems in an anthology of popular poetry might still be under copyright and therefore many more licenses would have to be obtained for a new anthology." p.217

So what is the hypothetical here? Congress would assume jurisdiction over copyright here for European poetry from a time 300 years before the founding of the nation? No? There would be a Constitutional Amendment? Having studied lobbying, perhaps P&L see a potential Act of Congress here: The Late Medieval Poetry Licensing Act. So we have to ask - why does this seem like a reasonable hypothetical to two brilliant lawyers but makes a literature person recoil in disbelief? To a lawyer all the relevant facts are present: a law dated 1500 or jurisdiction starting at 1500 (same thing), current anthologies containing some poems from that period, the names of authors who wrote the poems. Great, lets start negotiating licenses with just a small percentage of the gross for the lawyers. A literature person would have an acute sense of just how little we know about people in the 16th century, and moreover, how little we know about the descendants of artists. Although we have books of "deeds" for real property in most European countries, many of the houses in question have burned or were destroyed many times over. We may have the names of owners in the 16th century, but only a few families - if any - remained an unbroken chain to this day.

I am not sure that it would be possible to trace the lineage of even one poet who was not part of one of the few ruling houses that have not dissolved, anywhere close to the 20th century. No doubt there are heirs who claim a piece of the past.

Thanks to P&L's footnote 17 p. 217 we know why 1923 was the cut-off date for copyright. A work published in 1922 would receive an initial period of 28 years and a renewal of 47 and would thus enter the public domain in 1997. CTEA added 20 years to copyrights still active in 1998. Thus, in 2018, the clock could start ticking again for old copyrights and 1923 could become public domain. As mentioned before, the fly in the ointment is that 85% of copyrights to 1964 were never renewed. Thus only renewed copyrights were extended as well as those that would never have been renewed but their initial 28 years had not expired. How this affects books is unclear since a mere 5% of copyrights are actual books that would be scanned by libraries.

This leaves a rather untidy pile of books: some in the public domain, some renewed and subsumed under the extensions, some not intended to be renewed and subsumed anyway since the first term had not expired and some never copyrighted at all.

Yet we do have WorldCat and we do have the pdf's of many millions of books on the Google servers. Might this not be the time to get our collective bibliographic metadata in order? Might it not be possible to merge the renewal data before 1964 with the scanned titles and start delivering the ones in the public domain, ASAP?

Yet 2018 will be upon us before too long - the door to "Steamboat Willie's" cage is about to be thrown open. What are Disney's lobbying plans for the next seven years. Are they going to shoot for another 20 years?

Perhaps P&L sense there will be a push for another extension. With that prospect looming, perhaps perpetually renewable copyrights would be the only hope of getting educationally worthless properties such as cartoon characters and their images on lunch-boxes from skewing the important reservoir of textual expressions.

The second infuriating assumption that underlies all of P&L's analyses is that all "copyrightable expression" is based on previous expressions.

The main witness to give a deposition in the arguments that all "expression" is derivative is Northrop Fry. The quotations are from "Anatomy of Criticism," (1957) formerly required reading of all humanities graduate students while the reign of the old canon was still in force. Posner has a BA in English from Yale in the fifties (when really smart people still majored in literature) and probably has fond memories of exams on the subject.

By the old canon I mean the catalog of the "dead white men" headed by Chaucer, Shakespeare and Milton that were the headliners in literature education for the first three quarters of the 20th century. The scholar aesthetes of that period which P&L label as Modernism also known as High Culture, had come up with ideas on the content of Western Civilization - what was the general chronology, what was great and worth reading, and who influenced whom. In many ways it was a sad and dreary bunch that had to factor two world wars into their chronologies, as well as dramatic global dislocations, political turmoil, and militarism of apocalyptic proportions. The sages of this time, Fry was one, combined encyclopedic grasp of detail with acute aesthetic sensibilities and marvelous rhetoric. One result of mixing the encyclopedia and the aesthetics was the saying, there is nothing new under the sun. Since only items of "High Culture" of unquestioned aesthetic value were considered; everything else was considered unworthy and derivative in the bad sense.

The careful study of the timeline did, however, unearth structural principles. What deserved to become the object of art, i.e. what subjects deserved to be treated. That became an important question under consideration. What stories did the Greeks use for their epics and dramas, or the Romans? What shape did the efforts of early European writers take, trying to write for the first time in non-classical languages, in early forms of English, French, Spanish and German. It would take us too far afield to explain the performed narratives of the middle in relation to their sources in antiquity. But it would not take us too far to protest taking snatches of this history and applying it to the copyright discussion. Homer is not copyrighted. Anyone can design a T-shirt with Apollo and Aphrodite. The Gallic Wars can be turned into a screen play without having to pay all the people in the Rome telephone directory with the first or last name of Gaius or Julius.

After the "fall" or "diminished influence" of Roman civilization, it took quite some time for literacy to reestablish itself in the West. Many of the triumphs of early modern writing revolved around the rediscovery of the classical themes. Hand in hand with rediscovery of literacy and ancient literature was also the rediscovery of ancient science, particularly the rediscovery of the shape of the world and the concomitant ability to make better maps through the measuring of longitude and latitude.

