Controversial Changes to Public Domain Works

by Muskingum University Library

A considerable number of today’s copyfight discussions revolve around the usage of DRM to prevent transformative uses of works, to prevent the sharing of works, and to generally limit how individuals engage with the cultural artefacts around them. This post takes a step back from that, thinking through the significance of transforming ‘classic’ works of the English literary canon instead of looking at how new technologies butt heads against free speech. Specifically, I want to argue that NewSouth, Inc.’s decision to publish Huckleberry Finn without the word “nigger” – replacing it with “slave” – demonstrates the importance of works entering the public domain. I restrain from providing a normative framework to evaluate NewSouth’s actual decision – whether changing the particular word is good – and instead use their decision to articulate the conditions constituting ‘bad’ transformations versus ‘good’ transformations of public domain works. I will argue that uniform, uncontested, and totalizing modifications of public domains works is ‘bad’, whereas localized, particular, and discrete transformations should be encouraged given their existence as free expressions capable of (re)generating discussions around topics of social import.

Copyright is intended to operate as an engine to generating expressive content. In theory, by providing a limited monopoly over expressions (not the ideas that are expressed) authors can receive some kind of restitution for the fixed costs that they invest in creating works. While true (especially in the digital era) that marginal costs trend towards zero, pricing based on marginal cost alone fails to adequately account for the sunk costs of actual writing. Admittedly, some do write for free (blogs and academic articles in journals might stand as examples) but many people still write with the hope earning their riches through publications. There isn’t anything wrong with profit motivating an author’s desire to create.

Problems do arise, however, when copyright strays from its original purpose of generating speech. When copyright functions as a kind of ‘property’ right that unduly distorts or undermines subsequent expression because of its duration there is a problem. If individuals cannot transform poignant cultural artefacts in making their own statements, with the effect that their expressions lose credibility and communicative force, then the law of copyright threatens to weaken expression. In short, copyright that significantly limits creative possibilities for extended periods of time has the capacity to weaken, or muffle, the impact of speech (Netanel, p. 30).

In the case of Huck Finn, we see a publisher transforming a public domain work and then releasing it to the market. To be clear: NewSouth isn’t forcing all old copies of the text to be burned, they’re not requiring that everyone buy the new version, nor are they forcing all publishers to adopt the same kinds of changes. They are not the sole publishers of the text. In changing the words “nigger” to “slave”, however, they are (potentially, at least) transforming the character of the book’s text. This may lead to new narratives, new questions, new insights….or it might just lead to narrative confusion and worsen the strength of the text. These are open questions, ones that should be examined prior to the book being used as a pedagogical tool. Much as changes in the musical and film genre of mash up provoke new ways of engaging with music and video, NewSouth’s transformations promise new kinds of engagements with the text, as well as with the publishing and authorial responsibilities involved in producing a text. While the quality of the transformation can (and should) be subject to cultural and aesthetic evaluation, the fact that transformation is itself permissible should be subject to divergent standards: is the transformation illegal? is the transformation an expression? Assuming the former response is negative and the latter positive, then the transformation itself should be permitted and encouraged.

Readers might be asking what right NewSouth has to go and modify the works of Twain; doesn’t he have moral rights that should preclude transformations of the work that are in contravention of his initial intentions? Perhaps, but his work has been in the public domain for a considerable period of time – he no longer has a copyright interest in the work as he did whilst the work was under copyright. Netanel nicely articulates most of my position on this matter of authorial rights, stating that

Authors do have a speech interest in presenting their work to the public in the precise formulation, context, and media that they believe will best convey their message and aesthetic sensitivities…However, an author’s speech interest in presenting his work in unadulterated form and context does not extend per se to an exclusive right to control each and every instantiation of his work. (Netanel, p. 49)

Ethically, perhaps, a publisher might feel obligated or be expected to identify their transformations but such a position is a comparatively new development in the ethics of publishing. The ‘great texts’ that we teach our students – Plato, Aristotle, and the like – have underwent considerable transformations that were rarely credited. Such modifications were not ‘illegal’, nor were they ethically bankrupt. Instead, they were reflections of a literary culture’s engagement from their cultural artefacts. I’m not advocating for a return to pre-Gutenburg ethics of publication, but simply reminding readers that ‘ethics’ are contingent to the cultural/social/political framework(s) of the day: ethics are not morals, and we shouldn’t hold them up as such.

Arguably, the contest around the ‘appropriateness’ of the transformation by NewSouth underscores the ongoing tension around notions of copyright itself. As Lessig has noted, we are at a point in history where we are so concerned about protecting copyright that we have lost sight of it’s actual purpose (Lessig, p.19). Patry nicely builds on this point, writing

Copyright owners also ignore that what they regard as a right is instead a government grant specifically for the benefit of society, not authors … The benefits to the public are, therefore, of greater importance than the benefits to authors. (Patry p. 123)

In this case, copyright served its purposes (in theory, it was part of the reason why Twain wrote) and the monopoly right has since lapsed. The work is now being transformed, enabling subsequent speech acts and expressions that are made more resonant because of the cultural import of Twain’s work. Copyright served its purposes, and now we enter discussions of the present public value of new expressions based on public domain sources. The public domain is working.

