The author Chinua Achebe died last week. Writers at many literary outlets have written to express their thoughts at the passing of this “iconic Nigerian novelist”. To this panoply of thoughts, I’d like to add one: 70 years from today, or the year 2083, Achebe’s works will enter the public domain and be free for all to use. Only a long 70 years from today, in the words of David Nimmer, will Achebe’s works be “relegated to the public domain to become the heritage of all humanity”. In the meantime, Achebe’s writings will continue to be copyrighted and controlled by either his publishers or estates.
Corporations and heirs — some of whom the authors themselves may not have known — are generally more interested in making money off the copyrighted materials and less interested than were the authors to get their expressive content — the authors’ own ideas — disseminated to as many people as possible. Because of this, after an author’s death is when permissions to use the author’s works may become most difficult and expensive to acquire. For examples of difficult, controlling heirs, consider the cases of Stephen Joyce (who, among other things, denied permission to people to quote any of his famous grandfather’s, James Joyce’s, materials simply because he didn’t like the people asking for permissions), the estate of Martin Luther King (demanding fees for the rebroadcast or watching of King’s “I have a dream” speech), or the estate of Margaret Mitchell (enforcing the rule that no authors using the characters from Gone with the Wind can can include homosexuality or miscegenation in their own works).
Of course, there are non-onerous heirs who disseminate their copyright inheritance widely. Authors who are interested in seeing their works become “the heritage of all humanity” after their deaths, however, do not have to rely on finding compliant heirs. Just like with the famous giving pledge started by Bill Gates where wealthy people commit to give away half of their wealth either during their lifetimes or upon their deaths, authors can engage in a similar giving pledge. A so-minded author can commit to freeing his works from copyright upon his death or, say, 35 years after publication. He can promise to do this for all his works or just a substantial portion. Something like a Library License could work very well.
How may doing something like this impact an author’s ability to sign a publishing contract? I mention the 35 years timetable above because there is a section in US copyright law, 17 USC § 203, that allows authors to reclaim copyright to their works that they’ve previously assigned to somebody else in a 5 year period 35 years from the date of publication. This right, unlike most other rights conferred by copyright law, cannot be waived. So a publisher cannot persuade an author to sign away his right to reclaim the copyright to his own work by, say, offering a more favorable initial contract. This means that authors have nothing to lose should they choose to reclaim ownership to their own works and release them to the public domain. All that it takes is for authors to be aware of their rights and for them to possess the generous impulse to gift their works to humanity.