Oh, the intellectual property rights you'll extend

Dr. Seuss as a policy issue

(Photo by Ben Hasty/MediaNews Group/Reading Eagle via Getty Images)

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Theodore Geisel, aka Dr. Seuss, passed away in 1991. But his work has outlived him in a way that all writers aspire to, though few achieve.

His first wife predeceased him, but his second wife outlived him by quite a bit and died in 2018. He did not have any children, but she had two kids from a previous marriage. Back in 1993, she set up a company called Seuss Enterprises, which owns the rights to the Dr. Seuss intellectual property and licenses it to various other companies — most notably, Penguin Random House for actual book publishing and the Seussville website, but also other places for things like the Jim Carrey Grinch movie. It’s not clear who owns Seuss Enterprises; it’s privately held and doesn’t need to disclose that, though my guess is she probably left it to her kids. Regardless, under U.S. law, the copyrights last for the duration of their creator’s life plus 70 years — i.e., until 2061.

That’s a big change from how we did things in the Founders’ era, when copyrights lasted 14 years with an option to renew the copyright for an additional 14 years.

Since then, not only has Congress repeatedly extended the duration of copyright terms, they’ve even extended them retroactively, basically preventing Mickey Mouse (created in 1928) or Superman (created in 1938) from ever entering the public domain the way that 19th century characters like Frankenstein¹ or Sherlock Holmes have.

I bring this all up because I think it’s relevant policy context for the recent controversy over Seuss Enterprises withdrawing six books from publication that were deemed problematic. Right-wing agitators have responded to this as if it’s the government censoring Dr. Seuss, and so out of solidarity with Dr. Seuss, they are buying non-canceled classics like “Green Eggs and Ham” in droves. But this is just not factual. Dr. Seuss has been dead for nearly 30 years. His heirs — likely these two stepdaughters, though that’s not entirely clear — canceled the books, and now are the ones reaping the financial rewards from the backlash to their own actions.

The whole thing is perverse. And while it’s not the main problem with our current system of copyright, I do think it tends to illustrate the perversity of letting copyrights extend so long.

The hollow culture war

On the most recent episode of the Ezra Klein show, Ramesh Ponnuru tells a story about Tom Cotton that I think sums up the nature of our current political dilemma very well:

I did this interview with Senator Cotton and it had been set up as a thing on cancel culture, which is fine, and great, and there’s a lot of interesting stuff to say about it. But I did say, I did ask, “So OK, if this is like this huge problem in America, what are you as the Senator going to do about it?” And he didn’t have much of an answer to that.

And I’m not sure that there really is much of an answer, other than, well, I’m just going to keep saying what I’m saying and I’m in this position where I depend on voters rather than these cultural institutions and so, I have this freedom. Which I mean, that’s actually not a terrible answer to the question, but it’s not a completely satisfying answer to the question either.

I’m going to say that, contra Ponnuru, that really is a terrible answer to the question.

Not every problem in life can be addressed through legislation. But a United States Senator’s job is to participate in the legislative process. If you find yourself in that job and become convinced that the social problems you are most interested in are ones that cannot be addressed through the work of a United States Senator, then you should quit and go do something else. Lots of current members don’t live by that maxim — Cotton is frankly not the worst offender here — but they should.

Alternatively, you should try to think about legislating.

A real thing that happens is that standards change over time as to what kind of content is and is not considered objectionable. I think it’s very clear that if you read Geisel in his historical context, he was a substantially left-wing figure. But part of being a left-wing figure was being strongly pro-Roosevelt and anti-Axis in the 1930s and 1940s, and part of that involved drawing racist caricatures of Japanese people. One of the canceled books has a page that I think really is super-racist and depicts Africans as kind of half-man, half-monkey chimeras. Another one of the canceled books, McElligot’s Pool, seems totally unobjectionable to me except for an offhand reference to “Eskimo fish of Hudson Bay.”

I, sitting here in 2021, would not refer to Alaska Natives or Inuit as Eskimos, and if you, sitting here in 2021, start talking about “the Jews,” I am going to give you a funny look. But if I read an old book in which an author talks about Jewish people in an old-fashioned way (“the Jews”) without otherwise expressing hostility, I’m fine with it.

