Saturday, December 14, 2013

Copyright again: 15 years may be the sweet spot

It's worth watching this video in general, but I've linked to a specific point (if the video doesn't start at 16:24, then skip forward to there) where they present some really surprising data: in general, book publishers stop publishing books after between 10 and 20 years. What this means is that if you want to find a book published 20-40 years ago, you're probably not going to find it unless it's one of the few books that either was made into a movie or is required for some college coursework. Want to find William Gibson's Johnny Mnemonic? Sure, that had some big budget actors in the film adaptation, but Connie Willis's Fire Watch? Yeah so, how about a Kindle version? And that's the lucky ones that are available as ebooks! Many are simply lost.

So, the obvious response is that this is the market at work. Older books aren't in demand, so they aren't printed and old farts like myself that complain are just being nostalgic for something the market wouldn't buy if it was for sale, right? Well... not so much. The graph in the video clearly points out that once books drop out of copyright, there are publishers who eagerly pick them up and start publishing them again, and they're doing well enough that they have a thriving business that has as many books up for sale in terms of titles as the new books on Amazon!

The conclusion you should be drawing, here, is that any movement of copyright date defines the boundary of a publishing market in otherwise out-of-print (sometimes called "orphaned") works that would be generating intense interest from both publishers and buyers. But, there's a problem with our current copyright window. It's so long that many books simply don't exist in any form by the time we get there. Right now, that window ends in the 1920s, more or less (it gets complicated, but that's a relatively safe window for now). But books published in the 1910s aren't all available today to publishers who want to re-print them. It's also the case that many of the people who would have wanted to buy those books are now dead such as people who read them as children or who were alive during the events that the books depict.

This is a strong argument for shortening copyright duration, and the data presented in the video gives us some excellent bounding boxes around how long copyright makes sense. After about 15 years, there's an exponential drop-off in the availability of books: publishers just don't care enough to print them. So, let's set the first expiration there. Let publishers renew copyright if they wish, but require that renewed copyrights coincide with a newly available publication of the work or the copyright expires after another year. So you have 15 years of automatic coverage, 1 year to renew and 1 year to publish. That's 17 years of coverage without ever publishing a single book. Then you can get out to 30 years of coverage with a single renewal (the renewal always starts from the end-date of the first 15 years, no matter when in the 1-year grace period you renew; this prevents publishers from waiting to renew just to extend coverage by a year)

After the single renewal, that's it. A 30 year old book is relinquished to the public domain. The original publisher can continue to publish if they like, but based on the current data, we can assume that in most cases they will not. If they do, they might continue to make money on the book, and that's great. But if they don't and someone else does... that's the wonder of the market at work.

But what about poor, starving authors? Well, let's think about that. The few authors that make it big, typically don't do so on the basis of their work from 30 years ago. Instead, they're often continuing to write new books and those are the ones that remain popular. A perfect example is an author whose books have made the leap to television: George R. R. Martin. His Song of Ice and Fire series has been brought to HBO as the hit series, A Game of Thrones. 17 years ago, he published the first book. Obviously he and his publisher would have renewed the copyright in 2011, not just because of the HBO series that was just then being launched, but because the new novels in the series continued to boost sales of the older books.

In just under 13 more years, the final copyright would expire on the first book in 2026, and Martin would still be earning royalties on the second through seventh book, assuming that he stops at 7 as currently planned. Meanwhile, HBO also has been airing shows that didn't start as books. Curb your Enthusiasm is coming up on what would be its first renewal for its first season, and even though sales are down to spot number 5,568 in movies and TV on Amazon, it's likely that HBO would renew it for another 15 years. Once the first season does expire, though in 2030, one imagines that either not much would change or one publisher would find a way to revive sales and make the first season popular again. Such a revival would bring no money to HBO or the show's creators for the first season, but what of sales of the second through eighth seasons? If someone found a way to boost sales of the first, certainly the others would see a benefit in sales, and HBO would be making lots of new money on a series that they had spent no money to promote!
But is money the only value, here? Certainly not. Money is the carrot that we give to authors and publishers in the form of a monopoly over their published works, and the reason that we give this carrot is to reap a benefit: the enrichment of the commons. When A Game of Thrones goes out of copyright protection, we will see a renewed interest in, not just the original work, but creating derived works from it that benefit all of us. Examples of derived works from the commons include many of Disney's most famous films such as Snow White; all of the many and varied adaptations of Sherlock Holmes; the works of William Shakespeare which have run the gamut from Kenneth Branagh's extremely faithful adaptation of Hamlet to Forbidden Planet which was loosely based on The Tempest; etc. There are a sea of works which we base on our common shared culture, but that culture is getting more and more stale, every time we extend copyright coverage. Even when you ignore directly derived works, the influence of the commons is felt everywhere. "Neither a borrower nor a lender be," and, "when you have eliminated the impossible, whatever remains, however improbable, must be the truth," are both well known phrases today specifically because they ring throughout our culture, repeated time and again in new works. The archetype of the mad scientist is the direct result of Mary Shelly's Frankenstein and the legend of vampires was forever changed by Bram Stoker's Dracula. What works of the 20th century would have ingrained themselves into our culture, but never quite had that freedom, due to essentially perpetual copyright?

You can see my previous take on the topic of copyright reform, in which I proposed a 10 year expiration and a system for phasing in the new expiration period that would be practical and as non-disruptive as possible, if you found this take interesting.