An Orphan Crosses His Tracks

Over Thanksgiving break, I read and fell in love with a translation of a novel by Aksel Sandemose called “A Fugitive Crosses His Tracks.” Alfred A. Knopf, now an imprint of Random House, published the novel in 1936. At the time, Sandemose’s reviewers compared him to Joyce, Céline, Rilke, and Kafka; though I find him to write much like Montaigne. That his work is obscure is all the more cognizable in light of his fall from such high praise. The novel might be better known under its Norwegian title, “En flyktning krysser sitt spor.”

I take the time to mention the original title because only Norwegian copies of the book are for sale; a hard-cover copy costs about $20, plus $30 for delivery to the US—in order to obtain a copy of one’s own. I was lucky in borrowing Widener’s copy, because I would otherwise never have had the pleasure of reading Sandemose. My appreciation for the book sent me on an historical investigation of its printing history that leads me to believe the novel might be an orphaned work.

An orphaned work is a work protected by copyright, but the holder of the copyright is either unknown or untraceable. In the case of Sandemose’s “Fugitive”, the work was copyrighted in 1936; under the 1909 copyright, works were copyrighted for 28 years with a possible renewal of 28 years. However, estimates suggest only 7 percent of books under copyright were renewed prior to 1964, when renewal of copyright became automatic.

Copyright law is complicated. I’ve emailed the Permissions Department of Random House to enquire after the status of the book. Perhaps the copyright was never renewed. It’s also possible the copyright was renewed and is still valid through the many acts of Congress passed since the mid-1970s that extended copyright protections for longer periods of time. And if the copyright is still valid, it might be held by the publisher, or held by the translator or his literary estate, or by another party altogether. I’ve still yet to hear from Random House; I don’t know what to expect as a response—anything is possible.

The complexity of copyright is a problem. Copyright, as conceived in 1790 in the first US Copyright Act, meant a term of protection from piracy of 14 years, with renewal for an additional 14 years; to receive the additional term, the copyright holder had to be alive. Simple. And from 1978 until now, copyright extends for the lifetime of the creator plus an additional 70 years after death. Also, simple. But what happens with works copyrighted between 1923 and 1978 is anything but simple—works could be in the public domain, could be orphaned, or could be in copyright for an additional 67 years after publication.

The confusion surrounding these works often prevents interested parties from making use of their content, thus thwarting the ultimate goal of copyright law—the promotion of “the progress of science and useful arts.”

Returning again to the example of Sandemose’s novel, if the copyright status was clear, the novel could perhaps return to print. The publisher could issue a reprint or sell the rights to another firm more interested in turning the text into a new edition or an e-book. Likewise, an organization like HathiTrust (a digital partnership of academic libraries, including Harvard’s) or Google Books could take their digitized copies, currently unavailable for reading but available for full-text search, and share the contents of the book with readers across the globe. As it stands, the book is out of print; there is no e-book other than the one held by HathiTrust; and there are no used booksellers I can find who have a copy on the market.

An opening of the digitized treasure troves of the world’s great libraries is on the horizon, and this November came steps closer to fruition when Google won the lawsuit brought by the Authors Guild; the court ruled book digitization an acceptable fair use practice, when used for preservation and indexing, not commercial activity. Libraries are on Google’s side, with the ALA coming out in support of the ruling—though the ALA does not represent the opinions of all librarians. The Google case was helped, in fact, by a similar case in which HathiTrust won against the Authors Guild on similar grounds of fair use.

I hope the expansion of the fair use doctrine established in these cases portends some change regarding the law governing orphaned works. A House bill in 2006 and a Senate bill in 2008 both failed to bring about change; they died in Congress and never got within inches of the President’s pen.

The US is falling behind other nations that share our common law heritage. Canada reformed its Copyright Act to add licensure for the use of orphaned works. Great Britain did the same in earlier this year through its Enterprise and Regulatory reform Act. Even the EU has already moved to grant public entities (including libraries) the freedom to make use of orphaned works for the public good. The US must take notice of these reforms and implement them to allow the use of orphaned works for the advancement of arts and science, for the continued innovation and growth in our economy.

Whether or not my new pet novel is in or out of copyright is ultimately unimportant. It’s just one of many works of uncertain legal status, another piece of evidence showing that the byzantine nature of copyright hampers the market, creates scarcity of intellectual property without benefitting authors, and chains up information that would rather be free.

Michael ThorbjørnFeehly’14 is a history and Scandinavian studies concentrator in Mather House. His column appears on alternate Thursdays.