In other words, if it was up to me I would:

• Consign the racist drawings to the same out-of-print status as other long-forgotten Seuss books like The Pocket Book of Boners.

• Allow old racist caricatures to run in history books or other contexts where the point is to illustrate something about the political climate of the 1930s and 1940s.

• Keep the Eskimo fish.

But critically, it is not up to me and shouldn’t be up to me. Old, potentially problematic works by long-dead authors should be in the situation of The Merchant of Venice, Othello, and The Taming of the Shrew — where they can be used, or not; reinterpreted, or not; and generally be part of the larger cultural conversation rather than under the monopoly control of someone’s heirs.

The monopoly factor

In general, I sympathize with the conservative view that some elements of the contemporary left have gotten too censorious. At the same time, I am even more worried that elements of the contemporary right have gotten way too blasé about impinging on the expressive and associative rights of other people.

It should be totally noncontroversial that if eBay decides there are some racist items it doesn’t want to traffic, they are free to make that call. Just about everyone agrees that there are some limits on what kind of material is appropriate. The problem is we generally don’t all agree on what those limits are. But that’s why we don’t have the government legislate that some books are prohibited and others are mandatory. Instead, we have markets in which multiple entities sell things, and if Amazon decides it doesn’t want to stock a book, then customers are free to complain. But it’s bizarre to have senators yelling at them.

This is why people who want more stringent regulation often invoke the specter of monopoly and antitrust policy. If Twitter were a monopoly, it would obviously be a huge problem for them to just make their own content moderation decisions without input from the government. But what market does it monopolize? By the same token, though Amazon has a huge share of the book market, they are not a monopoly seller — nothing is stopping you from navigating to booksamillion.com or powells.com to buy a book.

But copyright and other forms of intellectual property really are cases of monopoly.

In the 18th century, when governments’ fiscal capacities were very primitive, it was common to have state-created monopolies in all kinds of areas. If you wanted people to be able to cross a river, you’d charter a ferry company with an exclusive franchise for a certain segment of the river. One interesting idea from the Framers was to make the power to do monopoly grants for ideas a congressional power, rather than leaving it to the states as they do with state charters. So Article II, Section 8 of the Constitution says that Congress has the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Importantly, this was a genuinely national authority. As Zorina Khan shows, the United States didn’t enforce foreigners’ copyrights in the 19th century — it was a benefit provided to American authors. In the early days, though, most authors working in English were British. So a lot of book publishing meant that books would sail from London to New York and then get copied — which is how the book-publishing industry came to be co-located with the biggest port on the Eastern Seaboard. Later, when America was richer, we not only started enforcing foreign copyrights, but we started making a lot of effort to get other countries to do what we didn’t when we were poor and respect foreign intellectual property.

Monopolies, as we all know in an antitrust context, are costly and bad in many ways. But if nobody will invest in creating a ferry service unless you give them a guarantee of scoring monopoly profits, it might be worth doing. By the same token, the Framers’ view that a time-limited monopoly for books and inventions — originally, as you’ll recall, 14 to 28 years — would be a spur for creativity and innovation seems correct. But it’s a balancing act.

Public domain books are free

One nice thing about starting shit on Twitter is that by doing so, you can find out what kind of misconceptions people have. The other day, I tossed out the idea of a 30-year maximum lifespan for copyright (I was trying to suggest going back to the Founding-era duration, but I misremembered it as 30 years when it was really 28).

Joanne Harris got well over 10,000 likes and retweets responding to that with the assertion that public domain books are not available for free to readers — that lack of copyright is simply a transfer from authors to publishers and adaptors.

Joanne Harris @Joannechocolat

Removing copyright from books after 30 years doesn't mean readers will get them for free. It simply means that publishers, TV, film and game producers will be able to monetize them for free, without paying the authors.

