So notice, then, how different our access to books is from our access to documentary films. After a limited time, almost all published books (but not all: put aside picture books, poetry, and, for reasons that will become obvious, an increasing range of relatively modern work) can be republished and redistributed. No heir of a long-dead author will stop us from accessing her published work (or at least the heart of it–some would say that the cover, the foreword, the index might all have to go). But the vast majority of documentary films from the twentieth century will be forever buried in a lawyer’s thicket, inaccessible (legally) because of a set of permissions built into these films at their creation.
Things could have been different. Documentary films could have been created the way books were, with writers using clips the way historians use quotations (that is, with no permission at all). And likewise, books could have been created differently: with each quotation licensed by the original author, with the promise to use the quote only according to the terms of a license. All books could thus be today as documentary films are today–inaccessible. Or all documentary films today could be as almost all books are today–accessible.
But it is the accident of our cultural history, created by lawyers not thinking about, as Duke law professor Jamie Boyle puts it, the “cultural environmental consequences” of their contracts, that we can always legally read, even if we cannot legally watch. In this contrast between books and documentaries, there is a warning about our future. What are the rules that will govern culture for the next hundred years? Are we building an ecology of access that demands a lawyer at every turn of the page? Or have we learned something from the mess of the documentary-film past, and will we create instead an ecology of access that assures copyright owners the incentive they need, while also guaranteeing culture a future?