Public Domain Day 2021: A Plea for Authors to Consider the Commons

Happy Public Domain Day! This year, works from 1925 enter the public domain in the US and many other countries. Read more about the public domain and what’s entering it this year on the CSPD.


illustration of a bear caught in a snare with two cubs by its sides.
Writing about this kind of stuff raises my blood pressure, so I’ll be showing off some public domain artwork throughout to break it up. Oil painting illustration from The Living Forest by Arthur Heming.

In the past, I’ve said that I think the burden to protect and expand the public domain falls most on creators. This year I’m going to focus specifically on one group, authors, their failure to live up to this responsibility, and the urgent need that they be more copyright literate and considerate of the public domain. Because this year, one case illustrates this problem perfectly—the Internet Archive.

The Internet Archive is a non-profit organization dedicated to digital archival. Its website hosts archived games, movies, music, books, Flash files, and past versions of other websites. Its mission is to preserve these cultural artifacts and provide easy access to them for researchers and the general public. These are works in the public domain, or works that have been uploaded by users. However, the Internet Archive also hosts many scans of copyrighted books through their Open Library, which are available to users through Controlled Digital Lending.

Controlled Digital Lending is a way for libraries to lend books digitally, while still respecting copyright law (that’s the ‘controlled’ part.) Under Controlled Digital Lending, a library can only lend as many copies digitally as it physically owns. I’ll just quote the CDL website itself, because it explains it nicely: “… if a library owns three copies of a title and digitizes one copy, it may use CDL to circulate one digital copy and two print, or three digital copies, or two digital copies and one print; in all cases, it could only circulate the same number of copies that it owned before digitization.” Many of the scans in the Open Library come from local libraries throughout the world. If the library doesn’t have a book the reader wants, the reader can sponsor it, purchasing a physical copy of the book to be digitized and made available in the Open Library forever. This is nothing too strange—this is how libraries work, mostly1. Buy the book once—or receive it as a donation from someone else who bought it—and circulate it forever. CDL is kinda like an instantaneous interlibrary loan that can be accessed online.

The value of this service should be self-evident. If it isn’t, consider this year. Early on in the pandemic most libraries were closed, with only digital resources available. This is great for newer books and popular old books, but the vast majority of books under copyright don’t have ebook versions available on services like Overdrive or Hoopla—readers couldn’t even request that their libraries obtain those ebook versions, because they simply don’t exist. So in early 2020, the only way to access these works without purchasing them (I’ll get to this exception in a bit) was through Controlled Digital Lending. So many educators, students, and readers of all stripes would have to turn away from their local or institutional libraries and utilize the Internet Archive—more patrons than the Internet Archive’s holdings could possibly support. So they suspended all waitlists on their Open Library. Patrons still didn’t have access to DRM-free files, patrons were still only able to borrow for set periods of time, but the Internet Archive was no longer limiting circulation to one copy, one hold. As many people as wanted to could check out a book simultaneously, without having to wait.

Again, the value, the urgency, of this initiative should be self-evident. Even without the pandemic, access to books often poses problems for students with limited money. For example, with an entire class of students needing a book required by the syllabus, unless the local library has multiple copies, students are forced to buy their own or wait to get it through an Interlibrary Loan. The keyword here is waiting—in an academic setting, waiting is often not an option. Assignments, reading discussions, capstone projects, all have deadlines. If you’re just looking for a fun read, sure, you can wait, or pick out a different book that’s available right away. But if you’re hunting down a chapter cited by a book which covers the exact niche angle on the niche topic of your thesis, you can’t just borrow any old book, and you may not have time to wait for other patrons. Students with enough money could buy their required reading, but not everyone has the funds to purchase multiple texts, sometimes quite expensive, every semester. This is the whole point of libraries, after all—if everyone could afford to buy every book they read, we wouldn’t need libraries in the first place. For specific examples of people who benefited from the NEL, see this post on the Internet Archive blog.

The National Emergency Library was to run from March 24 “through June 30, 2020, or the end of the US national emergency, whichever is later.” Ultimately, it only ran until June 16th.

A few major news publications like NPR and the New Yorker ran stories praising the National Emergency Library, and were quickly berated by masses of authors, publishers, and professional associations of both. In this outcry, authors variously accused the Internet Archive and the NEL of copyright infringement, piracy, and opportunistically using the pandemic as a chance to undermine authors’ rights to monetary compensation. The Internet Archive responded with the reminder that anyone who did not wish for their books to be available could contact them, and they would be removed from the NEL. They also published a rebuttal to many of the arguments they had seen about the Archive, hoping to dispel rumors and clarify their intentions. Then HarperCollins, Hachette, Penguin Random House, and Wiley—four massive publishers—announced they would be suing the Internet Archive for copyright infringement, not just for the National Emergency Library, but for Controlled Digital Lending itself. A couple weeks later the National Emergency Library closed, and the Open Library resumed its standard model of Controlled Digital Lending.

