Why The 'Missing 20th Century' Of Books Is Even Worse Than It Seems

from the digging-deeper-into-the-numbers dept

There’s been quite a bit of chatter lately about some research by Professor Paul Heald from the University of Illinois. Heald recently delivered a seminar on the stagnating effects of extended copyright terms in the U.S., and blogger Eric Crampton immediately called attention to one data-set about books that is particularly telling (found through Slate) which illustrates what The Atlantic has dubbed “The Missing 20th Century”. It’s the number of titles available from Amazon as new editions (as opposed to used copies) graphed by the decade of original publication:

The source of that massive fall-off at the midpoint is seemingly simple: all books published in the U.S. in 1922 or earlier are in the public domain. What’s immediately apparent from this graph is the fact that copyright is limiting the public’s access to older works—but why and how, exactly? The answer lies in the reality of what a copyright is really worth, commercially, and how long it retains that value—and it sheds light on another problem with copyright law.

To better understand this, we can look to some earlier study from William Patry in his book Moral Panics and the Copyright Wars. For works created between 1923 and 1963, creators or publishers had to register to receive copyright protection for 28 years, and could then renew for another 28. Patry looked at data from 1958/59, and saw that in every medium except film, the majority of creators didn’t bother to renew their copyright registrations:

If an author or publisher didn’t renew the copyright on a book, it means they didn’t think they could make any more money with it. The monopoly of copyright had lost its value—so much so that it was worth less than the time it takes to submit a form. But, as Heald’s graph shows us, that doesn’t mean the work itself has lost value, because lots of publishers clearly want to publish pre-1923 public domain books. This is something most copyright supporters ignore: entering the public domain can actually renew the value of art, and can (and does) stimulate the economy by allowing others to exploit additional commercial value from a work beyond what was possible under copyright. The commercial usefulness of a monopoly on a book has a shorter shelf-life than the monopoly actually granted by copyright law. Based on Patry’s findings, that shelf life is somewhere under 28 years, otherwise more people would have renewed their registration—but copyright lasts much longer than 28 years. Thus you get the giant gulf on Heald’s chart: in between the pre-1923 public domain books and the books that are new enough to still be actively sold, there are several decades of titles that are no longer worth anything to their rightsholders, but can’t be offered by anyone else because they are still effectively under copyright.

Yes, just effectively—not actually. As you may have noticed, there seems to be a contradiction here: if the majority of copyright registrations went un-renewed, then the majority of books published between 1923 and 1963 have lapsed into the public domain alongside the books from 1922 and earlier, so the drop-off in Heald’s chart should be much, much smaller. This is not a conflict in the data, it’s a symptom another massive and entirely separate problem with copyright law which I discussed in a recent post: the difficulty of determining a work’s status.

The fact is, the majority of 1923-63 books are indeed in the public domain because they weren’t renewed, but there’s only one way to know this for sure: checking the records held by the Copyright Office. None of the records from that period have been digitized yet, so the only way to check them is by actually going to Washington and visiting the physical card catalogue, or paying a researcher to do it for you. Obviously this added effort and expense drastically limits the appeal of these suddenly-not-so-public domain works—and as the numbers from Amazon demonstrate, it’s having a very real effect. Publishers are clearly eager to offer public domain titles, but are only comfortable doing so when the lack of copyright is guaranteed. All those later works are effectively removed from the public domain, preventing economic activity and making them hard for people to obtain.

Now, of course, neither registration nor renewal is required: everyone is granted a copyright on everything they create, lasting until long after their death, despite clear evidence that the value of a commercial monopoly almost always expires in a fraction of that time. Sometime in the future, someone is going to reprise Heald’s graph, and that gulf of forgotten works that benefit nobody is going to be a whole lot bigger.

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Comments on “Why The 'Missing 20th Century' Of Books Is Even Worse Than It Seems”

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59 Comments
Anonymous Coward says:

This whole situation is absolutely ridiculous. Copy protection shouldn’t even last this long to begin with, even if the list of public domain works due to non-renewals were digitized.

We have two layers of ridiculousness here, not only should all of these works be in the public domain because of their age, but they should have been in the public domain because because their copy protection lengths should have expired a long time ago if it weren’t for retroactive extensions (layer two).

and to add a third layer or ridiculousness, some of these works might be in the public domain if they were created before a certain time period during which a manual extension request was required of them to get an extension and yet we don’t have reasonable access to the titles of those works to know which ones are, even though they really should all be in the public domain because A: If it weren’t for the retroactive extensions their terms would have expired by now and B: copy protection shouldn’t last this long anyways.

