What Could Have Been Entering the Public Domain on January 1, 2011?
law.duke.edu
law.duke.edu
And yet Hollywood keeps buying the legislators and perpetuates this broken system.
Basically: The product of a human being's work is rightfully his property; that's part and parcel of living in a civilized society. Doesn't matter if that work is entirely "intellectual" or not. The fact that it's physically easy to steal intellectual property does not make it right.
People who make arguments about natural rights typically also think that if people's natural rights are not respected, that is going to ultimately be a net loss for society. I agree with that in the case of intellectual property. If people's intellectual property rights are not respected, it will not be profitable to develop intellectual property.
Although we shouldn't shun abstractions, it's also important not to shun concretes. In this case: you claim that it's important for the public good to move works into the public domain. Well, how is it good for the public to move Horton Hears a Who or Sports Illustrated into the public domain? Much less Waiting for Godot.
Society will grant you a reasonable amount of time to make money off your work with legal protection. After that time's up, your work belongs to society.
Seems like a fair economic exchange to me.
As far as I know, it's been good for everyone that Shakespeare's works are in the public domain.
In the absence of copyright the author would have no protection what so ever and would be at mercy of society at large. With copyright they gain protection from the public domain which we, the public, give them in exchange for the cultural creations this protection entices.
If they in exchange of this protection returns nothing to society (i.e. infinite retro-active copyright extensions), then we as a society should have no reason to provide this protection for them.
Basically Disney was able to build an empire on works found in the public domain, but they refuse to give the same opportunity for others to do the same. That is also very one-sided and society as a whole gains very little cultural capital and is forced to pay (again and again) for what they have generously provided protection for.
Make no mistake of it: If copyright law is one-sided, it is to the creators' and media-conglomerates benefit and not society.
Society isn't owed anything. Government (which is distinct from society) protects IP, not because they benefit from it or society maximizes utility from it, but because that is what justice is about. This isn't a free service; the authors pay taxes for (among others) the legal system that protects their rights and enforces their contracts.
I think private contracts would be sufficient. The author doesn't yield his work to a publisher without terms; for the publisher to pretend it is in the public domain (e.g. to start distributing copies without royalties to the author) would violate a contract. The same could apply to end-users; without any explicit copyright protection, you could be required to sign a contract as a condition of purchasing a book, agreeing not to reprint/redistribute. I don't see that the essential parts of copyright protection add anything fundamental; enforcing IP can be reduced to upholding a contract. It's not artificial.
This argument is only considering one side of the equation. The other side:
Pretty much all products of a human being's work in a civilized society are built on top of previous products of other people's works, in both a material and especially in an intellectual sense.
Giving such an unreasonably long time for copyright protection is breaking the chain. It argues, wrongly, that it is ok to build on the previous products of civilization while effectively locking up anyone from building on yours for 100-200 years.
Separately:
There's a legitimate discourse to be had about how long copyright protection should last. But I disagree totally with people who claim that it should be nonexistant.
If a work is out of print and not findable, and the copyright holder is gone, how would you know that the work existed, and how would anybody go about printing said work again?
I also think that your statement implies that society is somehow entitled to peoples' copy written works at some point. I think it might be the prerogative of the copyright holder to discontinue (and possibly destroy) his or her work before the copyright's lifetime ended. What then?
Also, 'out of print' is not 'not findable'. When Google created their Google Books system they encountered many books they wanted to scan whose copyright holders could not be located. The same is true for many old video games: many people remember playing games in their childhood that would now only be available if someone posted a ROM because the original game cartridges or consoles are difficult to come by. However, because the copyright holder cannot be found, there can be no legal means to distribute said games for many decades.
I was surmising a scenario where one did not exist to point out an issue with the parent post. Of course this situation would almost never occur in reality.
An argument for natural rights is totally independent of the government of any particular country. If the U.S. Constitution has it wrong (which it may), that's what amendments are for.
But Copyright as law is only about 300 years old and wasn't implemented because of "natural rights".
