The Question of Literary Property

Perhaps I am optimistic by nature, but when Google first announced that it was planning to digitise the world’s books and create the greatest library ever, I was enthusiastic. I thought it was an example of digital technology doing for our generation—and those that follow—what print technology did for the generations of readers and writers after its introduction in the fifteenth century. Just as Gutenberg’s printing press brought increased and independent access to knowledge and information 600 years ago, it seemed possible that the Google Library Project’s searchable database of the world’s books would allow access to our entire cultural heritage in digital format. It would be a new res publica litterarum for a new age of digital enlightenment.

My enthusiasm was dampened by the responses from literary colleagues to the Google initiative. Many regarded it as a ‘violation’ of their copyrights. The US Authors Guild was so incensed by Google’s actions that in 2005 it filed a class-action complaint against Google in the US District Court.[1] The Association of American Publishers (AAP) followed with a suit filed on behalf of five of the world’s largest publishers: the McGraw-Hill Companies, Pearson Education, the Penguin Group (USA), Simon & Schuster and John Wiley & Sons. Invoking the provisions of US copyright law, both organisations alleged that Google’s agreement with public libraries to create digital archives of the out-of-print, public-domain and copyright works in library collections, without the permission of the many thousands, perhaps millions, of individual rightsholders, was a massive copyright infringement. The Authors Guild complaint stated that Google intended to ‘derive revenue from this program by attracting more viewers and advertisers to its site’. The AAP was more colourful. It said that Google was ‘seeking to make millions of dollars by freeloading on the talent and property of authors and publishers.[2]

What the AAP and the Authors Guild did not allude to in their complaints was that in spite of its significant strengthening over the past decades, ostensibly to deal with digital piracy, copyright law still allows reproduction of copyright works under provisions for ‘fair use’ in the United States and ‘fair dealing’ in Australia. The provisions were intended to encourage literature and learning by balancing the private property interests of copyright owners with the public welfare interests of users who wanted access to the works. The fair use provisions under the US Copyright Act are worth quoting:

Copyright Act of 1976, 17 U.S.C. § 107

… the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
(My emphasis)

Google responded to the Authors Guild class action by claiming that their Library Project fell squarely within these fair use provisions. They made it clear that for works that were still in copyright, their project would of necessity involve digitisation of the whole book, but it would only make available a card-catalogue-style entry. This snippet-view entry would contain basic information about the book and no more than two or three sentences of text surrounding the search term to help users decide if they had found what they were looking for. The entry would link to bookshops where the book could be purchased.

Like Google, I thought this constituted a very fair use. And I thought it was fair dealing. In Australia, the fair-dealing exceptions in our copyright law say that works can be reproduced for a range of specific purposes, one of which is ‘research and study’. Now as well as being optimistic, perhaps I am also overly imbued with the Australian notion of ‘a fair go’, but I did not see that the Google project was unfair dealing or that it harmed authors. Surely searching a database to find a book qualifies as research; reading the associated ‘snippets’ surely qualifies as study? Nor could I see how this might interfere with the commercial interests of the copyright owners, except to advance them by providing links to bookshops where the book might be purchased.

So what is the real issue behind the passionate objections of authors, here and in the United States, to a well-resourced digital corporation undertaking the digitisation of the world’s books? Is it that they really object to Google, who have paid millions of dollars to digitise the works, deriving income from the project?

The terms of the settlement between Google and the authors and publishers make this seem unlikely. The authors and publishers have agreed that the project should go ahead, providing they derive some income. Google has promised $45 million for authors and publishers whose in-copyright books and other copyrighted texts have been scanned without permission. Authors stand to receive up to US$60 for each digitised book, depending on how many authors and publishers file claims and depending, of course, on whether or not they assigned the rights in their work to the publisher in the first place. The rather modest one-off payment of $60 for authors—less modest for the publishers who can claim many books—will be paid out by a new Book Rights Registry, which Google is paying $34.5 million to set up. In all, almost $80 million dollars is involved in the settlement, plus the unnamed amount that was spent by each of the parties in legal costs over the past four years.

It seems rather more likely that the real objections to the Library Project are based, as Google says on its website, on a fear that the digitisation of the world’s books will somehow become a substitute for the printed word. That is, that authors and publishers are afraid that they and the printed word might be rendered invisible and irrelevant by the rapid advance of digital technologies and the seemingly inexorable change from a print to a digital culture. Their challenge to Google may have more to do with their loss of power and control over their printed works than with any loss to their incomes.

Whatever the reason for the objections to the Google project, its implementation has again raised what copyright historians have called ‘the question of literary property’. First raised in seventeenth-century England after print technologies led to books becoming a marketable commodity, the question of literary property essentially dealt with the issue of who should own and control the intellectual property that formed the nation’s cultural heritage. Authors argued that they should have a perpetual right to own and control the products of their intellectual labour. Publishers and booksellers argued that they should have rights to protect their time and investment in the production and distribution of literary works. The few who represented the public interest in access to the knowledge and information that had so recently been made available to them in printed form wanted an end to the censorship and monopoly control of written works exercised by the medieval Stationers Guild.

