Is “Happy Birthday” an egregrious example of fraudulent claim of copyright?

Techdirt today have published an article making the extraordinary claim that one of the world’s leading music publishers has fraudulently collected hundreds of millions of dollars in royalties for the song, “Happy Birthday”, when – they say – it is in fact out of copyright:

Lawsuit Filed To Prove Happy Birthday Is In The Public Domain; Demands Warner Pay Back Millions Of License Fees

Happy Birthday remains the most profitable song ever. Every year, it is the song that earns the highest royalty rates, sent to Warner/Chappell Music (which makes millions per year from “licensing” the song).  However, as we’ve been pointing out for years, the song is almost certainly in the public domain. Robert Brauneis did some fantastic work a few years ago laying out why the song’s copyright clearly expired many years ago, even as Warner/Chappell pretends otherwise. …

The issue, as we’ve noted, is that it’s just not cost effective for anyone to actually stand up and challenge Warner Music, who has strong financial incentive to pretend the copyright is still valid. Well, apparently, someone is pissed off enough to try. The creatively named Good Morning to You Productions, a documentary film company planning a film about the song Happy Birthday, has now filed a lawsuit concerning the copyright of Happy Birthday and are seeking to force Warner/Chappell to return the millions of dollars it has collected over the years. That’s going to make this an interesting case.

I don’t pretend to know the rights and wrongs of the case.   The accusation, that Warner’s knew that the song was out of copyright, will take some proving.  What they may well achieve is to show that it is out of copyright.

The main impressions, that I take away from all of this, are two-fold.

Firstly, it is pretty plain that the law is infernally complicated.  How could such a lawsuit be possible, if the law were clear, simple and obvious?  How could there be any doubt, one way or the other?

Secondly, it is also plain that the time-limits on copyright have become absurdly extended.  All those involved in the production of this song are long dead.   I don’t suppose Jack Warner – himself dead – was born when the song was composed.  How is it in the public interest for the rights to exploit a 19th century song to be the property of an unrelated corporation  in the 21st century?

Copyright is not a moral right.  It did not exist for the majority of the history of mankind.  It was found to be in the interest of society that those who turned an idea into a physical product should be able to obtain monetary reward from it.  In consequence, in the 18th century, a copyright of a couple of decades was brought into existence.[1]  Nobody objects to this.  But a whole industry has grown up, subverting the principle in the interests of the publishing industry.

The case will be an interesting one.

Copyright and critical editions – a French court says the text is not copyright

Today I learned via  of a fascinating court case in France, here, (in French).  The question is whether editing a critical text of an ancient author creates a copyright.

The dispute is between two companies, Droz and Garnier.  Garnier placed online the text (without apparatus or commentary) of certain medieval texts, using the text published by Droz.  Droz sued.

The court ruled:

Therefore it appears that the company Libraire Droz has not provided proof that the raw texts used by the society Classiques GN are protected by copyright.  Thus its cases, which are solely based on infringement, must be rejected.

It is worth reading the page, even as translated into English in the Google Translate version, because the points made are interesting and generally relevant.  A work is protected if it is fixed in form (i.e. an idea is not protected) and it is original in character, reflecting the personality of its author.  But the court stated:

However, it should be noted that the law of intellectual property is not meant to include all intellectual or scientific work, but only that based on a creative contribution which arise

This indicates the direction of the court’s thinking.  They are plainly familiar with the fact that one critical edition may differ only slightly from another, and argue that the process of textual criticism, since Lachmann, is largely mechanical.  Specifically copyright does not apply to someone doing a lot of tedious work; only to creative work.

This demonstrates enormous common sense on the part of the court.  Nobody, nobody, when the copyright laws were invented, imagined that stuff like a critical edition of an ancient text was involved.  They were thinking of novels, belles-lettres, poetry, composed by modern figures and sold for money.  They were quite right.

The practical effect, if we say that the raw text of an ancient author, as given in a critical edition, is the copyright of the editor, is to make the text of that ancient author into the property of this or that modern publishing house.   That, frankly, is ridiculous.

Of course the plaintiffs are appealing.  The case has considerable importance.  But I hope that we will get a clear ruling on this.

