Birthday Song’s Copyright Leads to a Lawsuit for the Ages
nytimes.com
nytimes.com
We're living in the abundance age, which also means 90% of the stuff out there is "crap" and is quickly forgotten even by the authors. If they can't monetize it in 5 years, and can't afford to pay $1,000, then maybe it's not worth it, and should go to public domain so it doesn't get abused later. And who knows, maybe someone picks it up and makes it much better later, which will benefit the society and culture.
I think some of this is what this document proposes, too:
Copyright lasts one year without registration.
At the end of that year, a work must be registered and a $100 fee put up to extend the term to 5 years.
Every five years after that, the registration fee is increased by a factor of 10.
This seems to address most of the problems I have with copyright, beyond the core conceit of whether it's valuable or not. I really don't understand how the Berne Convention's extremes can benefit a people other than as a hegemonic trade concession.
And I am probably confusing copyright with trademark here. I suppose Disney could still own the rights for all star wars merchandise and new content even if they hypothetically lost the rights to A New Hope, due to trademarks, no? Because A New Hope surely isn't worth $1 billion for five years.
I'd much prefer a regime with a short free period (I've always used 7 years, but 5 is close enough), after which you have to extend it by declaring a value and paying an an annual ad valorem tax on the declared value (say, 1-2%).
The declared value would be the basis for a limitation on damages in infringement suits, and would also constitute a binding offer to transfer the copyright on the work to the public domain on a tender of payment of the stated amount.
Copyright Protect: is free and lasts 100+ years.
Patent Protection: cost $5,000-$10,000 and lasts 20 years.
Personally I think Copyright should last only 50 years. I'm open to a conversation about why that's fair or unfair. Please feel free to convince me to increase or decrease that number. I think 50 years is fair enough.
Intuitively it seems like something that's extremely simple should have less of a government-granted monopoly than something that's extremely long and complex ("War and Peace").
Five years for something like this, maybe? That lets ditty-writers cash in on any fortuitous fads they manage to stumble into, but doesn't bog down our culture in molasses...
Why should the author reap the benefits, at the expense of society, when the author didn't actually contribute much?
Now copyright terms are a separate issue, I think they should be substantially abridged. I'm just pointing out that society hasn't taken any action that could be construed as authorship.
I'm saying that the reason why it's popular doesn't obviously have much to with the tune itself. Popularity is often pretty arbitrary.
This sort of intellectual property law is intended to (1) provide incentive for people to put the work into being creative, because that benefits society, and (2) satisfy intuitive notions of fairness (if somebody puts a great deal of effort into something, people feel that he "deserves" some reward from that).
For trivial works, neither (1) nor (2) is really justified: There's no significant effort to reward, society does not benefit significantly from it (because in such cases popularity does not stem from the work itself, any other work would have served just as well), and intuitive notions of fairness do not tend to consider great reward from little effort as justified.
Here's the thing with copyright: it's a bargain between the public (IP consumers) and the authors (IP creators). The public wants new creative works and has recognized that some legal protection is needed to make these profitable, but when you share an idea and the public adopts it into their culture, it is no longer the author's thing. We grant a limited monopoly on copyrighted works so that authors can make a living and produce good stuff for us, and authors accept this aware that their publication will eventually into the public domain for free sharing, cultural commentary, etc.
First, it's important to recognize that a copyright is a monopoly. You don't technically need a copyright to make money -- it's just a temporary thing we provide to ensure that artists have ample time to recoup their investments. Original authors can continue to create products off of those IPs after the copyright has lapsed, and they can continue to sell and profit off of these; they just won't be able to stop anyone else from using the same IP.
Second, the need for authors to be profitable is well recognized today, but the other end of the bargain is neglected. Ideas are free and they do not belong to people. "Intellectual property" is really a misnomer -- ideas cannot be held or controlled like property can. They have a very different nature. If your creation gets any semblance of recognition, people will modify, alter, suggest, revise, expand, and otherwise build upon your ideas. When you publish something, it's not just yours anymore. Expansion and development and commentary are natural human activities that are impossible to prevent. Sharing and communication is everything to us, and copyrights restrict this free osmosis in a rather severe fashion.
