Tag Archives: to kill a mockingbird

To Kill A Mockingbird Remains Under Copyright

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

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It’s Copyright Week once again and today’s theme is Building and Defending the Public Domain: The public domain is our cultural commons and a crucial resource for innovation and access to knowledge. Copyright policy should strive to promote, and not diminish, a robust, accessible public domain.

One of my favorite and least favorite things to do each year in January is to check out Duke’s Center for the Study of the Public Domain and see what would have entered into the public domain, were it not for the changes to copyright term in the 1976 Copyright Act and the 1998 Copyright Term Extension Act. I find some morbid curiosity in looking to see what could have entered the public domain while mourning the fact that these great copyrighted works will remain under protection for another forty years. While most of the works covered in the Center for the Study of the Public Domain’s yearly list are well-known and the rightholder would presumably be easy to find, there are many more works that are orphans because of the lengthy term. The current copyright term significantly damages the public domain and raises the costs of access to knowledge.

As always, this year’s list has so many wonderful classics and well-known works, including Harper Lee’s To Kill a Mockingbird, Dr. Seuss’ Green Eggs and Ham and One Fish, Two Fish, Red Fish, Blue fish, and Jean-Paul Sartre’s Critique de la raison dialectique. Aside from these books, there are a number of classic films and music that are going to remain under copyright until 2056 rather than enter into the public domain now. To Kill a Mockingbird is a perfect example of the damage these copyright terms have; last year, I noted the swift action by Lee’s estate, weeks after her death, issuing a notice halting publication of the mass market version (also known as the “school” version) of the book (note that HarperCollins announced it would offer a discounted version to school purchasers — but not student purchasers — after a backlash against the elimination of the cheaper mass market publication).

Aside from these great books (the blog post also highlights films and music that would have entered the public domain), one of the notable points is that many of the scientific advances published in 1960 that is still copyrighted and behind paywalls:

1960 was another significant year for science. Max Perutz and Sir John Kendrew published articles on the structure of hemoglobin and the structure of myoglobin, respectively, and Robert Burns Woodward published an article describing a total synthesis of chlorophyll. (All three later won Nobel Prizes in Chemistry.) Theodore Maiman demonstrated the first working laser, a ruby laser. And the US launched its first successful weather satellite, TIROS-1.

If you follow the links above (and you do not have a subscription or institutional access), you will see that these 1960 articles are still behind paywalls. You can purchase the individual articles from the journal Nature for $32. A distressing number of scientific articles from 1960 require payment or a subscription or account, including those in major journals such as Science and JAMA. And the institutional access that many top scientists enjoy is not guaranteed—even institutions such as Harvard have considered canceling their subscriptions because they could no longer afford the escalating prices of major journal subscriptions.

It’s remarkable to find scientific research from 1960 hidden behind publisher paywalls. Thankfully, some publishers have made older articles available in full online, so that you can read them, even though it may still be illegal to copy and distribute them. In addition, some older articles have been made available on third party websites, but this is not a stable solution for providing reliable access to science. Third party postings can be difficult to find or taken down, links can get broken, and would-be posters may be deterred by the risk of a lawsuit. Under the pre-1978 copyright term, all of this history would be free to scholars, students, and enthusiasts.

With the fast pace of scientific and technological advances, it seems crazy that scientific research published 56 years ago remains behind paywalls.  The public domain is critical to promoting advances in culture and science, it is the very foundation of the Constitutional goal “to promote the progress of science and the useful arts.” It is a shame to see our current copyright terms restrict the rate at which works enter the public domain.

To Kill A Mass Market Paperback and Access to Knowledge

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.