Disappearing and reappearing – what effect does copyright and copyright reversion have on the availability of books? Fellows’ seminar by Paul Heald

Does copyright actually protect books or does it eventually encourage their disappearance from the market? What effect does the length of the copyright have? What happens to the availability of books when authors take back their rights? And what is the effect on all of this of e-books, print on demand and open access?

These are some of the questions that STIAS fellow Paul Heald of the College of Law at the University of Illinois is attempting to quantify empirically in a study that compares the availability of books whose copyrights are eligible for statutory reversion under United States and South African law with books whose copyrights are still exercised by the original publisher.

“Prominent economists (and US trade negotiators) assert that bad things happen when creative works fall into the public domain. They insist that works without owners to shepherd them will become inaccessible, worn out, or mis-used and, therefore, the term of copyright should continue to be extended. Yet, recent empirical studies show that books falling into the public domain become more accessible and unprotected music becomes more frequently used.”

Heald - 1STIAS Fellow Paul Heald during his seminar presentation on 7 June 2018

“Copyright reversion – when the copyright is given back to the author after a certain amount of time – seems to increase publication,” he said, “and bring disappeared book titles back into print.”

“I estimated positive effect of reversion on the availability (in-print status) of titles in a sample of 1909 books is 20-23%,” he added. “I think the study therefore has implications for newly proposed South African reversionary legislation.”

“In South Africa reversion occurs 25 years after the death of the author, but only for works published before 1965. South Africa is currently looking at an amendment to Section 25 of the Copyright Act to radically shorten this reversion period by limiting the enforceable of copyright contracts to 25 years from the time of the transfer of rights by the author.”

Heald’s data show how copyright may actually keep out-of-print books unavailable to the public, and that statutes transferring rights back to authors would provide incentives for the republication of books.

His study has found that copyright reversion legislation in the US, which generally occurs 35 years after publication for pre-1978 works and at year 56 for pre-1978 works, significantly increased in-print status for important classes of books.

“It’s about measuring whether authors are better stewards of their works than publishers. And, once they have control, are there more new editions – do out-of-print books reappear? And should we even be concerned about the books that have disappeared in the 20th Century?”

What about e-book rights?

Heald also pointed to the effect on the data of the 2002 case of Random House v. Rosetta Books, regarding the rights to Kurt Vonnegut’s books. This case queried what rights “in book form” meant, and the court decided e-books are not book form so the author was given the e-book rights back.

“In this case the original contracts dated from the 1950s when e-books were not even conceived,” continued Heald. “This led to a one-time de facto reversion of e-book rights to authors, which I believe has an even greater effect on in-print status than the 35-year and 56-year statutory schemes.”

“Of course, nowadays contracts are much clearer and include digital rights,” he added.

“The introduction of e-books – specifically the launch of Kindle in 2008 followed by the ibook reader in 2010 definitely affected the data, providing a ready outlet for authors seeking to exercise their re-acquired rights.”

The role of the publishers in this story also makes for interesting analysis. “Are large, traditional publishers missing huge opportunities and profits by not republishing some books?” asked Heald. “And why should we expect publishers to satisfy the whole market – maybe their policy is only to sell popular works by famous authors, not every book ever published.”

“Reversion also often creates opportunities for independent publishers, for self-publishing by the author and may increase the possibilities for production of audio books and other formats.”

In discussion, Heald pointed out that music publishers tend to be much more sophisticated than book publishers and there is thus less “disappeared music”. He also pointed out that textbooks are likely to behave differently to fiction because they generally have a shorter shelf life anyway, particularly in the sciences.

“There is also a need to more fully understand the used book market,” he continued. “This could, in some ways, serve as a proxy for the demand side of the equation.”

“However, print-on-demand will change things,” he added. “Books going out of print should be a thing of the past, and new books should never disappear. Increasing open-access publishing will also have a substantial effect on the market.”

“However, for now, the data show there is a measurable difference in books controlled by publishers and books controlled by authors,” he said.

“More data are needed to fully measure the reversionary effect on South African books specifically,” he continued, “but it is something that legislators should consider in current deliberations.”

In this regard Heald presented his study data to South African policy makers during his stay.

“We need more book diversity to sustain our cultural future,” he said. “These data show that increased availability is possible.”

Michelle Galloway: Part-time media officer at STIAS
Photograph: Christoff Pauw

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