Secretly Public Domain: Most books published in the US before 1964
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On the first point, I think that renewal is a poor proxy for determining which works are are orphaned or no longer have commercial value, instead just showing which copyright holders have the most diligent book keeping. Large number of published works will loose copyright protection just due to oversight. A simple mistake shouldn't result in disproportionate consequences (loss of decades of revenue). At the same time other works that are no longer available on the market will be prevented from entering public domain by companies that just renew everything.
Furthermore, historically, the USPTO has done a poor job of keeping (and making accessible) records of which works were renewed, and which weren't. Anyone who wants to use an orphaned work has needed to prove a negative, which is difficult to do, so most assume that everything is still copyrighted to avoid liability anyway.
Lastly, just because someone has registered a work (for renewal or otherwise) is not proof that they hold copyright on that work. People have spent decades trying to determine the rightful owner of a work so they can license it, even when it was registered.
Instead, I think what we need is a process for the USPTO to grant third parties permission to use a work when a good faith effort has been made to determine and contact the copyright holder. In my view, this would involve involve paying of statutory license fees to the USPTO who will hold them in escrow. If the owner is eventually determined, they can claim the money, and if no one claims it after some time it goes to fund the endowment for the arts. This would allow the public access to orphaned and disputed works again, and would encourage registration without the strong consequences for forgetting.
I would actually take this a step further and declare that all works are subject to statutory licensing for the second half of their copyright duration, not just orphaned works, and the above process would just be a fallback when the copyright holder can't be contacted. And of course, would shorten the copyright duration as well.
So in other words, renewing should cost a decent amount of money, so that not every work is worth renewing?
I don't really see the fact that people will let things enter the public domain sooner as a downside, even if it would (theoretically) have earned them more money. If they aren't organized enough to renew the copyright, why would they be organized enough to actually use the work?
If you can't be bothered to do this, why should you be entitled to copyright protection?
For example, you can make a certified copy, and deposit the copy in a safe deposit box or with your lawyer.
Should you have to be an expert in the legal system to avoid losing your intellectual property when your house burns down?
Besides, the whole reason lawyers exist is so that people who aren't experts in the legal system can hire one. You're not going to get very far in business without discovering you need the services of a lawyer and a CPA. Often the hard way.
I recall the actor Will Smith (Fresh Prince) who discovered the hard way that he needed the services of a CPA.
"Let's take a system that works today and impose an additional paper trail, where you lose all your rights if you lose the paper trail."
"Won't that penalize people who don't have a lawyer and who lose their paper trail?"
"Tough, people need to learn to use lawyers"
In fact, now that I right that out, that's an extremely antagonistic approach to take and it punishes the least privileged people (e.g. the people who can't afford lawyers), while doing absolutely nothing for the giant corporations who have lawyers on retainer and will naturally have a process in place to retain proper copies of the paper trail always.
In this case isn't the government stealing from the copyright holder and/or public domain? If I use a presumably abandoned work as a jumping off point to a billion dollar franchise and then the original copyright holder comes out of the woodwork to claim 50% of everything I've made will the government escrow cover that? What if two people come out claiming to own the copyright? This solution seems to have all of the problems of the current system and offer little to fix the problem.
I agree that the old paper recordkeeping was not scalable to the modern world, but an online registry of works doesn't seem out of the question. It's exactly the sort of thing the web should be good for. Renewals could also be done online. For easy lookup a standardized copyright numbering system could be optionally added to each work similar to an ISBN.
The hardest problem would be validating that people actually have rights to what they claim on the service. There would undoubtedly be a cottage industry of people seeking out forgotten works and registering them under their name for the license fees. A modest fee for renewal should help reduce that problem and also stiff penalties for knowingly stealing other peoples work. The fees would be used to run the massive server farm necessary for keeping all of those records available. I would also suggest that a modest copyright term, say 15 years or so would automatically be applied to any work and you would only need to register if you're planning to renew the work after the original term is up. We don't need people writing bots that automatically register every forum post or email or google query they make, because there will definitely be people who try that shit just to troll for licensing dollars.
It would be the same as any other statutory licensing system, where once the government grants you permission to use the work, and you pay the statutory fees, the copyright holder has no claim to any rights in your derivative works. The only right they have at that point is to the fees, and it is between them and the government as to whether they are the rightful copyright holder, no reason to involve you.
Again, I think this would work smoother if all works had say 20 years of full copyright protection, just like today, and then another 20 subject to statutory licensing. Then in that second period there would be no dispute over whether you, the third party, had the right to use the work, the only dispute is over who gets the statutory fees, and the government agrees to be the middle man in situations where that is not clear, so that uncertainty of ownership won't stifle use.
> In this case isn't the government stealing from the copyright holder and/or public domain?
Stealing implies that either the copyright holder or the public have some inherit ownership right in the work, however their rights are only what the law grants them. In this system, works would not enter the public domain until after the second period is over, so the public domain has no rightful claim to them (orphaned or not). In the second phase of copyright, the holder would no longer have absolute right to control the work, and only limited rights in setting prices. Anyone could redistribute or make derivative works (subject to trademark law, etc), as long as they paid the statutory fees. If a copyright holder abandons the work, then you cannot blame the government for treating the fees similar to other abandoned property.
For more information: https://en.wikipedia.org/wiki/Statute_of_Anne
Now, it said already back then that its intent was the "encouragement of learning", but the intent was very thinly veiled.
For books first published in the US, here is what is now in the public domain.
• Books published before 1924.
• Books published from 1924 through 1977 without a copyright notice.