The commentary in a critical edition may reasonably be copyright.  The apparatus, largely compiled by mechanical methods, seems doubtful to me.  But the raw text … surely the whole point of the edition is NOT to create an original work, but rather to give us Homer, or Origen, or Martial, or Juvenal?

Let’s think of a modern example.  I do not believe that someone should acquire a copyright over my work, enough to allow him to bar access to others, simply because they did some work on my spelling, or fixed some errors from a corrupted hard disk file!  That would be the modern equivalent.  It’s palpably fraudulent.  So why should it be different, simply because the author lived long ago?

Let us raise a glass to the common sense of the French court, and hope that the higher courts are not pressured or bribed by publishing interests.

When interests collide: Elsevier start threatening the scholars who publish with them if they post copies online

An interesting story which hasn’t really reached critical mass was mentioned to me by a correspondent this morning.  Via Wired I read:

Elsevier clamps down on academics posting their own papers online

… Guy Leonard, a research fellow at the University of Exeter, posted a screengrab of the message, which said: “ is committed to enabling the transition to a world where there is open access to academic literature. Elsevier takes a different view and is currently upping the ante in its opposition of academics sharing their own papers online.”

Since then, Elsevier has also targeted academics at the University of Calgary who had posted their research papers on publicly accessible university web pages. “In going after the University of Calgary, Elsevier have declared their position as unrepentant enemies of science,” said an outraged palaeontologist Mike Taylor, from Bristol University on his blog.

Taylor also urged people to sign the Cost of Knowledge declaration, a protest by academics against the business practices of Elsevier. So far, more than 14,000 researchers have pledged to refrain from publishing, refereeing or editorial work in Elsevier’s journals. The declaration argues that Elsevier charges “exorbitantly high prices” for subscriptions to individual journals and forces libraries to buy large, expensive bundles.

Techcrunch add (emphasis mine):

Reed Elsevier, which owns many of the most prestigious research journals in the world, has been sending mass research takedown notices to everyone from startups like to individual researchers and universities. They brought in about $1.65 billion in scientific and medical research revenue in the first half of this year, through journals like the Lancet and Cell.

For years, they’ve operated a business model where academics provide their research for free and give journals publishing rights to the final versions of their articles in exchange for distribution in prestigious journals. Sometimes academics have quietly published their research on their own personal web sites or new emerging, social networking platforms like ResearchGate or They’ve done this without feeling too much blowback from the publisher.

But now Reed Elsevier is cracking down on this…

This is an interesting case.  This is the point of impact, the point where the arrival of the internet has struck academic publishing.  This is the point at which the interests of Elsevier (and indeed many other academic publishers) and the interests of the public are now clearly and diametrically opposed to each other.

The public fund the world of scholarship through taxes or private donations.  The scholars’ careers depend on formal publication.  They give the copyright on their articles to journal publishers like Elsevier in return for the kudos of publication.  Elsevier get scholars to donate their time to run the journals.  Elsevier pay for the output to be printed (not an expensive process) and sell the results to university libraries.  The university libraries are also funded by the public taxes.  But this closed system makes nothing visible to the public.  Most of these articles are read hardly at all by anyone.

In consequence, academics have started to place drafts of their work online.  The collaborative effect of the internet benefits everyone.  Academics get fan mail from non-academics.  People discover each other.  It works for everyone … except Elsevier, who worry that nobody will pay them to publish the stuff in journals.  So they would like to shut it down, unless they can get money from it.

The publishing lobby has the keys to legislators’ tables and wallets, and consequently to their hearts.  In Germany the government has basically acted as the stooge for every kind of stupid and short-sighted greediness by that industry.  In consequence the German internet is virtually useless.  It would be a brave man who could predict that, in the USA, the ruling class will rise above such bribes and promote the public interest.  They have shown no urge to restrain the ever-extending term of copyright.

But at the same time, we have come at last to the crossroads.  Elsevier is now unnecessary.  It really is.  All that is needed is for the academics who do the work of editing journals to move away.  Printing can be done easily on, if need be.  The public interest is now served definitely by getting rid of the academic publishers.

A little bit of social engineering is required here.  The skills of a politician are what is needed.

Of course if we got rid of Elsevier, the cost of running universities would fall.  Budgets could be cut.

