Recently, when reading my ebookwise in the bathtub, I came across this startling insight by Lessig in Free Culture:
What does this industry really want?
With very little effort, the warriors could protect their content. So the effort to block something like the Eldred Act is not really about protecting their content. The effort to block the Eldred Act is an effort to assure that nothing more passes into the public domain. It is another step to assure that the public domain will never compete, that there will be no use of content that is not commercially controlled, and that there will be no commercial use of content that doesn’t require their permission first.
The opposition to the Eldred Act reveals how extreme the other side is. The most powerful and sexy and well loved of lobbies really has as its aim not the protection of
“property” but the rejection of a tradition. Their aim is not simply to protect what is theirs. Their aim is to assure that all there is is what is theirs.
It is not hard to understand why the warriors take this view. It is not hard to see why it would benefit them if the competition of the public domain tied to the Internet could somehow be quashed. Just as RCA feared the competition of FM, they fear the competition of a public domain connected to a public that now has the means to create with it and to share its own creation.
What is hard to understand is why the public takes this view. It is as if the law made airplanes trespassers.
People with ebook readers acutely feel the closing of the public domain. The public domain closed after 1922, and it won’t have additions until the year 2018. For the years between 1998-2018, Americans will have to settle for pre-1923 content. Doing some calculations, I figured that if I continue reading until the age of 70, I will never see rock and roll music or Frank Sinatra going into the public domain during my lifetime (even though they became popular a decade or more before my birth).
Reasonable people have said that the damage is already done, that at best we can hope for a registration system that allows orphaned unclaimed content to revert to the public domain. That, I’m afraid, is not good enough. We need to cancel the Sonny Bono Act, and if necessary, put the content between 1923-1929 (which would have reverted during 1998-2004) back into the public domain. When artists made deals with record companies or publishing houses, they expected ownership to last for 55 years. Then it became 75 years. Then 95! It is fundamentally unfair to artists to renege on the government’s guarantee to artists about the timeframe when their content is going to revert.
As Lessig has pointed out, the harm is not of missing Disney’s early content; nobody cares about that. The real harm is the unknown obscure writer or singer whose novels or music from 1923 has gone out of print long ago. Forcing these works to wait an additional 20 years before these works can be rediscovered is just a human tragedy. Nobody is making a profit off it, and nobody is willing to figure out a way to make it publicly available.
Here’s an answer (which admittedly is not an ideal one). Public domain advocates need to put a bounty on certain works and certain authors and offer copyright holders a token amount (certainly under $500) to free their works irrevocably. Maybe libraries need to do that. A library needs to adopt a writer from the 1920’s and buy the licenses. Of course, that costs money, and perhaps library systems could work out some sort of barter arrangement with copyright holders instead of paying cash. But we can’t rely on copyright holders anymore to preserve our cultural content.
Just to make it personal, when downloading ebooks, I was thrilled to rediscover works from the 1910’s and even the early 1920’s. Anatole France, Max Beerbohm, Knut Hamsun. But it depresses me to no end to know that the well of all American culture will run dry until 2018 to appease the Disney corporation.