If that were true, that would be a strong argument in favor of longer copyright terms. But is it true? No. You can read The Souls of Black Folk or Frankenstein or Moby Dick or Frederick Douglass’ collected essays for free as an e-book edition. Now it’s true that if you want to read a print book, that still costs money since a book is a physical commodity that can’t be manufactured for free, even without copyright. But a paperback of Treasure Island costs less than $4, or you could get a three-pack of Hamlet, Macbeth, and A Midsummer Night’s Dream for $16.

Public domain e-books also interact in a nice way with the traditional means of reading books for free — the public library.

Lots of library systems have hopped on the e-book bandwagon. But even though it costs nothing to make extra copies of an e-book, publishers don’t let libraries lend out e-books in unlimited quantities. So if you try to “check out” an in-demand e-book from your local public library, you’ll often find yourself needing to wait due to licensing limitations. But Duke University Press has produced a great Duke Classics series of public domain e-books that they then make available to libraries in unlimited quantities. That not only puts free reading in people’s hands, but it basically subsidizes libraries compared to what the pre-digital situation would have been, and it lets them invest resources elsewhere.

I don’t want to belabor this point too much. It’s just a pretty serious misunderstanding that, until recently, wouldn’t have occurred to me that anyone held.

So let’s be clear: Sherlock Holmes being in the public domain doesn’t just mean that there are lots of random Holmes adaptations being done — it means the actual underlying books are in fact available for free to readers, which is nice.

Copyright yin and yang

In my misspent youth, I was a hardcore radical on this topic who didn’t think there should be any copyright at all. My guess is most people don’t agree with that position, so I don’t need to talk you out of it. But for the record, I find this study by Michela Giorcelli and Petra Moser to be not only a persuasive case for copyright but pretty fun on its own terms.

What they do is look at Italy during the Napoleonic wars. Napoleon conquered different parts of Italy at different times, and when he did, he introduced copyright law. They compare the timing of Napoleonic conquest (and thus the introduction of copyright) to the production of new operas (which is well-documented during this period because they were public performances) and find that “difference-in-differences analyses show that basic copyrights increased both the number and the quality of operas, measured by their immediate success and durability.”

That’s the most basic yin and yang of copyright — consumers can read Mary Shelley for free because her works are in the public domain, which is great! But making it easier for authors to profit off of their works leads to the creation of more and better stuff, which is also great.

So what to do? The basic balancing consideration is that short-term financial incentives are more powerful than incentives in the far-distant future. That’s especially true because the vast majority of works earn the vast majority of their money in the short-term. So the difference between five years of copyright and 10 years of copyright means a lot more to creators than the difference between 40 and 45 years of copyright.

Yet the value to the public of works being available for free is basically time-invariant. If every Shakespeare production had to pay a toll to some trust for Shakespeare’s heirs, that would be a big problem for culture. But telling Shakespeare that his heirs would be making bank off his plays centuries in the future would not have accomplished anything useful. That’s kind of a basic tradeoff. But there are costs to very long copyrights that go beyond these basic consumer considerations.

The problem of orphaned works

Back in 1969, my grandfather published a book called “In The Fist of the Revolution: Life in a Cuban Country Town” that the Hispanic American Historical Review called “an objective, penetrating, and thoroughly enjoyable micro-analysis of some of Cuba’s most outstanding and interesting problems.” A New York Times review said it was “the kind of social reporting on the Cuban Revolution that has long been missing.”

Sadly, despite the generally positive reviews, the book was not a huge success and has long since been out of print.

But I think it’s a pretty good read, and it also teaches a subject that I think is of some genuine scholarly interest. A professor teaching a class on the Cuban Revolution might find the book — or at least an excerpt or two from it — to be worth assigning, either as an example of what daily life was like in the first decade of the Castro regime or as a window into how American leftists processed events in Cuba.

When I was in college, professors would sometimes include obscure, out-of-print stuff in a coursepack without tracking down permission, but this is probably illegal. In the case of books that happen to be written by my grandfather, the problem is fortunately pretty easy to solve. “Yglesias” is an uncommon name, and his son (my dad) is not only alive, but himself a writer. It’s therefore pretty easy to Google him and ask for permission. What’s more, because my dad is a writer who cares about ideas and is not a greedy psychopath or anything, I feel really confident that he would gladly grant any request for reasonable use of this old book. The rights to it, after all, are not actually worth anything in monetary terms.

