Free Bloomsday!

by John Quiggin on February 26, 2004

If you want to see what’s wrong with copyright and the concept of intellectual property, it’s hard to go past the obstacles being put up by James Joyce’s grandson Stephen to recitations of Ulysses on the 100th anniversary of Bloomsday (June 16 2004) in Dublin. Thanks to the extension of copyright to 70 years beyond the author’s death by the European Union in 1995, Joyce has absolute control over his grandfather’s work until 2011. It’s hard to imagine any moral sense in which Ulysses belongs more to an obstreporous descendant of the author than to the city that inspired it.

The issues are completely obscured by the use of the term ‘intellectual property’ which makes it appear that ideas belong to an owner in the same way that a car or a block of land does. This term, enshrined in mountains of legislation and treaties, deserves about the same amount of respect as the contrary slogan ‘information wants to be free’ (if anything less so, since the latter is at least a half-truth)

In economic terms, the idea of copyright is to balance the interests of the public in the free dissemination of what is, once it is produced, a naturally public good (and therefore ‘wants to be free’), with the need to encourage authors to create works in the first place. The example of Ulysses shows how far we have got the balance wrong. Does anyone seriously believe that Joyce was motivated, even in the slightest, by the prospect of enriching a grandchild who hadn’t even been born at the time. (Of course, he would have needed extraordinary foresight to predict the successive extensions of copyright that would make this possible).

Even taking a forward-looking view, what kind of benefit do authors today get from the sale of copyrights extending up to a century after their death? For a publisher evaluating commercial investments of this kind, a 10 per cent discount rate would be on the low side, but this would be enough to ensure that royalties received 70 years in the future would be discounted by a factor of 1000. From the social viewpoint, on the other hand, the future costs of restricted access to copyrighted works should be discounted at a much lower rate, perhaps 3 per cent, which would imply that costs incurred 70 years in the future should be discounted by a factor of around 8.

All of this is particularly relevant to Australians, as we are one of the few countries still enjoying the benefits of the ‘life + 50 years’ rule, and have therefore been of particular value to public-domain exercises like the Gutenberg project.. Our government has just signed a so-called Free Trade Agreement with the United States. It does little or nothing to free trade, but a lot to protect monopoly rights, including an extension of copyright to life +70 years. Fortunately this needs legislation, which may be rejected. Given that the Irish have signed away their public domain rights, and we are still clinging to ours, the Bloomsday centenary would be an appropriate occasion for celebrating them.

{ 16 comments }

1

bad Jim 02.26.04 at 10:51 am

Mickey Mouse will be eternally Disney’s, at least in America. Copyright protection marches inexorably on.

The title of your post scared me. I thought I was missing another pub-crawl, but Bloomsday isn’t until June.

2

Reimer Behrends 02.26.04 at 12:37 pm

Regarding the following: “In economic terms, the idea of copyright is to balance the interests of the public in the free dissemination of what is, once it is produced, a naturally public good (and therefore ‘wants to be free’), with the need to encourage authors to create works in the first place.”

This is the American (and prior to EU harmonization, British) rationale for copyright, but it is hardly universal. The continental European model is quite different and focuses on an “author’s right” (droit d’auteur, Urheberrecht) which is a personal right (certain aspects of which are now actually being considered inalienable) rather than a government-granted privilege as per the Statute of Anne. Cf. Kant’s “Von der Unrechtmäßigkeit des Büchernachdrucks”, which laid the foundations for that model, later to be realized during the French revolution. In particular, a creative work is not a “naturally public good” under that model, but is so closely related to the person of the author, containing their thoughts and expressions of their personality, that they retain a natural right to the work.

3

nnyhav 02.26.04 at 1:31 pm

Methinks you’re viewing this through the crack’d lookinglass of a servant. Intellectual property in the arts pales by comparison to Academia Inc.

Intellectual property, like sovereignty, will be a defining issue of institutional evolution for decades to come.

4

Ray 02.26.04 at 1:50 pm

Well, yes, but it’s the only lookinglass we have.

When James Joyce Quarterly editor Robert Spoo left the English department to become an IP lawyer a years ago, I noted: “If it’s true that intellectual property trials will be to this century what obscenity trials were to the last, it seems right to put a Joycean in the frontlines.”

5

nnyhav 02.26.04 at 2:06 pm

Ray – making IP pendant upon any single cultural icon is a serious error. Consider another obscenity trial front-liner; the plight of the Nabokov museum in his former St. Petersburg residence: son Dmitri has pledged all Russian copyright revenues thereto, but these are essentially non-existant, and the museum may soon be as well.

6

Tom Slee 02.26.04 at 2:10 pm

bad jim’s observation is absolutely right. Copyrights for grandchildren are one thing — obviously unjustified but only occasionally important. Copyrights for childless and deathless individuals such as Disney are on a different scale entirely.