This post is just using the Internet Archive as a case study so I’m not interested in relitigating the whole debate, but it would feel non-committal to not at least briefly describe my opinion. I believe the biggest thing the Internet Archive did wrong was its messaging. They should’ve been prepared for the requests for takedowns and cooperated quickly, and they should’ve made the mechanism for authors to opt-out a bigger part of their initial announcement. I haven’t read enough about it to say definitively, but it seems Controlled Digital Lending could have legal standing, or could not. I’m certain that the National Emergency Library does not have legal standing, and I don’t care. US copyright law is a harmful, unjust system, breaking that law is not in and of itself bad (see this post for my opinions on copyright law and the public domain.) Fan fiction is also illegal, but people generally don’t care as long as the writers of it aren’t making money, so it stands—is celebrated even. With legality a non-factor, it’s clear that the National Emergency Library was a great and urgently needed good.

Now, with all that resummed, finally I can get down to my plea.

total solar eclipse rendered in stylized form, with distinct rays of light and shadow
Total Eclipse of the Sun, watercolor by Étienne Leopold Trouvelot.

If this was just a Twitter spat I would never have written this post, but it was not, is not. The rush to decry the Internet Archive has had serious consequences, and it was born of an ethos deeply ingrained in the publishing world, which will persist if authors don’t change. The consequences: I’ll explain why I’m singling out authors in a bit, but I want to emphasize their part in the blame (I am speaking of anglophonic authors really, I don’t know about reactions in other parts of the publishing industry.) Yes, it’s likely that without writers’ mass denunciation of the Internet Archive, publishers or professional associations still would’ve taken action against the Internet Archive, but would they have gone as far as attacking Controlled Digital Lending? Would they have launched a full blown lawsuit without a groundswell of outraged authors first, giving the publishers the appearance of champion fighters in a just cause? Since the lawsuit, some2 authors have made tepid statements about how they were against the NEL, but don’t support the lawsuit—but what if authors spoke as passionately in defense of Controlled Digital Lending as they did against the NEL? Publishers have for a while been outsourcing the task of marketing to authors, and now again they have benefitted from this unofficial PR wing, gilding their lawsuit in righteous indignation. If nothing else, authors have made ravenous multinational corporations palatable to all their followers, and smeared a non-profit institution dedicated to the public good.

The ethos this comes from: authors are uneducated on copyright law and the public domain, and they react on gut impulses and misinformation. There are three major contributors to this miseducation, as I see it: author advocacy groups, publishers, and author culture itself/author relationship with copyright. I see little hope in changing the first two, which is why I focus on authors. Although authors have less power individually, they are at least humans, not institutions. Still, I’ll explain the first two contributors, and why authors shouldn’t treat them as moral authorities.

Professional author associations almost universally advocate for the extension of copyright law. It’s just what they do. These aren’t unions, they’re not meant for collective bargaining, so their only meaningful actions (on a large scale—obviously they can have various resources for individual members) are advocacy, endorsement, and lawsuits. And what legal standing do writers have? Copyright. Just as this is the greatest tool of the author, it’s the greatest tool—maybe the raison d’être—of the author’s advocate. This can be good or bad, it can be wielded against publishers or against non-profits. What it isn’t is moral. These are author advocacy groups, not common good advocacy groups. When the common good and the rights of authors conflict, it is the group’s mission to attack the common good.

Let’s take SFWA, the Science Fiction and Fantasy Writer’s Association. There is a lot that I like about SFWA. I’d say it is a net good for the Science Fiction and Fantasy community. And I was disappointed, but not surprised, to see not only their condemnation of the National Emergency Library, but also an earlier post from 2018 alerting writers to “infringement” by the Open Library. The reader can easily see that both posts are geared toward empowering the individual author, and make no attempt to evaluate how the National Emergency Library or the Open Library could benefit non-authors.

If the imperative driving these associations to protect and strengthen copyright was not clear enough, note that SFWA and the Authors Guild allow membership for representatives of estates—a position conferred solely by our grotesque, excessive copyright terms (again, see this post for why I call these terms grotesque and excessive.) These members don’t have voting rights, but they do have access to legal advice and they do pay substantial membership fees, giving the organizations a monetary incentive to advocate for them as well as their normal members.

To drive the point home even further, here’s a post from the National Writer’s Union against Controlled Digital Lending. Again, not against the National Emergency Library, but Controlled Digital Lending itself. Right up top is a photo showing the logos of associations endorsing this “Appeal.” This demonstrates how universally pro-copyright these associations are, but it also shows how often they align themselves with publishers associations—publishers, of course, benefit from copyright too.

