"A Publisher" seems to think we at the Mudcat are unaware of the distinction between a work in the public domain and a copyrighted derivative work. However, this distinction has come up more than once in this forum over the years. More relevant to the current situation is the publishing industry's attempt to manipulate this distinction to create marginal or spurious copyrights which seem designed to make the public afraid to excercise its rights even to pure PD. This article by Paul Heald, and the article of which this is the abstract, discuss how trivial can be the modifications to which the publishing industry sometimes tries to assert copyright. Similar problems are mentioned by Krasilovsky and Shemel:

"Some folk artists and folk music publishers engage in unethical practices. They change titles without modifying lyrics or melody. They may claim full originality when they are really only "finders" of public domain songs. They register copyrights to such songs, claiming they are 'original' works, and fail to set forth accurately the limited amount of any new material. They thereby falsely and unfairly obtain the benefit ot the Copyright Act provision that places on an unauthorized user the burden to prove the invalidity of a certificate of copyright registration." (Krasilovsky and Shemel, This Business of Music, 7th Edition, Billboard Books, New York, 1995, pp. 251-252.)

In another place, Krasilovsky and Shemel remark,

"Much of the music in the public domain is tainted by vague and indefinite claims of copyright in minimal or obscure 'new versions.'" (p. 262.)

It is not we, then, but the publishing and entertainment industries that need to be educated about copyright. These robber-barons need to be reminded that all works of the human mind are inherently public property, like an improvement in a public park. Copyright is an artificial regime, created by the public for the public's own purposes. During a certain term, the public generously refrains from excersising its full rights in its property, instead giving the author a monopoly over certain uses of the work. This generous gift of the public to the author is intended to encourage authors to contribute to the public domain. To achieve this end the public has generously created not only reprint rights, but performance rights, mechanical rights, and synchronization rights. (In the 19th century there were only reprint rights, and performance rights to plays.) It has also increased the term of copyright from 28 years (1790), to 42 years (1831), to 56 years (1909), to 75 years (1976). But the copyright barons have abused the public's generosity. They have recently engineered an extension of the copyright term to an absurd 95 years, they resisted the explicit incorporation of fair use provisions into the 1976 law, and they are attempting to engineer a revision of the Uniform Commercial Code which will make it possible for them to compel the public, through the mechanism of "shrink-wrap" licenses, to sign away its rights even to the public domain. And all this is quite apart from some of the silliness that is practiced under the guise of trademark law.

"A Publisher" disingenuously fails to note that it is partly due to this repeated expansion of the term of copyright, vigorously sought by his own industry, that users have difficulties in determining the copyright status of lyrics. If the term of copyright had remained at 56 years, clear documentation of public domain status of many lyrics would be easier to find. Or, in the case of copyrighted lyrics, the rightsholder would be easier to find. Much of the required documentation would be in every public library, rather than only in a few university rare book rooms. Even the Library of Congress found it impossible to locate many rightsholders for its microfilm preservation project:

"When the microfilming project began, the library endeavored to conduct an exhaustive search of the records of the Copyright Office and to seek permission of the copyright owner whenever they could identify one. The library found that effort to be seriously problematic, however, particularly with respect to serial publications...Checking the records was very time consuming and far from reliable. Serials change title and each of those titles needs to be checked. Serials change ownership, and ... there is no requirement that a change of ownership needs to be filed with the Copyright Office. Individual issues of serials may be separately copyrighted and permission needs to be granted for each of them. Finally, individual authors may retain the rights to individual articles within a journal. As a result of these problems, the Library of Congress stopped seeking permissions about eight years ago. On the advice of counsel, they now rely on Section 108 [of Title 17, Unites States Code] for their copying under this program." (Robert L. Oakley, Copyright and Preservation: A Seriousl Problem in Need of a Thoughtful Solution. The Commission on Preservation and Access, Washington, D.C. 1990, p. 38.)

Section 108 applies only to libraries.

The publishing industry, through its lobbyists, has obtained laws that make it extremely difficult for an organization like the Digital Tradition to determine the copyright status of a work, and to find a rightsholder if one needs to be found. Then the same industry steps forward and "offers" (for a fee) to "solve" these problems for us. We deserve better than this. Copyright, as I mentioned above, is in theory a gift by the public to the authors (and, indirectly, to the publishers.) We should be treated with gratitude and respect for making it possible for the publishing industry to exist at all. But I don't feel that we are being so treated. I think we are entitled to be skeptical, and angry.

T.