Ninja (profile) says:

Not surprising, copyright is all about a few greedy people locking up a whole lot of culture. The artists themselves either don’t need copyright or they don’t need copyright but have been successfully brainwashed by the MAFIAA into believing they need it. The ones that really need copyright are usually the failed ones. Or copyright trolls.

S.Loree says:

Re: Re:

I am a writer, and I strongly believe in copyright. I also love Public Domain. I believe almost all creative people believe that copyright equal to life of creator plus 50 years should be sufficient. I do know, however,that I want to keep my works in my family.If there was a happy medium, like my family keeps the rights to the works I have created but grants public use after a certain amount of time.. I dont know. I understand both sides of the coin. Maybe we should be asked upon filing for copyright status if we want our work released to public domain, 50, 75 or 100 years after our deaths… It would be an alternative

Anonymous Coward says:

Re: Re:

That’s not simpler by any stretch of the imagination.

That would involve a world-wide epidemic that consumes good authors and render them unable to write well, over a period of 80 years.

Assuming copyright scares away people by raising the cost/risk of publishing books assumes no actors not in evidence.

Jeremy Lyman (profile) says:

Step it up

I’m really surprised there isn’t an organization of publishers haranguing the Copyright Office to get their archives in order so they have access to a whole new wealth of free content for publication. I may even believe their claims of lost potential sales since NOBODY can access lost works like these.

(I also can’t believe I just spelled ‘haranguing’ correctly.)

Kurata says:

While we are talking about books, an interesting note is that France is about to force repubishing through numeral means of books that are now unexploited, yet were exploited before 2001.
While how unexploited is determined, that seemed like something worth talking about though it goes as follow :

When an exploited book is found, the author is contacted, and has 6 months to say whether or not he wants to allow this republishing.
If he refuses, he has 2 years to somehow publish it himself.
If after 6 months, he gave no answer, then it’s considered as an allowance. THen he has 6 months to forbid the publishing, only on the grounds that he’d hurt his life or something along those lines.
Else, they are considered public domains.

http://www.journaldunet.com/ebusiness/expert/51198/quand-le-droit-vient-opportunement-au-secours-des-fabricants-de-liseuses-numeriques.shtml
http://www.agoravox.fr/actualites/societe/article/suppression-des-droits-d-auteur-113680

sources, in their original language.

Anonymous Coward says:

Re: Re:

The big problem with having copyrights end with the author’s death is that it creates a perverse incentive for competing publishers to off the author so they can publish the author’s works themselves.

The other problem is how to handle corporate copyrights. Some corporations are pretty much immortal.

Dionaea (profile) says:

Re: Re: Re:

Which is why 10 to 20 years seems perfectly fair to me. That way no death threats to authors and no issues with the ?mmortality of companies. Plus it seems kinda fair that an authors next of kin can profit from the rights for some time should the author drop dead a week after publishing. There’s no reason to let several generations afterward profit, but some of these authors have families too you know…

Ed C. says:

Re: Re: Re:

“Corporate copyrights” would follow under “work for hire” and thus already have a fixed term.

Personally, I think all copyrights should have a fixed term. Putting the year someone died in to the equation makes things so much more complicated. What about works credited to more and one person, is the copyright based on the year the last person died? What if an older author adds a grandchild who couldn’t yet read, not alone write, as a coauthor just to get a longer copyright and give a big middle finger to the public domain? There seems to be no disincentive for this at all.

PaulT (profile) says:

Re: Re: Re: Re:

My opinion is that copyrights should be in 15-20 year chunks, renewable by the author (not a corporation) until the author’s death. At that point, the copyright transfers to a beneficiary (a family member or the publisher if no family member exists), where it will last until the next scheduled renewal point and then expire.

This would allow people who prefer copyright protections to retain them, it would eliminate the problems of orphaned works and works remaining unpublished due to profitability concerns, and any problems with determining the length of copyright applicable to a work (renewals would be publicly recorded and easy to work out). It would also eliminate the problems currently seen with allowing corporations to swallow up copyrights and retain them ad infinitum, only allowing those works they wish to be seen to be published.

“What about works credited to more and one person”

I would suggest that contracts can be drawn up in such circumstances, with the above being applicable up to the death of the last surviving author. My stipulation would be that copyrights cannot be renewed by a non-living person (i.e. a corporation), nor transferred to somebody else one they have been granted. Given these criteria, the rest would be up to the author(s).

