So now that we’ve had our PIPA/SOPA backlash, it’s time for the issue that’s gotten a lot less attention: what The Supremes were doing while Wikipedia & Co. were rioting.
Now, I’m as much a fan of copyright law (and following it!) as the next guy, but this is ridiculous. In a 6-2 decision yesterday, the court ruled that a number of foreign works that had been part of the public domain are now under copyright (again). While it may seem sensible that, if the treaty you sign says you have to treat foreign copyrights like American ones, you treat foreign copyrights like American ones, this misses the point that American copyright law is fundamentally unfair and imbalanced, extending protections to an extent unknown elsewhere in the world.
It used to be (and still is in most of Europe and South America) that copyrights were good for seventy years after the creator’s death. This meant that the estate of the creator got their fare share of the royalties, could exercise control over publication of their ancestor’s works, etc. The problem is that, thanks to the Micky Mouse Protection Act, no works are entering the public domain until 2018 in the States, as we now have a 90-year copyright length.
So what? What’s the big deal with public domain anyway, and what difference does twenty years make? Short answer: it takes less time for something to enter our cultural heritage and scholarly discourse than it does to pass out of copyright. Want to quote a line or two of Robert Frost in a novel? You’re making money on Frost’s words. Even though “Stopping in the Woods on a Snowy Evening” is part of our general cultural consciousness and it would make perfect sense for a literary character to reference it, it’s still under copyright and, thus, you have to pay to use it. Ditto musical works; Camille Saint-Saëns may have written his first ‘cello concerto in 1872, but, because he lived until 1921, the copyright just expired last year on a 140-year-old piece of music. Scholarly works? The Leonine Edition of the works of St. Thomas Aquinas is the sine qua non of Thomistic textual criticism, with every variant reading pointed out, every discrepancy between the manuscripts made known, and the most likely text of Thomas’s works reconstructed. If you don’t have access to it, you can’t do Serious Medieval Philosophy. Putting it online for general access by scholars around the world would be a great boon, but, since the copyright holder doesn’t exactly seem likely to die any time soon, it’s not going to be joining the public domain. Though the text itself is, quite thankfully, online, the critical apparatus (and commentaries) are not; without those, a significant part of the information needed for effective study is lost. And, just to leave nobody out, let’s talk art. I realize I’ve used a few Klein and Delvaux paintings on this blog, as well as some illuminated manuscripts, but I can almost claim “educational” exemptions to copyright for those. Or at least I will if pressed (unlikely). Ditto my use of book covers; it’s promotional (especially when I plug for CUA Press), so it’s fair use. Still, I get just a bit nervous whenever I put up some not-exactly-public-domain art, since, without a lawyer, it’s kind of tricky to know what’s fair use of copyrighted material and what could get you a lawsuit from a cultural institution you really respect.
Thus, copyright law reform. The whole PIPA brouhaha has been quite helpful in this respect; for once, someone fought back against those seeking perpetual copyright, or as close to it as the Constitution allows. The fact is, though, those of us who want to conduct scholarship, perform works of music, and talk about art often walk a fine line. Ninety years after my death, I’m pretty sure nobody will care about what I write.* Some people, though, have made such an impact on our culture that it’s hard to discuss deep issues of life, the universe, and everything without mentioning them. This is exactly what the public domain is for. By allowing more into the public domain, the ability of artists, writers, and scholars to turn out quality works that will themselves become part of our culture is enhanced; by capitulating to the desires of the estates of a few, civilization as a whole suffers.
*In case someone does, one day, care what I write, this is to say that, if they didn’t know me personally, they don’t get anything. My colleagues and intellectual children can collect royalties, but nobody else—50 years after I’m gone, the copyright on everything I write or make will expire. Unless I dictate otherwise at a later date, this should be considered legally binding, amen.
Now someone call me a lawyer and throw in all the extra clauses to make it so.