That sounds like something that could be sold to politicians in the current climate.

Rather than ruin all the library books with photocopying…

To the local library, to collect a copy of the English translation of a Byzantine text.  The volume was a substantial hardback, with the library plate of the John Rylands Library in Manchester.  Inside the book at various points was an old train ticket fromWigan, and two trading cards from some exhibition in 2007, all presumably used as book marks.

But what struck me most was the condition of the binding.  It was very loose.

This book, to my trained eye, has been on the photocopier.  Not once, or twice, but dozens of times.  In each case the copy has been made by someone anxious that it should lie flat and thereby fit two pages onto one A4 sheet.  This saves money, but more importantly reduces the number of times the book has to be lifted and moved.  Anyone who has copied a book will know very well how the arms ache after a while!

The result is that the book is barely holding together.  Which is a shame.

Of course I intend to run the book through my scanner too.  I’ve paid a non-trivial sum to borrow it; the British lending library service now being corrupted by the greed of local councils — Suffolk, in my case — who levy “fees” under one pretext or another.  I only have the loan for a few weeks.  But I may need to consult it in future.

Which leads me to wonder … rather than dozens of people all copying the same book again and again and again … isn’t there a better way?

Wouldn’t it be better, for the book and the users, to copy it once, create a PDF, and make that available instead?  And save us all the effort of making one every time, and the book the injury of repeated copying?

In a sane world, this is what would happen.  You’d borrow the book, and get the book for a time and the PDF for good.  Some adjustment of rights and copyrights would be necessary, but it could be done.

The greedier kind of library official would try to loan you the PDF for a short time also; using something like Adobe Reader.  Which would defeat the object, of course, and would ensure that photocopying would resume.  I mention this possibility only because I can imagine it.

But really … wouldn’t it make much more sense to recognise that the library books of Britain are being copied into non-existence, and address the evident need?

Making money from my efforts; but do I care?

A Google search for Pionius reminded me that, back in 2006, I had scanned the late Life of Polycarp by ps.Pionius — it is probably 4th century — and added it to my collection here.

What I did not expect was to find the same item for sale on Amazon, here and here, added in April 2010.  The US item is $1.17; the UK one has a price of £0.77.  The item has been converted into a Kindle-format piece.  I wasn’t able to work out who created these.

This doesn’t happen very much, but it always rocks you, slightly.  I scan and upload material to make it freely available.  Somebody here is making money from it instead.

Some people would be very angry about this.  If anyone should profit, goes the argument, it should be the person who did the legwork.  “The worker is worthy of his hire” and similar verses of scripture come to mind.  To sell what is freely available to the unwary is deception.

Perhaps so.  It does feel a little weird.  But …

I have no time or interest in converting materials into formats like Kindle and the like.  The tiny revenues — they must be tiny, I think — wouldn’t compensate me for the time taken away from more useful tasks.  And it does mean that copies of these translations get into the hands of people who otherwise might never read them.

I have always remembered with gratitude coming across the digitisation at the CCEL of the 38-volume Ante-Nicene, Nicene and Post-Nicene Fathers, back in 1997, and realising that it was free, and that I could do anything I liked with it, by way of creating derivative works and so on.  It was an extraordinarily liberating feeling.

This was a feeling I hoped to preserve, when I created the Additional Fathers collection.  Let the texts reach the widest possible audience.  No purpose would be solved by claiming copyright.  No significant sum of money would reach me, from such a claim.

In consequence I always state explicitly that these materials are public domain: and these days I clarify, that this means anyone may make any use they like of it, personal, educational and, importantly, commercial.  No teacher who decides to produce a textbook need fear a lawsuit.  No-one who would like to add them to some CDROM need omit them for fear of “rights” issues.  Let them circulate!

I don’t quarrel with those scanners who feel differently.  It really is quite an odd feeling seeing others selling your work!  But it suits my objective in digitising — and in commissioning translations — that the results should have the widest possible circulation.

Vintage worship tapes and other memories

Yesterday I encountered, a site which is:

A project to preserve classic worship music from the golden era of Harvestime worship music.

Awake, O Zion!

