Copyrights, Licenses And Fair Use
Copyrights And The Public Domain
"It does look as if Massachusetts were in a fair way to embarrass me with kindnesses this year. In the first place, a Massachusetts judge has just decided in open court that a Boston publisher may sell, not only his own property in a free and unfettered way, but also may as freely sell property which does not belong to him but to me; property which he has not bought and which I have not sold. Under this ruling I am now advertising that judge's homestead for sale, and, if I make as good a sum out of it as I expect, I shall go on and sell out the rest of his property."
Mark Twain, Letter of acceptance of membership to Concord Free Trade Club (March 28, 1885)
Copyrights give authors the exclusive right to determine how their works may be used, and they ensure that authors get compensated for their work. No serious person has ever suggested eliminating copyrights. Copyright protection does not last forever, though. At some point copyrights expire, and when they do the work goes into the public domain. At that point anyone can do anything they want with it.
It is the public domain that makes sites like Project Gutenberg and the Internet Archive possible. Most of the content they provide is in the public domain, and the rest is copyrighted but licensed in a way that allows free distribution.
The important question is just when do copyrights expire? The answer depends on what country you live in, and if you want to publish your work on the Internet, what country the server is in. The Internet Archive and Project Gutenberg both have servers in the United States. Project Gutenberg also has sister sites in Australia and Canada. Therefore it is important to understand the copyright laws of these countries. By "understand" I mean "know what you're up against, mostly." My grandfather, when watching me set up a VCR in his home, told me "You have to be a Philadelphia lawyer to figure that out!" I am not a lawyer, Philadelphia or otherwise, and nothing in this chapter should be taken as legal advice.
This is a picture of some of the older books that I own:
The books shown include titles from the 1920's, 1930's, and 1940's. How many of these books are old enough to be in the public domain? The answer may surprise you.
United States Copyright Law
"Reader, suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself."
Mark Twain, from a draft manuscript (c.1881), quoted by Albert Bigelow Paine in Mark Twain: A Biography (1912).
For most of its history the United States has had reasonable copyright laws. According to the Project Gutenberg website the 1909 Copyright Act gave works a copyright term of 28 years. If the author was still living, he could apply for a renewal for another 28 years, otherwise the work would pass into the public domain. Since then the copyright term has been extended twice, first to 75 years and then to 95 years. The end result of this is that only works published before 1923 are definitely in the public domain in the United States. Other works might be in the public domain, but finding out if they are can be very difficult.
If the copyright term was still 56 years a lot of worthwhile books would be in the public domain and the vast majority of authors would not be affected. Very few books remain in print for 28 years, let alone 56 years. As a result of the latest copyright extension, there is a twenty year period where nothing new enters the public domain, and there is no guarantee that the same misanthropes who got the last extension won't try to get another one at the end of that period. I am hopeful, though. Maybe when it comes time to ask for another extension, enough of the public will understand just what has been stolen from them to make it difficult to do again.
Not everything published after 1922 is copyrighted. In fact, quite a bit of it is not. The trick is figuring out which books are in the public domain and being able to prove it.
There are several rules regarding what works published after 1922 are in the public domain. They are summarized in the Gutenberg Copyright How-To:
In practice, only two of the rules apply to a significant number of books. Rule 8 says that publications of the United States Government cannot be copyrighted. This is why you can get free e-books of the 9/11 Commission Report, the CIA World Factbook, etc.
Then there is Rule 6. I quote the Project Gutenberg website:
"Works published before 1964 needed to have their copyrights renewed in their 28th year, or they'd enter into the public domain. Some books originally published outside of the US by non-Americans are exempt from this requirement, under GATT. Works from before 1964 were automatically renewed if all of these apply:
- At least one author was a citizen or resident of a foreign country (outside the US) that's a party to the applicable copyright agreements. (Almost all countries are parties to these agreements.)
- The work was still under copyright in at least one author's "home country" at the time the GATT copyright agreement went into effect for that country (January 1, 1996 for most countries).
