Internet Archives Liberates Old Books Using Never Used Before Provision Of Copyright Law

from the library-public-domain dept

Section 108 of copyright law doesn't get very much attention (though, we did just mention it in regards to an archive of Howard Stern/Donald Trump interviews). It's the part of the law that grants some fairly narrow exceptions to copyright for libraries and archives. In short, it was a recognition that libraries and archives are good and important things, and copyright law under the 1976 Copyright Act would basically make them illegal. Rather than fixing the fact that copyright law was too broad, Section 108 simply carved out a few important exceptions. Many of those exceptions are, unfortunately, under attack from all the usual sources.

However Section 108 is important to protect until we fix wider problems with copyright law. Of course, some parts of 108 have rarely, if ever, been tested. The Internet Archive is looking to fix that. It just announced that it is making a bunch of books published between 1923 and 1941 available on the Archive. As you may know from the handy dandy public domain term chart at Cornell, thanks to the 1976 Copyright Act (and various extensions) tons of works that should have been in the public domain long before now have been locked up and unavailable. The key date is 1923. Works before that are clearly in the public domain. After that, it gets... fuzzy.

But, Section 108(h) has a neat little exception for libraries and archives:

(1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.

(2) No reproduction, distribution, display, or performance is authorized under this subsection if—

(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be obtained at a reasonable price; or
(C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.

And thus, the Internet Archive believes it's free to make a bunch of out of print books available:

The Internet Archive is now leveraging a little known, and perhaps never used, provision of US copyright law, Section 108h, which allows libraries to scan and make available materials published 1923 to 1941 if they are not being actively sold. Elizabeth Townsend Gard, a copyright scholar at Tulane University calls this “Library Public Domain.”  She and her students helped bring the first scanned books of this era available online in a collection named for the author of the bill making this necessary: The Sonny Bono Memorial Collection. Thousands more books will be added in the near future as we automate. We hope this will encourage libraries that have been reticent to scan beyond 1923 to start mass scanning their books and other works, at least up to 1942.

As the Internet Archive's Brewster Kahle notes, it's unfortunate and disappointing that it even needs to make use of this clause, because copyright was never supposed to last this long in the first place. The idea that stuff published in 1941 is still under copyright is completely insane.

If the Founding Fathers had their way, almost all works from the 20th century would be public domain by now (14-year copyright term, renewable once if you took extra actions).

Some corporations saw adding works to the public domain to be a problem, and when Sonny Bono got elected to the House of Representatives, representing part of Los Angeles, he helped push through a law extending copyright’s duration another 20 years to keep things locked-up back to 1923.  This has been called the Mickey Mouse Protection Act due to one of the motivators behind the law, but it was also a result of Europe extending copyright terms an additional twenty years first. If not for this law, works from 1923 and beyond would have been in the public domain decades ago.

Still, the law is the law... and, part of it includes Section 108(h). The Archive has, amusingly, named the collection the Sonny Bono Memorial Collection:

Today we announce the “Sonny Bono Memorial Collection” containing the first books to be liberated. Anyone can download, read, and enjoy these works that have been long out of print. We will add another 10,000 books and other works in the near future. “Working with the Internet Archive has allowed us to do the work to make this part of the law usable,” reflected Professor Townsend Gard. “Hopefully, this will be the first of many “Last Twenty” Collections around the country.”

Of course, there's more to this as well -- part of the goal is to encourage other libraries and archives to do the same.

For many years we've pointed to the research of Paul Heald, who has demonstrated the massive hole in access to important cultural works due to copyright. Specifically, he's found while public domain books have a big market, publishers who hold copyright only keep very recent books on the market. And that creates a massive culture gap in our history:

Perhaps the Sonny Bono Memorial Collection will help fill in just a small bit on the left hand side of that tragic cultural gorge.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    afn29129 (profile), 12 Oct 2017 @ 4:29pm

    Nice band-aids

    Nice band-aids ... when the problems is copyright has a broken leg!

    reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 12 Oct 2017 @ 4:32pm

      Re: Nice band-aids

      "You're giving him CPR for a bullet wound to the head?!"