I should explain that in the late 70’s and early 80’s, there were a series of annual bible weeks held at showgrounds in the United Kingdom as part of the Restoration movement.  Dales Week, which I twice went to, was in Harrogate.  There was also Downs Week in the south of England.  I think the New Frontiers week in Stafford is more or less the successor of these, although I could be wrong.

The worship was recorded, and cassette tapes could be purchased.  I’m not sure if I ever actually bought any of the tapes, but I did buy the Songs of Victory songbook, which I still have somewhere.

The tapes themselves were played endlessly by people that I knew who were involved in the movement.  I can hear some of those songs as I write, for they are embedded deep in my mind.

These tapes should be preserved.  They are part of the musical history of the charismatic movement in the United Kingdom.  Yet they never existed other than on cassette tape, and I imagine most of the copies have deteriorated by now.

The site owner has digitised what he has into MP3 format.  The results are pretty clean and clear, but somehow less impressive than in my memory.

What is needed, of course, is a remaster based on the master tapes.  But the Harvestime organisation has long since disbanded.  I wonder where the master tapes are?  I wonder who even knows about these things any more?

The site owner has been deterred from distributing the files because he is quite unable to determine who, if anyone, he needs to ask for permission to do so.  At the time the idea of copyright in recordings of Christian worship was ridiculous — that much I remember myself — and the idea of licensing the use of new songs only appeared during the 80’s, as a response to the difficulties that congregations had in precisely this problem.

Yet these things should be online.  There’s no money in this.  But there are people out there who would like to hear these memories of their youth again.

From my diary

I spent some time today reading the online French translations[1] of the poems of Sidonius Apollinaris.  I was very struck by the way that the poet appeals repeatedly to the works of the early empire, to Horace and Sallust and Varro and Tacitus.  I saw no mention of any later writers, indeed.

This evening I found myself wondering whether the Loeb edition and translation, Sidonius. Poems and letters, tr. W. B. Anderson, Harvard, 1936, was actually out of copyright in the USA.  (Anderson died in 1959, I learn, so his work won’t come out of copyright in the European Union until 2029, by which time most of us will doubtless be dead).  I suspect that it is.  Copyright at that period was for 28 years, and could be renewed for a further 28 years.  But I found no evidence that it had been renewed.

The situation is complicated, for works between 1923 and 1964, by the “copyright restoration” for foreign works that followed the US signing of the Berne convention in 1994.  A fascinating paper by Peter B. Hirtle[2] discusses this subject, and makes the following, startling statements:

It has long been assumed that most of the works published from 1923 to 1964 in the US are currently in the public domain. Both non-profit and commercial digital libraries have dreamed of making this material available. Most programs have recognized as well that the restoration of US copyright in foreign works in 1996 has made it impossible for them to offer to the public the full text of most foreign works. What has been overlooked up to now is the difficulty that copyright restoration has created for anyone trying to determine if a work published in the United States is still protected by copyright. …

This paper has demonstrated that it is almost impossible to determine with certainty whether a work published from 1923 through 1963 in the US is in the public domain because of copyright restoration of foreign works.

What idiots our politicians are!  What knaves the publishing lobbyists must be, to cause so much nuisance for so little gain for anyone, including themselves!

All the same, I tentatively conclude, after reading Hirtle’s paper carefully, that Anderson’s translation of the poems of Sidonius Apollinaris is indeed now in the public domain in the USA.

I have also been reading a paper discussing whether Sidonius actually criticises Majorian, in carmen 5, the Panegyric for Majorian.[3].  There is a long section in the panegyric in which a polemic against Majorian is placed in the mouth of Pelagia, wife of the deceased Aetius.  Perhaps this does reflect the nervousness of the Gallo-Roman supporters of the unfortunate emperor Avitus towards the military newcomer Majorian.  Desperate times, suspicion everywhere, harsh punishments for speaking the wrong thing, supporting the wrong candidate for the throne, while the empire fell apart … such times make men adopt whatever shifts they can.

Does it matter now?  Well, only inasmuch as parallels might be drawn for later history.  The assassination of Majorian in 461 by his own prime minister, the sinister Ricimer, made the fate of Gaul — to become France — certain.  The western empire itself had only fifteen more years to live.  And Majorian himself lives now only in the portrait drawn of him by Sidonius, partly in the panegyric, but more in the letters.