7

bryan 02.26.04 at 2:23 pm

just thought of something, that the extension of copyright is what has made possible the financial speculation in artist’s catalogs, generally in regards to musicians, such as Bowie, but surely such a market could also exist for literary catalogs.

8

QuickSauce 02.26.04 at 2:50 pm

I really wish we could get the balance right on this, because it was just 20 years ago that Michael Jackson outbid Paul McCartney on the rights to the Beatles catalog. It’s annoying as hell to think that when I purchase a Beatles recording the money is going Jackson. I also recall that Stravinsky recomposed Rite of Spring in order to retain his rights to it. I don’t usually like transferring the vocabulary of commerce into that of art, but I’d like to think that if someone wants to read, listen to, or look at something that I’ve created, then I should get some compensation.

But yes, my unborn grandchild, or a corporation that wears my name, shouldn’t have rights over it. My hypothetical grandchild should write her own damn stuff.

9

Reimer Behrends 02.26.04 at 4:35 pm

As a counterpoint to the James Joyce example, let me point to the “Asphalt Jungle” case. The rights to this black-and-white movie, directed by John Huston, were acquired by Turner Entertainment Company, who subsequently went and colorized it. The broadcasting of the colorized version was opposed in France by the heirs of John Huston, who successfully argued that the colorization violated Huston’s “right to integrity”.

They could do that, because under French intellectual property law “the author enjoys the right to the respect of his name, his character and his work. This right is attached to his person. It is perpetual, inalienable and imprescriptible.”

Obviously, Hollywood cherrypicked European law for adoption into US law. They got the longer duration, but don’t have to put up with the farther-reaching rights that European authors enjoy. The purpose of the life+X duration is to primarily protect artists and their heirs, not the publisher, who enjoys the rights to use a work at the sufferance of the artist; under US law with its “work for hire”, a concept that is alien to continenteal European law, the purpose is suddenly reversed.

10

Rv. Agnos 02.26.04 at 4:45 pm

Ah, but any good Joyce scholar knows that the true home of Ulysses is not Dublin, but Philadelphia — specifically the Rosenbach Museum & Library on Delancey St. that houses the original manuscript of Ulysses and hosts an annual Bloomsday Reading.

http://www.rosenbach.org/home/home.html

(They also have most of the original Maurice Sendak drawings in their permanent collection!)

11

Sebastian Holsclaw 02.26.04 at 5:42 pm

It seems to me that a life + 30 or 40 year standard would insure that a long-lived surviving spouse can enjoy the fruits of her forebearance (a laudable side effect of copyright). But a life + 75 year term seems too long. In my opinion a strict life standard would have a much stronger argument than a life + 75 standard. But I think a couple of decades belong life makes enough sense to bother with.

12

Dave F 02.26.04 at 7:50 pm

Following r.v. agnos, perhaps young master Joyce recalls that “the city that inspired” Ulysses was not in the least grateful, and Joyce, widely vilified in that milieu at the time, owed it nothing.

13

John Quiggin 02.26.04 at 8:39 pm

I agree with the distinction that is made with respect to the moral rights of the author. But the character of these rights is inherently personal and not subject to inheritance any more than it is to sale or gift. Passing them on to descendants undermines the whole concept. Perhaps they may do a good job in matching what the author would have preferred in some cases, but there’s no reason to expect this in general.

14

ahem 02.26.04 at 11:21 pm

It’s annoying as hell to think that when I purchase a Beatles recording the money is going Jackson.

Not quite true: the performance rights still rest with the Beatles (and EMI is currently doing a zealous job of protecting them); the publishing rights are Jackson’s — or rather, half his, since he has a 50% stake since his publishing company merged with Sony Publishing.

The original copyright term was 14 years, I believe: enough for the widow/er of an author to raise a newborn child to adulthood.

I like Larry Lessig’s idea, though: a kind of ‘scrip’ copyright renewal for immediate family (spouse/partner & kids) after a certain period would ensure that one would have to opt out of works reverting to public domain rather than there being a century-long opt-in.

15

QuickSauce 02.27.04 at 12:07 am

Ahem, thanks for the clarification.

16

Ray 02.27.04 at 2:48 pm

The arguments I’ve heard for copyright lengths are
1) Copyright has to be for life, otherwise an author’s early works could be out of copyright as she gets older
2) Copyright also has to be for +x0 years, so that an author’s year-old baby won’t be thrown in the poorhouse when dad keels over
So shouldn’t the copyright term be for life OR 30 years, whichever is longer? And copyrights can only be held by corporations, trusts and other nonhuman entities until 30 years after the date of publication?

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