Shorten copyright terms? Okay, then what?

The subject of copyright terms kept popping up last week, so I’ll take the message and dive in.  I should be clear that I don’t have a strong opinion as to exactly what terms would be optimal at this point. Or to be more accurate, I don’t have the legal experience to account for all the implications of moving the needle by a specific value in either direction, but then neither do many of the voices insisting that terms must be shortened in the name of all that is holy, so take that for what it’s worth. Absent specifics, I’m not particularly impressed with the twin arguments, “copyright must be shortened because the Internet,” and “copyright terms are too long because they’re too long.”  The first generalization and second tautology are remarkably common and almost never supported by specific examples of the social value that would be derived by insisting upon more works’ early entry in to the public domain.

On the occasion of the new year, the Duke University Center for the Study of the Public Domain released this post woefully presenting a list of several classic and mediocre-but-famous works that might have entered the public domain on January 1 had it not been for the 1976 Copyright Extension Act.  As is typical of these articles, though, the post merely presents titles of familiar works and leaves the reader to conclude on face value that of course it’s a shame these things are still protected by copyright as though this fact has entombed them in impenetrable permafrost for the next 40 years.  To the contrary, nearly all of the works listed, especially the best ones, are freely or cheaply available for your enjoyment right now, so an implication that their continued copyrights are barring access can’t be what the author(s) are trying to convey.

Granted, a place that calls itself a center for the study of something should not require the reader to guess what its thesis might be, but I am guessing the folks at Duke want us to imagine secondary or derivative uses of these works.  If so, I will argue that one of the reasons their article and many just like it never offer particularly concrete ideas in this regard is that there aren’t that many good ideas to be had in this regard.  What, for example, might the study group at Duke suggest be done with Ingmar Bergman’s classic film The Seventh Seal other than, y’know, to watch it?  Or were they imagining the loss to cultural and economic diversity that might bloom from an unholy mating in a YouTube mashup with clips from Leave it to Beaver, all set to the song “Great Balls of Fire?” Even if such a video were to be produced and be brilliant and generate a billion hits, the service to the public would be little more than a fleeting diversion while Google monetizes the traffic, and we hope that someone still chooses to preserve The Seventh Seal in its original form despite owning no rights to its distribution.

On the subject of what might or might not be done with these works that can’t be done right now, the post lists Samuel Beckett’s play Endgame, and as a Beckett fan, I’m trying again to imagine without wincing what might be done with any of his plays other than to produce them in the manner in which they were intended.  In fact, the Beckett estate supposedly enforces strict control over the ways in which these shows are produced, and if you know the plays, you know why.  Beckett’s minimalist masterworks are conceived as a whole, with very precise direction, timing, and stagecraft written into the script.  Stray too far from the author’s instructions and you may have a play, but you won’t have a Beckett play.  This example begs a philosophical question about rights management that has nothing to do with money and certainly nothing to do with digital technology.  In fact, Beckett may be one of the best examples the Duke folks could have presented as a case for infinite copyright.  They and those who echo their positions should have to prove both culturally and economically the public value to be gained by curtailing the Beckett estate’s stewardship of these works.  NOTE:  The silence that follows is fair use (nerdy Beckett/copright joke).

Conjuring the theatrical antithesis of Beckett, the post also invokes the works of Shakespeare, whose plays were in some cases outright plagiarized, and they have also been produced in every conceivable (and several inconceivable) styles and media that take no end of creative license with the original texts.  And we do have to concede that even after a couple centuries worth of remixing The Bard, the original plays remain intact and eternally produceable in what one might call their classic form. Interestingly, though, invoking Elizabethan theater also provides a rationale for creating and preserving strong copyrights. Although Shakespeare and his contemporaries were very skilled, they were not necessarily original by contemporary standards.

If a theater company in Elizabethan or Jacobean London wanted to thrive and remain in the good graces of the monarch, it had to put on new shows at a fairly rapid pace.  After all, most of the population, working sixteen-hour days and dodging between plagues, had a life expectancy of 35, so there wasn’t much time to waste.  The stories and sources of stories were treated by the highly-collaborative theater companies as something like the Creative Commons of its time.  This helped produced fast theater, but not always fresh writing.  Still, the churn of 16th century drama serves the point emphasized in the Duke article when it quotes Judge Richard Posner, an occasional critic of IP laws, who says, “Romeo and Juliet itself would have infringed Arthur Brooke’s The Tragicall Historye of Romeo and Juliet…which in turn would have infringed several earlier Romeo and Juliets, all of which probably would have infringed Ovid’s story of Pyramus and Thisbe.”

Art is derivative of art. We all understand that. But to limit this principle to focus on any particular work or works is to misconstrue and belittle the creative capacity of nearly all artists.  It is common for people like the author(s) of this Duke article to provoke the half-thought with statements like “Imagine if Shakespeare hadn’t been able to borrow from the late poet Arthur Brooke,” but they always forget that the hypothetical notion cuts both ways.  We short circuit the thought exercise by only imagining the work that didn’t come to exist and never imagine the work that might have existed instead.  Shakespeare didn’t lack for imagination when he needed it, so yes, let’s absolutely imagine what he might have produced had Romeo and Juliet somehow been off limits; it might have been extraordinary.  Artists are always overcoming obstacles, and you will be hard-pressed to find a serious artist who says, “I simply can’t produce anything. It’s all been done, and it’s all restricted.” To the contrary, witness the diverse explosion of works and media in the countries that established and protected copyrights.

