Smith on Editing Classic Books: A Threat to the Public Domain? @CathaySmith @umontanalaw

Cathay Smith, University of Montana School of Law, is publishing Editing Classic Books: A Threat to the Public Domain? in volume 109 of the Virginia Law Review Online. Here is the abstract.

Over the past few years, there has been a growing trend in the publishing industry of hiring sensitivity readers to review books for offensive tropes or racial, gender, or sexual stereotypes. In February 2023, for instance, reports that Puffin Books had edited several classics by Roald Dahl—in consultation with sensitivity readers—generated immediate backlash from the public and several renowned authors and politicians. While most of that backlash focused on accusations of “censorship” and “cancel culture,” this Essay examines an actual legal consequence of revising classic books: the creation of copyrightable derivative works in updated editions. Derivative works are new works based on or built off of preexisting works. The creator of a derivative work can obtain copyright protection by adding sufficient original expression to the preexisting work. The creation of derivative works, especially from public domain works, is generally encouraged because derivative works can foster creativity, disseminate culture and knowledge, and allow original works to reach new audiences. However, this right can also be misused and misapplied. Specifically, while in derivative works only extends to the new materials added to an underlying work, there are instances where overreaching copyright claims and ambiguous lines between the original work and the derivative work can have the practical effect of extending exclusive rights in the original underlying works. This Essay examines editors that have claimed copyright in new illustrations or new editions of classic books, and considers the potential to create copyrightable derivative works when editors revise and publish new editions of classic books that remove cultural, ethnic, and gender stereotypes. It argues that copyright law must strike a balance to ensure follow-on creativity is encouraged and editors are rewarded for updating classic books to suit a modern audience and readership, but it must also guard against the inadvertent consequence of diminishing the public domain of classic books.

Download the article from SSRN at the link.