Meera Nair

cats in the public domain?

In Posts on January 1, 2013 at 11:21 am

Each year I look forward to the unveiling of works that will join the public domain on January 1. But this year a side story has caught my attention.

While Canada has (so far) maintained a life-plus-fifty copyright term, many other jurisdictions opted for life-plus-seventy. (The United States among them; Mike Masnick reminds us of the ongoing impoverishment of the American commons.) But among the life-plus-seventy jurisdictions, there was some celebrating last year when James Joyce’s copyrights expired. The iron grasp of his estate was legendary. Writing for the Independent, Gordon Bowker described the advent of 2012 as: “… the dawn of a new age for Joyce scholars, publishers and biographers who are now free to quote or publish him without the permission of the ferociously prohibitive Joyce estate.”

Of course, we expect this new age to only apply to Joyce’s published works.

But in February 2012, an unpublished work was commercially released. Dublin-based Ithys Press released The Cats of Copenhagen, a story written by Joyce for his grandson Stephen and sent to him in a letter in 1936. (The story was a companion piece to an earlier story penned for Stephen, The Cat and the Devil.  But that text had been later published as part of a collection of letters and then as a children’s picture book.) In October and November 2012, these cats turned up in a variety of European destinations as well as in the United States.

The letter containing the story was in the holdings of the Zurich James Joyce Foundation*.  Alison Flood covered the story for the Guardian; the Foundation was offended that their permission had not been sought for publication of The Cats of Copenhagen and stipulated that unpublished work was still protected by copyright. Moreover, the Foundation feared reprisals from a “very belligerent” Joyce estate.  Ithys Press insisted that in 2012 Joyce’s unpublished works were also public domain material.

Paragraph 33 of the Irish Copyright and Related Rights Act (2000) may have the answer:

Expiry of Copyright: Where the term of copyright in a work is not calculated from the death of the author or authors and the work is not lawfully made available to the public within 70 years of its creation, the copyright in that work shall expire on the expiration of that period of 70 years.

With 1936 as the latest possible date of creation for the text of The Cats of Copenhagen, any possible copyright term would have expired in 2007.  (If an Irish copyright enthusiast can offer a better explanation, please do.)

Copyright interpretation aside, what I find most enjoyable is the brief exchange in the comments on the Ithys Press page. After the first release of The Cats in Copenhagen (priced at €300) a reader asked if an edition that was “more democratic in price” could be released. In November Ithys Press triumphantly responded, “Well, it took us some time but we did it. Scribner’s ‘Cats’ might fit the bill.” The American publication is produced by Scribner/Simon & Schuster and is currently priced at $13.59.  Which is a welcome reminder that savvy publishers do not need excessive copyright as incentive to publish, being the first to give consumers what they want is a viable incentive too.

Happy New Year.

*The Foundation’s own copyright policy is an affront to fair dealing: “Researchers must obtain the written permission of the holder(s) of copyright and the ZJJF before requesting photocopies and/or publishing quotations from materials in the collection.” The collection holds a vast quantity of published material, in those instances there should be no doubt that reproduction as it lends itself to research is allowed.  Whether this policy was created by pressure from the Joyce estate or was an independent choice, it also violates the Berne Convention which stipulates in Article 10 (Certain Free Uses): “It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.”

Update: Jan 2 (in Israel): publicdomain never disappoints; the list of new inductees makes for wonderful reading.  Prior lists are available here.

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