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Orphan Works, Copyright Law, Public Domain
joshofalltrades
Class TraitorSmoke-filled roomRegistered User regular
Class TraitorSmoke-filled roomRegistered User regular
In an attempt to allow those who don't have a firm opinion one way or the other on this issue the opportunity to see both sides, I will attempt to provide as many arguments as I can here so that the discourse doesn't begin with an unfair slant towards one side. The Copyright Term Extension Act is central to the debate, so if you are unfamiliar with the ramifications of this legislation I suggest you read up on it, if not the Act itself.
Note: The following are not necessarily my opinions, but simply a list of common arguments that have been made on either side of this issue. My opinion will come afterward.
Arguments For Extended Copyright:
-Some works may be created with the understanding that the copyright will last for a very long time, possibly contributing to the livelihood of the creator's descendants, whereas a short copyright term (i.e. expires at death/10 years after death/20 years from the work's creation/etc.) will dissuade creators who want their work protected long-term, resulting in fewer new works overall.
-Rising life expectancy in First World countries (where the vast majority of copyrighted creative works are made) means we should extend the life of copyrights as well.
-The inability to alter or use public domain works results in creators being forced to create wholly new material without relying on existing works.
-Public domain works are not necessarily distributed in high quality or even high availability. When it is possible to profit from remastering or otherwise presenting a work attractively, as is the case when the work is copyrighted, there is a greater incentive to do so than when no profit is possible.
-Works in the public domain are not the only place from which inspiration can be drawn. Additionally, copyright does not extend to the ideas presented by a work, but simply the expression of those ideas. Further still, the expression may still be used while a work is copyrighted, but must be original in a significant way. Parody, for instance, is still considered fair use even when a work is protected under copyright law.
-Copyright law is also useful to protect a creator internationally, where infringement is (arguably) just as or more common than domestically. Extended copyright allows international authorities to prevent infringement of more current works by not allowing a great distinction due to a work's age. Put simply, the longer the copyright, the less likely international violations of copyright law are a simple misunderstanding because one can assume that anything created during their lifetime (and a significant period of time prior) is copyrighted material.
Arguments Against Extended Copyright:
-Copyright laws are supposed to serve a public purpose in addition to the protections provided for creators. Extending copyright law benefits creators, their descendants and corporations greatly, but the public sees little to no benefit (financially or otherwise) from long copyright terms.
-Public domain is not a wasteland of broken, obsolete works as some proponents of the CTEA claim. Public domain works can have new life breathed into them once they are freely available. Examples of this are Andy Warhol's entire career, Marcel Duchamp's LHOOQ (using a postcard of the Mona Lisa as a found object), and many, many more.
-Allegations of hypocrisy have been leveled at Disney, one of (if not the) strongest proponents of the CTEA. Disney uses works which are in the public domain to create expressions of the original stories, which the company then turns around and effectively keeps copyrighted eternally. Essentially, opponents of long copyrights point out that public domain is being used to create works which will never see the public domain light of day. Additionally, Disney uses this copyright to secure enormous profits for itself by artificially decreasing supply of its own expressions of public domain stories, then periodically flooding the market with them (see: The Disney Vault). It is argued that this practice actually increases piracy of copyrighted works since it is anyone's guess when they will be made available again.
(Note: the entire Disney side of things could be its own thread; I'd rather discuss copyright law as a whole rather than focus on one effect it has on the creative marketplace. This does not mean it can't be discussed at all, but I would prefer it be brought up as part of an argument rather than being the argument itself.)
-Long copyright terms are pointless, corporate welfare, since most profits are made within a short time period after creation of a work. The exceptions to this rule are the wildly successful works which benefit the most from extended copyright terms; essentially, we are protecting the people who make the most money and providing little to no benefit for those who do not.
-While proponents argue that a creator (not necessarily the holder of a copyright) can release their work into the public domain at any time, there is currently no incentive to do so unless a work is obscure and the creator simply wishes to gain the possible benefit of increased awareness.
-Those who collect copyrighted works with the intent to release them upon their copyright expiration as opposed to extending their copyright have been unfairly restricted from doing so for the additional lifespan of the copyright under the new law. This means that the CTEA effectively kept people from using their expenditures for the good of the public for another 20 years after benefactors purchased the works, unconstitutionally introducing a restriction ex post facto on an investment/purchase.
-Orphan works, or works where either the author is unknown or long dead, leaving nobody to claim ownership of the material (including surviving family members, co-creators in a business, etc.) are also subject to this extension. This benefits literally nobody except for whichever person or company can afford to purchase the rights. When no creator is benefiting from a copyright, the public should reap the benefit of a creative work instead of a company/individual.
