There's a famous phenomenon in copyright known as the orphan works problem. It refers to the situation in which the copyright owner of a given work cannot be found. This effectively prevents others from using such a work as part of a new project. For example, if you want to make a movie based on a novel, you must first get permission from the novel's copyright holder. But if the novel is an orphan work, then you can't even find the copyright holder. Technically speaking, you could proceed without permission — but you would do so at your own risk. The copyright owner could emerge at any time and demand penalties. You might end up having to pay damages; worse, you might have to abandon or censor your derivative work, no matter how much effort you'd put into it.
Related to the problem of orphan works is another problem, much more serious, yet much less discussed. I call it the ghost works problem. Ghost works are all the works that never get made in the first place, or are made but not released, because copyright concerns prevent them either from being started or from being distributed. Every project that dares not base itself on an orphan work becomes a ghost work, but there are many more ghost works beyond that. Indeed, it would be fair to say that today most works are ghost works. That is, most works either don't exist or are not accessible, because copyright obstructs them. Whenever you walk into a bookstore, survey the shelves around you and imagine them to be 90% empty, for in a sense they are.
That might sound surprising. After all, the shelves look full, don't they? To see why they are not, let's start with an inverse example: a classic work that (fortunately) isn't a ghost work, but easily could have been, had its authors lived under the modern copyright regime.
In April 2007, the singer Max Ziff and I gave a concert at the Berkeley Piano Club, in Berkeley, California. We performed one of the great works of nineteenth-century German song: Die Schöne Müllerin, Franz Schubert's musical setting of twenty poems by Wilhelm Müller. Müller and Schubert were not a team, though. In fact, when Müller wrote the poems, around 1820, it was with the intention that an entirely different composer, Ludwig Berger, would set them to music, which Berger did. Müller and Schubert never met, and Müller apparently never even knew that Schubert too had set his poems to music.
Not that Schubert was trying to hide anything from Müller. It was simply that, at the time, there was no cultural expectation that one must ask permission before making a derivative work from someone else's original work. Müller's poems, having been published, were now considered part of the common culture, and if composers wanted to write songs based on them, they were free to do so. To our eternal benefit, Franz Schubert had this freedom: Die Schöne Müllerin is a truly inspired piece of music, one that has influenced generations of singers and composers.
Our concert thus depended on the public domain in two ways. One way is obvious: Die Schöne Müllerin is, legally, in the public domain today, so we are free to perform it without arranging royalty payments to anyone. But there is a deeper dependency, too: this music would not exist in the first place had there not been a healthy public domain at the time the poems were written.
Imagine if Müller and Schubert had lived in the present day, instead of the early nineteenth century. Müller writes his poems, intending for Ludwig Berger to set them to music; Berger does so. Then a mostly unknown composer, Franz Schubert, appears out of the blue, wishing to set them to his own music and asking Müller's permission. But Müller can't give permission — he doesn't own the copyright anymore, his publisher does, and the publisher, not wishing to encourage competition with the Berger settings, is inclined to refuse. Perhaps Schubert could pay for the privilege? But no, he doesn't have those kinds of resources. Or perhaps he'd like to negotiate a royalty-sharing arrangement? But Schubert has no lawyer, and no head for haggling over contracts. He's a composer, not a negotiator. Well then, he is free to set the songs for his private enjoyment (that's "fair use") but he certainly may not distribute them!
In all likelihood, things wouldn't even get that far, of course. Instead, Schubert would know in advance that he cannot always follow where his inspiration leads, when where it leads him is into someone else's copyrighted territory. Instead, he would just accept that the work of most of his contemporaries is out-of-bounds for someone like him, an unknown with no resources. And so we would not have Die Schöne Müllerin... nor Die Winterreise (another of his song cycles), nor many of his individual songs, which often set the work of living poets.
And that's just one composer.
This exercise in imagination highlights one of the most insidious aspects of the ghost works problem: that it cannot be easily measured, no matter how great its magnitude. We can point to an existing album, a movie, or a book and say "There! There is that thing, that physical object, whose existence is beyond doubt." But how can we point to something that is not there? How can we know what we do not have? We can only measure the loss indirectly; nevertheless, there is compelling anecdotal evidence that it is large.