Now what’s more, because we are a whole family of writers and care about the legacy, etc., we spend a fair amount of time thinking about this kind of thing! My will specifies that if my dad dies and I inherit a share of grandpa’s copyrights, and then my wife and I both die while our son is still a kid, the literary rights to my inherited copyrights should be controlled by my brother.

The typical case of an obscure book published in 1969 by an author who died in 1995 is ascertaining who even owns the rights. But the way current copyright works is that a person could have been born in 1870, published a book in 1895, died in 1962, and now there’s no practical way to track down great-grandchildren in order to ascertain who owns the copyright and who you can ask for permission.

This is what’s known as the problem of orphan works, and as the U.S. Copyright Office says, it’s a big problem:

The Copyright Office reviewed the problem of orphan works under U.S. copyright law in continuation of its previous work on the subject and to advise Congress on possible next steps for the United States. The Office has long shared the concern with many in the copyright community that the uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace.

We most often think about old copyrights in the context of famous works or famous authors. But the vast, vast, vast majority of books that get published (or songs recorded, etc.) are obscure and likely to end up orphaned. The monetary costs of orphaning are relatively low (because, by definition, we’re talking about works that are not economically valuable), but the social and cultural costs are pretty high. It’s also perverse since the proponents of very long copyright say they’re trying to reward authors. But creating a situation in which dead people’s works don’t get revived or repopularized because nobody can bother to sort out the legal rights does the opposite of that.

And in some ways, the costs of orphaning are rising, because digital technology makes it easier to find the old works themselves. Anyone who subscribes to The New York Times can easily find out which books their critics were talking about 60 years ago and may end up getting curious about something that’s been forgotten today. All of this is a reminder that long copyrights raise costs not just to consumers but to producers, too.

Raising input costs

In the exciting world of copyright, there is a hard and fast distinction between a movie like “The Departed,” which is a formal remake of the Hong Kong gangster movie “Infernal Affairs,” and a movie like “Reservoir Dogs,” which has important plot points that are clearly lifted from the Hong Kong gangster movie “City on Fire” but without Quentin Tarantino having formally purchased the rights.

As a fan of both Tarantino and old Hong Kong gangster movies,² the situation has never sat very well with me. The two movies are genuinely very different, and I don’t think it takes anything away from Tarantino to say that he saw the story of Ringo Lam’s movie and decided the same jewel heist beats could be the core of a totally different style of film. But since he didn’t buy the rights, he can’t fully acknowledge the debt. And since he was making a movie at the beginning of his career on a shoestring budget — the opposite of the situation with “The Departed” — he couldn’t afford to just be generous and throw money around on buying rights. So Lam ends up getting neither money nor credit, which is not helping anyone.

By contrast, Shakespeare has been in the public domain forever,³ so West Side Story can just be “Romeo and Juliet except on the west side of Manhattan in the 1950s, but also a musical with ballet-style choreography and also several of the plot points are changed.” It’s really not a Romeo and Juliet adaptation in the sense that, say, the 1996 Baz Luhrmann movie is. But it’s not not a Romeo and Juliet adaptation.

Similarly, with Sherlock Holmes in the public domain, we don’t need to quibble about where to draw the line between a concept that’s sort of a Holmes homage (“House”) and one that’s a loose adaptation (the most recent “Sherlock Holmes” movie) or a sequel (“Enola Holmes”). You can just sort of grandly pronounce that the entire varied world of eccentric-but-brilliant detective stories (“Bones,” “Monk”) is, in some sense, a derivative of the original Holmes stories.

Shorter copyrights, in other words, not only reduce costs to consumers but reduce costs to other creators. They also reduce financial incentives. Again, we’re talking about a balancing act where rights held in the far future have small incentive value but high costs.

Principles for reform

When thinking about policy for the United States, I think these are the three key points:

• The U.S. has signed onto the Berne Convention that commits members to respecting other members’ copyrights for a minimum of the life of the author plus 50 years.

