Search This Blog

Monday 1 April 2024

Review David Bellos and Alexandre Montagu Who Owns This Sentence?

 





This is an important book not published by a major non-fiction house. It provides for three countries (France, Britain, USA) a detailed history of the complicated, uneven and often confused development of what we now call intellectual property law. The detail is fascinating and fully documented. But the book then turns to the hot button topic of the threat to intellectual and artistic activity  now posed by large corporate enterprises, heavy with lawyers, which are actively removing creative work (especially music and images) from what we call the public domain and in effect seeking to create corporate copyright in perpetuity.

In my country, there are houses which have been passed down through generations of the same family for several hundred years There are no laws in England or, really, in any country which set a fixed term to the period during which physical property can be passed down   Houses, land, jewellery, paintings, books – those can all be inherited though in many times and places tax has been due on inheritance.

In contrast, copyrights and other creator rights in intellectual property have always been restricted to fixed terms and subject to some other restrictions. The length has generally increased over time and now normally stands at seventy years after the death of the creator. Limited rights to “fair dealing” use in reviews and academic work are recognised, as is the right to parody. But “adaptations” are a very tricky area unless you are adapting Shakespeare over whose work no Heirs and Assigns now hover. But over the works of Samuel Beckett and T S Eliot they hover with a vengeance. Everyone enjoys hating these “Literary Estates” and those who manage them courtesy of the long property after-life of dead authors. That afterlife creates other frustrations too: Bellos and Montagu devote a chapter to “Orphan Works”, those pieces of property which are still in copyright but over which no known person or organisation claims the rights, either because they don’t know they own them or can’t be bothered to let it be known that they are the lawful proprietors. There must be many grand-children of dead minor or prolific writers and painters who simply don’t know what they own.

But the bigger problem is the corporations who think they do know. I will give an extended example of the kind of hazards we now face.

In 1808 Charlotte Reynolds (1761-1848), a minor figure in the circle of John Keats, wrote a poem about a goose and posted it to John Dovaston (1782-1854). It was never published though Dovaston published a poem, also about a goose, with which it is twinned. The dates of death of the two people involved clearly indicate that both poems are out of copyright. So when I found Charlotte's poem in 2023 in a batch of old letters sold in a provincial auction, I was free to publish both an image of the letter and a transcription of the poem and did so on this Blog on 20 January 2024. I also own the physical letter but plan to sell it; in her collection of Charlotte’s letters to Dovaston Letters from Lambeth (1981), Joanna Richardson indicates that the batch of letters she acquired  became available because of a house clearance, the commonest way in which old stuff comes onto the market. My letter was not in her batch – it predates those she obtained – but ended up in auction in 2023 no doubt in the latest of  a chain of previous auctions. It was sold for what was on the outside not the inside, at which probably no one had looked for a very long time. Physical stuff circulates through auctions, charity shops, garage sales, and so on and sometimes interesting things turn up. (Think Antiques Roadshow).

I own the letter but I don’t own any copyright on the text of the poem which I have placed in the public (internet) domain where anyone can read it and a surprisingly large number of people appear to have done so already.

What’s not to like? I scanned the letter and published an image along with a transcription of the text of the poem. In some jurisdictions I might be able to claim copyright on the image as recompense for the trouble I took in making it. But I did not place beside it a little label reading © PatemanImages and have no intention of doing so. I do have automatic copyright in the text I wrote to accompany the image, and (possibly?) in the transcription which took a lot of time. But I have no interest in either copyright. I am not preparing a daily-updated  list of everything I have ever written and published  to pass to my Heirs and Assigns.

But it is quite possible that some bot or corporate employee will come along, scrape the image off the internet, and offer it for “licensing” to anyone who wants to use it -  say, a literary periodical publishing a piece about Charlotte Reynolds. The fees will be variable but do not include future ownership of the image which is only available for rent – the key word which identifies the claim to ownership as analogous to the claim to a house or piece of land.

If you go to literary and art world periodicals you will find many illustrations which are accompanied by a © sign and the name of some well-known image shop. Many and maybe most of those images will feature works long out of copyright. One should ask, Where did the image-renter get the image? Did they despatch a photographer, or buy the original work,  or did they simply copy an existing public domain image? Did they scrape it off the internet? And having done so, can they then come back to you ( or me) and tell you (me) to take down the image to which they now own the copyright? That thought places me in a bind: should I now place a copyright notice beside my image to prevent someone else doing so?

If  you can create a new  copyright in any of  the above ways it’s clear that you can create indefinite copyright. After the requisite number of years you simply copy again the original image and claim a new copyright on the new copy. Bellos and Montagu do discuss similar cases where what is usually reckoned to be at stake is whether anyone has engaged in any fresh “creative” or “intellectual” work to produce something worthy of a new lease of copyright

You have been warned; Bellos and Montagu encapsulate the warning by using as a preface to their work an old English rhyme:

The law doth punish man or woman

That steals the goose from off the common

But lets the greqter felon loose

Who steals the common from the goose.