Grappling with Public Domain and Copyright

February 11, 2009

One of my biggest hang-ups when it comes to publishing (or attempting to publish) something I’ve translated is securing the English language rights. I’m jealous of translators who work in ancient languages, whose texts are all in the public domain (maybe that’s what attracted me to that course in Old English…), and thus they don’t have to worry about permissions. Of course, the permissions and rights that do exist are there for a reason: to protect the original author’s creative property. This is an extremely important concept, I won’t argue that. Lately I’ve been wondering, though, if things haven’t gotten a little out of hand in the protection area. The New York Review of Books recently published the article, “Google & the Future of Books,” by Robert Darnton, who made some interesting points regarding the state of public domain today.

Our republic was founded on faith in the central principle of the eighteenth-century Republic of Letters: the diffusion of light. For Jefferson, enlightenment took place by means of writers and readers, books and libraries—especially libraries, at Monticello, the University of Virginia, and the Library of Congress. This faith is embodied in the United States Constitution. Article 1, Section 8, establishes copyright and patents “for limited times” only and subject to the higher purpose of promoting “the progress of science and useful arts.” The Founding Fathers acknowledged authors’ rights to a fair return on their intellectual labor, but they put public welfare before private profit.

How to calculate the relative importance of those two values? As the authors of the Constitution knew, copyright was created in Great Britain by the Statute of Anne in 1710 for the purpose of curbing the monopolistic practices of the London Stationers’ Company and also, as its title proclaimed, “for the encouragement of learning.” At that time, Parliament set the length of copyright at fourteen years, renewable only once. The Stationers attempted to defend their monopoly of publishing and the book trade by arguing for perpetual copyright in a long series of court cases. But they lost in the definitive ruling of Donaldson v. Becket in 1774.

When the Americans gathered to draft a constitution thirteen years later, they generally favored the view that had predominated in Britain. Twenty-eight years seemed long enough to protect the interests of authors and publishers. Beyond that limit, the interest of the public should prevail…

How long does copyright extend today? According to the Sonny Bono Copyright Term Extension Act of 1998 (also known as “the Mickey Mouse Protection Act,” because Mickey was about to fall into the public domain), it lasts as long as the life of the author plus seventy years. In practice, that normally would mean more than a century. Most books published in the twentieth century have not yet entered the public domain. When it comes to digitization, access to our cultural heritage generally ends on January 1, 1923, the date from which great numbers of books are subject to copyright laws. It will remain there—unless private interests take over the digitizing, package it for consumers, tie the packages up by means of legal deals, and sell them for the profit of the shareholders. As things stand now, for example, Sinclair Lewis’s Babbitt, published in 1922, is in the public domain, whereas Lewis’s Elmer Gantry, published in 1927, will not enter the public domain until 2022.

Darnton goes on to suggest that Google’s recent activity of acquiring permission to digitize works that are not yet in the public domain may well be supporting the outrageously long term of copyright. The full article can be found at

I came to this issue as a translator, but now I just feel like a concerned member of the public. This goes beyond the headache of getting language rights. I want easier access to the creative developments of my culture! Is it too much to ask for a new Enlightenment?

I’m planning to read The Public Domain: Enclosing the Commons of the Mind by Jamie Boyle, published in late 2008. It promises to delve deep into these very issues. I’ll report back soon.



One Response to “Grappling with Public Domain and Copyright”

  1. rukednous Says:

    Another way that this does impact translation directly is in the availability of free editions of the classics online or the cheap copies available in print. The original isn’t copyright protected, but certain translations are– mostly the newest ones. I had a professor who used to rail against the Penguin Classics (among others) for constantly reprinting hoary old translations just because those were the public domain ones. Such translations aren’t necessarily bad in all cases, but aren’t necessarily as readable and reflective of new scholarship as newer translations that are protected under copyright– and these cheapies are naturally what school districts tend to end up with. So the asymmetry between what’s protected and what’s public domain does shape the availability of translations to the general public, by making the new translations either invisible or confusingly expensive to the uninitiated reader.

    A lot of tech-industry people argue that you can release a work, even a work of fiction, under a non-copyright license and offer free access but still make money. Under the Creative Commons license, for example. Maybe the Boyle book will mention Stephen King’s free book experiment and Cory Doctorow’s Down and Out in the Magic Kingdom as case studies? If it works for fiction, it might work for translation– but at the same time it would probably diminish a work of translation in the eyes of publishers and possibly of academics.

    You might also find this interesting:
    , which I read about here:

    The thing about all these alternative libraries and alternative licenses is that none of them really assuage all my fears about creating an ecosystem that rewards inquiry and lets writers make money. The communities that they do create sometimes seem really utopian– like the Prelinger Library — and sometimes seem to create a lot of social Darwinism behind the scenes — like Wikipedia.

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