A recent New York Times article (One Internet, Many Copyright Laws, by Victoria Shannon, Nov. 8, 2004) discusses a letter to Project Gutenberg's Australian site (PGA) sent by the law firm representing Gone with the Wind author Margaret Mitchell's estate.
Gone with the Wind was first published in 1936. It entered the public domain in Australia in 1999 (death + 50 years). It will not enter the public domain in the United States until 2031 (publication + 95 years).
Several other books listed on the Australian website are in the public domain there, but not in the United States, including 1984 by George Orwell.
A trade agreement is expected to be signed later this year between the United States and Australia, which extend the copyright term in Australia to life + 70 years. This would mean Gone with the Wind would go back into copyright protection in Australia until 2019.
Project Gutenberg seems to have expunged the book, even though posting the book does not violate Australian copyright law. Apparently, it recently received a letter from attorney Thomas D. Selz on behalf of the Stephens Mitchell Trusts, owner of the copyright to Gone With the Wind.
According to the TeleRead blog, the letter reads in part:
"It appears to us that Project Gutenberg established PGA to permit the illegal downloading of works that are still subject to copyright protection in the U.S. and elsewhere. Project Gutenberg’s and PGA’s willful, knowing and unauthorized distribution of GWTW to users in the U.S. and elsewhere where copyright protection remains available is a blatant violation of our client’s rights under applicable statutes and common law."
Why would Project Gutenberg Australia expunge the book? Likely because it is a volunteer organization and likely does not have the funding to fight.
This situation raises several important issues for libraries. First, a cautionary note: Libraries and other institutions that have placed copyrighted materials on their website need to be especially careful, by keeping records of the date of creation of any work and the date of the author's death.
The increasing number of copyright ghosts -- works that have entered the public domain and then once again enter copyright status -- makes the works of libraries and creators that build upon public domain works more difficult.
This case raises the specter that libraries such as Project Gutenberg will either need to expend tremendous capital to prevent people from downloading materials that may violate the law in the country of download, even though they do not violate the law in the host country, or remove any material that is not in the public domain everywhere. Requiring sites, such as Project Gutenberg Australia, located outside the U.S. to follow United States copyright law is not equitable. Any violations of U.S. copyright law are coming from people the United States -- not from Australia, where Gone with the Wind and other books are in the public domain.
Project Gutenberg Australia's purpose was to ensure that Australians were able to read free ebooks in the Australian public domain. Unfortunately, U.S. copyright law (and large legal costs) reasonably scared them off. After all, they were able to protect the rest of the library at the expense of one book.
The implications of a work arguably being in the public domain in one place while not in another with extraordinary economic possiblities everywhere has recently and ironically been the fate of Peter Pan. Will Peter Pan's copyright never grow up?
Although the UK copyright expired in 1987, 50 years after Barrie’s death, former Prime Minister Lord Callaghan successfully proposed an amendment to the Copyright Act 1988 which gave Great Ormond Street the unique right to royalties from Peter Pan, forever. (Section 301, Copyright, Designs and Patents Act 1988).
In 1996 copyright protection was extended from 50 to 70 years throughout the European Union, which means that Peter Pan now enjoys revived copyright in Europe until 2007. A similar Copyright Extension Act was passed in the USA with effect from October 1998 granting copyright there until 2023.