• The U.S. has made stronger intellectual property enforcement a key negotiating objective in trade deals of recent decades.

• In the most recent congressional action on copyright terms, they not only made them longer on a forward-looking basis, but they also extended old copyrights retroactively — essentially to protect Disney’s oldest IP.

The third point is crucial, because you can’t increase incentives retroactively. The inclusion of that provision in the 1998 Copyright Term Extension Act is a dead giveaway that the driving force behind the big changes in copyright policy that kicked off in the 1970s is the desire to protect corporate franchises.

(by Tom Bell)

And really, the most important thing is to draw the line at no more retroactive extensions. It’s widely believed that the political climate has changed enough since the 1990s that the oldest Mickey Mouse cartoons will, in fact, enter the public domain in 2024. We then enter a critical period of roughly a decade when the oldest Superman, Batman, and Looney Toons stuff should go to the public domain. If all that is allowed to happen, then I think the Era of Retroactive Extensions is dead, and even if things take too long to go public we’re at least dealing with finite terms and a better system.

But it would be very straightforward legislatively (albeit not politically) for the United States to drop down to the Berne Convention minimum.

And it should be very straightforward for the U.S. Trade Representatives’ office to say that our core negotiating goals are to raise median living standards in the United States and conduct trade in a way that’s consistent with fighting climate change. Hassling other countries about copyright infringement is not either of those things, and the U.S. was a major infringer when we were poor.

Beyond that, I think it’s hard to say exactly what the right figure is. To me, there’s something attractive about the “constitutional copyright” idea of returning to the 1790 Copyright Act rule. But there’s also something attractive about the idea of an author retaining control over their works during their lifetime. There’s also something to be said for the idea that if you publish something and then get hit by a bus the next day, maybe that happenstance shouldn’t cut your heirs out of the downside. Mashing that all together might leave you with life of the author OR 28 years, whichever is longer.

I think it’s hard to specify the exact right number (Rufus Pollock tries with some fancy math and comes up with 15 to 38 years), but these two points from Hal Varian’s paper on copyright terms seem relevant:

• “Fewer than 11 percent of the copyrights registered between 1883 and 1964 were renewed after 28 years.”

• “Of the 10,027 books published in 1930, only 174 were still in print in 2001.”

It is just super-rare for old works to have large commercial value. But Xing Li, Megan MacGarvie, and Petra Moser show that copyright extensions have a big impact on consumer prices. And I would argue the cultural cost is higher.

Taking the “old racist books” problem seriously

The way Seussghazi has played out is extremely stupid, with Republican Party politicians essentially lying about what happened followed by a grassroots backlash to Seuss Enterprises’ decision resulting in windfall profits for Seuss Enterprises. A lot of conservatives seem to have forgotten that actual public policy exists, and a lot of liberals are happy to satisfy themselves with the idea that Republicans are being dumb here and move on.

But the issue is really pretty profound.

“Mein Kampf” is still in print because it’s of intense historical interest. But there’s no Adolf Hitler Foundation collecting the royalties. And while that’s obviously an extreme case, the basic situation in which you don’t want to expurgate a work’s existence but also aren’t comfortable with someone profiting from it is pretty normal.

It is also normal for social mores to change and for people to criticize cultural works that were widely accepted in the past. We don’t want a world where anything anyone criticizes is gone forever. But we also don’t want a world in which anyone who writes a take about the imperialist themes in Babar is accused of trying to “ban books.”

What ought to happen with old books is that they fade gracefully into the public domain — totally un-bannable, but not necessarily lucrative for anyone, and available for all to remix, adapt, comment on, critique, rework, or otherwise incorporate into whatever point they want to make.

1. Yes, I know, Frankenstein is the name of the scientist and not the monster. But the genius of the public domain is it can just be the name of the monster.

2. When I was a teenager, I lived next door to a tiny movie theater that for a few years specialized in Chinese-language movies, so for no good reason I know a lot about this subject.

3. As in there was no copyright at all back when he wrote.