There are more arguments, of course, but this OP would be massive if they were all included.
So, my own personal opinion:
I've been playing around with the idea of writing some songs themed around a very well-known piece of literature which was published in the 1950s. I actually own a copy of the original work in print form, and wanted to see if it had been released into the public domain yet. It has not. This is a problem for two reasons: one, I don't have the text right here with me, and the text I do own is in a huge hardback volume which contains many other works. I don't really want to haul it around with me when I want to glance at a particular passage or when inspiration randomly strikes. Being inspired at an inopportune moment is a huge frustration; any creative person can attest to this. Two, this essentially means I will have to consult a lawyer at my own expense if I ever want to release my own work for profit. While I am not copying the original material or adapting it and am simply using the source material as a basic theme and inspiring bridge for a modern, original work, it would be imprudent of me not to ensure my work's legality.
I'm no expert on copyright law, if that much was not apparent, but it seems to me we've used a broad brush where a finer one would have been more appropriate. In cases where due diligence is performed and a work has no existing copyright holder, what good is gained by prohibiting its use? I'm all for the compensation of creators, but speaking as a creator who is not wildly successful, it looks to me like the law currently primarily benefits those creators who are wildly successful. Which is fine, everybody including the wildly successful should be fairly rewarded for their work, but I feel that the time period we protect works is entirely too long. I would like a work to belong to its creator until they are dead, at least, and perhaps a short amount of time afterward (10 years? 15?) so that the surviving members of their family can receive the benefits of their inheritance. After all, creative works do not necessarily guarantee a steady income during the life of the creator, and many times the death of a creator will spur another spike in interest for their work. Past that, I can't say that I like the idea of a family empire built around the work of one person who is no longer living or creating new works, perpetually keeping their expressions out of the public domain for the benefit of one family. As they say, you can't take it with you.
Corporate ownership is trickier. We should be creating incentives for corporations to be inventive and constantly create new intellectual properties and works. As it stands, extended copyright diminishes that incentive as soon as a corporation has one wildly successful IP. This does not mean that new IPs will not be created, it simply means that a company can perpetually cash in on existing IPs as long as they can renew the copyright. And a corporation can live far longer than an individual. I don't even have to name names in this paragraph, you're all thinking of the exact same corporation that I'm thinking of. Oh okay, I'll just say it out loud: Lucasfilm.
What? That's not who you were thinking of?
Commercial success and the ability to live off of the Star Wars/Indiana Jones franchises arguably stifled the creativity of Lucasfilm. I'm not saying you can't like some of the more recent things the company put out, but all you have to do is look at what happened with their merchandising. Star Wars toys, Star Wars games, Star Wars Star Wars Star Wars. Once George Lucas realized that his Star Wars franchise was profitable enough to do so, other parts of his empire began exclusively pumping out Star Wars products. This extends to Lucasarts as well; some of my favorite video games were the Tim Schafer/Ron Gilbert/Dave Grossman intellectual properties. They were fresh, original, and had nothing to do with Star Wars. Then in 2002 (3 years after the theatrical release of The Phantom Menace), all new IP production ceased and the company made Star Wars games exclusively until 2009, when they... re-released a lot of their beloved non-Star Wars IPs (in their defense, the SE remakes of Monkey Island were pretty cool).
That's just one example, but you get the gist. I think we need to do some serious analyses on who is actually benefiting from copyright law as it stands and where the law benefits no one, the law should be changed.
Note: The following are not necessarily my opinions, but simply a list of common arguments that have been made on either side of this issue. My opinion will come afterward.
Arguments For Extended Copyright:
-Some works may be created with the understanding that the copyright will last for a very long time, possibly contributing to the livelihood of the creator's descendants, whereas a short copyright term (i.e. expires at death/10 years after death/20 years from the work's creation/etc.) will dissuade creators who want their work protected long-term, resulting in fewer new works overall.
-Rising life expectancy in First World countries (where the vast majority of copyrighted creative works are made) means we should extend the life of copyrights as well.
-The inability to alter or use public domain works results in creators being forced to create wholly new material without relying on existing works.
-Public domain works are not necessarily distributed in high quality or even high availability. When it is possible to profit from remastering or otherwise presenting a work attractively, as is the case when the work is copyrighted, there is a greater incentive to do so than when no profit is possible.
