You’ve long suspected it, and now here’s an academic study to prove it: Copyright actually makes books disappear.

“A random sample of new books for sale on shows three times more books initially published in the 1850’s are for sale than new books from the 1950’s. Why? This paper presents new data on how copyright seems to make works disappear,” runs the abstract of the study, How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old Songs), by Professor Paul J. Heald (pictured at left), of the University of Illinois College of Law, and visiting professor at the Centre for Intellectual Property Policy & Management (CIPPM) at Britain’s Bournemouth University.

The full text of the paper can be found here.copyright

Heald’s study tests the justification for copyright extension, increasingly popular in the media industry, “that after a work is created, it needs to be protected for a significant period of time to assure its continued availability and distribution.

In the words of one commentator, a work may need “proper husbandry” in order to assure its continued exploitation. Powerful copyright lobbyists presently circle the globe advocating ever longer terms of copyright protection based on this under-exploitation hypothesis—that bad things happen when a copyright expires, the work loses its owner, and it falls into the public domain.”

For his study, Heald took “a random sample of 2300 new books for sale on,” also performing a similar analysis on music. “Copyright status correlates highly with absence from the Amazon shelf,” he concluded. “Together with publishing business models, copyright law seems to stifle distribution and access.”

Heald, admittedly, has been plowing this furrow for quite a few years now, quoting his own earlier papers from years ago in this study.

This time around, however, he’s employing a new methodological take that completely reinforces his earlier conclusions. He used statistical techniques to compensate for effects such as the growth in population of the United States and the volume of books published.

The results only made the impact of copyright even more pronounced.

Furthermore, Heald demonstrates that publishers are only damaging their own businesses by delaying the admission of works into the public domain. Even copyright-free, such works actually get sold, as his data proves. These are not Project Gutenberg freebies: Those works are offered on the Amazon shelves for sale. But publishers lack incentive to shift long-tail backlist titles, which tend to languish neglected in the copyright warehouse. Once in the public domain, however, they flourish.

From Heald’s conclusion:

“The data presented in this article demonstrate that there is a market for these missing works, illustrated bluntly by the fact that there are three times as many new books from the 1850’s for sale on Amazon than books from the 1950’s. Ever-longer term extensions exacerbate the availability and distribution crisis by delaying the moment when the market can intervene and restart production.”

The White House Task Force on High-Tech Patent Issues has been pushing for reform to U.S. intellectual property law in the realm of patents to re-energize American innovation. Is it any surprise that similar regulations in the area of copyright have equally stultifying effects on cultural productivity? Heald’s report is just one more stone in the balance weighing against Big Media’s specious and self-interested campaign for copyright limit extension.

Set the works free. Ultimately, even the IP monopolists can only gain.


  1. The idea of a book in the public domain being for sale is an anachronism in the digital age. This alone would make these statistics quite suspect. Availability for sale is far too narrow a definition of availability. Gutenberg is every bit as important as Amazon in an analysis of this sort.

  2. Frank, there are circumstances in which I would pay some amount for a good copy of a public domain book. If you’re talking about a paper printed copy, well, paper and ink and distribution do cost money. Hell, that’s the whole reason people have been claiming e-books should be cheaper. But even for an e-book, if it was a nicely formatted e-book, with typos cleared up, possibly even someone going through and adding historical footnotes, that’s worth some money.

    The whole point of something being in the public domain is that people are able to take that thing and refine it and incorporate it into their own works. I did a few podcasts adding “footnotes” to some public domain Lupin III audiobooks, for example. I wasn’t trying to make money out of it, but I could have done.

  3. I publish public domain books that are heavily annotated — Agatha Christie’s The Complete, Annotated Mysterious Affair at Styles and Dorothy L. Sayers’ The Complete Annotated Whose Body? — and have more in the works. I’ve been annotating Sayers’ Lord Peter novels online for more than a decade, so it was an easy jump to offering ebook and trade paperback versions for fans who become even more immersed in the world of 1920s England, where they can learn about land girls, spill vases, why strychnine was a tonic and so forth.

    So it’s obvious to me that there’s a market for these books, and a way to return interesting books that have vanished. There are publishers who hold a life-of-copyright license for works that they deliberately let fall out of print, and there’s nothing authors can do about them (although some are returning to print through ebooks through companies such as Open Road Media).

  4. Chris and Bill make excellent points.

    1) There is a market for well formatted, typo-free public domain books.

    2) There is a market for “enhanced” public domain books — annotated, illustrated, accompanied by short essays on related topics (like DVD extras).

    These enhanced books may not support $12.99 list price; but $1.99 to $4.99 is a plausible zone, depending on what the value add is.

