Copyright law hides work like Zora Neale Hurston's newly published first book

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76 pointsblahedo21 comments

This is to say nothing of the fundamental legal abhorrence of the idea of retroactive copyright extensions.

Copyright exists as an incentive to create works; in return for creating them, the creator gains exclusive right to monetise the work for a period of time, before that work passes into the public domain and becomes part of shared culture.

If I've already been incentivised by copyright to create something, and have in fact created it, how can a retroactive extension of copyright further incentivise me to create the thing I've already created?

If I paid someone to build a house, and they built it, it would be absurd to go back to them after the house is built and pay them more money to make sure they build the house that they've already built.

Note that I am personally anti-copyright at this point. But the idea that retroactive copyright extension cannot incentivize creativity is a bad argument.

Retroactive extension sabotages the public domain. Without the public domain, there is more incentive for new work.

If we DESTROYED all books written more than 10 years ago, I guarantee there'd be an increase in sales of newer books.

This is obviously not in the public interest. It's the broken-window fallacy at best.

Yes, copyright extension is like paying the builder of your house extra for no reason. But it's also like charging extra fees for the ways older houses aren't up to the latest codes as a shitty way to further reduce their value in the market in order to give new construction a better competitive edge. Not that it's good to build new houses as an end in itself if there's good older houses available — but if you're focused on the interests of home-builders instead of the public interest…

Honest question: Why isn't copyright something you simply pay to renew at some exponentially growing rate? You get X free years now and then year X + N costs 2^kN, for some X and k. That way you internalize the negative externality of locking up interesting works. Disney is happy and estates who choose to renew copyright need to be sure they're doing something with it

Some have proposed even a token renewal fee to fund a registry, or even a postcard registry, which would eliminate the orphaned works problem while limiting the impact on publishers.

Mostly this doesn't work because of the Berne Convention, which made assumptions about how copyrights should work, then enshrined them in a multilateral treaty, which in turn is implemented in a framework of laws among various signatories, making it all now incredibly difficult to unwind.

https://en.wikipedia.org/wiki/Berne_Convention

I have to study that in more detail, but is there something in Berne convention that prohibits taxation of intellectual property? I mean, I have thought that a country could say that, yes, we do recognize the intellectual property, but if the intellectual property holder is not recognizing and respecting our (tax) laws, we are for sure not going to use a dime to actually enforce that IP.

Wait, what I want to ask is: Why doesn't anyone perform Sci-Hub-like vigilantism to save these works, i.e. scan the books and put them on line? Without big-pocketed companies like Elsevier (or music labels in the days of Naspter) to fight against it, such a site would have few natural enemies.

EDIT: The more I think about this the more I get riled up about the current state of affairs in orphan books. I'm willing to start a project like this or contribute it to it in any way, please ping me if you have such a project or just feel the same way.

Indeed, this is exactly what scanslation groups did with manga. There was a time when manga was largely unheard of in North America. It's now massively popular. When publishers like Viz was getting started, they were licensing volumes of manga for as little as $1000 per volume -- with no royalties!!! (I happen to know this because the scanslation group I was involved with actually tried to license the manga we were subbing -- we just got stymied with the complications of printing and distribution).

I have to caution you, though, that you could get sued at any time. In some countries it's even a crime and you could go to jail. Our scanslation group was pretty under the radar and only scanslated manga that was no longer in print (the price I quoted was not for that... it was something quite a bit more popular. I just can't remember the title -- Possibly Inu Yasha... anyway, one of the big Viz titles). I am 100% certain that the Japanese publisher knew what we were doing and politely looked the other way in our case. This will not be the case for all publishers out there. You might be trying to work in their best interest, but they won't see it that way.

See also: Google v. aap re: orphan books.

I think a site similar to Sci-Hub to host, say, 10k orphan works is not equivalent to Google's planned scanning of very large number of books and potentially profiting from them (if not from selling them at least from using the text as input to their various ML systems). If you provide the works freely you undermine many of the arguments that AAP had.

The Internet Archive, besides their fantastic work in web archiving, also does digitalization of books: https://archive.org/scanning

Seem more here: https://blog.archive.org/2017/10/10/books-from-1923-to-1941-...

Doesn't LibraryGenesis cover this space?

My experience is that LibGen is somewhat weak in the literary space. For example, it doesn't have any book by Lola Ridge, the poet mentioned in the article.

This is the third article I've seen in a week about how terrible copyright law is.

Is there some copyright related event coming up soon?

Yes - the most recent extension to copyright in the US expires on Dec 31, 2018. Unless Congress passes another extension, a whole selection of older works will pass into the public domain for the first time in decades on Jan 1, 2019.

In the past, Disney has been successful in lobbying Congress to extend it to prevent Steamboat Willie (the cartoon where Mickey Mouse first appeared) from entering the public domain, but it appears that they aren't actually making a push to do so this time - fingers crossed, this might actually happen.

What would this mean for usage of the Mickey Mouse character? Would people be free to use images from the older cartoons in new work? What about more recent updates to the character's design?

It's super interesting -- you end up in a situation where the bare character can be used, but subsequent developments of the character remain under copyright. This actually makes it extremely difficult to use characters since you wind up in a situation where the modern character as you understand it is inaccessible.

Sherlock Holmes is a famous example of this -- good overview of the extended legal situation here: https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?refe...

That was an interesting read. After reading both that and the other comments the only solid conclusion I can come to is that literary and visual intellectual property are handled differently, as evidenced by thid quote from the paper:

Judge Castillo stated that “[b]ecause the Seventh Circuit’s incremental expression case law focuses on images rather than literature, it is difficult to apply its precedent seamlessly.”

Other examples are Conan and Tarzan.

Since many depictions of Mickey are registered as various trademarks of the Disney conglomerate, things will basically shift from copyright to trademark law and they will be less able to say “you shall not pass” but they can definitely still make your life hell if you cross them.

Edit: I forgot to mention that I suspect that Disney started using their new pre-movie intro motion graphics that are heavily derived from steamboat willie as a bit of a hedge, since they get a reasonably strong defence from the complete inclusion of the opening sequence of steamboat willie against potentially confusing trademark infringement. It’s also a sneaky way to get a new copyright covered variant of their original material.

(IANAL) It depends also on the specifics of the law. For example, in Finland the copyright protects only the actual works, not any "idealized" representations such as the "character". That means that you are free to produce your own work with a character that resembles Mickey Mouse and own a copyright for that, as long as you can reasonably show that you haven't copied any Disney's copyrighted work verbatim. The only weapon Disney has against that is the trademark law so if you do it non-commercially (or commercially in a way that doesn't violate trademarks, whatever that means), you are free to do so. Not that I recommend doing so, because that's asking for trouble. But there's this Finnish artist, Kaj Stenvall, who does exactly that with his Donald Duck series: https://www.google.com/search?q=kaj+stenvall&client=firefox-...

> What would this mean for usage of the Mickey Mouse character? Would people be free to use images from the older cartoons in new work? What about more recent updates to the character's design?

Copyright protects the exact expression, but not the general concept. Mickey Mouse is already protected under trademark law, so while Steamboat Willie entering the public domain means you could redistribute that particular film, you wouldn't necessarily be able to do a lot else with the character without infringing on an established mark of Disney.

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