Copyright is conceived to ensure an author can be profitable, so that more art comes out. Long copyright terms are seriously harmful because instead of encouraging new development from creative persons and/or those close to them, a successful copyright holder will be provided ample money for several lifetimes, and the monopolistic grasp that forces ALL revenue to go into their pockets propagates through the generations (right now, some copyrights could last 200+ years). Meanwhile, innocent parties attempting to expand on the copyrighted material and share in that natural human impulse for discussion and improvement, potentially contributing major social value to this cultural element, are hounded and threatened by aggressive lawyers. Does this promote useful progress in science and the arts? Does this represent the bargain that is meant to be recognized when a copyright is granted?
I don't think copyright should exceed 20 years. Ideally I'd like to see default 5-year terms with four optional 5-year extensions. This makes it so there is still plenty of opportunity to collect revenues that are beyond reasonable, but copyrighted material will lapse into the public domain sometime when someone still living will care about the contributions that others may make. It opens up a whole new world of cultural richness, encourages creativity in expansion of old properties and the development of new properties, allows the author to obtain huge financial benefit (which they can continue to compete for once the IP goes public domain), and is fair and courteous to the public's requirement that their culture not be held hostage by a bunch of suits (lawyers, executives).
Again, I don't see why we need to perpetuate the myth that one useful positive contribution should entitle the contributor to a lifetime of exclusive control and revenue. That is not fair.
Yes it is, and one of the major failings of US copyright law is that it doesn't require the original author to be acknowledged.
a successful copyright holder will be provided ample money for several lifetimes
Most copyright holders don't enjoy anything like that degree of financial reward. You're basing your entire argument on the tiny percentage of artists that make it big and get very rich. What about the much larger percentage that just scrape by, or who don't enjoy any success for years before enjoying modest success? This is a far more common pattern in the arts.
This position does not make any sense to me at all. If you think something up, you deserve some credit, but all the thought and investment that others put in using that concept as a base or jumping off point is surely more extensive if you get any significant recognition. Why is the single concept of the author greater than anything it's capable of spawning? Why shouldn't those greater ideas be allowed to propagate and flow organically? Why is the author entitled to constant, perpetual control and flow over this work which they chose to publish publicly, aware of the human impulse to remix, experiment, and learn freely without artificial limitation? Giving the author a fair head start is great, but we need to be careful not to make the system too unnatural and one-sided here.
>What about the much larger percentage that just scrape by, or who don't enjoy any success for years before enjoying modest success? This is a far more common pattern in the arts.
What about them? If there is no demand for their work, a copyright won't do them much good. In fact, if their work enters the public domain it may get additional exposure, which in the long run may be more beneficial to their career than keeping each piece under lock and key for 100+ years from the date of publication.
These people are the long tail of the art/music/cinema worlds, and destroying their mechanism of compensation will make for a poorer world. Lifetime of author+0 is perfect. Protecting income sources for the children on the author doesn't encourage new art.
Copyright is a gift which the public offers to encourage useful, meaningful art. To give it an extra, unnatural profit incentive at the expense of free culture, collaboration, and idea proliferation. We should be very careful re: how much of this we're willing to give away. Right now, we give entirely too much.
Tee hee, good luck with that business model.
The cold hard facts are that if you're not able to make something profitable within five years from its publication, you're not providing a service that the market finds adequately valuable.
And we all know that the market (especially in the arts) is always right, because no successful work has ever languished in obscurity for years before finding an audience, right?
Er, wrong. In the film industry, establishing your ownership of a screenplay means registering with the Writer's Guild of America and/or the Library of Congress copyright registrar - many production companies won't even look at an unregistered script because of the potential for costly litigation if a dispute arises over authorship. But it's quite common for scripts to bounce around Hollywood for a long time before getting turned into a movie, often over a decade. This is referred to in the industry as 'development hell' because it's frustrating and financially draining for everyone involved. https://en.wikipedia.org/wiki/Development_hell
I'm pretty sure that similar problems exist in the music industry, the art world and so on. There's a truism that being an overnight success in the entertainment business takes at least 10 years, but under your proposal the copyright holder that finally makes it after years of trying is likely to find that they don't have any saleable rights in their prior work any more.
Should JK Rowling not have been receiving money from the first Harry Potter book (published in '97) for the last 6-11 years? Sure she's rich enough already... but why should she lose out on that money which she arguably earned?
And not everyone gets rich in the first few years after publication. My mother is an author of children's books, and my grandfather was a composer - money still comes in (not to me, to my mother and her sister) now, many years after some work was written, but it's never been a huge amount, even at time of publication, yet alone now.
I'm personally a fan of the (life + X) model, whereby it extends a little beyond the creator's death. I don't know what that X should be, though I do feel that the X=70years that we currently have in the UK is too long. But while the creator is alive, why should they not continue to earn money on their work?
