The City Livery Company for the
Communications and Content Industries
COPYRIGHT IN THE DIGITAL AGE
Copyright’s balancing act
and the role of the library
Executive Secretary, the Bodleian Libraries of the University of Oxford
Copyright’s balancing act and the role of the library
In 1859 The Scottish Annual carried a short piece by Jessie Edmondston entitled ‘The sea-girt home’. The Family Herald carried another piece by the same writer. ‘Steen: a Shetland story’ in its 1 October issue that year. These pieces are long-forgotten and copies survive only in a few of the major research libraries, mainly in Scotland; but the author went on to a prolific career as one of Shetland’s most famous authors, Jessie Saxby, with over 150 publications. What makes these two works special is that 151 years after publication they are still in copyright: they were published when Jessie Saxby was just seventeen, and she died at the age of 99 on 27 December 1940.
Despite her prominence, I have not been able to find any republication of Jessie Saxby’s work since her death, apart from the republication in 1974 by Norwood Editions in the United States of her 1932 work Shetland traditional lore. There is clearly not a commercial market for her work – certainly not for those early stories – but they are all still locked up behind the copyright wall protecting her creative investment. One might ask, cui bono?
The history of copyright is complex and can – and does – fill entire books, but we are celebrating the tercentenary of the Statute of Anne which first codified the concepts. There are two distinct aspects to copyright, and both are represented in the 1710 Statute. The first is the creation of the work, and the second its dissemination. The Act itself was intended to regulate the latter, by providing protection for the trade in books. Before Gutenberg, copying was a Good Thing; printing revolutionised our capability to spread information but was a specialised technology requiring skill and considerable investment. The protection of the author’s intellectual property inherent in the printed item was almost a by-product. Under Anne, the right to authorise printing starts with the author, implicitly by his/her ownership of the manuscript copy; it passes to the printer by signed agreement, and on the expiry of fourteen years the copy/copies are returned to the author, who then has another fourteen years during which he/she can assign the printing rights.
Queen Anne’s Statute also enshrined in law the agreement made one hundred years before between Sir Thomas Bodley and the Stationers’ Company, providing for the deposit of copies in the Bodleian and later in other major libraries – recognising the role of libraries as custodians of learning.
The distinction between the created work and its dissemination was the subject of protracted dispute once the initial terms of copyright granted by the Statute began to expire. The question was not settled until 1774 when the unpublished work was deemed to have perpetual copyright but publication set the clock ticking. This then was the bargain: ‘for the encouragement of learning’, as the Statute had it: authors were encouraged to create and printers and booksellers to disseminate works by the provision of a monopoly right, but this right was time-limited, so that once the author and printer/bookseller had been able to recoup their investment, the public could benefit. The investment required to disseminate has resulted in a committed and focused publishing profession, while the consumers have been diffuse and unorganised. It is not, therefore, surprising that over time the balance of the bargain has shifted in favour of the producers – greater protection for longer periods. It is noteworthy that almost the only move in the other direction – the abolition of the perpetual copyright for unpublished work – is something that by its nature does not effected the balance of commerce. So after a century and more of the Berne Convention, a succession of Copyright Acts, WIPO treaties, European Directives and other provisions, we now have a system in which copyright in a work subsists, in the main, for seventy years after the creator’s death.
Besides the copyright in the work there are also the neighbouring rights, such as in publishing, the copyright in the typographical arrangement, lasting for 25 years in UK law; and in music, the right in the recording qua recording , lasting for 50 years from release. These are rights relating to the dissemination of the work not its creation. It may seem at first glance odd that a lot of the debate conducted by publishers about rights focuses not on the right in the publication – the 25-year right – but in the authorial copyright, usually lasting, as we have seen, well over a century. Of course the publishers are the parties in the chain who have the most capital investment and the greatest degree of organisation, giving them the will and the ability to act in concert. In some sectors (particularly scientific journal publishing) the publishers have acquired the author’s copyright, or a licence to publish which gives them equivalent rights. But if we continue to observe the bargain which attempts to strike the balance between stimulating creation and providing public benefit, we must continue to assess where that balance lies.