Of course, underlying the whole movement to reverse, limit, or abolish creator rights is the oft-asserted premise that the technological age in which we now live can only thrive and best serve society if we remove or restrict some of these old notions that creative works can be property.  And in their ebullient cheerleading, some of the messengers can get ahead of themselves as was the case when Julie Samuels of the Electronic Frontier Foundation claimed on a panel in New York City last year, “We want to see a thousand YouTubes.”  This statement is untrue in every direction, and even if we are to believe that Google might welcome 999 competitors, their existence isn’t economically feasible — and not because of copyrights.  If there are solid grounds for shortening the copyright terms for authors, let the case be made.  But let’s not get distracted by the vague prognostications of an industry that is unlikely to produce so much as two YouTubes when we can say for certain that copyright has produced a lot more than a thousand Shakespeares.

See related article:  “How Copyright Law Gave Us Star Wars” by Devin Faraci

© 2014 – 2015, David Newhoff. All rights reserved.

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74 Responses to Shorten copyright terms? Okay, then what?

  1. Sam Flintlock says:

    Absent specifics, I’m not particularly impressed with the twin arguments, “copyright must be shortened because the Internet,” and “copyright terms are too long because they’re too long.”

    True, but I’m equally unimpressed by the twin counterarguments “copyright terms must stay the length they are because that’s how long copyright terms are” and “copyright right terms must not be shorted because copyright is needed”. The former is circular, the latter a non sequitur.

    I’m also not convinced that lawyers have that much to contribute to this particular debate- their work reflects the law as is, not as it would be after hypothetical changes. I am amused by the irony of you citing lawyers in the same argument that references Shakespeare for obvious reasons.

    We short circuit the thought exercise by only imagining the work that didn’t come to exist and never imagine the work that might have existed instead. Shakespeare didn’t lack for imagination when he needed it, so yes, let’s absolutely imagine what he might have produced had Romeo and Juliet somehow been off limits; it might have been extraordinary.

    We can, however, look at the work that did come to exist. You often reasonably criticise the lack of specifics when it comes to claims that copyright stifles creativity. But I think it’s fair to apply the same standard to you. What works can you point to that were created because their creators’ original ideas were offlimits? The main one I can think of that would back up your point is Watchmen by Alan Moore and Dave Gibbons. (Original characters were created because DC didn’t want Moore making its expensively acquired Charlton Comics characters unusable in future lines). That’s a strong example, but a complex one, because of its reliance on genre tropes.

    But against that, we have a significant number of excellent derivative works we can point to in defense of the argument that derivative works have an important artistic contribution role to play as part of a wider creative output. I’ve listed some of the ones I consider important before. That, I think, is at the core of the artistic argument for shortening copyright terms for authors (and, indeed, other creators). As a filmmaker, do you honestly think that the availability of Bram Stoker’s work to directors and writers has had a negative effect? If not, the same has to apply to more recent works. The question, then, becomes how we balance that with the right of creators to profit from their own works.

    I also think the idea that if artists are creating derivative works, they aren’t also creating non-derivative works, is a false dichotomy. There are a handful of artists who largely work on re-imagining other’s works (Negativland being the example I always use of why fair use could do with being extended), generally artists who do this are doing both.

    The acclaimed author Neil Gaiman is a useful case study here. He’s done some works that could be considered entirely derivative (A Study in Emerald combines the work of Lovecraft and Conan Doyle. Shoggoth’s Old Peculiar approaches Lovecraft from the perspective of a Cook and Moore sketch). He’s done others that are equally derivative, but are likely to be treated differently because they largely riff on ancient mythology rather then anything by a named author (American Gods, Anansi Boys). There’s also the work he’s done with intellectual properties created by other people (most of his comics work, including the Sandman series which have his original Endless characters, but also Batman, John Constantine and Hawkman plus some historical characters such as Cesar, Richard Nixon and John Belushi). You have the work that starts off with some inspiration from other sources but is different enough to not count as derivative (Neverwhere, which takes its starting point as London tube station names plus some old legends, but goes in a very different direction). And finally, you have the work that is entirely from his own mind (Coraline, Stardust).

    You see my point? Nobody is saying that derivative works should be the only type of work available, but it’s hard to deny that other works can be an excellent source of inspiration. If we’re going to say that’s illegitimate, it goes a lot wider then copyright terms. It has to, then, be argued that even works derivative of works out of copyright are somehow less artistically valid. While that’s a position you could take, it necessarily means writing off a lot of really good works.

