Webinar 55 in December 2022 prompted Michael Heaney (formerly the Executive Secretary, Bodleian Libraries) to reflect on his own contribution to documenting the long history of copyright legislation.
I found the recent webinar (number 55) featuring Tom Cochrane on the history of copyright law fascinating, and it reminded me of a piece I wrote back in 2010 in slightly odd circumstances.
I was Executive Secretary at the Bodleian at the time when the Stationers’ Company approached the Library looking for a contribution to be included in a forthcoming publication celebrating the tercentenary of the Statute of Anne. Bodley’s Librarian kicked it in my direction as my role included overall responsibility for copyright issues. I felt a bit like Daniel entering the lion’s den! The brief was to celebrate the Statute in a book published on behalf of the publishing and printing industries, when libraries tend to have a rather different take on the matter.
Some years previously, in 2004-05, I had taken a look at long-duration copyrights when Google had approached the Bodleian to become the first non-American library to participate in its book digitization programme. The initial proposal was to digitize the Library’s nineteenth-century holdings but that proved to be problematic as several authors who had published in the later part of the century had works still in copyright and active literary estates liable to challenge any infringement. In the end we decided to include material published up to 1885, and any later material which we knew to be out of copyright. Ironically, Google later decided to implement a blanket 140-year moving wall when serving material to European sites, so we were not permitted use Google to view some of the material we had supplied to them!
This led me to consider the disparity in the length of time a book has commercial economic value and the length of the copyright term. When I wrote the piece for the Stationers’ Company the longest duration I could find was a work by Jessie Edmondston (later Jessie Saxby) entitled The sea-girt home. A long-forgotten author, she had published the work when aged 17 in 1859, then survived till her death in 1940 aged 99; so in 2010 it (and another of her works) was still in copyright, 151 years after publication. (The longest current duration known to me is the French translation by Sophie Raffalovich (1860-1960) of John Morley’s Life of Richard Cobden, published in 1885; her translation will remain in copyright till 2030.)
The line I took in the piece was that there are two distinct aspects to copyright, and both are represented in the 1710 Statute. The first is the creation of the work, and the second its dissemination. The Act itself was intended to regulate the latter, by providing protection for the trade in books; but also recognised, in its full title, the need for the encouragement of learning.
The role of libraries as custodians of learning antedates the Statute of Anne by exactly a century, arising from the agreement made between Sir Thomas Bodley and the Stationers’ Company in 1610 providing for the deposit of copies in the Bodleian (and later in other major libraries) – the antecedent of legal deposit.
The distinction between the created work and its dissemination was the subject of protracted dispute once the initial terms of copyright granted by the Statute began to expire. The question was not settled until 1774 when the unpublished work was deemed to have perpetual copyright but publication set the clock ticking. The bargain was that authors were encouraged to create and printers and booksellers to disseminate works by the provision of a monopoly right, but this right was time-limited, so that once the author and printer/bookseller had been able to recoup their investment, the public could benefit. The investment required to disseminate has resulted in a committed and focused publishing profession, while the consumers have been diffuse and unorganised. It is not, therefore, surprising that over time the balance of the bargain has shifted in favour of the producers – greater protection for longer periods. (The only shift reducing copyright terms has been to abolish perpetual copyright for unpublished works; but even that will not take full effect until 2039.)
The equation of cost of the investment authors and publishers make in order to produce a published work, set against the material benefit from the sale of copies, has changed enormously over time and across different media as copyright protection was extended beyond the printed word. The development of the internet in particular has made the cost of ‘publishing’ (more accurately, ‘communication to the public’ in the terms of the current act) negligible and accessible to almost anyone, and the majority of material on the web is not made available with a view to a commercial return.
And so now we have a copyright term extending for 70 years after the author’s death, and in 99% of cases long after any realistic economic lifespan for their works. This does have some consequences for libraries. Long after the books have been remaindered by publishers, forgotten by the reading public, and in many cases forgotten even by their rights-owners, you will find them on the shelves of the great national, academic and municipal libraries. The orphan works problem is well known, but the issues are even more complex. Libraries hold works which are commercially ‘alive’; works whose copyright ownership is fully known but which are out of print and unlikely to be republished; works whose copyright ownership is known but unlocated; works known to be in copyright but whose current owner is unknown; works of uncertain copyright status; and out-of-copyright works. Libraries are honest and careful custodians of copyright and so they cannot make use of modern technologies to increase the availability of these works or even to meet the normal and reasonable expectations of users.
My way out of the lion’s den dilemma was to return to the original conception of the Statute of Anne, under which authors could license publishers to produce their works for 14 years, renewable for another 14, but no longer; and to celebrate the Statute itself while regretting the subsequent developments. I wrote:
The dual thrust of Queen Anne’s Statute – recognition of intellectual creations as property capable of being owned, and regulation of the trade in copies of that property – has, in its great-great-grandchildren, produced an active, creative and dynamic head in the publishing industry, which drags behind it a century-long tail of orphan and moribund works of which libraries are the primary custodians but upon which they cannot exercise their own considerable ingenuity for public benefit. But we can’t blame Queen Anne for that; the evidence is that she got the term about right. So let’s hear it for Queen Anne!
The tailpiece is that, when I’d written the piece and submitted to the editors, I asked what kind of publication agreement they might want me to sign. To my surprise, it turned out that they seemed not to have considered this aspect until I asked. So I proposed – and they agreed – that this work celebrating the benefits of copyright should go out under a Creative Commons licence…
‘Copyright’s balancing act and the role of the library’, in Copyright in the Digital Age Produced by Edinburgh Napier University in association with The Stationers‘ Company, 2010 (https://www.copyright-debate.com/copyright-balancing-act-heaney); also as a publication: in Copyright in the Digital Age: Industry Issues and Impacts, edited by Trevor Fenwick and Ian Locks (London: Wildy, Simmonds and Hill on behalf of the Worshipful Company of Stationers and Newspaper Makers, 2010), 121-126.