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from an Australian point of view, is that Twain left an Autobiography when he died, along with instructions that it not be published until he had been dead for 100 years.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Under current US law, the copyright in an unpublished work lasts for the life of the author plus 70 years.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.
Something that has been overlooked in some of the news stories I’ve read—including a recent piece in the NY Times about how demand for Twain’s unexpurgated autobiography has far outstripped the publisher’s expectations—is that the text has also been posted online by the Mark Twain Foundation entirely for free at http://www.marktwainproject.org. Looking at the copyright page for this online facsimile of the print edition, I see that the Foundation has indeed included 2010 copyright notices—one for the autobiography itself, and one for the “transcription, reconstruction, and creation of texts, introduction, notes, and appendixes.” They’ve also reserved dramatization rights. So it appears that your concern about the benefits of the copyright monopoly being so great that it may cause the Foundation to push or expand its boundaries may be well-founded. Claiming copyright for the introduction, notes, appendixes, and other entirely new matter created by the project editors, of course, is to be expected; but expanding that to include Twain’s original text does indeed seem suspect. But at least the Foundation—thus far, anyway—is willing to provide free online access to that text.
Congress seems to have contemplated this sort of situation in enacting section 303 of the 1976 Copyright Act:
Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302 [i.e., life of the author plus 70 years]. In no case, however, shall the term of copyright in such a work expire before December 31, 2002; and, if the work is published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2047.
The act offered holders of rights in unpublished and uncopyrighted works the opportunity to grab a statutory minimum period of protection, regardless of the author’s date of death, by publishing the work within the prescribed twenty-four-year window. So, the late Mr. Twain’s intentions and expectations aside, the estate could have published the autobiography in 2002 and legitimately kept the work in copyright through 2047. By failing to avail itself of this statutory grandfathering, the estate allowed the work to fall into the public domain, as Congress intended.
This one is strange. Apparently, the Twain autobiography actually was published before 2010 — the UC Press “published” the item by offering it for sale in 2001 for $50,000. Although there was no evidence that anyone bought the manuscript, by offering it for sale, UC Press “published” the work before Dec 31, 2002, and so sec. 302 & 303 of the U.S. copyright act worked to extend protection until 2047. (For more on this “publication” see <a href="” title=”Professor Townsend-Gard’s Blog”>).
Although that’s not quite 56 years from original publication, it’s pretty close to what Twain might have expected. Funny how that works out.
Sorry, that link did not come through. Here is is again: http://www.law.tulane.edu/tlsblog/facultyBlog.aspx?blogid=190&id=14637&blogid=190
Portions of the autobiography have also been published in the past, some during Mark Twain’s lifetime. The parts published in his lifetime (and any other time prior to 1923) are now in the public domain in the US. The parts published in Albert Bigelow Paine’s edited autobiography in 1924 are still under copyright, and should enter the public domain at the end of 2019 (unless Congress extends copyrights even further that it already has). Other portions published between then and now will expire later on.
Mark Twain himself, for what it’s worth, was an advocate of perpetual copyright. Whether or not you agree with him (I don’t), this position, along with his instruction not to publish the autobiography for 100 years, suggests that Twain had no intention of “abandoning his property”.
I hadn’t known about UC Press’ 2001 offer of the unpublished materials. I assume they did it in good faith; but I suspect it may have been tempting for others in similar situations to do something like this *solely* for the purpose of getting a longer copyright, and without any realistic intention to distribute a copy. In such cases, I suspect that the assertion of “publication” could be successfully challenged in court, but I don’t know offhand if there’s any work where this is likely to result in a full-blown court battle.
Kevin, you might be interested in my take on the Twain copyright found on the LibraryLaw blog. In it I note that if the work really was first published in 2001, then the UC Press should not be claiming that this is being published for the first time now. I also wonder about the ethics of Berkeley publishing letters that it had received from other institutions in order to extend copyright in those letters.
As for copyright duration, remember that when Twain dictated the Autobiography, copyright in unpublished works was perpetual. If there had been no change it the law, it would have received a 56 year term of copyright from the date of its first publication in 2010. So I guess the fact that copyright in the text will expire in 2048 rather than 2067 is a slight improvement.
On the one hand, California is encouraging faculty to embrace open access and the spirit of scholarly sharing. On the other hand, the library is collaborating with a private group to lock up copyrights that should have expired long ago. Weird.