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Gatz, Public Theatre, New York
Gatz at the Public Theatre in New York. Photograph: Joan Marcus/AP
Gatz at the Public Theatre in New York. Photograph: Joan Marcus/AP

Copyright comes a cropper in the digital age

This article is more than 13 years old
Robert McCrum
Public-domain campaigners have the holy grail of publishing in their sights

The big stage hit in America last year was a novel, "the most remarkable achievement in theatre this decade", according to the New York Times. Gatz was a word-for-word presentation of F Scott Fitzgerald's jazz age masterpiece, The Great Gatsby, by an experimental group, the Elevator Repair Service.

Artfully staged to dramatise a group of office workers falling under the spell of Fitzgerald's hypnotic prose, Gatz transmitted its magic to successive audiences who became swept up in the heady rush of falling in love with a book. A six-hour marathon at the Public Theatre, Gatz became a sell-out, the hottest ticket off Broadway.

But it nearly wasn't. Before it reached Manhattan, Gatz had been touring as an out-of-town production for months, while the Fitzgerald estate's lawyers wrangled with the show's producers over copyright permission.

As of 1 January, however, the issue has become moot. The Great Gatsby's term of copyright is up; the novel is now in the public domain and will join such American classics as Moby-Dick and The Scarlet Letter, books freely available to one and all – readers, publishers and producers alike.

The Fitzgerald lawyers were obstructive, but they were only doing their job. That's how literary estates behave. So much is at stake that copyright holders sometimes go to great lengths to protect their property.

The DH Lawrence estate, for example, commissioned a brand new, scholarly edition of Lawrence's work, effectively to re-copyright its texts. The Observer's most famous literary editor, Terence Kilmartin, was also caught up in copyright shenanigans when he undertook a revision of Scott Moncrieff's translation of A la recherche du temps perdu, a manoeuvre designed to foil rival editions.

Copyright law is subject to international variations. In Japan, New Zealand and Taiwan, the term of copyright runs for 50 years after the author's death; in the Yemen it's 30. In the UK, which has a fairly standard ruling (complicated occasionally by EU directives), copyright applies for 70 years from the death of the author. In America, the copyright term is also 70 years, but this only applies to works published since 1978.

Even so, in the age of "free content", not everyone accepts these norms. In California, there's a radical movement that regards copyright law (of all kinds) as a grotesque – even sinister – restriction on the unfettered traffic of knowledge. Led by James Boyle, author of Shamans, Software and Spleens: Law and the Construction of the Information Society, the Free Culture Movement wants to toss copyright legislation into the dustbin of history.

Boyle, based at the Centre for the Study of the Public Domain, in North Carolina, believes the ground rules of the information society are out of date. He has begun to open up to unsentimental scrutiny the holy grail of literary copyright, asserting a new legitimacy for the commercial idea of "the public domain".

Writers such as Boyle are developing a theory of copyright which argues that "the commons of the mind" should be freed to liberate a moribund society. Open networks, runs the argument, will immediately have a positive effect on our culture.

Indeed, it is now feasible that the copyright conventions by which publishers live and die will soon have the contemporary relevance of a papyrus. Newly digitised texts will become subject to the awesome power of online bookselling. According to Chris Anderson, the author of Free, once something becomes software it inevitably becomes free.

Free speech, cultural access, digital creativity and the innovations of science have become the watchwords of the "free" movement, but my guess is that technology will wreak far greater change than any copyright lawyers.

This recent Kindle Christmas will be seen as a turning point. For the first time, millions of people received, as gifts, the means to access the digitised treasures of our literature. The First Folio? Click. All of Dickens? Click. The Great Gatsby? Click. In this new literary landscape, in which everything seems available, the restrictions of copyright will seem increasingly perverse. Who knows what the upshot will be? One thing is certain, as Fitzgerald so memorably puts it: "So we beat on, boats against the current, borne back ceaselessly into the past."

A character-forming lesson for novelists

The excellent latest edition of Prospect, now under the editorship of Bronwen Maddox, contains a thoughtful piece about creative writing schools, from Iowa to Norwich, by the occasional Observer book reviewer and first-time novelist Leo Benedictus. "Like all writers in search of readers," he declares, "we will always willingly exploit ourselves." The full meaning of this rash manifesto becomes clear from my advance copy of The Afterparty, "a new kind of novel", according to publisher Jonathan Cape. Not only does this satire on "the dark underbelly of 21st-century celebrity" feature a character named Leo Benedictus who pens pieces for the Observer and Prospect, it also invites its readers into a competition to make cameo appearances in the forthcoming paperback edition. Hardly the kind of thing they teach at UEA.

Farewell to one of journalism's greats

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