She can continue to earn money by making a competitive product. A copyright is a short-term monopoly granted to ensure that authors can recoup expense before the rush comes in. It's not meant as anything more than that. Whatever she makes in the first five years since publication is all she "earns" simply by holding a copyright. The rest of her money must be earned by contributing further to the progress of science and useful arts (perhaps by writing a sequel, which would have its own copyright term...) and/or competing on the open market with everyone else.
If the public takes the time to integrate your story into its culture, if they read your book and pore over the characters and develop their own interpretations and feelings, they should be able to share these commercially within a reasonable timeframe. When you publish something, it's not your own anymore.
I think Joss Whedon had a cool quote from a reddit AMA a while back. It was something like "Art is not a pet that you keep forever, which follows you around loyally without criticism until the end of its days. Art is a child, and it grows up and moves out and talks back to you." The real quote is probably better, but that was the concept.
This is one view, but to say that "it's not meant as anything more than that" is not accurate. Even John Locke believed that authors had fundamental rights to their creation. (source: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1983614)
The Continental Congress resolution to pass copyright legislation was inspired by author Joel Barlow who wrote in his 1783 letter to Congress:
"There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination: And when he has spent great part of his life in study, wasted his time, his fortune & perhaps his health in improving his knowledge & correcting his taste, it is a principle of natural justice that he should be entitled to the profits arising from the sale of his works as a compensation for his labor in producing them, & his risque of reputation in offering them to the Public."
The problem is that we are moving in winner takes all IP economy. So the copyright that made sense a 100 years ago just doesn't fit our fast moving world. The winner takes all now and will take a lot in the future. In the current world visibility is the problem not the copyright.
Also we are able to lose works this way - which is scary. Even if 95% of everything that is crap it is still worth preserving. Right now NOLF - one of the best games ever is in limbo - no one knows who owns the damn rights.
But I do feel that for works from single author it makes sense to be lifetime. But not for corporate ones.
In 10 years you won't have the hardware to run the game you will hold the rights to for the next century. It is absurd.
Other people could take everything you own and created 5-10 years ago. If you have a regular 9-5 job at a big corporation you might not care but for content creators who make content once, then collect payments years down the line (Music/VideoGames/Films/Authors) that would devastate them.
And most stuff with 200M production costs either flops and never makes it to black or makes the money back in the first month or so. Otherwise waterworld would be considered a great success.
Copyright should be incentive to create and not rent seeking.
This isn't a big deal to limit the copyright on.
So Disney gets to keep Mickey so long as they keep using Mickey, JK Rowling keeps Harry Potter so long as she's still writing books and keeping the world up, and the same with Star Wars. However, if nothing new comes out between extensions it falls into public domain. That would catch all the books, 1 hit wonders, orphaned video games (heh, maybe Half Life would be public domain with the wait for HL3), etc.
Not a fully fleshed out idea (What about after death, if your kids kept up your bestselling X, or if you released a 10th edition of your horrible book with "THE END" added), but it's an idea.
This small change wouldn't impact the big corporations, but it would start letting smaller things fall into public domain. Then, after a while of acceptance, you do something like limit the number of renewals, make it price prohibitive to renew more than 2-3 times, or limit transferability.
Or you could go for a big bang change and hope you have a critical mass of votes.
If the purpose of copyright is still the same as it was when it was first specified, then our goal is to optimize for progress, and for that we need to ask ourselves at least one more question: to what extent does the duration of copyright prevent or stimulate potential creators to create. I don't think Disney had the income of his grandchildren in mind when he first started drawing.
Perhaps the purpose of copyright has since shifted towards a principal of fairness and compensation for efforts. If this is the case I wish it wasn't: in my opinion the goal of society should be for society to progress on several levels, including culturally and technologically - at this level we shouldn't be interested in the wealth of individuals or corporations.
If we're talking about slide to unlock or similar stuff, then either ban such patents for good, or give them maybe 2 years at most.
Don't mind patent terms on inventions that are non-essential, but we need to treat medicines differently. The public needs to recognize that IP protection is a gift we give authors to make their authorship more feasible, and that they cannot hold the life and health of either the populace or the culture hostage for their exclusive profitability.
I do agree that big pharma goes too far with prices sometimes though.
I'd say 20 years would be good. That way the owner can in most cases still utilise the full commercial potential. But it still enters our cultural heritage fast enough to have value attached to it.