> If people's intellectual property rights are not respected, it will not be profitable to develop intellectual property.
And, yet, a lack of copyright didn't appear to stop people from creating works before copyright existed. And maybe there's more important things for a culture than profit.
Even more so, there are people creating works today who go out of their way to specifically disclaim copyright protection using Creative Commons Zero and similar licenses. So copyright isn't a requirement for creation.
> In this case: you claim that it's important for the public good to move works into the public domain. Well, how is it good for the public to move Horton Hears a Who or Sports Illustrated into the public domain?
Well, in some cases, because that was the agreement at the time the work was created until the law retroactively changed the terms of the contract.
And in other cases, because then the next generation of film-makers gets to make their animated re-interpretation of Horton Hears a Who (or even Horton Hears a Sports Illustrated) without it being illegal or financially prohibitive thus ensuring society more culture works.
Well. In those days "copying" wasnt all that easy either
People adapted and built upon other people's music, art and technology.
For physical goods "you can't take it away from me" always goes with "you can't have it"; I would say that "rightfully his property" here can only mean the first half of that (and so cannot entirely apply to information, where the two parts are distinct). If it meant the second half it would lead to absurdities where third parties can forbid things that have absolutely no effect on them, for example how resaraunts always have to make up their own birthday songs or how playing the radio at works can lead to fines...
Lessig didn't ignore it, he overruled it.
It is. But a product of a human being's work could be ALSO my property when I bought it. Of course there is some restrictions of the right that society gives me with this property to make possible for the authors to earn a living, but this restrictions should be limited in time, and this time reasonable, like patents 20-25 years. It is not for the majority of the people of any country, just ask them. In a real democracy people create the laws, not the right holders(who are mainly publishing companies, not authors).
"Well, how is it good for the public to move Horton Hears a Who or Sports Illustrated into the public domain? Much less Waiting for Godot."
It is good for the public to have films that are masterpieces like Charles Chaplin's, or Orson Welles's, the kind of genius that are atemporal.
Isn't important that works of Stefan Zweig, Albert Einstein, Sigmund Freud, Auguste Rodin, Richard Strauss, Richard Feynnman, Isaac Asimov and hundreds of others authors from different disciplines are not going to be public domain in our entire life because the American congress continue extending copyright indefinitely as the lobbies order?
Given the money that Disney is making, I would not be surprised if the copyright law gets extended again to "life + 100". This (modifying the law to benefit 1 corporation) is simply WRONG.
Doesn't that presuppose that the incremental gain from adding another N years of copyright coverage after an author's death is greater than the potential gain if it was accessible now to people who are making their living or--even--simply living?
It's not unreasonable to assume that an extremely large proportion of creators (who are only a small--but potentially growing--portion of society) will gain no real benefit from their works being covered by copyright for 70-100 years after their death but are negatively affected by everyone else's creations being covered in the same way.
It's not just a question of profit--it's also a question of culture. What wonderful and ground-breaking reinterpretations of culture from the 20th Century are never created--or illegal--because of current copyright law?
Ignoring the impact of author death still doesn't change my original question of whether a longer term "significantly benefits everyone else making a living off intellectual property" and society in general.
Consider this latest case: http://news.bbc.co.uk/2/hi/8497433.stm
Having listened to both the songs, I can honestly say they are nothing alike. And yet Men At Work got sued some 20 years later for "infringement".
"[Congress shall have the power] to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
Further, from Fox Film v. Doyal (again, emphasis mine):
"The sole interest of the United States and the primary object in conferring the [copyright] monopoly lie in the general benefits derived by the public from the labors of authors."
Copyright terms come down to a simple metric: if the public would benefit more from a work being in the public domain, the work shouldn't be copyright (insofar that the progress of science and innovation is not stifled). Corporations and anyone making a living off intellectual property have nothing to do with it; copyright exist only for the benefit of the general public. And with some of the most innovative systems software of the last decade being developed for free, you're going to have a hard time arguing that such lengthy copyright terms are needed to ensure that innovation happens. Linux is billion dollar project that happened organically; I just don't buy it that ~100 year copyright terms are necessary.