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Oct 2017 @ 5:58am

        Re: Re: Nice band-aids

        "You're giving him CPR for a bullet wound to the head?!"

        Actually, that's probably what a first-aider would do (if the patient was VSA, and after bandaging the wound if it was a severe bleed).

        Only a doctor is allowed to pronounce a patient incapable of being revived (i.e. dead), so protocol is usually to continue CPR until someone more qualified arrives to take over or to tell you to stop.

        People survive bullet wounds to the head more often than you'd think, so the scenario you describe probably doesn't warrant the interrobang.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 13 Oct 2017 @ 8:21am

          Re: Re: Re: Nice band-aids

          Sigh. Internet pedants and know-it-alls, they even feel the need to explain jokes. Which is why, whenever someone starts a comment with "actually," I just move along.

          reply to this | link to this | view in chronology ]

        • icon
          Toom1275 (profile), 14 Oct 2017 @ 7:28am

          Re: Re: Re: Nice band-aids

          It was a reference to a joke from Rooster Teeth's Red vs Blue series, in which while the characters express incredulity in the choice of treatment, the cpr-only treatment worked to completely revive the victim to life.

          "You gave me CPR for a bullet wound to the head? That don't make a lick a sense. It's just so darn inconsistent. What would you do if I got stabbed in the toe? Rub my neck with aloe vera?"

          reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 12 Oct 2017 @ 4:31pm

    The archive is named the way it is as an *intentional* dig at copyright maximalists, because of the copyright extension also known as "the 1998 Sonny Bono Copyright Term Extension Act."

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 12 Oct 2017 @ 4:49pm

      Re:

      Yeah, the name just kills me. 'Screw the public out of works it should have had decades past? Here, have your name slapped on a program specifically designed to try to mitigate some of the damage so people can be reminded of who to blame.'

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Oct 2017 @ 10:12pm

        Re: Re:

        'Screw the public out of works it should have had decades past? Here, have your name slapped on a program specifically designed to try to mitigate some of the damage so people can be reminded of who to blame.'

        Sonny Bono wanted to make copyright last forever, as a gift to his friends in Hollywood. Mary Bono wanted to push his wish through after he died in a skiing accident, but was told that such an endeavor would violate the terms of the constitution, but figured that an extension would be better than anything Sonny wanted. She figured that someone else who wanted to remember Sonny 20 years in the future (2018) would keep it going.

        reply to this | link to this | view in chronology ]

        • icon
          Aaron Walkhouse (profile), 13 Oct 2017 @ 8:02am

          Don't forget that Sonny Bono was a scientologist…

          …and that the OT III [space alien] documents, recently disclosed
          in the USENET war were coming due to enter the public domain.

          Sonny failed at first but Mickey took over after he died. ‌ ;]

          reply to this | link to this | view in chronology ]

          • icon
            Richard (profile), 13 Oct 2017 @ 9:27am

            Re: Don't forget that Sonny Bono was a scientologist…

            Actually it is better named the Peter Pan copyright act.

            This is because the whole business of the extra 20 years was provoked by the imminent expiry of the copyright on Peter Pan - which had been donated to Great Ormond St children's hospital. Of course what should have happened is that another public spirited author should have stepped up to replace Peter Pan with a new donation. Instead they (and more relevantly their publishers) greedily lobbied for an extension - which had the side effect on extending the lifetime of their own revenue streams.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 13 Oct 2017 @ 11:49am

              Re: Re: Don't forget that Sonny Bono was a scientologist…

              Actually it is better named the Peter Pan copyright act.