Debate and discussion about copy-rights continued throughout the seventeenth and early eighteenth centuries in numerous treatises and articles until in 1710 law- and policy-makers in England attempted to resolve the matter by passing the Statute of Anne. Generally considered to be the first modern copyright act, the statute gave some rights to authors and to publishers ‘by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies’. But it limited them in time so that literary property could not be locked up forever. The authors were given rights over the copying of their work for a period of fourteen years, renewable once. The works would then become copyright free and automatically become part of a growing public domain of cultural works. The publishers, who had previously had almost total control of the book industry, were given a once-only 21-year period to deal with existing books. After that time these books would also become part of the public domain and available for anyone to reproduce, adapt or build on.

But the Statute of Anne did not fully resolve the question of literary property. Publishers, booksellers and authors continued their copyfights in and outside the courts in concerted efforts to advance their particular interests. The issue of who should own and control the production and distribution of the cultural products that define a nation continued to be a matter of great public interest. As the book industry became more profitable, the issue also became one of great commercial interest. Opinions were offered in newspapers and pamphlets, and hundreds of people attended legal proceedings when the court addressed the issues of copyright and the ownership of literary property.

The issues ranged from the very philosophical to the very commercial. How can one have property in ideas, whose existence is purely in the mind? Should rights in literary property be based on a concept of natural law that gives all people the right to own and benefit forever from the fruits of their physical or intellectual labour? Can knowledge and information be privately owned? If so, are the rights analogous to those of real property, which confer ‘ownership’ of a commercial commodity that can be traded? Should there be a public-policy element encoded in law that limits authors’ rights so that a public domain of works is available to readers and users? Are literary property rights an incentive for authors to continue to create cultural works? Or are legally enforceable property rights a market control mechanism that allows booksellers and publishers to manage and benefit from the publication of literary works?

Now, with the advent of digital technologies, the question of literary property is again being raised and it is again a subject for important public debate and for dissension. As the Google law-suits demonstrate, the dramatic and fundamental changes that digital technologies have brought to the production and distribution of cultural goods have led to new copyfights.

Questions are currently being asked about who should own and control knowledge, information and twenty-first-century entertainment products. In the new, networked knowledge economy, is it still appropriate to view knowledge and information as property that can be privately owned and withheld from public use unless it is paid for? Should we, for example, still support a copyright system that allows academic publishers to charge libraries annual subscription fees of $25,000 or more for access to their journals or should we be using the cheap reproduction and distribution capabilities of digital technology to make such scholarship freely available? Is it justifiable for copyright owners to lock their works so that users cannot access them, and to use the anti-circumvention provisions of the law to criminalise those who break the locks? Is it sensible for the record industry to ‘own’ every beat and bar of every track of music so that musicians can no longer engage freely in sampling or in the transformative appropriation of music that has traditionally characterised global music production? Is it justifiable for the movie industry to region-code DVDs so that we cannot play legally purchased but cheaper versions from other regions? In relation to the digital library project, should Google be admired for investing in the digitisation and preservation of the knowledge and information embodied in the world’s books or should it be condemned as a greedy and monopolistic behemoth treading carelessly on the established rights of authors and publishers?

Over the 300 years since the Statute of Anne, copyrights have been extended to deal with a range of new technologies so that composers, film and record producers, broadcasters, artists and computer software owners all have copyrights that are protected by law. And the period of protection has continued to grow as well. At the behest of the movie and record industries that feared their businesses would be destroyed by digitisation and by peer-to-peer file sharing, law- and policy-makers in the United States recommended that the copyright law be further strengthened. Thus, as well as giving copyright holders the right to use new technologies to lock their works against digital pirates—and to criminalise anyone who circumvented the locks—the 1998 US Digital Millennium Copyright Act extended the period of copyright protection for existing and new works by twenty years. When US constitutional lawyer Lawrence Lessig appeared for Eric Eldred in 2002 in a case.[3] that challenged the extension of the period of copyright protection from fifty to seventy years after the death of the author, he reported that the night before the appeal was heard by the US Supreme Court, hundreds of people stood in line for the chance to see the proceedings as they did in the eighteenth century when copyright issues were being heard. Scores of people spent the night on the steps of the court so that they would be assured of a seat.

Lessig lost the case and under the 1998 Copyright Term Extension Act (the CTEA) the period of protection for copyright works was retrospectively extended by twenty years. This meant that authors’ ownership rights in their works were extended to seventy years after their death. The rights of the publishers and producers in the publishing, film and record industries were extended to 120 years after creation of a work or 95 years after publication, whichever was earlier.

The CTEA came in the nick of time for Walt Disney’s Mickey Mouse, who was just about ready to enter the public domain. Critics of the twenty-year extension refer to the CTEA as the ‘Mickey Mouse Act’ and claim that its passing was not unconnected to the generous financial support provided by the Hollywood movie industry to the presidential campaign of then president Bill Clinton.