No, there really isn't: it makes no sense when you examine it.
Normal property manages a limited resource -- material things. By restricting one person's access to something it ensures access for someone else. IP is fundamentally different: it imposes a restriction where there is none, essentially, needed. Everyone can make copies of something without anyone else losing access to it.
Why impose a restriction on a useful abundance? Is there some deep virtue in denying ourselves some benefit?
> The fact that it's physically easy to steal intellectual property does not make it right.
But this is really the crux. It is exactly this difference that makes all the difference. If I could steal your normal, material, property, but leave it all in your possession, what is there to complain about? In fact, you could copy my property, then we would both have two lots of stuff -- this is not bad, this is good!
And people are saying there is a 'natural right' here -- a 'natural right' to stop us from benefiting, costlessly, from each other? It is crazy.
You could say that, pragmatically, the best way to fund production is by copyright-like restrictions. That is a reasonable proposition at least. But it is no longer anything to do with 'natural rights': it is not based on any fundamental necessity or desire, it is purely contingent and economic, proven by practicality and evidence.
If the "nerds" came out in the same numbers and loudness of the Tea Party, I'm sure you'd see more attention paid by politicians to the issues we love to debate here on HN.
Many politicians are just as interested in keeping their job as they are in taking lobbyist money.
Could offer some examples of "building upon" others' works which are not allowed without permission under current copyright law? I would like to understand what we as a society might be missing out on.
More generally, I become concerned when I hear "public interest" arguments because they usually apply a relatively static analysis of benefit rather than a dynamic economic model. It might be deemed in the public interest for pizza parlors to be forced by law to provide free pizzas. In the short term, we can imagine all the happiness these pizzas would provide. However, in the slightly longer term, it is obvious that there would be no pizza parlors at all. How does one show that limiting copyright would not have the longer-term effect of fewer works being created?
An example could be a fan-made translation of old works. Mashups. Redubbing of movies. Free recordings of music.
All this does is allow two extra generations to leech off of the creativity of their fathers without actually contributing anything themselves. Same goes for the two subsequent generations that fill the publishing houses that originally print these works.
Do we really believe that Lord of the Rings or Lord of the Flies would not have been written or published if the copyright term was only 28 years (in fact, they _were_ published when the copyright term was 28 years)? It should be evident that cultural experiences will be generated even if the money doesn't flow down for 100-200 years (not that there won't be money anyway -- they'll just have to do something useful with the property, just like anyone else).
The whole thing is just patently ridiculous. What do we gain by refusing to allow free commentary or contribution on Lord of the Rings? Tolkien is dead and gone and made a comfortable existence on his work I'm sure. If he was concerned with ensuring his posterity and publisher would have money from his work, he could have taken various measures to do so, like divesting large amounts of money to them in his will.
It is ridiculous that all of society and culture has to suffer because of corporate lobbyists that don't want Disney et al to lose money. It's not like the publishers are being robbed here, they've made more than enough money on these properties and now it's time to share. Intellectual property was never meant to trap ideas -- it was meant to make their sharing plausible and reasonable (before the internet, there was significant overhead involved with publication and wide dissemination of such material). Now we just have leeches looking to ensure their own fat paycheck at the expense of free culture.
I would be very happy to see a copyright law of 28 years since publication or less with no extensions, applied retroactively to all works under copyright in the United States. I don't see why life of the author should be considered -- if someone writes a good story, that's great, but 28 years of unlimited monopoly on that is quite enough. And note that public domain doesn't mean the copyright holder can't make money anymore -- it just means he has to provide something that the market deems valuable, instead of standing as a gatekeeper and profiting off of everyone else's imagination.
Your argument presumes that a copyrighted work is not a transferable asset. Let's say your grandfather, at age 75, pens what some publishing house deems the next Great American Novel. He wishes to live in a nice retirement community and is willing to sell the copyright to this work as a means of paying for this lifestyle. The value of his copyright is function of its longevity, so he would garner a larger payment today if copyright laws allow his work to provide a better NPV to the purchaser. Certainly, exclusive rights for 2N years are worth no less than rights for N years, so extensions of copyright can not provider a lower NPV.