Yet … Majorian does indeed live in that portrait.  He failed to save the Roman state.  Probably no-one could have done so at that stage.

Yet, because of the words of Sidonius, we, fifteen centuries later, are discussing him.

UPDATE (20/7/2012): I find that vol. 1 of the Loeb, which includes all the poems, is in fact online at, here.

  1. [1] At
  2. [2] Peter B. Hirtle, Copyright Renewal, Copyright Restoration, and the Difficulty of Determining Copyright Status, D-Lib Magazine 14.7/8, 2008. Online here.
  3. [3] Philip Rousseau, Sidonius and Majorian: The Censure in “Carmen” V, Historia: Zeitschrift für Alte Geschichte, Bd. 49, H. 2 (2nd Qtr., 2000), pp. 251-257. JSTOR url:

Britain will not contribute to the internet – copyright suicide proposed

A curious report on the BBC today, indicating that the British government is pretty much owned by the music and book publishing industries.

Under the plans users suspected of accessing or uploading illegally copied files will be sent letters from their internet service provider (ISP), delivered at least one month apart, informing them they are suspected of copyright infringement.

Accused users who wish to appeal against the claims outlined in any letter must pay £20 to do so, but the revised code says only grounds specified in the act will be considered.

‘”Innocent until proven guilty”?  What’s that?’

It is already hard to think of any site based in Britain that is widely used.  Nearly all the major internet sites are US-hosted.  Every internet start-up is a US firm, it sometimes seems.  Looking at this proposal, who’d be a British internet user?  Every one of them will soon be in breach of the law. 

Likewise who on earth would create a website?  Or a blog?  Sooner or later, the copyright trolls would come after them.  Who but major publishers will be able even to discover whether they are conforming to the ever-more aggressive copyright laws?  Am I in breach of copyright, for quoting the snippet above?  Well, I don’t know!

Britain, it seems, it committing copyright suicide. 

This proposal is one that could only be made by an industry utterly confident that it owns the government.  It’s about as extreme as it gets.  Do British internet users get no voice in their own country?  Well, one can only infer that apparently not. 

I have several times remarked on how there is little material worth reading in German on the web, and all of that is in older publications hosted in the US.  This is because German laws have handed far too much power to publishers, and they send threatening letters in just this way to bloggers and websites.

It seems that the Europeans just do not ‘get’ the internet.  In search of the last possible sniff of money, they have just condemned their continent to irrelevance, and volunteered for competitive disadvantage. 

I hope they enjoy learning Chinese.  Because, shooting themselves in the foot like this, they’re going to have to. has been shut down

So I learn, from an article by Prof. Christopher Kelty at — of all places –  Kelty’s article is required reading: READ IT!  A couple of snippets:

 Last week a website called “” disappeared. A coalition of international scholarly publishers accused the site of piracy and convinced a judge in Munich to shut it down. (formerly Gigapedia) had offered, if the reports are to be believed, between 400,000 and a million digital books for free. 

And not just any books – not romance novels or the latest best-sellers – but scholarly books: textbooks, secondary treatises, obscure monographs, biographical analyses, technical manuals, collections of cutting-edge research in engineering, mathematics, biology, social science and humanities.

And so it did — books that one never knew even existed could be located there.  Not that the site actually hosted any books; it provided links to places on the internet where the books could be found, and a search tool.

To the publishing industry, this event was a victory in the campaign to bring the unruly internet under some much-needed discipline. To many other people – namely the users of the site – it was met with anger, sadness and fatalism. But who were these sad criminals, these barbarians at the gates ready to bring our information economy to its knees? 

They are students and scholars, from every corner of the planet.

We need hardly ask if the judge required the plaintiffs to show evidence of loss of income.  And why was it a German judge? 

A search on Google News turns up almost no hits, and all in fringe media.  TheMinaretOnline gives more details.

On Feb.13, 2012, a judge in Munich granted an injunction against and Seventeen different publishing companies in the United States, the United Kingdom and Germany have accused the two websites of illegally sharing online book files. Each publisher listed 10 illegally copied books in their injunction. One illegal book copy can lead to a 250,000-euro fine or six months in prison.

