Last Updated on April 6, 2021, 5:02 pm ET
Just weeks after Harper Lee’s death on February 19, 2016, a notice was issued that the mass-market version of the classic novel To Kill A Mockingbird would no longer be authorized for publication. The mass-market version, used by countless students over the years, was priced at a much more affordable $8.99 than the trade paperback versions’ list price of between $14.99 and $16.99. Students and schools who want to purchase new copies of the book will be forced to pay the much higher costs of the trade paperback.
This news is just the latest example of the problem of our current, excessively long copyright term. Although the reason behind this decision has not been made clear, allowing the heirs of an author to control the legacy of a work and restrict access long after the author’s death can lead to unfortunate consequences.
The purpose of copyright is grounded in the U.S. Constitution: “To promote the Progress of Science and useful Arts.” The benefit of the public good, through the promotion of access to knowledge, is a key measure of the progress of science. Yet with copyright term extending far beyond the life of the author — life plus seventy years in the United States (notably, a term that extends far beyond international standards) — access to knowledge can be curtailed and restricted even after the author is long gone. Dissenting in Eldred v. Ashcroft, Justice Breyer noted that the Copyright Term Extension Act which lengthened copyright term in the United States to its current term, the “primary legal effect is to grant the extended term not to authors, but their heirs, estates or corporate successors. And most importantly, its practical effect is not to promote, but to inhibit, the progress of ‘Science’–by which word the Framers meant learning or knowledge.”
How does the current copyright system incentivize current authors to promote the progress of science or to produce more works? Breyer questions in his dissent in Eldred:
How will extension help today’s Noah Webster create new works 50 years after his death? Or is that hypothetical Webster supposed to support himself with the extension’s present discounted value, i.e., a few pennies? Or (to change the metaphor) is the argument that Dumas fils would have written more books had Dumas pere’s Three Musketeers earned more royalties?
Indeed, it is unlikely that Lee wrote To Kill a Mockingbird with copyright term in mind. In fact, when Lee published her novel in 1960, copyright term was significantly shorter: 28 years with the option to renew for an additional 28 years. It wasn’t until 16 years later when the 1976 Copyright Act was implemented that the copyright term in the United States was measured against the life of the author, and 1998 when the Copyright Term Extension Act extended the term from life plus 50 to life plus 70 years.
Instead of the copyright on To Kill a Mockingbird expiring this year, as it would have under the copyright law at the time of Lee’s writing and publication of the novel, the rights to the novel will continue for the next 70 years. Apparently, the first move by Lee’s successors-in-interest is to inhibit access to knowledge by prohibiting the publication of affordable copies of the novel.