    As for public domain rules being detrimental to distribution: anyone can see that and it is frustrating in an age where books represent electronic space and not paper-based. The 70 years since author death rule is absurd. Protecting content within the lifetime of the creator, or for a significant period of time for a corporate creator, is important. But at some point this becomes an impediment.

    I’d like to see 30 years from the date of creation as an outside period, renewable once for 20 years thereafter. In the case of living authors perhaps that one-time renewal can be automatic unless revoked. If something still has commercial value after 30 years, bravo: you get another 20. But after 50 years of distribution maximum, there is sufficient case to be made that the creation has become part of popular culture and ought to be set free.

  5. Mark Twain explained copyright better than anyone ever.

    “Only one thing is impossible for God: To find any sense in any copyright law on the planet.” —Mark Twain

    “A day is coming, when, in the eye of the law, literary property will be as sacred as whisky, or any other of the necessaries of life.” —Mark Twain


  6. Why public domain at all? Shouldn’t the author have the choice of leaving the intellectual property to their descendants (along with any royalties or other compensation)? Why should someone other than family have the right to make money off of someone’s work?

    This irks me to no end. It’s like saying to the Rockefeller’s and Morgan’s (or any other rich family) that they cannot hand down their money, because someone outside the family has the right to use it for their own gain.

    It’s bad enough that there are pirate sites that steal works from authors (and other creatives) on a daily basis. Now some want to say that copyright shouldn’t have any value at all, it seems. Popular culture is owed nothing – let them create their own stories.

  7. The problem lies not in the existence of copyright, but its duration and the unwillingness of copyright holders to publish.

    Those books from the 50s, 60s, and 70s aren’t available because their authors and their copyright-holding heirs either aren’t sufficiently tech-savvy to understand how easily they can be published electronically, or don’t understand that they still have value. In the case of more recent titles, the problem lies with the publishers, who all too often retain copyrights that they have no intention of using.

    Rather than “simply set the works free” the solution lies in:

    1) limiting copyright to a term less insane than the current life + 70 or life +50 as in most of the world. Assuming the need to care for a dependant child, life + 21 is justifiable, but no more. There are may other possible schemes, but the current standard is completely unsupportable.

    2) returning copyright to those willing to exploit it. If any work does not earn $10,000 for five consecutive years, copyright should immeditately revert to the original copyright holder. That would prevent a publisher’s demanding exclusivity for the duration of copyright in case it turns into the next Harry Potter & the 50 Shades of Twilight, and then letting it languish. When copyright reverts, the writer will be highly motivated to making the work available. All the writer nees then is a little training.

  8. This guy seems to have researched everything about copyright except its purpose, which is to protect the owner of the copyright and the work from theft. Sure a work might be more visible if it was copyright free, but a fat lot of good that would do the person who created it. Without the protection a copyright provides, an author or musician has no ownership of their own intellectual property. The works Amazon (and i-Tunes and other distributers) distributes do not belong to them nor do they belong to the publishers who sell through them. They belong to the individual artists who created the works. We essentially lease our works to these entities for a certain period of time. The artist owns the copyright and that’s how it ought to be. This is a dangerous message this man is disseminating to the many many new writers who want so desperately to be read. In order to get people to acquire their work, they are supposed to give up all control of it (in giving up their copyright). What happens is that if someone else deems the work to have value, THEY copyright it and the author or musician loses control of it and profit from it.

  9. Since I’ve spent months writing each of my 62 novels published, I don’t see why I should give them away to the world for nothing. It’s how I earn my living, for heaven’s sake. Do people think authors don’t need to eat, put a roof over their heads and buy clothes etc?

    I agree with Kat and Chris. I’ve worked hard to get where I am. I ought to be able to leave what I’ve created to my children and grandchildren.

    I get furious at the thieves who steal my books. (Pirates is too glamorous a word.) I’d like to see how they’d feel if they had months of work stolen. And when it’s a lot of my books, years of work. I work ten-hour days at my work.

  10. Anna, if you will spend a few moments reading up on U.S. copyright law (, a lot of angst will be spared. A copyright is not real property. It’s simply a government granted, time-limited monopoly with a good number of fair use exceptions. Copyright protects very little of what we write. It doesn’t apply to facts and ideas, only the unique expression of those things. Thus, what copyright protects is pretty darn ephemeral. Invest your royalties in real property or securities and pass that on to your heirs. Or buy a big motor home with a tag that says, “I’m spending my kids” inheritance …” See:×12/im-spending-inheritance.html

  11. Elizabeth Ann Scarborough asserts that the purpose of copyright is to “protect the owner of … the work from theft.” This is a common misperception.
    Lydia Pallas Loren is Associate Professor of Law, Northwestern School of Law of Lewis & Clark College. Her essay, “The Purpose of Copyright” is one of the clearest I have yet encountered. It’s definitely worth a close read:

    Spoiler: They (the framers of the U.S. Constitution) expressly provided for the purpose of copyright: to promote the progress of knowledge and learning.