I am not arguing for or against any particular provision of copyright law -- I am simply objecting to the "author is dead anyway" argument against longer copyright periods.
I am merely indicating that in cases where the author died many years ago, all the extension of copyright does is allow non-creative people that were once attached to people that were attached to the original author (great-great grandchildren, the men who now control the publishers (very unlikely to be the same men that controlled the publisher back when these works were published in the 50s)) to profit exclusively off of the author's work, which is the very antithesis of a motivation to produce your own creative work. The creative originator long since got all imaginable value out of the work and now the copyright is merely a memorial to society's worship of money over all else.
That's what living is for.
The privileges afforded from wealth certainly give you a leg up. Take it, or get out of the way.
Ideas cannot be owned; they are like fire and can only be equally shared. We assign monopolies to make publishing feasible, not to ensure the wealth of two or three generations that live off of the creativity of their grandfathers without contributing anything themselves. If the grandfather wants this to happen, he can convert his copyright to real money while it lasts (and afterward too, though it's harder without the monopoly, of course) and then transfer that money to his children. He shouldn't be able to hold ideas hostage from the people that he shared them with, however.
Here's an alternative ethics. Nontrivial ideas are not natural resources but are created by an author; just as a physical object is the property of its creator, ideas are an intangible property owned by their author. The author can deny others access to his ideas, simply by not-disclosing them (keeping them secret); she has intrinsic control over them. IP ownership is not a monopoly "assigned" by some intangible collective; it is the natural property of its creator. Publishing rights are not an artificial benefit created by government to subsidize authors (out of benevolence); they are contracts between an author and publisher, transferring specific and limited rights (not ownership). Publishers can be forced to pay the author royalties, not out of utilitarian reasons, but because they voluntarily agreed to such terms (the author having natural leverage, e.g. she can refuse to disclose his ideas).
>Ideas are assigned owners
Did you have that thought, or did the social collective assign it to you?
This is not an alternative ethics (if indeed this is an ethics instead of a system of legal ownership), it is the _dominant_ ethics.
>they are contracts between an author and publisher, transferring specific and limited rights (not ownership). Publishers can be forced to pay the author royalties, not out of utilitarian reasons, but because they voluntarily agreed to such terms (the author having natural leverage, e.g. she can refuse to disclose his ideas).
Except in a market where ideas are not scarce and the publishing _is_ success, the creatives are exploited and their so-called property rights a joke.
We all understand the _theory_ behind your 'natural property,' the ownership of something you create. We just don't agree with it anymore, because in many cases it has failed and in the future it will not be relevant.
>Did you have that thought, or did the social collective assign it to you?
Missed it. He's pointing out the semi-fictional nature of idea ownership, not claiming originality for his ideas.
http://en.wikipedia.org/wiki/Public_good
For many things, creating artificial property is a good solution, but it is of course a compromise more than real property ever will be, due to its nature.
Can you name the algorithm used to distinguish "trivial ideas" from "nontrivial ideas"? I'm waiting... What about an algorithm for determining when "nontrivial idea A" is equivalent to "nontrivial idea B"? We're still foundering on the haltering problem here, I think... OK, now, what about an algorithm to determine when idea A is "useful"? Ah, you need... society for this one I think... Indeed, you "natural" idea contains an excess of unnatural contortions...
Even more. Let's suppose you really could determine all these not-algorithmically-determinable things and the criteria was simple. Any string X with length greater than N is "nontrivial".
What happens when every string of length N+1 is copyrighted/patented/etc? The 2^N+1 string then are contained in every possible further nontrivial idea and the owners of them can extract rent perpetually. Things are not quite at this level yet but we're getting closer (the state of video should give one pause).
