Why Are So Few Books From the 20th Century Available as Ebooks?

If you're looking to read a best-selling book from 1922 or earlier on your Kindle, you're in luck. Just about all popular books published between 1913 and 1922 (94 percent, to be exact) are available today as ebooks, often for free.

But for books published 1923 and later, the picture is dramatically different. Just 27 percent of 167 bestsellers published between 1923 and 1932 are available in authorized digital formats.

Why? Because 1923 is the magical dateline that divides America's intellectual property into two: the era before 1923, from which all work is now in the public domain (with a few exceptions), and everything after, most of which is protected by copyright. Those books that are in the public domain are much, much more likely to be available as ebooks. (They are also much more likely to be available in print, as I've written before.)

But here's the thing: A new study by the University of Illinois' Paul J. Heald finds that copyright protections didn't have the same effect on music. In fact, songs after 1923 seem to be more common online than those in the public domain.

Using a database of popular songs from 1913 to 1932 with unique names (to keep the data neat), Heald found that the vast majority of songs were available on iTunes, regardless which year they were from, "most of them with recordings from multiple artists." For the public-domain years, 1913 to 1922, Heald found that 72 percent of the hits were on iTunes. For the years 1923-1932, 96 percent were.

The picture was similar on YouTube, where 70 percent of the public-domain songs he looked at were available compared with 77 percent of the copyrighted ones. On average, public-domain songs appeared 9.8 times on the site, and copyrighted songs appeared even more, averaging 14 different videos per son. "Copyright status," Heald writes, "seems to provide little impediment to the availability of these 385 old songs on YouTube."

Why are copyrighted songs more common online, not less? Heald says that the answer may have little to do with copyright and more to do with taste: "Previous data [has] suggested that songs on the more recent side of the 1923 divide were intrinsically more popular." Data seems to support this too: Songs from the later period, 1923 to 1926, averaged substantially more views (112,000), compared with those from the earlier period, which averaged just 39,000.

So why is it that copyright seems to have so little impact on the availability of early-20th-century music and yet has dramatically shaped the market for books from that time?

Heald offers a couple of theories.

For one, there's the fact that it's just much easier (and therefore cheaper) to digitize music than it is to digitize printed text. As Heald explains:

Another reason: Music, especially old music, is easier to consume, relative to books. A song requires just an investment of a few minutes, and services like Pandora may help to surface obscure, older compositions. An old book, by contrast, can be an undertaking, and consumers may not be all that interested, absent a compelling reason, such as an assignment for a class or a recommendation from a friend. "The comparative attractiveness and efficiencies present in the music marketplace may provide more of an incentive for music publishers to digitize, as opposed to book publishers," Heald writes.

But neither of those is the true culprit, Heald thinks. Really, the reason old music is widely available online and books are much rarer has to do with two court cases that interpreted copyright differently for the two mediums.

Book publishers, as per a 2002 court decision Random House v. Rosetta Books, must get an author's permission to republish a book as an ebook. Publishing houses, the Second Circuit court found, had the rights to publish the work "in book form"—a form that was found to exclude ebooks. If publishing houses wanted to make an ebook of a book they had published, they would have to renegotiate each book with its author.

For record labels, the opposite is the case, the result of a 1998 Second Circuit decision Boosey & Hawkes Music Publishers, Ltd. v. The Walt Disney Company. In that case the court was asked to decide whether Disney had violated the copyright on Stravinsky's Rite of Spring, which appears in the Disney film Fantasia, when Disney had released Fantasia on video. Boosey, who held the Stravinsky rights, argued that the original 1939 license covered the "only format known at the time, acetate-based film produced for viewing in theaters."

The court disagreed, siding with Disney: "Converting old music to new formats did not require the licensee to negotiate a new license with the copyright owner," Heald writes. For this reason, "music publishers can proceed with the digitization of their back catalog without competing to re-sign authors or hiring lawyers to re-negotiate and write new contracts."

Over email, Heald explained that he believes that legal framework is the significant reason behind the disparity, not the technological problems of scanning books or those of consumer preferences. "I would expect the gap between music and books to close quickly if copyright law were reformed.  Remember that we see a 94 percent ebook rate among public domain bestsellers from 1913 to 1923. Even if books are more expensive to digitize and the market for eBooks is less profitable, we still see high digitization rates when copyright restrictions are eliminated."