So, what does public domain work ‘do’? In a significant way, it lets creators appropriate, modify, and reframe what has gone before. Ideally, the appropriation of the past is done in such a way to improve the subsequent cultural artefact that is created. Failures to approximate the ideal, however, need not be ‘abolished’ or pre-censored – a standard of excellence for playing with one’s culture need not be developed and adhered to as a precursor to appropriating work in the public domain. Many audio and video mash ups are horrific, and the same is the case with written mash ups and transformative instantiations of texts. Does this mean that any and all transformations are permissible, that anything goes? Only to a certain extent.

First: We have hate speech laws, and various other laws that constrain the range of expression that can be articulated. Such laws will continue to frame the kinds of speech that can be made with public domain works. State-backed speech laws thus act as one boundary that limit how public domain works can and should be appropriated for transformative purposes. In some cases such laws may be inherently censorial, in which case they need to be challenged. Regardless, the law will shape some speech and thus uses of the public domain.

Second: We need to make a distinction between what NewSouth is doing and a uniform, forced, and totalizing censoring of a text. The latter instance of censorship is best exemplified by publishers forcing authors to modify texts pre-publication for purely political reasons, or e-versions of texts being modified and the modifications forced upon all e-readers. Uniform and forced censorship would also be evidenced if a state exerted its power and attempted to ban or modify public domain works without any semblance of legitimate debate. As engaged modern citizens we arguably need to resist instances where the uniform and incontestable modification of a public domain work that both transforms the work and makes the ‘original’ iteration of the text effectively unavailable.

In the case of NewSouth, however, we’re dealing with a localized, particular, non-uniform transformation. There is a change to the words of the text but this doesn’t have the same qualitative impact as an all-out uniform and unquestionable modification. NewSouth should be encouraged for doing something daring with a public domain work. This said, encouraging transformative uses doesn’t mean that we accept changes without question; we need to seriously and critically interrogate the modifications. What is important, however, is that we not prevent those changes: part of authorship and being an engaged citizenry is critically engaging with the way cultural artefacts are produced and disseminated. The ire raised by NewSouth indicates that we’re dealing with a transformation that is inciting members of society to talk about issues of truth, culture, history, racism, and so forth. These are incredibly important issues, and it’s a good thing to have discussions about them as members of a (hyper)literate society. Transformation of works is to be encouraged, and it’s something that’s often discouraged by contemporary instantiations of copyright – this is one of the key ways that copyright works to stiffle and muffle free speech.

Importantly, because Twain’s work is public domain NewSouth can transform the text and provoke questions around authorship, race, and cultural origins. We can ask whether the change is ‘appropriate’ or not. We can evaluate what normative frameworks should be used to adjudicate the ‘correctness’ of transformations of cultural artefacts. We can debate, publicly, the values built into notions of modern copyright and publication monopolies. NewSouth’s expression is an expression of free speech, as are the strident (and often disapproving) discourses being struck up around the company’s speech act. The cost of free speech, as it were, is that sometimes things are said or expressed that we don’t like. When we dislike speech (as may be in the case of NewSouth’s particular transformation) we can publicly engage with one another – their own speech act stands within a broader matrix of public discourse; NewSouth’s act does not stand as a uniform, fixed, and separate expression that stands outside the public sphere.

Further, we need to consider what kind of discussion we would be having if Twain’s works were still copywritten. If it were, then our present discussion would be more abstract and use hypotheticals; to use Netanel’s language it would be ‘stiffled’ or ‘muffled’ because NewSouth would have been unable to transform such a poignant text in making their expression. Much of the potency and vigour of the present discourse arises because Twain’s works are themselves significant to the English canon. As a consequence, the discussions online, in homes, and in schools resonate that much more loudly. The public domain enables key modes of discussion that draw on cultural prizes, and the debate around Huck Finn serves to show us just how important it is for texts to be subject to transformation: once in the public domain entirely new, unexpected, unpredictable, and exciting discussions can arise within the public sphere. The public domain fuels many of our expressive possibilities; more works need to enter it so that the public can be enriched by creative works in manners impossible (or, at least illegal) when authors/publishers retain and exercise their fully copyright monopoly over works.

Print Sources

L. Lessig. (2004). Free Culture: The Nature and Future of Creativity. New York: Penguin Books.

N. W. Netanel. (2008). Copyright’s Paradox. New York: Oxford University Press.

W. Patry. (2009). Moral Panics and the Copyright Wars. New York: Oxford University Press.

2 thoughts on “Controversial Changes to Public Domain Works

  1. Excellent and thoughtful examination of the issues. But I have two nit-picky and minor comments, and I only make these comments because I see in the “About the Author” section that you are a PhD candidate, and these are two pet peeves of mine about grammatical errors that I think anyone with a PhD should never make. These are just nails-on-the-blackboard things that irk me.

    First, you write:

    “The ‘great texts’ that we teach our students – Plato, Aristotle, and the like – have underwent considerable transformations that were rarely credited. ” “Have underwent”? Eeesh!

    Second, you used the word “copywritten”. That is incorrect. If the root word were “copywrite”, it would be correct, but the root word is “copyRIGHT”, so the correct word in this case is “copyrighted”.


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