The patent system only makes in a world in which you have a finite number of industries performing a finite number of useful tasks. Then the social context lets you distinguish useful and useless inventions. Even then, the GGP's point of nontrivial works naturally belonging to their inventors is balderdash. What you can say, all you can say, is, with physical inventions in a fairly static world, that society can somewhat coherently grant people monopolies on inventions for public policy purposes.
But in a world where every activity, including the modification of the physical world, is approach "information processing", the whole patent system is become logically unsupportable. In this information processing world, a patent is government granting people deeds to an ill-defined terrain. And it's fairly clear our world is getting closer to that, is it not?
And with a ill-defined terrain, common sense about what's useful, common usage, etc just go out the window. All patents approach the status of troll-patents.
At least that doesn't deny you the right to rediscover them.
Property isn't really property if you can't sell it or give it to someone else. Liquidity is very important to many people.
While undermining this will have little impact on the generation of a lof of crap, it will absolutely destroy the "long tail" for many valuable things that are receive little recognition when they are created.
I do recognize that we should only be handing out monopolies when it absolutely benefits society. These ridiculously long copyrights only exist because our legislators have put their own interests above the national interest.
Essentially, it's a little bit of the state's right to restrict other people which has been given to you for reasons that supposedly wise-people consider important.
One might argue that it is almost the opposite of private wealth.
The government doesn't grant the descendants of social security recipients the right to their forebears' pension either. By your earlier reaoning, the state is "depriving" the pensioners of ability to sell a perpetual income stream to a third party. (yes, this is sarcasm...)
Would West Side Story or Ran have been made if they weren't?
1. That wouldn't happen, for a large number of reasons.
2. That happens even in the current system (see "The Exorcist: The Beginning" for an example in the movie world).
3. Michael Bay already had movies in competition with the LOTR franchise — copyright does nothing to prevent that. It just requires that some people distantly related to people who paid some money to Tolkien get paid if you want to use the LOTR names and characters.
Darn good, but not perfect. We are now denied the right to re-interpret LOTR, perhaps because we want to include the Scouring of the Shire--not because the movie was necessarily worse without it, but because we _want_ to.
And heck, take a better example: the Harry Potter movies are in great need of re-interpretation, but don't expect to see independent film-makers getting a bite at that apple anytime soon.
But I think the term should be 28 years, and it could be extended by the copyright holder for a few additional years at a fee of $5,000/year.
I wanted to check up on that, and found this:
So far from losing money [as expected], sales so exceeded the break-even point as to make Tolkien regret that he had not taken early retirement. However, this was still based only upon hardback sales.
The really amazing moment was when The Lord of the Rings went into a pirated paperback version in 1965. Firstly, this put the book into the impulse-buying category; and secondly, the publicity generated by the copyright dispute alerted millions of American readers to the existence of something outside their previous experience, but which appeared to speak to their condition. By 1968 The Lord of the Rings had almost become the Bible of the "Alternative Society".
This development produced mixed feelings in the author. On the one hand, he was extremely flattered, and to his amazement, became rather rich. On the other, he could only deplore those whose idea of a great trip was to ingest The Lord of the Rings and LSD simultaneously.
source: http://www.tolkiensociety.org/tolkien/biography.html
One other example: sales of Ayn Rand's books currently help fund the spreading of the ideas from the books, after her death. That seems fair enough to me. Why shouldn't books sales be able to fund promotion of the book's ideas as long as people keep buying the book?
How does inifinite copyright extension do anything but favor the sad corporatism you oppose? Entire generations will never re-sow the seeds of these cultural works. If you're on this planet to tell the next great Mickey Mouse story then you better be lucky enough to get the right spot inside Disney.
So I don't see any compelling Randsian arguments here. Each generation should get a shot at profiting (or simply engaging publicly) with the cultural fruits of a prior generation. Creators will be fine.
Mickey Mouse is a logo, deserving of trademark protection and nothing more.
For all his detective skills, he somehow has never figured out that Goofy is the same person as Super-Goofy (there is a peanut plant in Goofy's backyard that turns him into a Superman-style hero).