- The work was first published abroad, and not published in the United States until at least 30 days after its first publication abroad.
"If you can prove that one of the above does not apply, and if you can prove that copyright was not renewed, then the work is in the public domain. For US authors and publications, non-renewal is the hard part to demonstrate."
That last sentence says it all. Most copyrights, perhaps as many as 85%, are not renewed. Proving that they were not renewed is difficult. Far too many books end up as "orphan books" because it is either too difficult to prove that they are in the public domain or to track down the owners of the copyright. The first e-book I made, The Big Book Of Aviation For Boys, is a good example. It was printed in 1928. Only one edition was ever printed. The bulk of the book is reprinted articles from newspapers and a magazine called the Aero Digest. I can't imagine why anyone would have renewed the copyright on this book, but it would be difficult to prove that it was not renewed.PG does have materials that have cleared Rule 6. Much of the science fiction in PG was originally published in magazines and never reprinted, or not reprinted in the same form. As an example, when Edward E. Smith originally wrote Triplanetary it was a standalone novel published in a magazine as a serial. Later he rewrote parts of it to make it the first volume of the Lensman series. This second version is copyrighted and still in print. The earlier version is available on PG.
The Stanford University website has a useful search for finding out if a copyright has been renewed and when. By itself it may not be enough to tell you if a book has fallen into the public domain, but at least it can keep you from wasting time on books that haven't:
Using this database I found out that several books I thought were too obscure to be renewed in fact had been renewed. The database did not show my Big Book Of Aviation For Boys being renewed, and it did show several renewals for the same author, Joseph Lewis French, so it might be a safe book to donate to PG. One other observation on this database: I bought a fair number of books at a used book sale that I thought had "Rule 6" potential. After looking up those books and all the books from the thirties and forties that I already owned only seven looked like their copyrights had not been renewed. While it may be true that 85% of these copyrights are not renewed, if the book is good enough to end up at a used book sale (rather than a landfill) the odds of non-renewal go down considerably.
Even if it looks like copyright has not been renewed on a book you're still not out of the woods. Much of the material from my Boy's Aviation book was reprinted from other books, and I'd need to prove that all those sources were in the public domain before PG would accept it. I tried to submit another book, Orpheus, Myths Of The World by Padraic Colum, and had to deal with the fact that Padraic Colum did not become a U.S. citizen until 1945 and as a result I would have to prove that the book was not published abroad more than 30 days before it was published in the United States. The book is published by Macmillan and there is no reason to believe it was not published in the United States first, but how could you prove it? For that reason Project Gutenberg rejected it.
If you want to publish a public domain book on the Kindle Store they have the same requirements. I wanted to publish The Big Book of Boys Aviation on the Kindle Store and they asked for the original publication date for every article in the book, the full name of each author, plus the date each author died (and online resources they could use to verify my information). There is no way I could satisfy that requirement. I pointed out to them that they already sold reprints of that book by Kessenger Publishing, and that Kessenger had no rights to the book that I didn't have. I didn't expect this argument to sway them, but apparently it did, and they agreed to publish my e-book.
PG does have an official HOWTO for doing Rule 6 submissions, which you can find here:
Australian Copyright Law
"I was sorry to have my name mentioned as one of the great authors, because they have a sad habit of dying off. Chaucer is dead, Spencer is dead, so is Milton, so is Shakespeare, and I’m not feeling so well myself."
There is really only one thing worth knowing about Australian copyright law, which is that it is based not on publication date but on the date the author died. If an author died before 1956 and his books were published in his lifetime then his works are in the public domain. According to Wikipedia:
- Any work that was published in the lifetime of the author who died in 1956 or earlier, is out of copyright.
- Any work that was published in the lifetime of the author who died after 1956, will be out of copyright seventy (70) years after the author's death.
This works well for well-known authors, but would not help The Big Book Of Aviation For Boys much. That book has many authors, most obscure.