The basic variables in the equation are the costs of production, reproduction and distribution (both authorised and unauthorised). The lower the costs of production and authorised reproduction/distribution, the quicker the producer recoups the investment and makes a profit. If the costs of unauthorised reproduction fall, this will eat into the producer’s profit. Digital technology over the past two decades has dramatically decreased all these costs. The focus so far has been on the upheavals experienced by the music industry, but there are analogous debates in other areas. Consumers have a habit of rebelling against what they see as unfair or rapacious practices, voicing such views as ‘if record companies sold recordings at a fair price there wouldn’t be so much unauthorised copying’. It is not even the first time it has happened – the nineteenth century saw major music piracy wars, with many of the same arguments – when new methods of printing sheet music enabled pirate printers to undercut mainstream music publishers. The mainstream publishers finally won legislative support just as the entire economic model was swept away by the invention of the gramophone.
Rufus Pollock, an affiliate of the Cambridge Centre for Intellectual Property and Information Law, recently published an econometric analysis attempting to quantify the various factors so as to arrive at an optimal term for copyright protection. Similar calculations underlay the CIPIL report to the Gowers review on the economic evidence relating to (and advising against) an extension of the term of copyright in sound recordings. Pollock notes that as costs fall the need for extended protection diminishes; and that the greater the number of works in existence, the smaller the value of each one. The economic protection which each work requires should fall as a result. His primary conclusion is that the optimal term for copyright protection now is fifteen years. By calculating the results for a range of values for the variables he produces a graph showing the probability density function for these ranges. This gives a 99th percentile value of 39 years – that is, for all reasonable values of the parameters in the equation, the result will be an optimal term of 39 years or less in 99 cases out of a hundred. This is not an unreasonable result – if the value of a work were to last for its entire term of protection, then Global Books in Print would have a very different character from that which we find. Publishers make decisions on publication based on a return on investment of just a few years, not on a return over the copyright term. The term of protection for a patent –even one that requires multimillion-pound investment – is just 20 years. The 25-year typographical copyright which protects the publishers’ real investment is probably about right. If I were to visit my bank manager with an idea for a marvellous product which, however, needed over a hundred years –or even fifty – for me to build a sustainable business model and recoup my investment, I would very quickly be shown the door.
So for all practical purposes of the pursuit of commercial success, the term of copyright protection is absurdly long. Macaulay characterised it well in a debate about the extension of the copyright term in 1841:
Dr. Johnson died fifty-six years ago. If the law were what my hon. and learned Friend wishes to make it, somebody would now have the monopoly of Dr. Johnson’s works. Who that somebody would be, it is impossible to say, but we may venture to guess. I guess, then, that it would have been some bookseller, who was the assign of another bookseller, who was the grandson of a third bookseller, who had bought the copyright from Black Frank, the Doctor’s servant, in 1785 or 1786. Now, would the knowledge, that this copyright would exist in 1841, have been a source of gratification to Johnson? Would it have stimulated his exertions? Would it have once drawn him out of his bed before noon? Would it have once cheered him under a fit of the spleen? Would it have induced him to give us one more allegory, one more life of a poet, one more imitation of Juvenal? I firmly believe not.
And this is only the world of works which have been through the commercial life cycle. Because publishing is now so easy that anyone can do it, many works are now published for reasons other than commercial gain. Even in the highly commercial world of scholarly journal publishing, the drivers of publication for authors are not direct commercial return, but the indirect rewards of peer esteem and career progression. Hardly any of these authors make arrangements to ensure that their intellectual property is conserved and actively managed throughout their lives and beyond. But they are all protected by the automatic bestowal of copyright for two lifetimes.