Perhaps it is best to gloss over P&L's catalog of borrowings of Elizabethan literature from the classics and the translations contemporary to that time. The discussion, although well documented becomes silly and unworthy. Just as I should be prohibited to blog about The Law so P&L should not pan the Renaissance for copyright infringers, hypothetical ones. By the same token, they should can their assumptions about derivative expression, even if it is substantiated by licensing deals for mugs and T-shirts after every block-buster film. Granted the question of copyright for a Harry Potter T-shirt vs. the copyright of the figure of Harry Potter gives great insight into the problems of this field, but I would keep Shakespeare out of it.

That would have spared me from tripping over the quote below:

Shakespeare would have had to work harder, and so might have written fewer plays, had he not been able to copy gratis from works of history and literature, sometimes, as we shall see, verbatim. [P&L, p.52 Note, to locate quotations in "The Economic Structure of IP" bring up the book on Amazon, click on "look inside" and type part of the quote into the search window.]

To embroider in some detail, P&L give us their view of the infringer perp:

Shakespeare's characteristic mode of dramatic composition was to borrow the plot and most of the characters - and sometimes some of the actual language -  from an existing work of history, biography, or drama and to embroider the plot, add some minor characters, alter the major ones, and write most, or more commonly all, of the dialogue. Shakespeare made up Antony's great funeral oration in Julius Caesar; no part of it is in his source, North's translation of Plutarch. However, for the description of Cleopatra in Antony and Cleopatra Shakespeare merely edited the North-Plutarch description, though he did so brilliantly and vastly improved it. [P&L, p.58]

What is more comical, a literature person reading the law or a legal person reading literature, Yale BA notwithstanding. P&L win the comedy prize. Thank them for the concession: "more commonly" Shakespeare writes all the dialogue. And thank you for the footnote: Shakespeare did not copy the "lend me your ears" speech.

P&L's opinion continues with a juxtaposition of a Plutarch translation dealing with Cleopatra's barge and the few lines of description from Shakespeare. It is not really worth quoting; my opinion is that there is no smoking gun here. Nothing really verbatim, lots of gold, purple sails, oars looked like silver (facts reported as facts by Plutarch) and lots of erotic imagery in Shakespeare - winds lovesick for perfumed sails and water amorous of the strokes of the oars - what I am doing here is called irony, I am rebutting P&L with irony; I am not so sure about their text; it should be ironical, but is it? Literacy is hard to acquire, doubtless as is The Law. As expert in intellectual property no doubt it is interesting to look at the history of literature in this way. On some level, protecting "expression" from copying becomes a thing desirable above all. As well read in IP, P&L probably have thousands of examples of infringement. Yet the law is clear, copyright starts in 1923. The rest of literature is public domain.

In the world of learning and high culture, before that was marginalized since few could meet its standards, there was a practice surrounding allusions. The task of humanism has been to collect, read, edit and understand texts from antiquity and beyond. Expertise was developed to recognize references in texts to events or intellectual fashions contemporary to those texts. When I was in graduate school in the 1970, the opinion of my best teachers was that I would not recognize a biblical reference if it bit me in the behind. Yet it is useless to read in many periods of European literature without recognizing biblical references or references to Greek and Roman history or the history of drama. The art of Europe from antiquity to the expansion of western civilization around the globe was less the domain of infringers and plagiarists than a playground of the mind where everyone could internalize part of the rise of civilization according to his or her ability and aptitude.

After 1945, there was a large push in education and the codifying of what was known and what was worth knowing. While such efforts inevitably run aground, it did yield a system of research libraries, scholarly journals and universities to initiate novices and push at boundaries. When I went through the system in the 1970's the growing population bubble was straining resources and eroding standards. Yet there were still tests one could pass to become a member of the initiated. One such test was reading the "Waste Land" and making sense of it without spending two weeks with the footnotes. Should that have been accomplished, one could continue with reading Finnegans Wake, preferable to carry the book around at all times ever ready to regale people with a reading of a snatch and an explanation.

Judge Posner and Prof. Landes went to law school and were immune to such diversions. One last quote should close the chapter of the history of literature and copyright.

Modern writers, living in the age of copyright, are perforce limited to taking from the public domain unless they are willing to try to negotiate a license from a copyright holder, or (an exception we discuss in Chapter 6) they wish to parody a copyrighted work, or they are content with a sufficiently loose paraphrase to avoid infringement under the "substantial similarity" standard (see Chapter 4), or they take so little as to bring them within the fair use defense to infringement. [P&L, p.59]

A jaundiced view might counter that there is ever so much more of value to take from before 1923 than there is from after. There are still readers out there that would recognize a long passage from Homer or Virgil, so beware. And who would do that anyway except some hypotheticals. One might also mention that the cusp of the 20th and 21st c. will be known as "the age of copyright" only in quite select and exclusive circles. Of course, to the "Beanie Baby" aficionado it will be recorded as the "Age of the Beanie Baby," or the Beanie Babies if a plural is more correct.