Even this pro-publisher site thinks the penalties are draconian.  The DailyActivist rightly points out that the main losers are people in search of learning who could never afford the ridiculous prices demanded for academic books anyway.  The Hindu is Mourning an ‘illegal’ treasure trove.

There is an angry, disgruntled buzz in several universities across India as students discover that their rock of refuge during research has been shut down by the order of a court in Munich. …

While Tom Allen, president and chief executive officer, Association of American Publishers, considers the injunction “a significant step in shutting down two major rogue websites stealing content from publishers and others”, and an indication of the need for additional tools to expedite such action, the ends achieved by the injunction remain suspect., for innumerable users, was a source of otherwise inaccessible research material. The claim of publishing houses that this e-book piracy was leading to mammoth losses is, therefore, questionable. Shutting only makes a huge mass of research inaccessible to a global audience.


Some of the guilty firms are named in this article at  They include Wiley, McGraw Hill, and Pearson Education.  An injunction was issued in the regional Landgericht Munich court in Germany, because “German case law gives courts clear jurisdiction over share hosters”, which is not the case elsewhere.  The site turned out to be based in Ireland, but “European Union enforcement directives enable enforcement of German-issued injunctions in Ireland”. 

So the excesses of German copyright law, which has rendered the web a German-free zone, are now to be exported to the rest of Europe via some directives by the (very unpopular) European Union? comments:

 In February of this year (previously known as Gigapedia) was shut down by a coalition of publishing companies (including Cambridge University Press) for copyright infringement. The site hosted more than 400,000 e-books for free, but the content focused on scholarly texts, not best-sellers.’s catalogue was the world’s most extensive free collection of online academic works – encompassing everything from agricultural manuals to the latest philosophical monographs.

The closure of was met with dismay in online communities, drawing heart-felt comparisons with the burning of the Libraries of Alexandria; scholarly lawbreakers consoled each other with promises of terabytes of books, downloaded and whisked away to personal hard-drives before the site closed forever. A review of Twitter mentions for library. nu reveals an international user base; tech-savvy would-be scholars of all ages, who might have pursued academia had economic expediency not forced them into other careers.

The problem is the publishing industry’s business model and prices. Academics and institutions need to make money to continue their research, no-one denies this – but this system restricts scholarly research to an academic elite. The global middle class – not the European or American middle class who comprise the economic 1%; but residents of Latin and South America, Africa and India – simply cannot afford access to materials.

Their academic input may come to nothing but who cares? They represent the values that all academic institutions preach: read and learn; expand your mind; better yourself and improve your community.

Cambridge University Press is another culprit, then. 

A report (in German) shows the head of the German booksellers association, one Gottfried Honnefelder, apparently claiming that there can be no culture without copyright.  If so, it is disturbing that German booksellers can’t find an educated man to represent them.

I learned of this in the week when this story ran; that the owner of The Hobbit turned out to be an unattractive-sounding American named Saul Zaentz, who demanded money under threat of legal action from a small pub in England of the same title.  Zaentz backed off when faced with massive negative publicity.

We all know how the Hobbit and the Lord of the Rings came into being.  They were composed by an Oxford academic so poor that he couldn’t afford to hire a typist, and published by Allen and Unwin.  How in the world did these texts come to be the property of Mr Saul Zaentz, whoever he might be?  And what creative input did the agreeable Mr Zaentz bring to these works?

The answer to the first is that probably the “rights” — the copyrights — were traded around various rich men for ever increasing sums of money, none of which went to J. R. R. Tolkien, the creator.  The answer to the second is a monosyllable: none.

How, precisely, does the copyright law as it has now evolved benefit the creator?  Have we not reached the stage where copyright in books — I am not discussing the special problems of movies or music — is now damaging the public interest?

Let’s give Dr Kelty the final comment:

In reality, however, the scholarly publishing industry has entered a phase like the one the pharmaceutical industry entered in the 1990s, when life-saving AIDS medicines were deliberately restricted to protect the interests of pharmaceutical companies’ patents and profits. 

The comparison is perhaps inflammatory; after all, scholarly monographs are life-saving in only the most distant and abstract sense, but the situation is – legally speaking – nearly identical. is not unlike those clever – and also illegal – local corporations in India and Africa who created generic versions of AIDS medicines.