-Works in the public domain are not the only place from which inspiration can be drawn. Additionally, copyright does not extend to the ideas presented by a work, but simply the expression of those ideas. Further still, the expression may still be used while a work is copyrighted, but must be original in a significant way. Parody, for instance, is still considered fair use even when a work is protected under copyright law.
-Copyright law is also useful to protect a creator internationally, where infringement is (arguably) just as or more common than domestically. Extended copyright allows international authorities to prevent infringement of more current works by not allowing a great distinction due to a work's age. Put simply, the longer the copyright, the less likely international violations of copyright law are a simple misunderstanding because one can assume that anything created during their lifetime (and a significant period of time prior) is copyrighted material.
Arguments Against Extended Copyright:
-Copyright laws are supposed to serve a public purpose in addition to the protections provided for creators. Extending copyright law benefits creators, their descendants and corporations greatly, but the public sees little to no benefit (financially or otherwise) from long copyright terms.
-Public domain is not a wasteland of broken, obsolete works as some proponents of the CTEA claim. Public domain works can have new life breathed into them once they are freely available. Examples of this are Andy Warhol's entire career, Marcel Duchamp's LHOOQ (using a postcard of the Mona Lisa as a found object), and many, many more.
-Allegations of hypocrisy have been leveled at Disney, one of (if not the) strongest proponents of the CTEA. Disney uses works which are in the public domain to create expressions of the original stories, which the company then turns around and effectively keeps copyrighted eternally. Essentially, opponents of long copyrights point out that public domain is being used to create works which will never see the public domain light of day. Additionally, Disney uses this copyright to secure enormous profits for itself by artificially decreasing supply of its own expressions of public domain stories, then periodically flooding the market with them (see: The Disney Vault). It is argued that this practice actually increases piracy of copyrighted works since it is anyone's guess when they will be made available again.
(Note: the entire Disney side of things could be its own thread; I'd rather discuss copyright law as a whole rather than focus on one effect it has on the creative marketplace. This does not mean it can't be discussed at all, but I would prefer it be brought up as part of an argument rather than being the argument itself.)
-Long copyright terms are pointless, corporate welfare, since most profits are made within a short time period after creation of a work. The exceptions to this rule are the wildly successful works which benefit the most from extended copyright terms; essentially, we are protecting the people who make the most money and providing little to no benefit for those who do not.
-While proponents argue that a creator (not necessarily the holder of a copyright) can release their work into the public domain at any time, there is currently no incentive to do so unless a work is obscure and the creator simply wishes to gain the possible benefit of increased awareness.
-Those who collect copyrighted works with the intent to release them upon their copyright expiration as opposed to extending their copyright have been unfairly restricted from doing so for the additional lifespan of the copyright under the new law. This means that the CTEA effectively kept people from using their expenditures for the good of the public for another 20 years after benefactors purchased the works, unconstitutionally introducing a restriction ex post facto on an investment/purchase.
-Orphan works, or works where either the author is unknown or long dead, leaving nobody to claim ownership of the material (including surviving family members, co-creators in a business, etc.) are also subject to this extension. This benefits literally nobody except for whichever person or company can afford to purchase the rights. When no creator is benefiting from a copyright, the public should reap the benefit of a creative work instead of a company/individual.
There are more arguments, of course, but this OP would be massive if they were all included.
So, my own personal opinion:
I've been playing around with the idea of writing some songs themed around a very well-known piece of literature which was published in the 1950s. I actually own a copy of the original work in print form, and wanted to see if it had been released into the public domain yet. It has not. This is a problem for two reasons: one, I don't have the text right here with me, and the text I do own is in a huge hardback volume which contains many other works. I don't really want to haul it around with me when I want to glance at a particular passage or when inspiration randomly strikes. Being inspired at an inopportune moment is a huge frustration; any creative person can attest to this. Two, this essentially means I will have to consult a lawyer at my own expense if I ever want to release my own work for profit. While I am not copying the original material or adapting it and am simply using the source material as a basic theme and inspiring bridge for a modern, original work, it would be imprudent of me not to ensure my work's legality.
I'm no expert on copyright law, if that much was not apparent, but it seems to me we've used a broad brush where a finer one would have been more appropriate. In cases where due diligence is performed and a work has no existing copyright holder, what good is gained by prohibiting its use? I'm all for the compensation of creators, but speaking as a creator who is not wildly successful, it looks to me like the law currently primarily benefits those creators who are wildly successful. Which is fine, everybody including the wildly successful should be fairly rewarded for their work, but I feel that the time period we protect works is entirely too long. I would like a work to belong to its creator until they are dead, at least, and perhaps a short amount of time afterward (10 years? 15?) so that the surviving members of their family can receive the benefits of their inheritance. After all, creative works do not necessarily guarantee a steady income during the life of the creator, and many times the death of a creator will spur another spike in interest for their work. Past that, I can't say that I like the idea of a family empire built around the work of one person who is no longer living or creating new works, perpetually keeping their expressions out of the public domain for the benefit of one family. As they say, you can't take it with you.