• Books published from 1978 to early 1989 without a copyright notice and without a subsequent registration within 5 years.
• Books published from 1924 through 1963 with copyright notice but whose copyright was not renewed. (This is the case for the books the article is talking about).
• Books prepared by an officer or employee of the US government as part of the person's official duties.
The linked post in the article is very detailed and has more background: https://www.nypl.org/blog/2019/05/31/us-copyright-history-19...
Case in point, I've been thinking about transcribing The Worm Ouroboros[0] for some time, as it should be in the public domain even by conservative estimates, and yet I can't formally verify its copyright status, so I haven't yet.
Maybe the situation has changed since then! But I'd love to have that book in our catalog.
Was the text revised for the US edition?
According to the article, it looks like Gutenberg adds a layer of "let a lawyer sign off on it", presumably to keep them from getting sued out of existence. Is that the case for Worm Ouroboros?
Ebooks that are not clearly in the U.S. public domain. If it’s not on Gutenberg, we’ll probably decline it.
With that said, their specialty is in the transcription part. If you try reading one of their public domain works on a Kindle, they're often full of formatting problems and typos, since the transcripts are sometimes sourced from OCR scans. I've known people who tried starting a free book from Gutenberg, but eventually gave up and bought the same e-book off Amazon for a dollar because it at least had a working TOC. That kind of sale saddens me greatly. The end-user thinks, "Ah, it was only a dollar, I got my money's worth," but the publisher has basically paid nothing for the work, adds a few hours of digital typesetting, and then makes 100% profit on the sale.
Standard Ebooks often uses the Gutenberg raw text as a starting point and then cleans it up. We have a set of tools used for the initial cleanup process[0] that handles pagination, TOC generation, and some other basic "modernization" steps. The texts are then proofread and edited to conform to our style guide[1], which aims for maximizing readability on modern e-reader devices, as well as adding semantic meaning to any text markup. You can look at the guide for producing such a book to get a better idea of the process.[2] The end result is a free, public domain work which looks and feels like a professional production.
[0] https://github.com/standardebooks/tools
[1] https://standardebooks.org/contribute/typography
[2] https://standardebooks.org/contribute/producing-an-ebook-ste...
And if legally sound, then should we expect Google Books to make these 80% of books fully available, as all books from 1923 and prior already are?
Also... how are we only figuring this out now?
I think it's important to look at authoritative documents, especially since copyright duration is absurdly complicated. You can learn more about copyright duration in the US here: https://www.copyright.gov/help/faq/faq-duration.html
Circular 15a "Duration of Copyright" from the US Copyright Office ( https://www.copyright.gov/circs/circ15a.pdf ) says in heading "Automatic Renewal and Voluntary Registration" that:
* "Mandatory Renewal Works originally copyrighted between January 1, 1950, and December 31, 1963. Copyrights in their first 28-year term on January 1, 1978, still had to be renewed to be protected for the second term. If a valid renewal registration was made at the proper time, the second term will last for 67 years. However, if renewal registration for these works was not made within the statutory time limits, a copyright originally secured between 1950 and 1963 expired on December 31 of its 28th year, and protection was lost permanently."
* "Works originally copyrighted between January 1, 1964, and December 31, 1977. Congress amended the copyright law on June 26, 1992, to automatically renew the copyright in these works and to make renewal registration for them optional. Their copyright term is still divided between a 28-year original term and a 67-year renewal term, but a renewal registration is not required to secure the renewal copyright. The renewal vests on behalf of the appropriate renewal claimant upon renewal registration or, if there is no renewal registration, on December 31 of the 28th year."
So there is a cutoff before 1964. However, it's not at all clear to me how many times the copyright holders didn't renew their copyrights. I would be unsurprised if the big publishers did typically renew them. If a book was published in 1950 and it was renewed, then the copyright would continue until 2045 (1950+28+67).
I've only listed 2 cases (just before & just after 1964), but there are actually many more cases and it's all quite complicated.
I think copyright duration is grossly overlong, far in excess of what is needed to get people to create works.
That doesn't sound that surprising to me either, but I don't think that matters for the claim that most are PD now. My intuition would be that big publishers wouldn't be responsible for a large percentage of the published titles in that time period. Certainly, from the standpoint of units sold they would be, but not distinct works.
There's a lot more niche, technical, academic, low-end, etc works even though most people consume the mass-market popular stuff. I would expect that all those long-tail things to be the ones that never got renewed, and to be in the majority as far as titles go.
However, you could theoretically have a situation where the artist renewed the copyright on the images but the author did not renew the copyright on the words, or vice versa.
Interesting. I was wondering how Project Gutenberg put Robert Sheckley's stories on-line (and why only some and not all of them): https://www.gutenberg.org/ebooks/author/2960
It also highlights again, how crazy copyright term has become, and that it needs a serious rollback to sane levels.
Does anyone have any insight into why the chosen 10% is the most likely to be interesting?
Most books are crap. Interchangeable crap; maybe you'd enjoy some of them or learn something, but you could pick at random from the interchangeable pile of crap and be equally entertained and educated.
If you trawled that 80% of pre-1964 books, most of it would be crap, simply because most books are crap, whether they were published in 1964, 2014, or 1864. And more of it would be crap, because if you are differentially renewing copyrights on books in your catalogue, you are trying to renew the good stuff and forget the crap.
That's not to say that good books didn't fall out of copyright, for a million reasons, but if you have five books you like from before 1964, and you go check the copyright status, don't be surprised if fewer than 4 are part of that 80%.