  12. Frank, you might want a big motor home. I want to tell stories – and make money as a side effect.

    I don’t want to give my work away for nothing. I have living expenses. I don’t care how copyright works, and if it protects my unique way of telling a story, that’s OK by me. I’m Australian, by the way, not American.

    Elizabeth Ann, I’m with you all the way.

  13. All this study does is prove what many have known for decades (long before e-books became important), long periods of copyright are meant to protect the big name authors. Mid-list authors, or even former big-name authors whose work has fallen out of fashion will often all but disappear.

    I remember talking to a representative of NESFA about 10 years ago at a Science Fiction convention. They are a club based publishing group that at the time specialized in publishing the out of print works of classic science fiction authors. The biggest challenge was usually finding the author or their heirs. No professional publisher would have taken the effort; it wasn’t profitable enough.

    Its simple really, with a few exceptions, the book market is driven by novelty. Even former best sellers will often not make enough money to keep them in print indefinitely. Sure some books will become classics, but even those classics represent at best a small stream income compared to a big best seller.

    Ultimately therefore, the question of overly long copyright is not really a question of public domain versus private ownership of a novel. Its a question of public domain versus extinction.

  14. MarylandBill, My daughter will definitely keep my books available to the public. She’s a software engineer and is already involved in my business, has been from the start.

    My readers go hunting for my backlist and my first novel (Salem Street) from the early 90s is still reprinting, is out in ebook, and is selling steadily. My publishers keep the books they’re still licensing in print and I keep the books to which I have rights back in print,.

    I’m not a big name author, but I work hard and make a decent living. Whoever said that isn’t possible is wrong.

    And I have a lot of wonderful readers – and their daughters, grand-daughters, etc are now reading my books, they tell me. I get a lot of emails every week.

    Why would I or my daughter give away the fruits of our hard work to strangers?

  15. I’m for death +25–allows dependent children, even those born in the last year of creator’s life, to benefit until they’re of age and on their feet. Yes, there are exceptions where 25-year-olds are incapable of fending for themselves, and yes, creators seldom make piles of money from their copyrighted work during their lifetimes that give them substantial estates to leave their children. I’m also against assignment of copyright to a corporate entity for extended periods. I’m also for paying creators MUCH larger shares of the profits (honestly accounted) from their copyrighted work; the minuscule amount they get nowadays, at least in publishing, is shocking given how much work they put into it. And I’ve been a publisher, so I know how much work a publisher can put into a work when the author is essentially finished (given the sloppy editing of many new books for the last couple of decades, though, a lot of corner-cutting has been going on). Bottom line: the steadily lengthening copyright terms aren’t meant to benefit the creators but rather the corporations.

  16. I think the point of criticism is not that authors should give away their work, but rather that current copyright laws allow publishers to keep the rights to work even if they don’t make them available.

    This might not be a real problem for the fiction section of the market, but think about the scientific book market for example: If the rights to a certain work belong to a corporation, that has no interest in publishing it, it won’t be available to other scientists, that might need it.

    So I believe copyright should involve a duty to make the book (or other media) available.

  17. Why is it so important that authors to be able to leave the money-making potential of their work to their children? Almost nobody who doesn’t create intellectual property is able to do that. I couldn’t leave the moneymaking potential of the hours I spend on the phone at work every day helping people work their TVs to my children, if I were ever to have any. Once I earn the money, that’s it, it’s gone. But I could leave any money I have left over to such children.

    It’s the same with people who, say, hand-craft tables and chairs. They could make a whole bunch of tables and chairs for their kids to sell, but you can only sell each one once, so it’s effectively the same thing as making them, selling them, and leaving their kids the money.

    What is so special about written (or sung, or acted, or whatever) works that their creators merit this special treatment?

    Copyright (in the US, at least) is not and never has been meant to protect artists, despite everything people with a vested interest in making it seem that way have ever said. It was set down simply in the Constitution: “to promote the progress of science and the useful arts.” I could wish they’d written more about what they meant by that, but we have what we have.

    The idea behind copyright was that it was supposed to give people some time to make money, then the stuff they wrote was meant to become the property of everyone. First it enriches the author, then it enriches everybody else. 14 years, plus another 14 if the creator wanted it, was what we had under the Founding Fathers. It was long enough that anyone who wanted to buy it soon after the author wrote it could, but long enough that it would be free while it was still new enough to be useful. And it was certainly not too short to prevent people from writing. Many well-known works were penned in those years! (In fact, you could argue that a short copyright term impelled them to write more, so they would have more copyrights to bring in money after the first ones ran out.)

