Chris Woolfrey — FSFE UK Team Member

Following on from my post yesterday, here’s something I read today about the ongoing copyright battles surrounding James Joyce’s novel, Ulysses, from Robert Spoo:

In remarks made during a broadcast over Irish Radio, Medh Ruane suggested a curious justification for reprinting Joyce’s words without leave of the Estate: “James Joyce used the city of Dublin and Dublin people in his books, so the argument goes that the people should have a moral and cultural right to use James Joyce’s material in different ways.” This is not the sort of argument that would carry much weight with a court, but it does point to some of the contradictions inherent in the private ownership of a public good like literature. Ulysses is a modern epic assembled from facts, personalities, and events in the Irish public domain; in that respect, it is not unreasonable for the Irish to view it as more immediately and intimately the property of the people than other works of the imagination. Joyce himself conceded that he was a “scissors-and-paste” man, an adapter and arrange of what came to hand. In the ecology of copyright, a work like Ulysses has its creatrive origins in the raw materials of the public domain.

I’m certainly no expert on copyright, but it’s interesting to consider, from the point of view of the excessively long copyright extensions granted to early 20th century works (in the E.U., 70 years after the calendar year of the author’s death; in the U.S., 95 years after the year the work was first published, for any book published between 1923 and 1977) just what exactly it is that “fair use” might constitute in relation to the origins of creative works, and how that might compromise the holders of these cripplingly long copyright agreements.

In Britain “fair use” refers to a slightly slippery agreement based, according to the U.K Intellectual Property Office, on economics concerns:

There is no strict definition of what this means but it has been interpreted by the courts on a number of occasions by looking at the economic impact on the copyright owner of the use. Where the economic impact is not significant, the use may count as fair dealing. So, it may be within the scope of ‘fair dealing’ to make single photocopies of short extracts of a copyright work for non-commercial research or private study, criticism or review, or reporting current events.

In one sense, then, “fair use” is considered valid in situations where a work can be socially useful without bearing great burden to the holder of the copyright in relation to cost; in other words, it’s OK to use the work for the good of the public domain as long as in doing so the use of the work does not undermine the profitability of the work for the copyright holder.

Put simply: it is OK for me to quote Ulysses here, on my blog — “Stately, plump Buck Mulligan came from the stairhead, bearing a bowl of lather on which a mirror and a razor lay crossed.” — but not to take the whole book, or even one chapter, and probably not even several paragraphs, and then try and sell it.

To put it just as simply but in a different way: it seems perfectly acceptable for somebody to take from the public domain for economic good but not for the public domain to take what has been economically good back into the public domain.

After all, as Medh Ruane (I think logically) suggested, Joyce’s material was the streets, sounds, and people of Dublin; his work, good in itself, and, as literature, a public good — — to use Spoo’s phrase — was better than most because it identified and interacted with the cultural consciousness of Dublin, and presented it to anybody who wanted to read them…

…provided, that is, they agreed that “the moral right of  James Joyce to be identified as the author of this work” is perfectly reasonable, and that as a result, that culture engages with the work in a way which constitutes “fair use”: no derivative works, no remixing, no verbatim publishing.

Did Joyce take as verbatim, or remix, or make derivative works of, the people and places of Dublin? I’m not sure. But it’s worth thinking about, certainly: it’s also worth remembering, as Lawrence Lessig did, that because of these farcically long copyright extensions, the question will remain in question for an absurdly long time.

In other news, my friend and I put together the final notes for a bi-annual magazine we’re releasing, and it’ll go live online, as a PDF, next week. It’s called Banner and the copyright notice will read: “Licensees may copy, distribute, display, and perform the work and make derivative works based on it only for noncommercial purposes. Any of the above conditions can be waived if you get permission from the copyright holder.”

That waiver is something I’d like to investigate in more detail, when I have time: it feels like a strange “get out” clause.

As a final point, take a look at this site — http://statelyplumpbuckmulligan.com/ — which seems to be letting people sponsor words, including “Ulysses”, on the domain. Very odd.