Feb. 21, 2011

Copyright Run Amok

Last week I reviewed the copy-edited manuscript of Defending Jacob, the last step before the manuscript is sent to the production department. Production will lay out the text in proper book format, a stage known as “galleys.” So copy editing is really the last chance to make changes before the book designers take over. It is about cleaning up details: grammar, typos, internal consistency (things like dates and characters’ names), and fact-checking. (Technically, you can still make changes after the book has gone to galleys, but it is more expensive. If the bill gets high enough, the standard Random House contract permits the publisher to ask the author to foot the bill himself.)

Copy editing is also the time when I make sure I have permission to use any copyrighted material that is quoted in my book. It is the author’s responsibility to secure reprint rights — and to pay for them.

In the case of Defending Jacob, there was one such quotation, which was used as an epigraph on a section title page. The quote was from H.G. Wells’s 1933 novel The Shape of Things to Come, which predicts events from 1933 through the end of the twentieth century. Here was the quote:

In 1900, a visitor from another sphere might reasonably have decided that man, as one met him in Europe or America, was a kindly, merciful and generous creature. In 1940 he might have decided, with an equal show of justice, that this creature was diabolically malignant. And yet it was the same creature, under different conditions of stress.

To use these three sentences, I had to determine, first, whether the book was still protected by copyright. If the copyright had expired, the book would be in the public domain and I could quote from it freely — freely in both senses.

No such luck. It turned out, The Shape of Things to Come was originally due to enter the public domain in the U.S. in 1989, but the copyright was extended for another 20 years in 1976 by the federal Copyright Act, then extended again for another 20 years by the Sonny Bono Copyright Term Extension Act of 1998. So The Shape of Things to Come — a book that has been out of print for years now — will not enter the public domain in the United States until 2028, 95 years after it was first published, 82 years after the author’s death. (A good summary of current copyright rules is here.)

The next step was to figure out who holds the copyright. After some research, I was able to determine that reprint permissions for Wells’s book may be obtained from the A.P. Watt literary agency of London. The fee to use those three sentences, according to the agency’s web site, would be £180, or $292. But wait, that was only for a single edition of my book. The web site advised, “The fees are increased by 50% for each additional edition (e.g. paperback, bookclub, audio cassette)… The fees for electronic rights (if we grant them) are higher.” And of course that was only for “world English rights.” What about an author like me, whose books are translated into a dozen or more languages?

Well, I never bothered to ask, because there was no way I was going to pay that much. I have paid for reprint permissions before. My novel Mission Flats was richer for the several quoted passages it included, and I believe Defending Jacob would have been, too. But I can’t afford the fee. Nor can I afford the time negotiating with the A.P. Watt literary agency to get the paperwork done.

So the end result is that Wells’s epigram about the effect of circumstance on human behavior will not be seen by readers of my book. This is done to protect the interests of an author who has been dead for 65 years now, in a book published 78 years ago — a novel that is out of print and virtually forgotten. (When was the last time you heard of someone reading The Shape of Things to Come?)

I’m pissed off, but don’t misunderstand me. I believe in copyright. I am an author, and I believe that artists like me are entitled to have our work protected. But 95 years? This is lunacy.

It was not always this way. In America, the first federal copyright statute, the Copyright Act of 1790, established a copyright period of 14 years from the time a work was registered, with the right to renew for one additional 14-year term if the copyright holder was still alive. The American statute was modeled on England’s 1709 Statute of Anne, which also provided for a 14-year term renewable once by living authors for another 14 years.

That the length of copyrights has grown from 14 to 95 years is a measure of how thoroughly the process has been captured by corporations and moneyed interests, and how lopsided copyright law has become. We have almost forgotten that there is another side to the issue: the public’s interest in the free flow of ideas.

Artists constantly draw on older works. We are inspired by them, study them. We riff on the old masters, imitate them, attack them. That is how art works. Lawrence Lessig speaks often about the culture of “remix” in the digital age, when everything from text to video is easily captured and repurposed to create innovative new hybrid works. All true. But art has always been about remixing.

Look, it is not a great loss to world culture that my little novel will not include those three sentences from Wells’s book. But imagine this one small creative decision by a single artist like me replicated over and over again, all over the world, in every medium, and you begin to see the stultifying effect of century-long copyrights on art and ideas.

And to think: H.G. Wells has been dead for six decades, yet we continue to protect his novel ostensibly so he will have sufficient incentive to stay at his desk writing.