Anonymous Coward says:

Another aspect to all this is that it locks up massive amounts of art, culture, and information not only from publication and purchase but also from general public access and (specific to my profession) libraries. Works in the public domain are immensely helpful to libraries and their collections–especially when they’re digitized and available for free or for very little (as with Project Gutenberg and its free access). Even printed public domain works are often sold for a song. Saves money, gets more things to people who need and want them. These are materials that can and should be made available. But, as usual, instead of being about access and knowledge, it’s all about the Almighty Dollar (or at least the Almighty Lawsuit).

But here’s what it comes down to for me: what a shoddy digitization program you’ve got there, Copyright Office. Shaaaaame! You’re a part of the Library of Congress. You should know better. Even out here in Podunk, USA, we’ve got a better program. Shaaaaaaaaaame!

Anonymous Coward says:

This whole piece is just that a PIECE OF SHIT. Trying to explain that copyright is a reason for the lack of books from the 20th century being offered by Amazon is ridiculous. Amazon offers titles that sell. The reason for the fewer titles in the 20th century has little to do with copyright and more to do with popularity. If we were to use your logic (the level of copyright determines the number of titles offered, we should be arguing (based on the graph) that works in the public domain from the early 1800s should be put back under copyright protection because clearly there are far fewer 1800s books than there are even in the 1950s. Take your anti business blog and go to a piracy haven country (just pick a country on the piracy watch list).

jupiterkansas (profile) says:

Re: Re: Take your anti business blog and go to a piracy haven country

And you only know those books because the publishers can still make enough money on them to keep them in circulation. Good luck finding 20th century books that aren’t so profitable. What’s available is only the tip of the iceberg of what’s out there sitting in corporate vaults unseen for decades.

Anonymous Coward says:

Re: Re: Re: Take your anti business blog and go to a piracy haven country

“of what’s out there sitting in corporate vaults unseen for decades.”

Assuming these corporations even store these books.

Which is a good point. Why should the public leave it up to corporations to store the works of our cultural heritage and the fruits of the public’s unowed monopoly for long enough to eventually make it into the public domain? Why should some corporation get to decide if it wants to store such works long enough and then maybe it’ll release them to the public, if it wants, if they ever become public domain.

Ridiculous. That shouldn’t be their decision. Copy protection should never be allowed to last this long, these works should enter the public domain and they should enter into free and widespread circulation without the need for some corporation to approve of it first.

jupiterkansas (profile) says:

Re: Re: Re:2 Take your anti business blog and go to a piracy haven country

And then there are content companies that go out of business before the copyrights expire.

Maybe the copyrights will be bought by another company? Maybe that other company will take care to go through all the holdings to see what they own? Maybe the copyrights will change hands so many times that nobody knows who the real owner is? Maybe the content will languish with no owner at all? Maybe anybody who knew anything about it is dead?

And yet the content sits there, inaccessible, locked away by copyright law for years and years.

Mike Masnick (profile) says:

Re: Re:

This whole piece is just that a PIECE OF SHIT. Trying to explain that copyright is a reason for the lack of books from the 20th century being offered by Amazon is ridiculous. Amazon offers titles that sell. The reason for the fewer titles in the 20th century has little to do with copyright and more to do with popularity.

Um. And magically, books published before 1923 have tremendous popularity, and immediately after it aren’t popular?

The fact that the copyright/public domain cutoff line is 1923 has nothing to do with it?

I’m sorry, but you’re calling bullshit on this chart, and then completely ignoring the chart suggests you need to learn (a lot) about what you’re talking about.

If we were to use your logic (the level of copyright determines the number of titles offered, we should be arguing (based on the graph) that works in the public domain from the early 1800s should be put back under copyright protection because clearly there are far fewer 1800s books than there are even in the 1950s. Take your anti business blog and go to a piracy haven country (just pick a country on the piracy watch list).

No offense, but this statement makes you look like a complete idiot. No one is arguing about the absolute amounts, but the clear boost in public domain works. Are you really going to ignore that whole part of the chart?

PaulT (profile) says:

Re: Re:

“The reason for the fewer titles in the 20th century has little to do with copyright and more to do with popularity.”

So, books from 1910 are insanely popular but nobody wants to read books from 1930? That’s your argument? Really?