I’m not saying this to badmouth professional associations. I’m trying to make the point that they aren’t moral entities, and should not be looked up to for guidance on any issues relating to copyright.

Publishers, however …

Publishers are corporations. They exist to make money. Barring micropresses and maybe academic presses, that’s all there is to them. Because their revenue is tied to authors, the two are often in alignment—publishers want to sell more books, authors want to sell more books. But where making money conflicts with anything other than the law (and maybe not even that), publishers will choose to make money.

Now, do I think authors are ideologically influenced by publishers? No. Not in the way they might be by author associations, certainly. However, I do think publishers contribute to the fear and intense dislike of piracy among authors.

This is not the part of the post where I defend piracy. Mostly, I think piracy is bad, even if just marginally so. Here’s an example of it being good, but in most cases where living authors are concerned (and this is a plea to living authors, after all), it’s bad. That said, pirates are like bad tippers. They’ll always be a problem, and it makes sense that authors and servers would be mad at the two respectively. However, bad tippers aren’t the reason waiters make so little. Pirates aren’t the reason most US authors earn $6,000 or less from their writing annually. Publishers are (see takeaway number 6 of that post I just linked.) But publishers can redirect frustration at low earnings onto the bugbear of piracy.

I’m not going to pretend to know how most authors feel about publishers. Are they perfectly aware of how much publishers exploit them? Are they clueless? I don’t know, and I don’t mean to imply that authors are naïve about the financial dynamics of their own industry, I don’t think they are. But I do know that there was a massive and impassioned outcry from authors when the National Emergency Library launched, and nothing remotely as strong3 when, later this year, Penguin Random House bought Simon & Schuster, further consolidating the “Big Five” US publishers (already down from the “Big Six” in 2013) into the Big Four. And that demonstrates how much the publishing industry has pushed dissatisfaction with earnings away from themselves and onto piracy.

icescape with multiple suns showing the sun's trajectory down to the horizon. a lone figure approaches the foreground dragging a small sled.
Postmen of the Wilderness, oil painting by Arthur Heming.

But it doesn’t have to be this way. In the tipping analogy, there’s a difference between authors and waiters—authors are the means of production. Authors have significant leverage in the form of copyright. And in my experience, that’s a big part of author/freelance writer culture—get what’s yours. Demand compensation for your work. Copyright is the legal standing for that—authors don’t sell books, they license copyright. Its our greatest tool, but we must be judicious with it.

That same innate sense of due compensation is what makes some authors see piracy as a personal injury, makes them hate it like they hate little else in the publishing industry—and that’s not a huge problem by itself, but it lets author advocacy groups and publishers push terrible overreaching legislation, lets them attack the idea of Controlled Digital Lending, as long as it’s in the name of copyright protection and anti-piracy. The anger and terror, the specter of financial ruin that arises from the idea of piracy, turns it into an easy justification for attacks on any organization, whether it be Google Books or the Internet Archive.

And authors seem to want to have the anti-piracy argument. They get to be the good guys, they know all the points and counterpoints, and there will always be people to argue the other side against them. It’s almost all I could see from the writers I follow on Twitter when the NEL was announced. Authors are comfortable arguing against piracy, way more than they are with arguing against publishers, and way more than they are with talking about copyright—because frankly, I don’t think they have a clue about copyright beyond their own contracts.

And they need to. Either authors become totally fine with piracy—which I don’t think is likely, and may not even be ideal—or they learn the other half of the equation. They need to learn when copyright goes too far, and when easy access is not a bad thing. Again, this is not something ingrained in author culture like, say, demanding what you’re worth, or the value of persevering through rejections. Podcasts about writing aren’t likely to discuss the importance of ceding works to the public domain, or how life-of-author-plus-70 culturally sequesters thousands of books.

I’m not saying authors need to share my opinions on this—I’m saying they need to have any opinions, they need to have a general familiarity with this stuff, a framework that will help them understand what a lawsuit against Controlled Digital Lending really means. Each author should have some idea of when they think copyright infringement is fine, they should have some idea of when they think copyright terms are too long, they should not take their moral cues from publishers or the law.

With all that said, I think there is at least one example where authors, at least in genre fiction, do understand the benefits of copyright infringement: fan fiction. However, the reason for this isn’t a general familiarity with copyright law and the public domain, but personal experience—i.e., lots of authors got their start writing fan fiction, and many more read it. In fact, Archive of Our Own, a nonprofit website that hosts vast quantities of fan fiction, even won the Hugo award for Best Related Work in 2019.