I am not going to argue for a reduction in the copyright term – that will not happen – but this does have some consequences for libraries. Long after the books have been remaindered by publishers, forgotten by the reading public, and in many cases forgotten even by their owners, you will find them on the shelves of the great national, academic and municipal libraries. The orphan works problem is already well known, but the issues are even more complex. Libraries hold works which are commercially ‘alive’; works whose copyright ownership is fully known but which are out of print and unlikely to be republished; works whose copyright ownership is known but unlocated; works known to be in copyright but whose current owner is unknown; works of uncertain copyright status; and out-of-copyright works. Libraries are honest and careful custodians of copyright and so they cannot make use of modern technologies to increase the availability of these works or even to meet the normal and reasonable expectations of users. A particularly poignant example is the grandchild of a South African author who after a long search had traced a copy of his grandfather’s work published in the 1950s to one of our libraries in Oxford and wanted us to supply a copy. We had to point out that although in all probability he was, by line of descent, one of the owners of the copyright in the work, he was probably not the sole heir, and that in the absence of evidence about his ownership and rights we would have to decline his request. Cui bono?
Macaulay was right in principle but wrong in one respect. No one would have lost track of Samuel Johnson’s intellectual property rights, and we can be sure that the works of J.K. Rowling and Winston Churchill will never become orphans. Where there’s an economic interest it will be nurtured.
The dual thrust of Queen Anne’s Statute – recognition of intellectual creations as property capable of being owned, and regulation of the trade in copies of that property – has, in its great-great-grandchildren, produced an active, creative and dynamic head in the publishing industry, which drags behind it a century-long tail of orphan and moribund works of which libraries are the primary custodians but upon which they cannot exercise their own considerable ingenuity for public benefit. But we can’t blame Queen Anne for that; the evidence is that she got the term about right. So let’s hear it for Queen Anne!
Michael Heaney is Executive Secretary at the Bodleian Libraries in Oxford. He joined the Bodleian in 1970 to catalogue East European books, and has worked his way through a variety of roles including responsibility for library automation, statistics and management information, publishing, and the quasi-legal issues of copyright, data protection and freedom of information. He is CILIP’s academic libraries representative on the committee of the Libraries and Archives Copyright Alliance and has lectured on copyright issues in libraries. He is also a member of the Governing Board of the International Federation of Library Associations, in his capacity as Chair of IFLA’s Division IV, ‘Support for the Profession’.
 J. Laughton Johnston, Victorians 60 Degrees North: The Story of the Edmondstons and Saxbys of Shetland (Lerwick: Shetland Times, 2007). I am grateful to Brian Smith, Shetland Museum & Archives, for this information.
 William Cobbett, The Parliamentary History of England (London; Longman &c., 1806-1820), 17 (1813), cc. 1077-1110
 Isabella Alexander, ‘Criminalising Copyright: A Story of Pirates, Publishers and Pieces of Eight’, Cambridge Law Journal, 66.3 (2007), 625-656.
 Rufus Pollock, ‘Forever Minus a Day? Some Theory and Empirics of Optimal Copyright, http://www.rufuspollock.org/economics/papers/optimal_copyright.pdf.
 Pollock, p.27
 Hansard, House of Commons Debates, 5 February 1841, vol 56, cc341-60 (http://hansard.millbanksystems.com/commons/1841/feb/05/copyrightaccessed 17 February 2010)
Abstract: The copyright acts and legal deposit provisions have played a significant role in the development of the Bodleian since 1610. Over time libraries have taken on the task of being benevolent custodians of copyright works, and the library privilege provisions of the copyright acts recognise this. Queen Anne’s Statute dealt with both the intellectual property and its material expression. From the invention of printing until the twentieth century the determining factor in the relation between the two has been the investment required in the means of production. The balance between them and the public good has been the subject of debate ever since. Starting with the invention of new media, travelling via the photocopier and continuing, but not ending, with digital media and the internet, the economic realities underpinning the means of production have changed. Where does the economic balance now lie, and where do libraries stand in the equation?