Perhaps if they’re more popular it’s because *they’ve been published recently*. It’s impossible for something to be popular if it’s not available to buy! How that’s still something you can’t comprehend is beyond me, yet here you are advocating blocking the publication of books like you advocate stopping people from buying music and movies. Then you get surprised when they don’t sell…

TimothyAWiseman (profile) says:

Not needing registration is good, but the term is too long

“Now, of course, neither registration nor renewal is required: everyone is granted a copyright on everything they create, lasting until long after their death, despite clear evidence that the value of a commercial monopoly almost always expires in a fraction of that time.”

I personally think it is a good thing that registration is not required. Amoungst other benefits it makes it simple to know that everything new is copyrighted unless explicitly released and, in an era where more is published then ever before, saves a tremendous amount of paperwork for registering.

With that said, the copyright term is far too long and there is tremendous value in a large public domain. The copyright term should probably be well short of the 28 years mentioned.

Ed C. says:

Re: Not needing registration is good, but the term is too long

Sorry, but it makes no sense to give all “published” works copyright, regardless of whether the creator wanted it or not. I doubt that most people know, or even care, that their online chatter is copyrighted. Also, the lack of registration makes it nearly impossible to know when a work was first published or by whom! For instance, what if someone 25 years from how wanted to use your very comment in a book about copyright. Tell me exactly how that person could even tell which “Timothy A. Wiseman” wrote it, and contact you for permission?

Anonymous Coward says:

Re: Not needing registration is good, but the term is too long

“I personally think it is a good thing that registration is not required. Amoungst other benefits it makes it simple to know that everything new is copyrighted unless explicitly released and, in an era where more is published then ever before, saves a tremendous amount of paperwork for registering.”

And, if someone is interested in reprinting your material, they track the copyrights how, exactly?

EEJ (profile) says:

Can we help?

Would there be any merit in the public (govt funded or voluntary) donating to accomplish these digitizing efforts, or whatnot? I frequently see techdirt mention suggestions for solving problems that seem simple and yet completely un(der)funded by the country.

Seemingly, I can understand that for the average person working 9-5, copyright/trademark/patent law may seem like it doesn’t have any affect on them; conversely by reading these articles it seems that these “rules” cause major effects on the consumer economy….Is there any organization that I can encourage (by donations or such) to pursue these great ideas?

Jeroen Hellingman (profile) says:

Sourced from Google Books and a scam

Many of those “new” books offered for sale on Amazon are in fact print-on-demand editions based on Google Books scans of pre-1923 editions, without any additional value, and probably a bad deal, even for the low amount asked for it. Better go to the Internet Archive, locate the book there, and download it for free.

All those cheap reprints involve another scam. Google Books will delete books, based on a publisher’s claim it is still in print, even if it is Public Domain, so now some unscrupulous “publishers” will republish a book, based on Google’s scans, then claim it is in print, and thus have it removed from the freely available books in Google (back to snippet view, or worse, completely eliminated).

Good thing a user “tpb” has copied many of Google’s scans to the Internet Archive.

Mesonoxian Eve (profile) says:

I’d like to point out the graph also shows a very staggering drop off after the copyright revision of 1909, which basically took everything and put it into copyright. This was the year the 28 year extension was allowed.

All because our government, back then, was also duped into believing this was “needed to protect the artists”.

Some things never change and, because we didn’t learn from it, history has repeated itself.

Oh, and it will again. Just watch. That pesky mouse is about to enter the “public domain” again.

Larry L. Edwards (profile) says:

How can copyright terms be to long?

Is everyone becoming a copyist? A copyright owner has supposedly created an original work; it’s his baby and he ought be able to treat and care for it just like it was his child and claim ownership forever and beyond. A person looking to make a quick dollar and just hustle off another’s labor is the lowest slime and should not be permitted to participate in civilized society.
The person who lack creative ability should not be in the pursuit of someone else property unless a royalty check is cut that respect the time and effort of the genius of the copyright owner.
Why prey on the accomplishments of another? If one cannot create his own works; evidently he’s pursuing the wrong field of endeavor. Perhaps the field of service, sales, supply or some other area is his natural calling and where they may find their success.
My copyrighted materials are MINE! I worked and created them for the pleasure of myself, my children, grandchildren and even beyond. It is what it is.

Vivian says:

Page layout sucks

Good article, but your page layout sucks. The article is all but unreadable because the central section has been clipped by an inch or so, so the end of each line is missing.
I had to select all the text and copy / paste it into a text file so I could read it. I have tried chrome and internet explorer. both have the smee problem with this page.

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