October 23, 2017
Do you have a pre-war manuscript? Are you a library? DIGITIZE IT!
by Peter Clark
Libraries have got ninety-nine problems, but maybe copyright restrictions on works published between 1923 and 1941 ain’t one.
A little history. Embedded in Article 1 Section 8 of the US Constitution is the foundational clause for American copyright. “The Congress shall have power… 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.”Legislation built on this provision began appearing over the next few years, beginning with the Copyright Act of 1790. The TL;DR of it is that if you wrote something, it was yours to print, distribute, and sell for fourteen years without anyone else being allowed to print or use it without your permission. After fourteen years, you could apply for an extension of another fourteen years. Then, barring changes to the law, your writing would enter the public domain.
In 1831, it became twenty-eight years with a fourteen-year extension.
In 1909, it became twenty-eight years with a twenty-eight–year extension.
In 1976, it was lengthened profoundly to reach across a creator’s life and fifty years after their death.
In 1998, the Copyright Term Extension Act added an additional twenty years after a creator’s death to the term of copyright. Importantly, it also exempted libraries, archives, and schools from this extension; those institutions are free to treat works covered by the Act as though they were in the public domain. It’s often been called the Sonny Bono Copyright Term Extension Act, in honor of Sonny Bono, one of its original sponsors in Congress, who died a few months before Bill Clinton signed it into law.
This long-ignored detail of copyright law is coming back. Libraries may have the power to make work held under copyright by the twenty-year extentions, as the Internet Archive’s Brewster Kahle explained in a recent blog post:
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.
Gard’s involvement has included the production of software capable of determining whether particular work falls within the provision, with a $200,000 grant from Tulane. The program is hilariously named: The Durationator. Gard tested it this summer, and before rolling it out to a hundred institutions.
Some have been less sanguine, however. As Jennifer Howard noted in EdSurge last week, “Nothing about copyright is ever easy… and the ‘Last Twenty’ approach has its risks, and its skeptics. Making sure a work meets all the requirements takes time, and depends on accurate data, for instance.”
The caution is only reasonable — errors in copyright determination can result in heavy fines, and even litigation. Still, for researchers, the prospect of these materials becoming easily available is naturally enticing. The Internet Archive have already published sixty-one books here, with hopefully more to come.
Peter Clark is the sales manager at Melville House.