That said, I don't see that Micky is "captive". No one has a right to Micky. Micky's creator created him and he would not exist otherwise. This isn't like a math formula, or a medicine, that if one guy didn't invent it then someone else would have invented it later. It would never exist at all without its creator, so even if the creator has full rights over it forever the world hasn't lost anything that it would have had otherwise.
To promote the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries;
For my own bias, I'm with the crowd that feels "Creators gonna create" whether this passage existed or not.
http://www.law.duke.edu/cspd/publicdomainday
Of course, whether any actually enter the public domain then depends on Congress not retroactively extending copyright terms again. Perhaps Congress will choose a term of 'heat death of the universe, plus one day' — which the courts could still uphold as technically 'limited' per the Constitution.
Also, my interpretation of the original post is that it's not a mere lamentation but also a reminder to question the current state of copyright and public domain legislation. Who benefits? Who loses? To what degree? And why? And it does so with concrete examples.
As far as I know, you can teach a class using Toynbee or Kissinger; the students just have to find copies. As for community theater, they put on works far more recent--one friend appeared several years ago in "Dancing at Lughnasa" (1995), another in "Lips together, Teeth Apart" (1991; or whichever MacNally play gave him a chance to shed his clothes--"Love! Valor! Etc" of 1994 maybe). What the terms are, I can't say; but it doesn't seem to run anyone broke.
I do agree that the copyright extension gone beyond reasonable bounds. The critic Hugh Kenner made an interesting case that the extension of copyright in the United Kingdom about 100 years ago had a dramatic effect on the public's impression of what literature was, creating a discontinuity in perception that made the modernists' work appear to have come about without its actual context.
http://arstechnica.com/old/content/2007/07/research-optimal-...
http://www.rufuspollock.org/economics/papers/optimal_copyrig...
http://www.publicdomainworks.net/stats/year/2011
Edit: Oops, meant that to be a comment to mrleinad
Lord of the Flies and Tolkien among others are British books. If they enter the public domain in Britain, does that enable Americans to use them even if they are still copyrighted in the US?
If it is in the public domain in Britain, that doesn't give you a free license to start photocopying the book and reselling it here in the US. Those rights are assigned to a party here in the US. (and thanks to some oddness in the publishing world (or laws that help curb uncompetitive practices, the same company can't own the rights to a work in both the UK and US.)
I don't know enough about this to speculate on your importation and use of a book in the public domain elsewhere. I suspect personal use of the materials is fine. You could likely import a public domain copy of the work from England and as long as you don't adapt, resell, translate or otherwise re-purpose the work you'd be in the clear. I've got a friend who works for a company that does a lot of international rights work in publishing. I'll ask him and post back here, since now I'm curious.
(these sorts of byzantine international arrangements are one of several ways, along with translations, that authors of books have been able to make a reasonable living, selling the rights to the same book several times and being able to quickly drum up a blog post for slow news days with pictures of the Czechoslovakian cover of their most recent book.)
"...the fact that the works of a given author are in the public domain in a jurisdiction does NOT mean (unfortunately) that those works are also public domain in other jurisdictions. If you need to be sure about the status of a given work, check your national copyright law and, if needed, a lawyer.
For 2011, just as an example of how fiendishly complex copyright laws can be, we are told that Isaac Babel, the great Russian author who died in 1940, will NOT enter the public domain in Russia, his home country. In Russia, in fact, the terms of protection of oppressed authors begin with the date of rehabilitation, which for Babel was 1954. Another feature of the Russian copyright law is that the terms of protection of posthumous works start with the date of publication, which means that Bulgakov's masterpiece, "Master and Margarita", first published in 1966 (26 years after Bulgakov's death) in Russia will be under copyright until 2037."
I don't have a link but my impression is that part of the need for the GPL to exist in the first place is due to restrictions of copyright and the GPL uses copyright to enforce itself as a way of reacting against the system which it would rather not exist.
http://www.gnu.org/copyleft/ http://www.gnu.org/philosophy/not-ipr.html (Why IP is a bad term.)