Laurel L. Russwurm's Free Culture Blog

a writer, the copyfight and internet freedom

Stunning Copyright Declaration

with 2 comments

Copyright "c"

All material in this edition is protected by copyright, exclusively held by the author and the University of Virginia Press. Permission has been obtained by the Poe Society of Baltimore from Mr. Deas and the Rector and Visitors of the University of Virginia to provide this electronic edition for academic and research purposes only. The Poe Society of Baltimore asks all users of this material to respect these copyrights, and not to exceed what would typically be considered as fair use (generally interpreted as selective quotations and/or paraphrasing of only a small percentage of the total material, and with the appropriate attribution and citation).

Although many of the images have been previously reproduced, in various forms, the copyright of an image is usually considered as belonging to the holder of the physical original. Many of the reproductions in the current presentation are provided as a result of special negotiation, and we ask that they not be pirated. Violation of these copyrights may reduce our ability to present similar information in the future.

The Portraits and Daguerreotypes of Edgar Allan Poe (1989), title page and table of contents

[Note: the emphasis above is mine.]

This is simply incredible. Copyright is a monopoly law enacted by the state, not supposition. American copyright specifically alludes to limitation of copyright terms. Although the reality has been the American Congress bowing to the demands of the special interest group seeking infinite copyright — by granting term extension after term extension — when it comes to photographs of Edgar Allan Poe, that boat has sailed. Edgar Allan Poe died in 1849.

This resulted in extending the copyright monopoly to photographs

Photographs were not even covered by copyright prior to the US Copyright Act of 1870 (confirmed by the Supreme Court decision in Burrow-Giles Lithographic Co. v. Sarony in 1884).

Although I am not a lawyer, the only way any photograph of Edgar Allan Poe could be covered under copyright would be if it had never been published. It seems clear that some people and institutions have hoarded these images of the celebrated writer in the mistaken belief that:

“…the copyright of an image is usually considered as belonging to the holder of the physical original…”

Although the very word “copyright” implies that it is a “right,” in reality copyright is a state mandated monopoly. That’s why there are variances around the world. There have been a few cases when states have further usurped the cultural rights of citizens to grant copyright monopolies in perpetuity, like the Canadian Concurrent Intellectual Property Regimes and the Perpetual Protection of Anne of Green Gables in Canada as well as the U.K.’s Peter Pan extension. Still, neither of these instances are in American law.

Copyright may be a difficult issue, but I would expect a university press to know better.

Copyright is not about ownership of the physical original; this monopoly concerns itself with what is now known as intellectual property rights. Once the original is published; from the moment it leaves the security of the private domain ~ in this case, the daguerreotype artist’s studio — when the work first appears in the world, fixed on paper, perhaps mounted in a matte or frame, in a newspaper, book, or the Internet, the clock starts ticking on the term of copyright. When the monopoly term ends, the intellectual property enters the public domain.

Had Poe been an obscure nobody, these images might never have been published, and so may not have entered the public domain. But that is unbelievable, as Edgar Allan Poe was very famous indeeed, and his death occurred at the height of his powers. There is no reason to suppose any of these images would not have been published at that time, because copyright did not then apply to photographs, so there was no benefit to suppressing Poe photographs.

Copyright law has become a complex mess as it tries to reward this person or that corporation for hoarding cultural treasures that deserve to be in the public domain. Many well meaning people and organizations fall into the morass of copyright misinformation, and make terribly inaccurate statements like the one above.

Although some of these works may have been lost without the efforts of those seeking to benefit from copyright, there is as great a possibility copyright would have done damage, as it often drives original works further and further into obscurity.

Over the last few decades, governments have enacted copyright “reforms.” These have have resulted in onerous draconean punishments being slammed down on individuals who have engaged in copyright infringement of a personal nature, to make “an example.” The intent is clearly to scare everyone else into not committing non-commercial copyright infringement. (What we used to call “sharing” when I was a child.)

As far as I know, this type of infringement was never even prosecuted even thirty years ago. Back then, good law abiding people thought nothing of backing up their record collections on cassette tape, or making a mix tape for a private party. But today, non-commercial and commercial infringement are routinely painted with the same brush of piracy. Personally I think this is ludicrous, because it is the non-commercial sharing and remixing that helps to keep a culture vibrant and growing. Locking it up with copyright means you end up reading the same book and watching the same movie over and over again . . .

Still, it is the law. Since copyright is not a natural right, but a monopoly, it is whatever the lawmakers say it is.

Currently lawmakers are interested only in protecting the special interests of “rights holders,” as they have a great deal of wealth and influence to fuel lobbying efforts around the world.

Although there are exceptions to the Canadian copyright law (“fair dealing”) and American copyright law, (“fair use”), the interpretation of these exceptions are both broad enough and imperfectly understood enough that it is much safer for those of us without a legal staff (aka, the public) to simply not avail ourselves of these exemptions.

Which is why the public and the public domain are not protected from copyfraud at all. There is no legal recourse to prevent statements like the one referenced.

Public domain works belong to all of us… the public. You me and our kids. This is our culture, our heritage.

This type of misinformation effectively prevents most of us from making legally allowed use of public domain works. That is called “copyright chill.” It stifles our use of creative works, and prevents us from using them to create new works, which might be anything from a personal greeting card, a high school history assignment, an original web comic, or a documentary film.

The worst is that, although that misinformation can be identified as copyfraud, no copyright law in the world moves to stop it. The public domain doesn’t have expensive lobbyists to go to court on its behalf, so the public rights are simply trampled by copyfraud.

Copyfraud is piracy.

When the public domain is eroded, we all lose.

2 Responses

Subscribe to comments with RSS.

  1. I started a blog article a while back called “Who owns what” to expand on my 4-things presentation http://digital-copyright.ca/own . I gave up on that, and I suspect it will end up as a book. The first section is all about the first two owners: owner of the physical piece of art (painting, sculpture, etc) and the owner of the copyright. The Théberge v. Galerie d’Art du Petit Champlain Inc case was all about the fact that these are separate things that can be owned, and that the person who owns the physical object doesn’t automatically own the copyright.

    If I take a photograph of a painting I may need to get permission of the owner of the physical painting to get physical access, and I may need to get permission from a possible copyright holder if it is still under that monopoly, but I am the owner of the copyright in my photograph. The rest has to do with contracts, not copyright — and if there isn’t a copyright transfer as part of a contract required to get physical access to the art, then they are definitely not the copyright holder of the photograph.

    Sad that people are still confused on this basic issue, but confusions about “who owns what” is the root of many of the disagreements in copyright — which is why I’m writing my…er..book.

    russellmcormond

    September 26, 2012 at 9:29 am


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s