I think we can imagine a scenario where during the pandemic Ao3 (Archive of Our Own) decided to allow users to put a donation button on their profile. I mean, I really don’t think they would ever do that, but let’s say they did. Just like the pandemic library, this would be pushing a matter of uncontested/possible copyright infringement further into illegality. However, I don’t think there would have been such a universal furor. Certainly some authors would have been angry—there are authors who straight up don’t like the idea of fan fiction, and think it should be prohibited, bar none. That said, I think the conversation would’ve been more nuanced, would not have given publishers as much cover to sue, and would certainly not have lead to them suing against any use of fan fiction, as the reaction against the NEL lead to an attack on any use of Controlled Digital Lending. If authors had the kind of personal familiarity with the Internet Archive that they do with fan fiction, or better yet if they had a full understanding of the positives and negatives of copyright, the tremendous value of the public domain, this would not have been such a shit-show.

So look: publishers (as defined above) will always be anti-public domain. And professional author associations will always try to expand copyright, or at least not challenge attempts by others to do so—maybe some day it’ll be different, but right now this is how it is4. So it falls to you, individual authors, to protect the common good. You must act against your immediate self-interest to support the public domain, to the benefit of all society. At the very least, this means educating yourself on the history of copyright law, the problems our current system causes, proposed solutions, organizations that are working against that, and so on.

This may sound like a lot, but honestly just reading a few posts on Duke’s Center for the Study of the Public Domain is a great start, and enough to begin forming an understanding of copyright that goes beyond copyright = my sole source of money, copyright infringement = bad. It’d be enough that the next time something like this happens, authors wouldn’t speak out from a place of personal injury, but instead assess the event as part of a vast and varied landscape, of which they comprise one small part.

At the most, this action means estate-planning that allows works to go into public domain sooner, publishing to the public domain or under creative commons licenses right away, or, if traditionally published, negotiating contracts that include good reversion of rights clauses so that this stuff is possible. But that’s a bigger conversation.

The bottom line is, you must take responsibility. You must recognize your role in the development of copyright law, as the most publicly visible part of the publishing industry, and as individuals not forced into set stances by institutional inertia. Copyright has marched in one direction for the past fifty years, ever to the detriment of the public domain, and publishers will be only too happy to lock down the most restrictive possible interpretation of the law for digital books. If there’s any hope of pushing things in the other direction, of staying this march and freeing our cultural heritage, it’s in the hands of creators—and in the publishing industry, that means you, authors.

Woodcut illustration from The Drolatic Dreams of Pantagruel, attributed (falsely?) to François Rabelais.

Endnotes

  1. There are also metered books, and most publishers try to bleed libraries on ebooks. This is part of why publishers don’t like CDL—it lets libraries treat digital books the way they do physical books, when publishers have been trying to use ebooks to leverage more money from libraries than they normally would. CDL could let patrons and libraries circumvent this, reading digital scans instead of the official publisher ebooks. However, for the vast majority of books available through CDL, there isn’t any ebook version in the first place—digital scans are the only way to gain access to them electronically.
  2. Or maybe just one? Of the authors who spoke out against the NEL, I’ve only found one even doing this, and he’s only done so because people constantly harass him. Most authors have been even less committal, merely defending Wendig or remaining silent. I’ve just been searching on Twitter though, maybe some other authors have made blog posts.
  3. Nothing remotely as strong from authors that is. There has been some response from other elements of the publishing industry. The biggest response from authors has come in a statement from the Authors Guild. But again, compare this three-paragraph post, without any endorsements from other professional associations, to the NWU’s “Appeal from the victims of Controlled Digital Lending“, or even the Authors Guild’s own response to the NEL, which is at least longer.
    Another explanation for the more muted reaction is that authors are financially bound to publishers, whereas they could attack the Internet Archive with impunity. I don’t buy this though—authors work with imprints of publishing houses, sometimes imprints of publishing houses owned by publishing houses. They can criticize the parents just fine—and they can certainly do so if their books are published under any of the other Big Four, especially given that the CEO of NewsCorp (owner of HarperCollins) himself criticized the deal.
  4. I do want to shout out the Author’s Alliance, which isn’t quite a professional association, but which does offer contract/copyright advice to authors and advocate for greater access to creative works.

Sources
Most sources are linked above in the text—here are the ones that weren’t:
Authors, Publishers, Condemn the National Emergency Library as Piracy,” by Colin Dwyer for NPR
Publishers Sue Internet Archive for ‘Mass Copyright Infringement’,” by Colin Dwyer for NPR
Temporary National Emergency Library to close 2 weeks early, returning to traditional controlled digital lending” by Brewster Kahle for the Internet Archive Blogs


Wow that’s a lot of words! As is tradition, I’m releasing one of my works to the public domain this year—my translation of The War of Paraguay! This is a much expanded and much revised version of what I posted to the blog a while ago—that version will remain online, but this newest edition is where it’s really at. Read more about it and download a free copy here!

And this post itself is public domain.

CC0

To the extent possible under law, Francis Bass has waived all copyright and related or neighboring rights to Public Domain Day 2021: A Plea for Authors to Consider the Commons. This work is published from: United States.

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