Mark Twain once wrote in his Notebooks that “Only one thing is impossible for God: to find any sense in any copyright law on the planet.” It has been a full century since Twain’s death in 1910 and he is just now presenting us with good evidence for the truth of his comment.
The gist of the story, which is recounted here and analyzed from an Australian point of view, is that Twain left an Autobiography when he died, along with instructions that it not be published until he had been dead for 100 years. Twain’s purpose apparently was to avoid giving offense or committing defamation. That long-awaited publication has now taken place, and the question that interests me is whether the Autobiography has any copyright protection.
Under current US law, the copyright in an unpublished work lasts for the life of the author plus 70 years. That term of protection for Twain’s Autobiography would have expired in 1980. For a currently published work the term of protection is the same, so it is logically impossible to apply that term starting from the time of publication in 2010.
Perhaps we should look at Twain’s expectations in regard to copyright. At the time he died the 1909 Copyright Act had just come into force, with a 28 year term of protection that was renewable for an additional 28 years. This protection was dependent on publication with notice, so perhaps Twain thought that his work would be protected for 56 years after its 2010 publication. But it is unlikely that he could have believed, critically aware of copyright as he was, that the law would not change in that long period of time. It is even more unlikely that the thought of a copyright beginning in the 21st century and lasting 56 years was any motivating factor in Twain’s decision to write his memoirs. So protecting his expectations, whatever they were, would not serve the fundamental purpose of granting the copyright monopoly, which is to provide an incentive for authorship.
If we accept, for the moment, an analogy between copyright and real property, perhaps we should recognize that the copyright in Twain’s Autobiography belongs in the category of intentionally abandoned property, based on his deliberate decision to suppress it past any reasonable term of protection.
I have to admit that I rather hope that someone will challenge the inevitable claim to a copyright that the Mark Twain Foundation will make in this work. I would love to see how a court would sort out these issues.
In the meanwhile, however, I think there is a point to made here about the folly of believing that there is such a thing as a “limited” monopoly, which the Constitution requires that copyright should be. Monopolies serve special interests by allowing prices to rise well beyond the level they would reach in a competitive market. They are so beneficial to those interests that any boundaries imposed on them will always be pushed, tested and expanded whenever they can be. The Mark Twain Foundation has a much stronger reason for asserting a copyright claim, even a baseless one, than any other party has in spending the money necessary to challenge it. The result will likely be a continuing monopoly over a work that rightly belongs to the public; an inevitable but unintended consequence of granting a monopoly and then trying to control it.
About the copyright monopoly Lord Macauley said in 1842 “It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil but the evil ought not to last a day longer than is necessary for the purpose of securing the good.” With the case of Twain’s Autobiography we have a clear situation where the evil Lord Macauley decried has the upper hand and is likely to persist well past any rational justification for its existence.