The Internet Archive is an online library known for pushing the boundaries of copyright law to promote public access to obscure works, including classic video games and historic images. Now the organization is taking advantage of a little-noticed provision of the 1998 Sonny Bono Copyright Term Extension Act to publish complete copies of out-of-print books published between 1923 and 1941. The group hopes that the move will inspire other libraries to follow its lead, making hundreds of thousands of books from the mid-20th Century available for download.
The Internet Archive has cheekily named this the “Sonny Bono Memorial Collection.” Bono was a musician turned member of Congress who died in a skiing accident months before the legislation passed. His widow, Mary Bono, won his seat in the House of representatives. During the debate over the Copyright Term Extension Act, Mary Bono said that “Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution.” So Congress did the next best thing, retroactively extending copyright terms by 20 years and naming the legislation after Sonny.
Congress passed the controversial law in 1998 under heavy lobbying from major content holders. The law is the reason Mickey Mouse, Batman, and Gone with the Wind haven’t fallen into the public domain—all had copyrights that were due to expire between 1999 and 2017—until Congress intervened.
The 1998 law was championed by big companies and the estates of famous authors and artists. But critics pointed out that it would needlessly limit public access to more obscure works—works that were out of print and therefore not generating any income for the authors or their heirs. And Congress was passing the law just as digitization technology and the Internet were making it possible to give these works a second life as free downloads.
So Congress included a provision giving libraries broad latitude to reproduce works that are in the last 20 years of their copyright terms for purposes of scholarship and research. The most significant restriction: the works have to be out of print and not available for a “reasonable price.”
The Internet Archive is blazing a path for other libraries
Theoretically, then, the law allows libraries to scan hundreds of thousands of works from the 1920s and 1930s and post full copies online. But until this week, it seems that no one had done this yet—partly because the law is vague and partly because libraries must do some research to verify that a work qualifies for the exemption.
The Internet Archive is hoping to change that with the Sonny Bono Memorial Collection. The collection initially has only 62 obscure books, but Archive founder Brewster Kahle promises that “thousands more books will be added in the near future as we automate.”
The Internet Archive worked with Tulane University copyright scholar Elizabeth Townsend Gard and two interns to develop an efficient process for determining which works qualify for online reproduction by libraries. The process includes searching Amazon for used copies as well as consulting commercial databases.
IA hopes to not only build its own online collection of books published between 1923 and 1941 (it already publishes thousands of public domain books published prior to 1923), but to inspire conventional libraries to digitize books from their own vast collections and make them available online.
And each January, another batch of books will become eligible for this exemption. On January 1, 2018, books published in 1942 will be within 20 years of expiration and therefore eligible for online publication if they’re not already being commercially exploited.
As Kahle emphasizes in his blog post announcing the ruling, this provision of copyright law doesn’t fully mitigate the harms caused by the 1998 term extension. The process for determining which works are eligible is more cumbersome than determining whether a work is in the public domain, and the most important works are excluded. But it does help to ensure that absurdly long copyright terms don’t completely cut off public access to older, less popular works.
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