Rare books and when the copyright public domain might fail in its essential purpose

Let us begin, with a degree of sadness, from the end. This Kat recently read an obituary (and here) for William Reese, who died in early June at the age of 62. While Mr. Reese was not a household name, he enjoyed an exalted status among those who had any interest in rare books, especially of Americana vintage (this Kat was familiar with him). It is presumed that while Mr. Reese viewed his engagement with rare books as a commercial venture, he also seemed to see his enterprise in terms of mission.

Thus, in one interview, he observed that—
“I always had a concept as a person dealing in Americana that I was selling evidence in one form or another.”
In another setting, he noted—
“The object can sit for 200 years, and nobody can know why it’s needed, no scholar can put in context until that moment when that piece of paper tells a story, provides a connection.”
Mr. Reese’s comments regarding the mission of the rare-book-as- preserving-content-for-public-use led this Kat to consider just how one can understand the implications of this mission. We begin with three observations.

First, under the copyright system, the public interest is taken into account, e.g., with respect to the idea/expression divide, which preserves certain contents in the public domain a priori, and the duration limit for copyright protection, which contributes once-protected contents into the public domain. Underlying this is the centrality of copyright in contributing to knowledge by ultimately making all contents accessible in the public domain. Second, there is a fundamental legal distinction between protecting the intangible rights in the contents of a book via copyright and the rights of the book as a physical object under the laws of tangible property (or even as stored in Kindle form). Third, research has shown (here and here) the role that norms sometimes play in regulating IP-like behavior, such as how French chefs protect their recipes, even in the absence of formal IP rights.

Against this backdrop, let’s consider the following hypothetical. Rare book dealer and collector “A” has in his possession the only extant copy of a 19th century autobiography written by Father González, a leading figure in the establishment of the chain of missions between the years 1769 to 1823 in the New Spain province of Alte California. It is believed that this autobiography sheds light on several unresolved major issues in our historical understanding of that period.

Let us say that “A” has the option of either: (i) continuing to maintain the copy in his possession, without public access, including to scholars; (ii) continuing to maintain the copy in his possession, but causing a digital copy to be made of its contents for use by the public; (iii) selling the book to a private book collector, who has made it known that he will not provide any access to the book nor will he make a digital copy; or (iv) selling the book to a rare books library.

Under the usual copyright paradigm, the continuing exclusive right in the book as tangible property goes hand in hand with the expiry of exclusivity in controlling the reproduction of contents under copyright. With multiple copies of the book available in the public domain, accessibility is enabled. But in our hypothetical, at least in situations (i) and (iii), ownership of the physical book will in effect cause the public domain contents to be inaccessible. As such, the role of the public domain as envisaged under the copyright laws would seem to be impaired.

So what are the solutions? One is for the public, through the agency of the legislator, to enact suitable legislation to ensure that ownership of the tangible right in the book does not prevent access to the contents, indeed even exercising something like the power of expropriation/eminent domain to take the tangible property from its owner in the name of the public. Either option challenges basic notions of property ownership, and with respect to expropriation, there is arguably something distasteful about relying on such a measure in order to make the contents publicly accessible.

This leads us to suggest an alternative approach, based on the idea of a norm-based set of behaviors even in the absence of an applicable legal (IP) framework. From the seminal research on the norm-based behavior of French chefs, we see that such a system tends to occur within a small, homogeneous population (such as French chefs, and arguably, the world of rare books). Second, forms of accessible conduct are informally agreed upon.

For instance, regarding French chefs, such conduct focuses on agreement that that no chef may copy in exact form the innovative aspects of the recipe of another chef; if a recipe is disclosed to a fellow chef, that chef may not pass on the contents of the disclosure without permission; and chefs must give credit to the developer of a significant improvement or information regarding recipes.

This Kat is not aware of any study that has examined norms-based behavior with respect to the acquisition and possession of rare books, especially in light of the potential impairment to the public domain, as set out in the hypothetical. Ultimately, perhaps, the issue comes down to one's personal choice and whether one sees an element of mission when engaging in rare books. Or perhaps there are such norms, not generally known, within certain circles. Kat readers?

By Neil Wilkof

Picture on upper right by William Hoiles and is licensed under Creative Commons Attribution 1.0 Generic license

Picture on lower left by Shruti Mukkhtyar and is licensed under Creative Commons Attribution-Share Alike 4.0 Internationa license
Rare books and when the copyright public domain might fail in its essential purpose Rare books and when the copyright public domain might fail in its essential purpose Reviewed by Neil Wilkof on Sunday, July 15, 2018 Rating: 5


Andy said...

As ever Neil, you provide food for thought. You examine the issue from the perspective of the public benefit arising from making a work available to the public (or at least to an academic element of it). This of course represents a particularly Anglo-Saxon / commonlaw approach to the copyright compact. Your discussion centres on a rare book, which implies perhaps that there once existed multiple copies of the book, ie it had been published. But does the same approach apply to unpublished works?
I suspect that readers in, say France or Italy, might view the issue from a different angle. Did the author of the work ever intend the public to have access to, for example, diaries, personal letters, first draft manuscripts replete with emendations, or personal portraits etc. Undoubtedly there may be a interest on the part of the public in the publication of such works, for instance if the author was a prominent person or the content of the works would tell us more about some historical detail, but can we say that the public is 'entitled' to access, even if this goes against the wishes or intentions of the author, just because a period of time has passed? Does the mere age of something erode the right of the author not to publish? Can the situation be compared to the way in which an archaeologist or museum curator might regard a thousand year old skeleton, more as a specimen or source of scientific knowledge than as the mortal remains of a person?
Given that in some droit d’auteur jurisdictions, moral rights are perpetual, can it be assumed that the public interest inevitably outweighs the wishes (presumed or otherwise) of the author after a reasonable period of time has elapsed? Pragmatism suggests the answer is that the owner of the physical work can assume the rights of the author over whether or not to allow public access, as may be seen in the policies of many museums, libraries and archives, where digital access to out-of-copyright works is monetised, thus effectively having a second bite of the economic cherry.

Howard Knopf said...


There are certain soft law codes of behaviour that are said to exist, for example, regarding comedians’ jokes and magicians’ magic tricks. However, nobody is calling for a treaty or any codified law to deal with these situations.

If I were to somehow legally acquire a lost Leonardo portrait of Mona Lisa’s sister that was even more magnificent than the Mona Lisa painting itself and had never been seen by anyone outside of its buried tomb in Florence, am I obliged to share at least an image of it to the world? I might be morally and economically extremely stupid not to do so – but I think that I would be on solid legal grounds to keep it to myself.

From a practical standpoint, I highly doubt that there are very many rare published antiquarian books of any importance that survive in only one unique copy in private hands.


Howard Knopf

Neil Wilkof said...

Hi Andy and Howard

I usually don't comment, but since both of you are always thoughtful in your observations, permit me to make an exception here.

Andy, I agree that once you leave my hypothetical, the paradigm for analysis may well change. But within the framework of my post, I think that the overarching question still remains: Can there such a thing as a "market failure" with respect to the public domain in copright and, if so, should we entertain corrective measures?

Howard, I wasn't suggesting a binding legal framework for norm-based behavior, but simply asking whether such norms may already exist for the world of rare books (it has been identified with respect to French chefs and fashion in addition to the areas that you mention).

I appreciate your comments regarding artistic works, but I think that literary works raise somewhat different issues with respect to the use of their contents once they become part of the public domain. Sure, the hypothetical may be rare in the real world, but I think that the question is still valid.

Thanks, guys, for sharing your thoughts!

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