copyrightTechdirt has posted some charts that provide an excellent example of the big gaping hole in popular culture created by current copyright laws. The charts show the availability of works from different decades in a number of different contexts—the number of new books shipped from Amazon warehouses by decade, works available on Europeana by decade, and so forth—but they all have a remarkably similar shape: a big gap in the middle with much higher levels to the left, for public-domain titles, or at the right, for recent titles.

Techdirt also posts a chart from from William Patry’s book Moral Panics and the Copyright Wars which shows how few titles from different media were renewed in 1958-9, when copyright required a renewal after the first 28 years. The rights-holders of only 7% of books and 11% of periodicals even bothered to renew them at the time.

This leads to works like Shift to High! being unavailable to entire generations of people who could enjoy them—except via sites like Open Library that are technically in violation of copyright themselves. Nobody’s going to find it worth the effort to hunt down the heirs of some obscure young-adult book in the hope that they might be able to republish it—because how many people would care enough about a sixty-year-old book by an author they never heard of to buy it?

I continue to harbor the hope that sooner or later people will wake up to just how harmful extended copyright periods are and reverse the trend. Now that e-books are so widely available, many of these works could easily be republished at minimal cost—but that’s not going to happen for books whose authors could be dead and whose rights inheritors might not even be aware that they are.


  1. Great article, but you fail to mention causes. Three are quite important:

    1. Disney, who bought off Congress (not hard to do) and got that copyright extension. That was followed by Prof. Lawrence Lessig, whose argument against the extension before the U.S. Supreme Court was so pitiful, a court majority approved that extension. Some judges practically begged him to give an argument they found credible. He chose instead to give the sorts of arguments that appeal to Berkeley professors. With friends like those….

    2. The Berne convention on copyright, which reflects a long-held European mindset that copyright is about protecting a privileged few artists. A famous and successful writer or his estate is easy to find and Berne assumes that by not requiring registration at any time.

    The traditional U.S. copyright law was broader, democratic, and more business-like. You’ve mentioned one aspect of that, the requirement for renewal. Use it or lose it treats publishing as a business matter, which makes far more sense in a world where books are, after all, a business, than the European/Berne which tilts toward the few and famous. Our scheme is bad enough at creating orphan texts. Berne is infinitely worse.

    3. Google et al. Call that money spent stupidly. During the build up to the Google book scanning mess, I tried to get Google to do something intelligent and constructive about older books. As the Authors Guild has recognized, there’s a need for an author registry to make up for the deficiencies of Berne and a need to systematically create online versions of text genuinely in the public doman. Google opted instead for a massive, sloppy, scan everything process, targeted out-of-print books rather than out-of-copyright ones because that offered it eyeballs and for Google, eyeballs mean money. Doing something that’d actually be constructive, was beyond its vile blend of geekiness and greed. Google, who helped the repressive Chinese government set up a firewall against ideas they didn’t like, again did evil.

    One illustration is that there are more than enough to be done with books in the public domain. Creating a curated and carefully scanned/corrected version of those books would accomplish far more good that bulk/crude scanning if library books en masse and hostile to copyright.


    For a time my Inkling Books focused on bringing back into print enhanced versions of good public domain texts. I’ve virtually abandoned that and thus contributed toward that dip in new versions of older books. Why? Because good, enhanced, improved, newly typeset and proofed versions can’t compete with free trash, meaning the sorts of books Google and others have been scanning and posting. It’s a classic illustration of Gresham’s law that bad drives out good.

    It’d been far better if what had been happening continued to happen, with Project Gutenberg continuing to create carefully proofed etexts and Librivox creating audiobook versions. It was slow, but it stressed quality over quantity.

    Instead, when have an environment driven by the tasteless and greedy, as typified by Disney and Google. Like Amazon, for them everything ends up being about money.

    I know nothing about this blog, but this posting summarizes to near perfection what’s wrong:

    In Lady Windemere’s Fan, Oscar Wilde had Lord Darlington quip that a cynic was ‘a man who knows the price of everything and the value of nothing.‘ As with so much of what Wilde wrote or said, it’s more than just a nice turn of phrase – it hits at the heart of the problems of society. Lady Windemere’s Fan was written in 1892, but what Wilde wrote is even more true now than it was 122 years ago. These days, our government, our businesses, our media and more seem to be dominated by what Wilde would have described as cynics. The idea that anyone in the ‘real world’ should even consider ethical, moral, philosophical or cultural values to be on a par with financial or economic ‘value’ appears whimsical, sentimental, even romantic. Hard-nosed, sensible, rational, practical people ‘know’ otherwise. It’s the economy, stupid.


    I’d suggest using the term “money” rather than “economy.” We do need a healthy economy or people will go hungry and cold. What we don’t need is the pursuit of money and market dominance at all costs that characterizes companies such as Disney, Google, and Amazon. And yes the politicians who began this mess by allowing Disney to buy that copyright extension deserve their share of the blame too. There’s more than enough blame to go around.

    –Michael W. Perry, Inkling Books

  2. The simplest way to deal with unavailable or orphan works that have been previously registered is to implement a process of temporary registration expiration where the registration is suspended if not re-registered. A work with a suspended copyright could then be used freely (possibly subject to a small compulsory license paid to a government fund) until the point that the other re-establishes the copyright registration and free use would have to stop.

    For non-registered works the law should clarify that if a work is not being offered for sale then the compensatory damages are zero. It already doesn’t make much sense to sue over non-registered works, but there might be injunctive relief.

  3. The US actually had a system for some years where a small payment was required in order to renew copyright after a relatively brief period. Reinstating that would take care of orphan works immediately. Doubling the renewal fee every five years would ensure that works entered the public domain as soon as their prospective value to the rights-holders dropped below the costs of renewal.

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