There are several resources for finding out when an author died. Wikipedia is fine for famous authors. For the less famous you might try looking up the book in the Open Library:
This is a site operated by the Internet Archive that plans to create a web page for every book ever printed. I contributed to the entry for my Boy's Aviation book here:
It shows me that the editor of the book, Joseph Lewis French, died in 1936. It also tells me that Robert Benchley died in 1945 and that Thorne Smith died in 1934. Project Gutenberg Australia has all of my Thorne Smith novels already, but only My Ten Years In A Quandary for Benchley. I have some of Benchley's books, plus Experiment In Autobiography from H.G. Wells, which PGA doesn't have yet.
The requirement to publish within the life of the author might prevent me from making some donations, For instance, Chips Off The Old Benchley was published after Benchley's death, and my copy of The Autobiography of Will Rogers was published after Rogers' death.
Canadian Copyright Law
Canadian copyrights expire 50 years after the end of the calendar year when the author dies. It does not make any difference whether the work was published in the author's lifetime. Thus Canada will be a suitable home for Chips Off The Old Benchley and The Autobiography of Will Rogers, (with the introductions removed). As I write this I have received copyright clearance for all three of the Robert Benchley books I own from Project Gutenberg Canada, and I am in the process of preparing scans and OCR'd text files for them for Distributed Proofreaders Canada. Project Gutenberg Canada already has Experiment in Autobiography.
Creative Commons Licenses
There are two factors that determine what you can do with a book: whether the book is copyrighted, and what license the book has. By default all copyrights have an "All Rights Reserved" license. This means that when you buy a book you can read it, but you can't copy it, make a play or a movie based on it, etc. You can give the book away, loan it out, or sell it and that's about it. This kind of license is so common you might be surprised to learn that other kinds of licenses exist.
creativecommons.org has licenses that anyone can apply to his work at no cost. These licenses give rights to the readers of your book that they would not normally have. There are several licenses available and they let you control just what rights you allow to your readers. For instance, you can allow others to freely distribute your work and make derivative works (like translations) as long as those works are non-commercial.
Why would you want to do this? Well, if you're hoping to write something that will be accepted by Oprah's Book Club you wouldn't and I wouldn't either. But not every book has commercial possibilities, and there are some books that are needed and you'd be happy if you could just break even publishing them. Creative Commons licenses are good for those kind of books. If you write a book using one of the CC licenses you can publish it as an e-book for free on the Internet Archive website.
One author, Cory Doctorow, has actually used Creative Commons licenses on his books and still managed to get them published by a regular publisher. This means that you can read his books for free as e-books but his publisher is the only one who can sell you a printed copy. You can read about his experiences with these licenses at his website:
You can learn more about the licenses that are available at http://creativecommons.org/about/licenses.
"Fair Use" is defined as the rights you have to a published work that you don't have to ask the publisher's permission to get. The usual examples include quoting short passages of a work in a book review, plus making a parody of a work. There is no hard and fast rule as to how much of a work you can quote before it stops being Fair Use, and not all parodies are protected. The usual criteria is if your use of a work affects the value of the original work in the marketplace.
There are several page images from the Junior Illustrated Library book The Arabian Nights in this book. I found out after I had gone through the work of making an e-book out of it that the book is still in print! The few page images from that book I've included in this book should qualify as Fair Use. These pages are not in any way a substitute for buying the book, and the amazon.com website actually has more page images for this book than I use. Distributing my e-book to anyone else would not be Fair Use. My own personal use should be OK, since I still possess the original book.
I have heard from teachers who want to make e-books out of the textbooks they use in class, often to help children with reading problems (since some kinds of e-books support text to speech). Is this Fair Use? From what I've read about it, it is probably dangerous to assume that it is. It would be safer to try and get permission from the publisher.
The U.S. Copyright Office has an article on Fair Use here:
Note that while they do mention non-profit and educational uses as possibilities, the example they give is short excerpts, not the whole book.