Corporate ownership is trickier. We should be creating incentives for corporations to be inventive and constantly create new intellectual properties and works. As it stands, extended copyright diminishes that incentive as soon as a corporation has one wildly successful IP. This does not mean that new IPs will not be created, it simply means that a company can perpetually cash in on existing IPs as long as they can renew the copyright. And a corporation can live far longer than an individual. I don't even have to name names in this paragraph, you're all thinking of the exact same corporation that I'm thinking of. Oh okay, I'll just say it out loud: Lucasfilm.
What? That's not who you were thinking of?
Commercial success and the ability to live off of the Star Wars/Indiana Jones franchises arguably stifled the creativity of Lucasfilm. I'm not saying you can't like some of the more recent things the company put out, but all you have to do is look at what happened with their merchandising. Star Wars toys, Star Wars games, Star Wars Star Wars Star Wars. Once George Lucas realized that his Star Wars franchise was profitable enough to do so, other parts of his empire began exclusively pumping out Star Wars products. This extends to Lucasarts as well; some of my favorite video games were the Tim Schafer/Ron Gilbert/Dave Grossman intellectual properties. They were fresh, original, and had nothing to do with Star Wars. Then in 2002 (3 years after the theatrical release of The Phantom Menace), all new IP production ceased and the company made Star Wars games exclusively until 2009, when they... re-released a lot of their beloved non-Star Wars IPs (in their defense, the SE remakes of Monkey Island were pretty cool).
That's just one example, but you get the gist. I think we need to do some serious analyses on who is actually benefiting from copyright law as it stands and where the law benefits no one, the law should be changed.
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When I read your post the first time, I thought you put this in the wrong category. It didn't even dawn on me at first that somebody would consider this to be a good thing.
Honestly, the only argument in the "pro" side that sways me at all is this one:
Even keeping that in mind, life expectancy is a deceptive statistic, as we've discussed in prior threads - in pre-industrialized societies, it's driven downward primarily by infant mortality and the deaths of mothers during childbirth. In the 18th century, if you were an adult male, or a female past childbearing age, you could expect to live to your 60s.
So we're not really talking about a dramatic rise in life expectancy to today. Depending on the time period and demographic, a 10-20% increase. That might justify an increase in copyright term from 28 years to 34 years, but not 28 years to 100 years.
I just don't see any of the other arguments as having any validity.
the "no true scotch man" fallacy.
The Trichordist: David Lowery's blog. Music-focused, but gets into discussions of copyright as a whole.
Music Technology Policy: Also focused on music, but has good copyright focus. One of the few places actively covering the current negotiations.
Copyhype: Personal blog of Terry Hart, Director of Legal Policy at the Copyright Alliance. Covers copyright in multiple fields. Worth reading on Fridays, when he does a rundown of copyright stories worth reading from the week.
These are the symbols of our generation, but we don't own them. Somebody else owns them.
We lease our own culture, and I think that is unjust.
My ideal: I would like to see a copyright term that allows people who grew up with a given property to create derivative works of that property once they are of age. So, for example, an individual who was highly influenced by Harry Potter and the Philosopher's Stone at the age of 12 in 1998, given a copyright term of 28 years, would be able to create a derivative of that book at the age of 39 in 2025 (but would have to be careful not to infringe on the copyright of subsequent books, so perhaps that is a bad example). This allows each generation to build on the artistic works that influenced them.
Perhaps today in the era of movie options and such, 28 years (14+14) is a little too short. That's fine. 20+20 might be reasonable..
I see absolutely no valid social purpose to copyright terms that extend past the life of the original creator(s). Such extensions exist only to benefit corporate license-holders who wish to profit from works that they have not personally created. It's just plain-old economic rent-seeking.
the "no true scotch man" fallacy.
I agree totally and even though I tried to put them there in an attempt to present both sides fairly, it still felt lopsided to me. I may have been missing some arguments on the pro-extension side, and if so I hope they're presented.
One thing about the first argument you quoted that I refrained from including, since it includes my own opinion, is that it's actually impossible to create wholly original works. Everybody takes inspiration from other created works, whether they know it or not. It's a very fine line between homage and imitation, in my experience, and it's very subjective as to which side of that line a work falls on. A work doesn't have less value simply because it took a large amount of its inspiration from another work, especially if that work is widely appreciated. In my opinion.
