The Supreme Court's decision to uphold the Bono Act may be a victory for Mickey Mouse, but it will also mean that thousands of lesser known works will disappear from human knowledge... permanently.

In retrospect, it was inevitable. The Supreme Court ruled 7-2 against Eric Eldred last week, upholding the Bono Act a 20 year extension of the term of copyright - as constitutional. The act, passed in 1998 after lobbying by media giants such as Disney, retroactively kept many works out of the public domain while ensuring that "Steamboat Willie," the first Mickey Mouse cartoon, would remain under Disney's copyright protection.

I have to admit I'm not as big a proponent of the "information wants to be free" thing as I used to be. I'm actually in favor of copyrights lasting the life of the author. If I create something, I should have the ability to profit from my labors as long as I can. If you know any published writers, ask them about living off of royalty payments. You need a significant body of work, all in print and selling, to make a living at this.

That said, the Eldred decision is a horrible blow for countless books that will never again see the light of day. The problem is simple. The term of copyright is now the author's life plus seventy years, and will almost certainly get longer (we're due for another extension around 2020 or so). Books that aren't hot sellers go out of print in less than a year. By the time the average book finally becomes public domain, it will have been out of print for nearly a century. Now that it belongs to the world, who remembers it ever existed in the first place?

The media giants are fine with this - if the book hasn't turned a profit in a century, what good is it? - but society will lose out on a lot. Most of Emily Dickenson's works weren't published until after her death. In today's publishing climate, they'd never be published at all, or given one quick print run before being forgotten. Often literary works need time to build an audience, but today's "sell now or make room for the next big thing" policy pulls far too many books off the shelves and into the long slow death of obscurity before they've had the chance to build up any momentum. In short, a lot of good books will never be successful because they're forgotten before they could become memorable.

What can we, as authors, do about this? Can we rescue our books from the mire of the forgotten backlist?

Well, yes.

The first step is to pay more attention to the wording in the contracts you sign, and make sure that the rights to your books revert to you after the books have been out of print for a while. Publishing companies will take all the rights they can, and sometimes you'll have to really stay on them to ensure they fulfill their contractual obligation to return the rights to you. As we saw in Random House vs Rosetta, publishers hate to see anyone make money on titles that used to be in their backlists.

Once you have the rights, you have options on how to proceed with your work. Companies like CyberRead and Content Reserve provide easy and low-cost ways for authors to keep their books in circulation as both ebooks and print-on-demand paperbacks. A listing through them on Amazon is a lot better than your book remaining out of print, and even a few sales a year is better than none, as long as you cover the cost of keeping the book listed.

If you get to the point where you can't cover the cost of keeping the book listed, you might consider releasing it for free under a license from Creative Commons. Built on the GNU Public License in software, Creative Commons allows you to specify the rights granted to the public without actually placing the work in the public domain.

Lastly, there's the public domain itself. I've said before that I think copyright should last the life of the author, but not a day longer. I'm all for an author having every opportunity to profit from his work, but I don't think that heirs that didn't produce the work should benefit from it. (If an author wants to leave behind something for his family, he can invest the royalties he gets in life.) The current term of copyright provides for the grandchildren of the author, which I think is a bit much. But what a lot of people don't know is that the term of copyright is the maximum term a work will remain protected. There is no minimum. If I put in my will that I wish all of my works to enter the public domain on the event of my death, the public won't have to wait another seventy years to make use of them.

And in the end, that's the kind of immortality I really want.

Copyright 2003 Jeff Kirvin

About the Author

Jeff Kirvin is a freelance consultant on mobile technology and the driving force behind the website called WritingonYourPalm. This article was originally published on March 1, 2003.

Jeff can be reached at Jeff@writingonyourpalm.net.

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