Does Copyright Make Books Disappear?

(Photo: lungstruck)

Copyright law has two main economic justifications. One is familiar—the idea that copyright promotes the production of creative work by ensuring that creators, and not copyists, gain the value of their creations. Yet production is not enough, since works also need to be distributed over time. And here lays the second main justification: copyright’s power does not end at the moment of creation, but instead provides a continuing incentive for creators (or their financial backers) to distribute and market works. Absent that incentive, creative works will not be readily available to the public.

In a fascinating new paper (available on SSRN) by Paul Heald analyzes this second claim. Here is a snippet from the introduction. We’ve bolded the most striking part of the study:

Influential copyright lobbyists presently circle the globe advocating ever longer terms of copyright protection based on this under-exploitation hypothesis–that bad things happen when a copyright expires, the work loses its owner, and it falls into the public domain. By analyzing present distribution patterns of books and music, this article tests the assumption that works will be under-exploited unless they are owned and therefore questions the validity of arguments in favor of copyright term extension… 

[Our research] collects data from a random selection of new editions for sale on www.amazon.com (“Amazon”) and music found on new movie DVD’s for sale on Amazon. By examining what is for sale “on the shelf,” the analysis of this data reveals a striking finding that directly contradicts the under-exploitation theory of copyright: Copyright correlates significantly with the disappearance of works rather than with their availability. Shortly after works are created and proprietized, they tend to disappear from public view only to reappear in significantly increased numbers when they fall into the public domain and lose their owners. For example, more than twice as many new books originally published in the 1890’s are for sale by Amazon than books from the 1950’s, despite the fact that many fewer books were published in the 1890’s.

For the average consumer, 19th century books are far easier to acquire than 20th century books. That’s compelling evidence against the claim that long copyright terms are necessary to ensure adequate distribution; in fact, Heald argues the opposite is true.

Heald’s findings speak to a disconnect between politics and economics in copyright law. There are clearly some 20th century works that are quite old (think Mickey Mouse), that have enduring commercial value, and for which their owners (think Disney) carefully study how best to exploit them in a 21st century market. But for the typical older work, no one is paying any attention because demand for the work in the market is low. Books from the 1940s, for instance, are very often out of print and while they may be available in some libraries and in the occasional well-stocked used book store; you or I would have a very hard time tracking one down for purchase.

An economically-rational copyright policy would balance these sorts of works against the very rare works that maintain high demand over long periods of time. Instead, our copyright policy in Congress is driven by the interests of copyright owners such as Disney, for whom longer terms are better and the best copyright term (for their own works, at least) is infinite. At their behest, copyright terms have grown longer and longer—now life of the author plus 70 years. Yet, as Heald suggests, availability to consumers has diminished.

Changing this dynamic is going to be hard. But what makes Heald’s study notable is that adds to the body of evidence suggesting that our intuitions about copyright—that it is essential for both creation and distribution—may have surprisingly weak empirical foundations. Whether this will change anything in Congress is another matter entirely. As one friend who worked in the Obama administration once said, “in Washington, logic is for losers.”


Peter

If the reasoning above is correct then it suggests an obvious solution. Works with enduring economic value to the creator have extended copyright, others do not.
Who decides the economic value? The copyright owner of course.
How to prevent the automatic renewal of copyright simply to gain the continuing residuals? Introduce a financial barrier.
For instance - a base copyright period of say 10 years. Renewal for another decade costs the holder a pre-defined value with increasing charges for each subsequent renewal.
Disney can keep the rights to the mouse as long as they see returns that outstrip the costs. While copyright holders who are no longer making money will let the rights lapse and the works enter public domain.
Why should there be a single copyright period for all works regardless of the nature and value?

mfw13

The biggest problem is that copyrights are usually signed over to the publisher as part of the initial book contract, and therefore do not remain with the author. And unless a book becomes extremely popular, after a few years it no longer makes financial sense for the publisher to reissue it. Therefore I think it would be a very good idea to limit the length of publisher-owned copyrights.

That said, in cases where the author retains the copyright, I've got no problem with the copyright remaining in force until the author's death. However, I fail to see the logic of copyrights which extend beyond the author's death and only benefit heirs/estates which had nothing to do with the creation of the original work.

Bryce

That's not true. In almost all legitimate literary contracts, the copyright remains with the author. What the publisher gets is a bundle of rights that allows them exclusive right to publish. For example, a contract might sign over exclusive rights to things like "North American first print," "audiobook," "electronic," etc.

Now, once they've got those rights, the contract sometimes makes it very difficult for the copyright holder to do anything with their work. There is usually some sort of reversion clause, which I'm a little vague on, but I think it revolves around whether the publisher is "making the book available." What that means in the digital age is anyone's guess. But tl;dr is, authors keep the copyright. If they're not keeping the copyright, they're probably dealing with a scam publisher.

Jeff P

Several people have brought up Tolkien's Lord of the Rings as an example of a book series of enduring value, worth a long copyright. There's a problem with this example - it's public domain in the USA! In fact, the work sold very few copies until 1965 when Ace Books noticed that it wasn't copyrighted in the USA, and therefore published the first cheap edition. This event is what caused the work's first explosion of popularity!

Only because of Ace Books did Tolkien's popularity rise - so he made a good deal of money from his revised and copyrighted edition of The Lord of the Rings, published by Ballantine, and from The Hobbit and a few other Middle-Earth works. Eventually social pressure led Ace to stop publishing its edition and pay royalties to Tolkien.

Norman McN

I am not sure it was "social pressure" that caused the cessation of publishing by Ace. According to a blog at http://law.marquette.edu/facultyblog/2011/10/05/one-public-domain-to-rule-them-all/ the work had its US copyright restored in 1996. In brief, copyright was restored to works that, to paraphrase, lost US copyright because of a "technicality" whereas in substance, they ought not to have done so. LOTR apparently lost its copyright because the copies distributed in the 1950's (after the initial short print run) were printed outside the US.

Mike

Plenty of music is lost because the sheet music is tied up and is not available for performance (or for students to learn), so listening demand falls and no performances.

Nick Firoozye

I don't understand why this should be such a conundrum. Charge a large fee for extending the copyright. Disney will extend, others won't.

And if we don't think that is fair, charge a (possibly capped) fee indexed to previous copyright's period's sales. So, small-time author's estate, where the book sales were still going strong after all these years, might be happy to pay $100k, while Disney would be more than happy to pay $1m to extend Sleeping Beauty, etc.

Anything which is not economically viable for the current copyright holder goes to the public domain and then becomes (possibly) viable for the copyists....and posterity.

IP is in some sense a public good (and we certainly treat it as a public good once the copyright lapses). Consequently, the govt should be willing to charge for licensing this public good to make a private beneficiary benefit from it possibly to the exclusion of others.

(I know I opened a huge philosophical can of worms here, but effectively we do treat it as a public good eventually!).

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Helena Cleveland

Helpful analysis , I was enlightened by the analysis . Does someone know where my business could get access to a fillable a form form to use ?