Everything is fanfic for something that was first put to paper in Ancient Greek.
the "no true scotch man" fallacy.
With the current state of copyright law I don't see how that one's terribly valid, either. A modern copyright is good for 70 years after the death of the author (or 120 years from creation/95 years from publication for corporate-owned copyrights). It doesn't matter how long you live because your copyright is going to hold until 70 years after you're dead. I guess if you created something, had a kid, then died fairly soon after you'd have a reasonable chance of the work going into the public domain before your kid dies of old age. I don't think that's a case that necessitates a change in the law.
So is the destruction of copyright as well. It's just different corporations who win there.
Good thing I'm not arguing for that.
the "no true scotch man" fallacy.
While we clearly both come down on the side of this issue that is against broad extensions of copyright across the board, I have to disagree with this statement just a little bit. Nick Drake's surviving family recently put out a collection of unreleased material on an album called Family Tree, produced with money from posthumous sales of his albums (Drake gained most of his popularity after his death). The tracks on this album had been shared with fans before this release due to the generosity of his family members. If not for a copyright that extended past his death, Drake would have gained little from his own work, but because the copyright extended past his (short) life, he at least was able to provide for his family. Additionally, the unreleased material was freely distributed for some time, voluntarily. This may not have happened if his family's perception was that they really needed the money that sales of unreleased (and unleaked) material would surely bring.
Drake's death was due to suicide, but I know that if I get hit by a bus tomorrow and suddenly all my songs become popular and played on the radio I'd rather my wife and kids see the money from that, at least for a little while, than some random company who bought the rights to my music for cheap.
But, I do agree that corporate copyright terms should be far more restrictive than they currently are, because the scenario I outline in this post is not possible for a corporation.
It's not as though the public domain is starving for material. A person could spend practically their entire life in quality material that's already there. I see no pressing need to rush in adding more material just for the sake of adding more material. The old stuff isn't going anywhere, and each generation will add a new bunch to the pile.
EDIT: I was just thinking about the pieces of art I really loved when i was younger: LOTR, Dune, Heinlein's body of work. So what if great success made any of them rest on their works? Creating something truly great should bring with it the possibility of great reward. Not the certainty of going back to write more under the pressure of financial burdens.
No, not really. There is a vast difference between an idea (which cannot be protected) and the expression of that idea (which can).
I'm pretty sure this was just a joke.
That said, shorter term copyrights never stopped anyone from producing new art prior to the 1950's. In a perfect world it would be on those in favor of new legislation to show the benefits to society of extended copyright terms, in terms of volume of art produced.
Ah, the use of quantitative assessment of an intrinsically qualitative concept. Anyone else see the problem with that?
And here's another argument for the "for" side: copyright is a human right, as laid out in the UN Declaration of Rights.
The problem is that the bold part is no longer true. Provided that corporate lobbying (primarily from Disney) continues to do what it's done with the 1972 and 1998 copyright acts, nothing published after 1962 will ever enter the public domain. Tolkein, Heinlein, and Herbert are all dead. Their children (well, Tolkein and Herbert; I don't think Heinlein ever had kids) are old and, even if no new copyright extensions are legislated into being, will probably be dead before their parents' work enters the public domain. But that's not going to happen even after their deaths, because without a radical shift in the way our government works and the degree to which the general public gives a shit about copyright law, Disney and the like are going to go on buying laws every couple of decades to make sure that Mickey Mouse never enters the public domain. And as long as he doesn't, no new generation is going to ever add anything to the public domain without explicitly doing so.
Copyright laws don't exist to ensure that good art exists; they exist to promote the creation of art. If extended copyright laws encourage the creation of art more effectively than the previously-existing copyright laws did then there should, logically, be more art. What's qualitative about the degree to which a law encourages an act?
And as others have pointed out, no one in this thread has called for the abolition of copyright. You're arguing against a position no one is presenting.
I don't even mind long copyright protections, but the Mickey Mouse laws need to go. Some ideas I've kicked around are:
-Increasingly expensive renewals. Yeah, it protects the already rich, but if your copyright didn't make you rich, why are you protecting it?
-Single Author/Corporate copyright. Single author gets lifetime copyright. Corporate authors, being effectively immortal, get a set time period.
-Put works into a "protected" public domain, which still prevents derivatives. Basically I can distribute all the copies of Steamboat Willie I want, but I can't use Mickey Mouse in my own commercial work.