Speaking of the deleterious effect that the twenty-year extension would have on the public domain of accessible cultural works, American academic James Boyle said: ‘The US goes from fourteen years to the author’s life plus seventy years. We extend protection retrospectively to dead authors, perhaps in the hope they will write from their tombs.’ Boyle pointed out that as only about 4 per cent of copyrighted works more than twenty years old are commercially available, 96 per cent of twentieth-century culture was being locked up to benefit the 4 per cent that included Disney and Mickey Mouse. He said that the harm to the public was huge, the benefit to authors, tiny.

In Australia, authors’ works are also protected for seventy years after their death. In spite of recommendations to the Australian Government that an extension of the period of copyright protection was of no significant value to Australian creators and our creative industries—and may be to the detriment of the public interest in access to copyright works—the government agreed to harmonise our intellectual property laws with those of the United States under the Australia United States Free Trade Agreement (AUSFTA). One Australian commentator said that Australia had traded its intellectual property for a lamb chop, a reference to the government’s focus on the benefits for Australia’s primary industries at the expense of its enhanced participation, as a nation, in the information and entertainment industries. Many Australian public interest groups criticised the free trade decision-making process as a form of executive treaty-making in which the interests of the public were conveniently ignored.

Boyle and many others in the United States and Australia view the continual strengthening of the power of copyright owners to control access to knowledge and information for longer periods of time as a ‘copyright grab’, not unlike a real estate property grab by greedy developers. Where users and scholars once had access to works twenty-eight years after they were created, critics of the extension of the period of copyright protection point out that none of the works now being created will be available in the public domain during their lifetimes. James Boyle is quoted as saying:

It is as if we had signed an international stupidity pact, one that required us to ignore the evidence, to hand out new rights without asking for the simplest assessment of need. If the stakes were trivial, no one would care. But intellectual property (IP) is important. These are the ground rules of the information society. Mistakes hurt us. They have costs to free speech, competition, innovation, and science.

In his book Information Feudalism: Who Owns the Knowledge Economy? (2002), Australian Peter Drahos agrees that along with the risks to competition, innovation and science, we are risking our liberty. Our copyright and patent laws have effectively transferred knowledge assets from the intellectual commons into private hands where our ability to access, exchange and discuss information is subject to interference. Others have taken the argument further and suggested that the enclosure of our intellectual heritage parallels the agrarian enclosure movement of the fifteenth century. From that time, public access rights to the agricultural commons were gradually, and by law, eroded to make way for private property rights. The analogy between the enclosure of the agrarian commons and of our intellectual commons is clear. Our public rights to copyright works have been similarly eroded.

Putting digitisation into a broader context of technological change, it is possible to view print simply as a fifteenth-century technology that is being replaced by a more efficient, more collaborative and more egalitarian twenty-first-century one. In his study of Shakespearian works, literary scholar Tom Pettit refers to the ‘Gutenberg parenthesis’. He points out that prior to the print era, plays and other cultural products were collaboratively developed through sampling and remixing, borrowing and reshaping, appropriating and recontextualising, just as they are today by many digital creators. Their ownership was not always clear, nor of major importance. The works were continually altered depending on the audience, the place and the actors. It was not unusual in Shakespeare’s time for several plays, attributed to different authors, to have the one name and for one play to have several names. Pettit suggests that in the digital, ‘post-parenthetical period’ into which we are now moving, we may see a model of cultural production that is more akin to this period before print, when cultural products were not privately owned and were more collaboratively created and publicly accessible.

Such a model would require a change of thinking on the part of the authors and publishers who objected to the Google Library Project. Some of the digital generations have already embraced such change and increasingly they report that digitising their work and making it available online has brought them new audiences and new income streams. Some university academics have taken a similar path and, like Google, they have used digital technology to bypass expensive subscription-based services to make scholarly works available through free online journals.

But if we want to move more quickly to prevent literary property and our cultural heritage from being locked into private ownership for extended periods of time, we need to change the law. Rewriting the fair-use and fair-dealing rules to allow greater freedom for knowledge and information to be shared would be a good start. So too would be a reduction in the period of copyright protection. Australian copyright scholar Benedict Atkinson suggests a limit of eighteen years from the date of creation, the age of legal majority. He poses the idea that a copyright work is to a creator as a child is to a parent and that at eighteen years of age, each should be legally free from its creator’s control. Such changes might prove to be a challenge to the supremacy of print, but they would also reinvigorate the public domain and encourage innovation. They might also bring authors and their work back to being relevant and visible.

Notes

1. AAP: http://www.publishers.org/main/PressCenter/Archives/2005_Oct/Oct_03.htm. Back to article

2.Queen Anne was the reigning British monarch from 1702 to 1714 and the last monarch of the House of Stuart. Back to article

3.Eldred v. Ashcroft 537 US 186 (2003). Back to article