              No, the actual Peter Pan copyright act is this: "301. The provisions of Schedule 6 have effect for conferring on trustees for the benefit of the Hospital for Sick Children, Great Ormond Street, London, a right to a royalty in respect of the public performance, commercial publication, broadcasting or inclusion in a cable programme service of the play 'Peter Pan' by Sir James Matthew Barrie, or of any adaptation of that work, notwithstanding that copyright in the work expired on 31 December 1987."

              reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Oct 2017 @ 4:34pm

    It would be nice if public libraries did things like this instead of being handmaidens for the DRM literary apocalypse.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Oct 2017 @ 6:54pm

      Re:

      Public libraries have a mandate: make works available to the public. But they have a handicap: they are publicly funded.

      Defend against a copyright infringement suit? Or remain open by "cravenly" caving in and settling? That's their options. Guess how many municipalities are uninterested in spending their budgets in a lawsuit?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Oct 2017 @ 6:20am

        Re: Re:

        First and least of all, it should be mandatory for libraries to scan or offer copies of work for scan by third parties if they are in possession of material from the year a copyright runs out.

        One of the complaints of copyright holders is the lack of preservation and reformatting of public domain work for the digital age. By forcing public libraries to make public domain available to the public, there is at least one less argument for extending copyright to perpetuity.

        All together copyright needs to make it easier to use public domain and preserve public domain. It would seem like a small price for copyright-holders to preserve at least one copy and release them for digitalization at the time of copyright running out.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 13 Oct 2017 @ 6:46am

          Re: Re: Re:

          One of the complaints of copyright holders is the lack of preservation and reformatting of public domain work for the digital age.

          Have they not heard of the Internet archive, and project Gutenberg.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Oct 2017 @ 6:59am

        Re: Re:

        Defend against a copyright infringement suit? Or remain open by "cravenly" caving in and settling? That's their options.

        No, another option would be to not provide ebooks if they'd have to use DRM. Maybe it would just annoy people, or maybe they'd actually get the laws changed. "Borrowing" digital information is ridiculous. They could perhaps put a bunch of ebook files on the library computers, and if someone happens to bring a USB stick and make a copy, well, the library didn't say to do that.

        reply to this | link to this | view in chronology ]

      • icon
        Richard (profile), 13 Oct 2017 @ 9:32am

        Re: Re:

        Actually read the law here and you will see that no lawsuit is necessary. Section C allow the copyright holder to stop any particular work from being displayed in this way by a simple notice.

        For genuine orphan works there would be no-one to serve such a notice.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Oct 2017 @ 10:17am

        Re: Re:

        Defend against a copyright infringement suit? Or remain open by "cravenly" caving in and settling?

        Librarians have famously refused to settle before, with regards to censorship and government privacy intrusions. And I imagine some publishers were against libraries when they were a new idea.

        reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 12 Oct 2017 @ 5:29pm

    Bless these magnificent bastards. May their work shine a light through the darkness that is our shrinking public domain.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Oct 2017 @ 6:19pm

    Abolish Copyright

    This should never be a problem in the first place.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Oct 2017 @ 9:04pm

    "But," bristled MyNameHere, "How would people ever pay unknown authors for orphaned works if Internet pirates make the books available for free? You can't compete with free!"

    reply to this | link to this | view in chronology ]

  • identicon
    David, 13 Oct 2017 @ 1:02am

    So where's the problem?

    Publishers will make a new publishing service that takes all of the gracefully collected material by the Internet Archive and offer every book as a print-on-demand publication for $10000 per piece. So they are "available" again, the Internet Archive has to close down its offers, and people will not be kept from buying newer books because older ones are available for free.

    Stamping out culture is not that hard to do once you set your mind to it: the loopholes are large enough.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Oct 2017 @ 2:02am

      Re: So where's the problem?

      Re-read the statute as quoted in this very article, moron.

      reply to this | link to this | view in chronology ]

      • identicon
        David, 13 Oct 2017 @ 2:22am

        Re: Re: So where's the problem?

        (2) No reproduction, distribution, display, or performance is authorized under this subsection if—

        (A) the work is subject to normal commercial exploitation;

        There have been several not-actually-intended-for-distribution insanely-priced media "released" in order to game with copyright and/or contract laws.

        reply to this | link to this | view in chronology ]

        • icon
          xebikr (profile), 13 Oct 2017 @ 9:29am

          Re: Re: Re: So where's the problem?