With respect to copyright law, this may not be the case. Or, at least, I wonder if your distinction is sensible.
My opposition to copyright law is that ideas are not toasters; one cannot own an idea, and so copyright law is based upon a fundamentally goofy premise. You seem to be suggesting that the ideas are not owned, but rather the expressions or instantiations of the idea are owned. Lucasfilm, or whomever, does not own "Star Wars" as an idea, but they have...legal claims on expressions of that idea that practically translate to quashing other's abilities to express the idea in some ways.
Thinking about it...this seems to not be a sensible statement: "I am not claiming to own the idea of Star Wars. Rather, I own the ability to profit off of expressing the idea of Star Wars in forms A, B, C, and D." or "I do not own this sno-cone maker. Rather, I am the only one who can use this sno-cone maker."
That may be the dilemma: The distinction between having an idea and using an idea. Given the structure of copyright law, Lucasfilm, or whomever, are the only ones who can "use" Star Wars. If was maintain this distinction, then "having" an idea seems to be a very inert and inconsequential thing, if we divorce it from using the idea.
Two things.
First, I'm ambivalent to post-death copyright. Take it or leave it, I'm not terrible concerned. My primary concern is that creators do not lose control of their creations within their own lifetimes. That's why I used the examples of Tolkien, Heinlein and Herbert. An argument often put forth on these matters is that life-long copyright makes authors lazy and prevents new works from being made. And my answer is, essentially: meh. If you make something good enough that you can rest on it your whole life, good for you! We're going to have that epic forever, and allowing you to profit from it during your short lifetime is more than worth the many, many, many years we will collectively enjoy it.
Second, this has nothing much to do with corporate copyright law. I think it's possible to maintain that authors get control of their work within their lifetime without supporting extending that privilege to corporations forever. That's why I'd like to do something solid, like a 1 century copyright. That covers the lifetime of the author. The argument against this, of course, would be that no new works would enter the public domain for 100 years. And that's where I'd point out that the public domain already has a lot in it to work with. It's not exactly dying for lack of content. We'll all get along just fine as each concurrent generation releases new content into the pool.
New generations aren't adding anything onto 'the pile.' No works entered the public domain this year, nor will they until 2019 under current law (when there will presumably be discussion of another copyright extension.) Basically, if it was created on or after Steamboat Willie in 1928, don't ever expect it to appear in the public domain.
I'm particularly unconvinced by the idea that old greek literature is all the public domain needs when the last century has created so many new artistic mediums. Film, television, games, entire genres of music, digital art. Is there a compelling reason why the public, and new artists, should not ever be able to benefit from any of that?
If Harry Potter went into the public domain tomorrow, J.K. Rowling would still never have to write anything ever again. I'm unconvinced that a much shorter copyright term would keep creators from being rewarded. How long is it necessary to keep giving her and her children and her children's children rents on her ideas?
By contrast, consider the sciences, which have similar creative processes but very different incentives - you can write a revolutionary paper in the sciences and profit from it, but when someone makes a scientific discovery the assumption is that their ideas are adding into a pool of public knowledge which can be built upon. Should we have to pay Albert Einstein's family every time we use the concepts of special relativity to build new physics equations?
Bear in mind that the goal of copyright is societal good. We imbue authors with a particularly dangerous and unnatural power (the power to suppress certain expressions and ideas with the backing of the state) not because we love authors or creators, but because there are cases where it benefits us. The question isn't how the author benefits from near-infinite copyright, but how society benefits. How does society benefit when our best creations are kept behind locked doors, or orphaned and unusable? How does society benefit when our best creators are incentivized to collect rents on existing work rather than creating new work?
Pretty much this.
No one owned the Iliad and the Odyssey.
The TL;DR for this thread may be "ownership is a troublesome notion".
Oh, sure. I think with a more moderate copyright term, there's no need to artificially cut off the copyright term at a creator's untimely death.
In other words, if the copyright term is 28 years, and an artist dies unexpectedly one year after his work is created, it isn't necessary (and is probably detrimental, for the reasons you described) to immediately end copyright 27 years early.
Rather, when I said above that "I see absolutely no valid social purpose to copyright terms that extend past the life of the original creator(s)," I was referring to schemes such as "life of the author plus 70" or exceedingly long copyright terms that last longer than an individual's reasonably predictable lifetime (such as 100 years).
the "no true scotch man" fallacy.
I'm not sure what this is meant to guard against.
Let's assume a copyright term of 28 years per the copyright act of 1790 (again, I'm not married to that term, it just seems like a reasonable place to start).