Some of this evidence comes from the world of free and open source software, where it is traditional not only that the software itself be released under open copyright licenses, but that the software's documentation be similarly licensed. This means, among other things, that derivative works such as translations can be made by anyone. In theory, this could be done without permission or cooperation from the original authors, but in practice translations are almost always authorized and approved, because cooperation is easier than territorialism.
The result of this freedom is that the documentation for virtually all major open source programs, and many minor ones, has been translated into several languages, usually enough languages to cover the vast majority of the software's user base. Furthermore, the translations are usually kept up-to-date as the software and its documentation evolve.
This phenomenon is not limited to technical documentation. In late 2005, I published a book entitled Producing Open Source Software: How to Run a Successful Free Software Project. The publisher, O'Reilly Media, although marketing the book through traditional trade and bookstore channels, agreed to release it under a permissive (open source) copyright. Accordingly, I put the book's full text online at producingoss.com — and pretty soon people showed up to translate it! I did nothing to seek out translators, except release the book under a liberal license; only after the first translators showed up did I put a notice on the front page soliciting more. Now we've got a German translation under very active development (with two separate translators who only met through cooperating on this project), a Hebrew one happening somewhat more slowly, and some recent arrivals looking at doing a Chinese version.
This is happening with a book that has, let's face it, a fairly limited audience. Not only that, it's the second time this has happened to a book I've published (see cvsbook.red-bean.com). Once could be coincidence; twice is starting to look like a pattern. And I'm only using my own books as examples because they're the first thing that came to mind. There are hundreds of open source projects that could tell a similar tale about their documentation. The lesson to draw here is that, were it not for copyright restrictions, most books in the world would be translated into several languages. After all, the better the book, the more some multilingual reader will be motivated to translate it. The translation doesn't have to be perfect, because there will also be people who show up to edit it. These projects tend to self-organize in exactly the same way that open source software projects do.
But under the current copyright regime, if you want to release a translation of a book that was published under traditional restrictions, you don't just sit down and start translating. Instead, you start by negotiating the right to translate — a process which is completely unrelated to actually translating, and is also daunting, time-consuming, and likely to fail. It's hard to imagine a more potent gumption sink than "rights negotiation". The mere prospect is enough to shut down most translation projects — which is why I look at those bookstore shelves and see them as mostly empty.
For those who leave rights negotiation for later, the penalties can be severe indeed. Recently, I opened the April 2nd, 2007 issue of the New Yorker to see the following notice from David Denby in the "Critic's Notebook" section:
In 1977, Charles Burnett, a U.C.L.A. film student, made his thesis film, "Killer of Sheep," a fictional portrait of life in the Watts section of Los Angeles, for less than ten thousand dollars. The film has attained legendary status, but it has never been released theatrically before, because of music-rights issues. Burnett used many kinds of African-American music on the soundtrack, and the movie itself has the bedraggled eloquence of an old blues record. […]
In other words, for thirty years — long past the time when its topics were contemporary, long past when it could have had the most impact and been most appreciated — a great film has languished unseen. For thirty years, Killer of Sheep was a ghost work. And to what end? Movie licensing royalties are probably not why those musicians recorded that music, and are in general not a significant part of most musicians' incomes. That a few musicians occasionally hit the royalties jackpot is indisputable, but does that skewed and random result really justify the censoring of a film for three decades?
Now sensitized to the presence of ghost works all around us, I usually don't need to go out of my way to find examples. Instead, I can depend on them finding me with some regularity. Such was the case here. While writing this article, I opened my New Yorker and saw the above piece. I could have chosen from several other examples that crossed my path in the last week — and those are just the stories that someone bothers to tell. This fact alone is a clue to the size of the problem.
If one person can gather a few examples of ghost works without even trying, many people working together can really start to catalogue the problem. Maybe after we have enough we'll start to notice some patterns. So please keep your eyes open, and if a ghost work crosses your path, let us know. Our contact page is http://www.questioncopright.org/contact.