          (B) a copy or phonorecord of the work can be obtained at a reasonable price;

          The 'moron' part was completely uncalled for, though.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 13 Oct 2017 @ 10:06am

            Re: Re: Re: Re: So where's the problem?

            The law says any of (A) (B) or (C) will prevent them from releasing it. What does "subject to" normal commercial exploitation mean? Does the exploitation have to be happening or just possible? Would $10000 count as "normal"?

            reply to this | link to this | view in chronology ]

    • identicon
      Beech, 13 Oct 2017 @ 2:16am

      Re: So where's the problem?

      I wonder what does happen if a publisher starts printing a book that is already in the archive. Is the onus on the archive to make sure that works that weren't "normally commercially exploited" when they were added to the archive stay that way?

      reply to this | link to this | view in chronology ]

      • icon
        Richard (profile), 13 Oct 2017 @ 9:35am

        Re: Re: So where's the problem?

        Only the publisher that owns the copyright could do this, and most of the publishers of these books have vanished or lost the paperwork that proves owenership.

        reply to this | link to this | view in chronology ]

    • identicon
      Thad, 13 Oct 2017 @ 11:16am

      Re: So where's the problem?

      What are you talking about?

      The copyright provision the Internet Archive is applying states that libraries are allowed to make copies of works that are unavailable and whose copyright holder is unknown.

      It does not state that non-libraries are allowed to make copies of works that they don't own the copyright to and sell them.

      The only situation in which a publisher would be legally allowed to republish these works is if it is (1) a library or (2) if it owns the copyright.

      And if a publisher owns the copyright and is publishing it, then it's not an orphaned work.

      reply to this | link to this | view in chronology ]

  • identicon
    Beech, 13 Oct 2017 @ 2:18am

    Mickey Mouse

    I think it would be really fun to use this section to add Steamboat Willie to the collection. It's in the last 20 years of its copyright, and I've never seen Disney put a copy up for sale...

    reply to this | link to this | view in chronology ]

    • identicon
      David, 13 Oct 2017 @ 4:11am

      Re: Mickey Mouse

      It's been released various times and I would think its latest Youtube release would also count as commercialization.

      reply to this | link to this | view in chronology ]

    • icon
      Dave Cortright (profile), 13 Oct 2017 @ 7:38am

      Re: Mickey Mouse

      I had the same idea. Maybe not Steamboat Willie—which is actually a cartoon, not a book—but some other obscure book or comic book from that era that includes Mickey or any Disney character. I would absolutely contribute to a legal defense fund when the 'Mouse lawyers come out to play.

      reply to this | link to this | view in chronology ]

    • identicon
      Valkor, 13 Oct 2017 @ 8:22am

      Re: Mickey Mouse

      Even if copyright isn't extended again, we'll never get to play with Steamboat Willie.

      Have you noticed that the most two iconic seconds of that film are running in front of every Disney picture these days? They are building a strong brand association with that specific moment with that specific character. I have no doubt that they will make a play to trademark that moving image, thus locking it away forever.

      reply to this | link to this | view in chronology ]

  • icon
    NeghVar (profile), 13 Oct 2017 @ 9:12am

    There are two key words in the copyright clause of the US Constitution

    "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

    The key words are authors and inventors. Not copyright or patent owner. Too bad the courts and congress chose to ignore that part.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 13 Oct 2017 @ 4:56pm

      Re:

      I'd put more focus on 'limited times' myself.

      Being able to sell a copyright can make sense(you can sell pretty much anything else you create), but when the copyright in question is for all intents and purposes eternal(in the sense that when something lasts longer than a person lives whether it lasts 5 minutes longer or 50 years is irrelevant) then the 'deal' between public and creator has been completely and utterly shattered.

      reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Special Affiliate Offer

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.