Copyright is becoming a bit of a restraint on free speech.

Publishers increasingly regard what they are publishing as “copyrights” not books.  This is not unreasonable of course.  As we move into an ever more electronic world, the book itself ceases to be the central item in publishing, and becomes just one of many ways in which income can be realized from the content which has been bought or rented from the author.  A rational publisher will, indeed must, do whatever he or she can to maximize the income earned from each item in their list.  The rather quaint view of publishing as a sort of handmaiden to literature was probably never really accurate, but surely nobody today still holds it.  Books are there to make money.  If, almost incidentally, they also turn out to be good books, that is a bonus – always hoped for but never really targeted.  Their real value lies in the amount of money they can earn and the length of time over which they can do so.

In the old days if you wanted to quote a line or two from a long poem for criticism or review, this was regarded as fair use, and no permission was required.  The point hinged on substantiality: a little bit was not seen as replacing the original, and damaging its sale.  Now however, almost all publishers require their authors to clear permissions on all quotes regardless of substantiality and significance.  They want to avoid any hassles later on, of course, but there’s an element of self-interested circularity in this.  If all publishers require permissions clearance with some sort of payment, then all publishers will get payments for quotes from their own books as well as paying them to other publishers.  The catch is that it’s the publisher who receives the permissions payments but the author who ends up paying them.  Now of course it’s true that contracts probably allow for a sharing of “sub-rights” income, but over time the universe of authors is going to receive less back in receipts that it disburses in permissions fees.  Expensive permissions fees lead to decisions not to pursue a certain line, as it just costs more than its worth to you.

The period of US copyright was originally (1790) 14 years, renewable for a second 14.  The initial term was increased to 28 years in 1831, and then the renewal term was also increased to 28 years in1909.  There were fairly strict conditions on the renewal, and the vast majority of copyrights were in fact never renewed.  However in the copyright act of 1976, renewal was abolished and was replaced by a single term lasting for the life of the author plus 50 years.  In 1998 the Sonny Bono Copyright Extension Act extended the term to life plus 70 years.  The Digital Millennium Copyright Act added restrictions designed to shore up the “property” of copyright owners, including making it a crime to circumvent encryption of files even if what is decrypted is in the public domain anyway.

The trend is towards regarding copyright as a property right rather than a license.  The estate of Margaret Mitchell was able to sue Houghton Mifflin and Alice Randall, the author of “The Wind Done Gone” a retelling of “Gone with the Wind” from a slave perspective.  The case was settled out of court, and the book published with some changes and a notice on the front saying it is an unauthorized parody, after Houghton Mifflin agreed to make an undisclosed donation to Morehouse College.  The suit was not based on the use of direct quotation, but on the appropriation of characters and situations.  The Eleventh Circuit Court of Appeals did find for the author on this point, but the very fact that the suit could be brought on those terms indicates a shift in the attitude toward copyright.  It used to be expression alone that was protected: now the attempt is to include content as well.