This
is an important book not published by a major non-fiction house. It provides for
three countries (France, Britain, USA) a detailed history of the complicated,
uneven and often confused development of what we now call intellectual property
law. The detail is fascinating and fully documented. But the book then turns to
the hot button topic of the threat to intellectual and artistic activity now posed by large corporate enterprises,
heavy with lawyers, which are actively removing creative work (especially music
and images) from what we call the public domain and in effect seeking to create
corporate copyright in perpetuity.
In
my country, there are houses which have been passed down through generations of
the same family for several hundred years There are no laws in England or,
really, in any country which set a fixed term to the period during which
physical property can be passed down
Houses, land, jewellery, paintings, books – those can all be inherited
though in many times and places tax has been due on inheritance.
In
contrast, copyrights and other creator rights in intellectual property have
always been restricted to fixed terms and subject to some other restrictions. The
length has generally increased over time and now normally stands at seventy years after
the death of the creator. Limited rights to “fair dealing” use in reviews and
academic work are recognised, as is the right to parody. But “adaptations” are
a very tricky area unless you are adapting Shakespeare over whose work no Heirs
and Assigns now hover. But over the works of Samuel Beckett and T S Eliot they
hover with a vengeance. Everyone enjoys hating these “Literary Estates” and those who
manage them courtesy of the long property after-life of dead authors. That
afterlife creates other frustrations too: Bellos and Montagu devote a chapter
to “Orphan Works”, those pieces of property which are still in copyright but
over which no known person or organisation claims the rights, either because
they don’t know they own them or can’t be bothered to let it be known that they are
the lawful proprietors. There must be many grand-children of dead minor or
prolific writers and painters who simply don’t know what they own.
But
the bigger problem is the corporations who think they do know. I will give an
extended example of the kind of hazards we now face.
In
1808 Charlotte Reynolds (1761-1848), a minor figure in the circle of John
Keats, wrote a poem about a goose and posted it to John Dovaston (1782-1854).
It was never published though Dovaston published a poem, also about a goose, with which it is twinned. The dates of death of
the two people involved clearly indicate that both poems are out of copyright.
So when I found Charlotte's poem in 2023 in a batch of old letters sold in a provincial
auction, I was free to publish both an image of the letter and a transcription
of the poem and did so on this Blog on 20 January 2024. I also own the physical
letter but plan to sell it; in her collection of Charlotte’s letters to
Dovaston Letters from Lambeth (1981), Joanna Richardson indicates that
the batch of letters she acquired became available because of a house clearance, the
commonest way in which old stuff comes onto the market. My letter was not in
her batch – it predates those she obtained – but ended up in auction in 2023 no
doubt in the latest of a chain of
previous auctions. It was sold for what was on the outside not the inside, at
which probably no one had looked for a very long time. Physical stuff circulates
through auctions, charity shops, garage sales, and so on and sometimes
interesting things turn up. (Think Antiques Roadshow).
I
own the letter but I don’t own any copyright on the text of the poem which I
have placed in the public (internet) domain where anyone can read it and a
surprisingly large number of people appear to have done so already.
What’s
not to like? I scanned the letter and published an image along with a transcription of the text of
the poem. In some jurisdictions I might be able to claim copyright on the image
as recompense for the trouble I took in making it. But I did not place beside
it a little label reading © PatemanImages and have no intention of doing so. I
do have automatic copyright in the text I wrote to accompany the image, and
(possibly?) in the transcription which took a lot of time. But I have no
interest in either copyright. I am not preparing a daily-updated list of everything I have ever written and
published to pass to my Heirs and
Assigns.
But
it is quite possible that some bot or corporate employee will come along,
scrape the image off the internet, and offer it for “licensing” to anyone who
wants to use it - say, a literary
periodical publishing a piece about Charlotte Reynolds. The fees will be
variable but do not include future ownership of the image which is only
available for rent – the key word which identifies the claim to
ownership as analogous to the claim to a house or piece of land.
If
you go to literary and art world periodicals you will find many illustrations
which are accompanied by a © sign and the name of some well-known image shop. Many and maybe most of those images will feature works long out of
copyright. One should ask, Where did the image-renter get the image? Did they
despatch a photographer, or buy the original work, or did they simply copy an existing public domain
image? Did they scrape it off the internet? And having done so, can they then come back to you ( or me) and tell you (me) to take down the image to which they now own the copyright? That thought places me in a bind: should I now place a copyright notice beside my image to prevent someone else doing so?
If
you can create a new copyright in any of the above ways it’s clear that you
can create indefinite copyright. After the requisite number of years you simply
copy again the original image and claim a new copyright on the new copy.
Bellos and Montagu do discuss similar cases where what is usually reckoned to
be at stake is whether anyone has engaged in any fresh “creative” or
“intellectual” work to produce something worthy of a new lease of copyright
You
have been warned; Bellos and Montagu encapsulate the warning by using as a
preface to their work an old English rhyme:
The
law doth punish man or woman
That
steals the goose from off the common
But
lets the greqter felon loose
Who
steals the common from the goose.