Why doesn’t the publishing industry want these consumers? For one thing, the US and European book-buying libraries have been willing pay the prices necessary to keep the industry happy – and not just happy, in many cases obscenely profitable.

Rather than provide our work at cheap enough prices that anyone in the world might purchase, they have taken the opposite route – making the prices higher and higher until only very rich institutions can afford them. Scholarly publishers have made the trade-off between offering a very low price to a very large market or a very high price to a very small market.

But here is the rub: books and their scholars are the losers in this trade-off – especially cutting edge research from the best institutions in the world. The publishing industry we have today cannot – or will not – deliver our books to this enormous global market of people who desperately want to read them.

Instead, they print a handful of copies – less than 100, often – and sell them to libraries for hundreds of dollars each. When they do offer digital versions, they are so wrapped up in restrictions and encumbrances and licencing terms as to make using them supremely frustrating. 

To make matters worse, our university libraries can no longer afford to buy these books and journals; and our few bookstores are no longer willing to carry them. So the result is that most of our best scholarship is being shot into some publisher’s black hole where it will never escape. That is, until and its successors make it available. 

What these sites represent most clearly is a viable route towards education and learning for vast numbers of people around the world. The question it raises is: on which side of this battle do European and American scholars want to be?

Why copyright does NOT mean money for those who create original material

Quite by accident, I came across an interesting article which throws new light on why copyright is not quite what it is generally supposed to be.

Copyright is not a moral axiom.  There is no teaching in the bible that states it, nor is it self-evident.

The idea behind it is that people should be able to profit from their intellectual or artistic labours.  An example of the problem caused by the lack of copyright is the edition of Chrysostom researched and published by Sir Henry Saville in the 17th century.  It’s an excellent text, but Saville lost quite a bit of money on it because someone bought copies of the volumes as they appeared, shipped them to Holland, copied them, added a Latin translation, and sold the result for his own profit.  This was perfectly legal, and, had Sir Henry not been a rich man, might have prevented the rest of the edition appearing.  A copyright law would have given Sir Henry redress to stop the rival publication.

When the “creative industries” (as they like to call themselves) are lobbying for yet more extensions to copyright, they invariably hold up the right of the artist, the creative person, to be protected.  Yet we all know that the copyright is always sold to someone else, and that, in reality, it is the rights of the middleman, the publisher, the record company, that are at stake.

At the moment, out of the sales of CD’s, only 13% “belongs” to the band.  63% is kept by the record company, and the remaining 24% goes to the distributor.  But the band has yet more costs to pay from “its” 13%; some 28% goes on managers and lawyers and so on.  The remainder is divided among the musicians.

Now that doesn’t sound too bad.  But … when does that 13% start getting paid?  Does the copyright provision actually mean that the artist gets his share?  Well, no it doesn’t.  Because the record company demands that the band repay advances and the like out of that 13%.

So, back to our original example of the average musician only earning $23.40 for every $1,000 sold. That money has to go back towards “recouping” the advance, even though the label is still straight up cashing 63% of every sale, which does not go towards making up the advance.

The math here gets ridiculous pretty quickly when you start to think about it. These record label deals are basically out and out scams. In a traditional loan, you invest the money and pay back out of your proceeds.

But a record label deal is nothing like that at all. They make you a “loan” and then take the first 63% of any dollar you make, get to automatically increase the size of the “loan” by simply adding in all sorts of crazy expenses (did the exec bring in pizza at the recording session? that gets added on), and then tries to get the loan repaid out of what meager pittance they’ve left for you.

Oh, and after all of that, the record label still owns the copyrights. That’s one of the most lopsided business deals ever.

So think of that the next time the RIAA or some major record label exec (or politician) suggests that protecting the record labels is somehow in the musicians’ best interests.

The situation in publishing is no better.  No normal author gets paid very much for the content.

So … could someone explain again, honestly, just why copyright is in the public interest? 

OK … I still do believe that Sir Henry Saville should have some redress.  But I suggest that we’re quite a long way away from that common sense problem, and getting further away with each tweak to the law.

If only our politicians didn’t take bribes from industries so readily!