Let's say that you release a work that is very popular and 30 years later, somebody creates a derivative work from yours that is lesser in quality.
That doesn't negate the original work, nor does it take away the 28 years of profits you gained from it. It doesn't reduce the awareness people have of your work; if anything it increases it as people say "Yeah, the movie sucked, but Frankie Darling's original book was awesome."
You may find it personally irritating, but the purpose of the law isn't to protect you from personal irritation over the public's treatment of your work (which is why parody, satire, and criticism are all perfectly legal).
the "no true scotch man" fallacy.
That's still not really a problem. You could easily construct a framework of 28 years from (publication or death of author) + 1 possible 28 year renewal.
If that was the case, everything published from 1956/1957 would be in the public domain.
So under that model that mimics the one from 1909 with improved protection for unpublished works:
Examples of works that would Public Domain (that isn't now)
Gone With the Wind (book and movie)
Mr. Smith Goes to Washington
The Wizard of Oz (Judy Garland movie)
Singin' in the Rain
On the Waterfront
Lolita (the book)
1984
The Grapes of Wrath (book and the Fonda movie)
The Bridge on the River Kwai (book and movie)
Fantasia
Blue Suede Shoes
Casino Royale
Examples of works that would soon be Public Domain
Vertigo
Kind of Blue
Some Like it Hot
North by Northwest
Flowers for Algernon
Naked Lunch
That passes the smell test to me. Most of the authors of those works are long gone. Most of them are either irrelevant now or fully ingrained in our collective conscious and should be considered part of our collective cultural fabric. For those still being used actively - such as James Bond with Casino Royale - you have trademark to protect you.
One could also easily argue that making these earlier works more readily available would make teaching them easier. This would make understanding our own society easier and bring attention to the works of approximately two generations previous (which 28 x 2 roughly approximates).
QEDMF xbl: PantsB G+
I think there simply needs to be a bigger distinction between the copyright of a work created at the behest of a corporation and a work created by an individual/small group of individuals who are not a corporate entity.
One of those two things can theoretically live forever.
My philosophy, unless someone can convince me otherwise, is that an individual author or a small group of collaborators should have their ownership protected, but not farther than allowing them to provide for people they knew during their lifetime. A creator should be free to use the money earned from their work to support themselves and the people they knew and loved. But none of this multi-generational, my-grandfather-wrote-a-top-10-hit-so-I-don't-have-to-contribute-to-society-hyphens nonsense. Once the author is dead, and everybody they cared about is dead, that should be the end. Of course, there's no legal way to determine whether the author loved someone, but if a person or persons are stipulated in a will as the recipient of money earned from their intellectual property, or share of the property, that should be honored (at least for a time; I haven't decided whether I think someone should benefit for their entire lives or if it is sufficient to specify a period of time after the death of the original creator). There's no reason to keep that work out of the public domain after, at the very latest, the death of specified beneficiaries and all involved creators.
Corporate copyright is far simpler, in my opinion. Allow a period of copyright, but absolutely no renewals. The time period should be sufficient to ensure those involved are compensated and not excessively long. I don't think there are many, if any, extenuating circumstances where a company would really really really need longer than, say, 50 years to profit from a created, copyrightable work. Even if that work is an inherent part of the corporate culture. They can keep on using it and remind people as often as they want that their company originated that thing. But they don't get to keep other people from enjoying it or benefiting from its inclusion into the public domain.
I addressed that in my last post, I believe:
Anyways.
It's not about what is necessary. I see no reason to cap J.K. Rowling's earnings. She created something fantastic that many people agree is fantastic, and copyright law enables her to profit marvelously from this. I see this as "working as intended". That's the big carrot, the big incentive. Create something good enough and you essentially win the jackpot. This urges creators to create and create, hoping to put something out there that gives them the success they desire. And those that do succeed have essentially fulfilled the purpose of the system in providing society with something epic that will be enjoyed by many.
In all, I think society benefits mightily from this system. Those that succeed do so because they've provided a great service to us. Those that have not yet succeeded strive to do so. In light of this, I see no pressing reason to strip successful creators of the right to their creations. Assuming a reasonable cutoff time, like post-death or 100 years, I'm not seeing the problem.
Of course, that would mean a change from how we currently do it. We agree that infinite copyright should not be a thing. But I'd draw a real hard line at the author's death. Anything before that seems unnecessary.