    Under the current copyright regime, few of us will ever live long enough to see anything written in our lifetime become free to all—and by then, who will care about it? I don’t see too many 95-year-old books burning up the bestseller charts right now, or 95-year-old songs getting frequent play on hit radio. Who is it going to help for these unexploited works to remain unavailable until they’re unwanted? How are all the dead authors whose works remain out of reach (and will remain out of reach perpetually if Disney has its way) going to be encouraged to write more by having their works socked away for so much longer? What “progress” do the “useful arts” get out of this?

    Copyright is supposed to benefit the author and the general public, by turns. Right now, it’s benefiting the author…the author’s kids…the author’s grandkids…the author’s great-grandkids (who by then may not even know who among them even has the rights), and the public is left to hang.

  18. Chris, are you an author who earns a living by writing? You don’t sound like one. Do you give away what you earn?

    If someone buys an investment house with their earnings and then earns rent on it, that person can leave the house/rent capacity to their children. Why should the fruits of one’s writing be any different?

    It’s work, Chris. It earns money. It isn’t a public service. And I don’t see why other people should grab what I create for nothing. They pay their doctors, dentists, etc, buy clothes.

    And that’s my last word on this topic. I have a novel to finish then two more contracted before the end of next April. I work very hard indeed at my chosen occupation. I deserve what I earn.

  19. Rudy, my publisher has very little editing to do, either story line or copy editing. I’m old enough to have learned grammar thoroughly at primary school.

    Actually, I shout at books I buy to read, which are sometimes full of serious grammar errors. I share these with my husband who isn’t a writer, but is also older and well educated, and we marvel that such serious mistakes were allowed through. The editors and some of the younger writers are all in the same basket, IMHO.

    Eskapistin, if a publisher lets a book go out of print for a certain length of time, one can ask for the rights back – and I do. But I’m not with a certain big publisher who when asked, prints a tiny number to cover their rights grab. Not good.

    There is a 35 years rule, though, where authors can get back their rights.

    I got back the rights to my earlier books from one publisher, who dealt more fairly with me, and am now publishing them as ebooks and considering CreateSpace for paper copies.

    I’m enjoying the new challenges.

  20. Anna,

    No one is saying you don’t deserve what you earn. What we are questioning is whether it is a good idea for your books to be protected by copyright 70 years (or more) after you are gone. This is based on the fact that the vast majority of books fall into obscurity within a few years of their publication or in some cases their author’s deaths. Its also based on the fact that an out of print literary legacy may not be handled in the estates of grandchildren and great-grandchildren. The result being that the hurdles to such books ever seeing the light of day again become higher not lower until the term of copyright expires.

    Now a couple of other thoughts. 1. Believe it or not, more than a few authors actually believe that giving away books, especially from their backlist is a great way to do business. Cory Doctorow, Charles Stross, Eric Flint and David Weber to name a few. Sure not every author does, and some authors stop after a while, but giving books away does not preclude being a professional author.

    2. Most of the best authors I have ever read needed editors for story lines. In my opinion, all but the rarest author needs an editor to help them trim a story. I have noticed this particularly in the cases of Heinlein’s unabridged version of Stranger in a Strange Land and King’s unabridged version of the Stand. Neither book benefited (IMHO) from the extra hundreds of pages that were included in the new editions.

  21. If someone buys an investment house with their earnings and then earns rent on it, that person can leave the house/rent capacity to their children. Why should the fruits of one’s writing be any different?

    If someone has a house, and it sits abandoned on the edge of town for thirty years, the city or state can post a few notices demanding the owner do something with it, and if there’s no response, can sell that land and house to someone else. If we’re going to compare intellectual property to physical property, it should be held to the same abandonment rules–if the owners don’t let people know they care what happens to it, and make themselves available for questions, the property can be taken away.

    This is the “orphan works” problem, also known as “hostage works”–works that are not doing anyone any good, but are kept isolated from popular culture and community access by threat of lawsuit from unknown directions.

    The core issue is the purpose of copyright. Those who believe it’s to enrich the authors’ lives will believe indefinite extensions are reasonable; those who believe what the Constitution says–that it’s to promote progress, and does so by providing temporary incentives–will believe that extensions need to be sharply balanced against the public interest.

    Authors did not create the language they use for their books. They did not create the literary tropes they expect readers to recognize. They did not create the outline that shapes a nonfiction book’s structure. They didn’t create the metaphor, the simile, the exclamation point. They are using tools developed by other people, borrowing from the past, remixing a thousand years of literary development into something fresh and new. They have an obligation to pay that debt forward: to allow the public to use their works as foundations for new ones, just as their works were shaped by authors from the past.

The TeleRead community values your civil and thoughtful comments. We use a cache, so expect a delay. Problems? E-mail