As a side note, I am also aware that this system is not "why" creators create. One might argue that authors will create one way or another. And to a certain extent that's true. But that should not be an argument for exploiting the benefit creators give us a society. I see copyright law as a reciprocal deal: we reward creators in relation to how much we enjoy their creations. This not only ensures that creator's are not needlessly exploited, but it does bring up new creators who are eager to benefit from this system.
See: the majority of material related in some way to the novel Dune is almost entirely without merit.
None of that has made people re-evaluate the worth of Dune, because Dune is a pretty good book that stands on its own.
I imagine that the mindset of a person writing his or her first novel in when the copyright maximum was 28, 42, or 56 years would be rather different from people who were (probably; I don't know how old you people are) born around or after the 1976 act that basically made it permanent. We've all grown up in a world where people can basically assume that they will always have creative control of works that they produce. A work I create entering public domain naturally during my lifetime is completely alien to my life experience. Yet back when the first copyright act was enacted in 1790, less than 5% of published works were copyrighted over the next 9 years (back then copyright was strictly voluntary; you didn't just get it).
Presumably writers of the time felt rather differently about it than we do now. Does anyone know of any writing by authors about copyright acts being passed in their lifetimes?
You do address this in a later paragraph, but I really want to stress how much I think you're misunderstanding the incentives of creatives here. I'm an artist and I've met literally hundreds of other artists in my lifetime, and no artist I've ever met has ever told me "Oh yeah, I'm only making things so that my children's children might be able to collect rents on my work." The idea that that should be our incentive seems transparently silly.
Art isn't gambling. Artists aren't creating in an attempt to hit the 'jackpot' and have all generations of their families set for life. Certainly some artists create out of a financial incentive (usually among other incentives), but to suggest that perpetual copyright is needed for artists to create ignores the history. As an example, consider PantsB's list of works above that would, under less restrictive copyright law, now fall into the public domain - all of those artists created their works under a much shorter copyright law, and the copyright law was then extended retroactively to keep the public from getting their hands on Mickey Mouse. The creators already created those works without the incentive of a long copyright. That incentive was added after the fact. To give credit to the extended copyright for those creations ignores the order of events.
I'd say the purpose of the law is to ensure creators are protected, thus encouraging other creators to add their own contributions. Overall, society receives the benefit of more content. In that light, protecting an author's work from unaffiliated and derivative works certainly seems reasonable. In fact, we know it's reasonable. That's what the law has always done.
Extending it to the creator's lifetime, or a set time that will encompass said life, does not seem unreasonable to me. I'd say the original 28year term was a good idea that didn't go quite far enough. The creators of the law clearly recognized the fact that creators should have control over their creations in this fashion... it's a bit beyond me as to why they thought creators should later be stripped of that right.
This one's easy - let's take a simple idea: "a small group of kids find they have a talent for magic, and must learn how to use it while combating evil".
So, tell me what book series I was describing: Harry Potter, Percy Jackson, or Young Wizards.
Trick question - I was describing all three.
This is the fundamental difference between an idea and its expression.
Let's do another: "a player is locked in a futuristic MMO and must solve the game's mysteries to return to reality."
.hack, right? Nope, I was talking about the Aincrad arc of Sword Art Online. (And no, they didn't crib off of each other, but were contemporaries.)
Hell, I can even do it with your example - take the underlying concept of Star Wars, change the setting from "space opera" to "feudal Japan", and we get the movie that inspired it, Kurosawa's The Hidden Fortress.
If the ownership / benefits of a notion can extend beyond the individual, why cut it off at "people they knew during the lifetime"? Why would an individual be allowed to provide for their children, but not their children's children?
Arbitrary line is arbitrary.
I am having a tough time finding actual written impressions of the 1790 copyright laws, however:
The very first copyright Act allowed for renewal only if the author was still alive. Not to say that this was the best solution one way or the other, just pointing it out as an interesting part of the first official law in the US.
An interesting part of the 1976 Act is that if you let a work enter the public domain, you have 5 years to reapply for renewal. Which blows my damn mind.
Y'know, I've read that and always assumed it was so that if some schlub at Disney forgot to renew the copyright on some short from 1934 they'd have a little leeway to go back and fix things, but I'm curious whether it's already happened. I mean, what happens if it does? I mean, five years is a while. What happens if a work goes into the public domain, I write a novel or make a movie or whatever using this public domain material as a source, and then the prior owner comes back and gets a renewal? Do I now owe damages? Or if my work was still in production when the copyright got renewed? Whoops! There goes $50mil on a movie we can't ever release!
Edit: Well, no, I guess it couldn't have already happened. The retro-extension only works on things protected by the '76 act, which are all still under copyright.