    • David Newhoff says:

      All good points and well put, Sam. In case I’m unclear, though, I mean to say that all work is derivative in one way or another. Work that is derivative in ways that necessarily run into copyright roadblocks, however, I would say are more rare than many may think when they encounter an article like this one from Duke. Films make a good example, and I’m usually confused when films make these lists. A film is composed from many elements and is only copyrighted as a finished whole. Nevertheless, copyrights don’t stop literally thousands of films from sharing common themes, structures, shots, dialogue, and characters. In fact, there’s more production happening now than ever despite the duration of terms, so again the stifling is hard to find. I hope I don’t cause confusion by implying that there’s a solid line between “original” and “derivative” per se. The semantics can be tricky, but I think it’s fair to say that even the most “original” work will have roots in something that came before, which is a different kind of “derivative” from literally remaking or building upon named works or their elements.

    • Jason Block says:

      I think there is a helpful distinction that needs to be made here when we think of what it means to be ‘derivative’. There is a difference between what’s considered a ‘derivative’ work in the legal sense and work that is blandly derivative in the artistic sense. Copyright does not, in any way, prevent the latter. I can name fifty rip-offs of ‘Lord of the Rings’ that were all published and had authors happily making money, for example. In one case I can remember, the work was written as a sequel, and the author just went back and changed the names, shifted some character attributes around, drew a slightly different map, and presto, an original work.

      What copyright prevents people from doing is making versions of the same work in other media, an extension of the same work using the exact same elements, and making mashups. Copyright law provides a great way to do those things though, all you have to do is to make a deal with the author or the company they have chosen to work with.

      • David Newhoff says:

        On your last point, Jason, the fact that deals and licenses are grated all the time is another oft-overlooked reality. I let it go because my post was long enough, but the Duke thing implies that West Side Story might not have been made if the producers had to deal with the Shakespeare estate. Why? Considering the Broadway juggernaut who made that show and all the obstacles they overcame to do it, making a deal with the hypothetical rights holders of Romeo & Juliet would have been one of the easiest things they’d have had to accomplish.

      • Anonymous says:

        David Newhoff–
        Might the Shakespeare estate have been so kind as to grant permission for ‘Shakespeare in Love’? It’s a good movie, won Best Picture, but doesn’t always treat its hero as well as his heirs might want him to be remembered. The adultery for a start. And the ripping off of good lines and ideas, rather than a portrayal as a genius who could do it all himself.

        How about ‘Tromeo and Juliet,’ in which instead of pretending to die, Juliet instead turns into a monster with a giant penis. Also it turns out that the two lovers are also siblings. Got some good reviews and played at Cannes.

        Just as it is much easier for artists to create works if they don’t have to get permission from a state censor, it is also much easier if they don’t have to get permission from a private censor.

      • David Newhoff says:

        Anonymous —

        Odds are, the hypothetical Shakespeare estate might have had no say about “Shakespeare in Love” vis a vis copyrights. Portrayals of historical or even living famous people don’t have to be dead-on accurate to survive a suit, but that gets into the are of slander or other gross misrepresentations of a person’s life or deeds. That’s not copyright. As for “Tromeo and Juliet,” it depends. If the Shakespeare’s Romeo and Juliet were under copyright in our times — and we must remember that it’s a radically exaggerated hypothetical — then the estate could deny use for a remake it felt was an inappropriate use of the work. The makers of that particular project could call it parody, which it sounds like it might be, and quite possibly win the right to use the work as fair use. To call copyright a form of censorship is to deny the reality of how it has worked and continues to work.

      • Anonymous says:

        David Newhoff–
        “Portrayals of historical or even living famous people don’t have to be dead-on accurate to survive a suit, but that gets into the are of slander or other gross misrepresentations of a person’s life or deeds. That’s not copyright.”

        True, but Shakespeare in Love was essentially a version of Romeo and Juliet, with Shakespeare in the role of Romeo (both in the overall story and in the play within the movie) using as the backdrop, a fictional version of the writing and first performance of Romeo and Juliet. It is very much a derivative work based on the play. As such, if the estate didn’t like the portrayal of Shakespeare, they likely could shut it down, were there a copyright (and an estate). It’s all very cleverly done, and if you haven’t seen it, or haven’t seen it lately, it is very much worth watching.

        Tromeo and Juliet, meanwhile, doesn’t strike me as a parody. I don’t think it ridicules the Shakespeare play, it’s just a strange adaptation.

        “To call copyright a form of censorship is to deny the reality of how it has worked and continues to work.”

        If Alice is prevented by Bob from engaging in certain speech, particularly through the use of some sort of force (such as the power of the state to enforce injunctions and collect damages), that is censorship. It’s ridiculous to call it anything but. The fundamental question of copyright has always been, not whether it is censorship — it is — but whether it is justified in light of it being censorship. Much as an absolutist approach to free speech appeals to me, I think that copyright can be justified. But not easily, and not for just any implementation of copyright, and certainly not casually, as if copyright didn’t infringe upon the right of free speech.

      • David Newhoff says:

        Thanks, Anonymous. It’s been some time, but I am familiar with “Shakespeare in Love.” All I can say is that there’s a point when such hypotheticals become tools to prove what we want them to be, which is more or less what I’m saying about the Duke post. The reality is that film exists because both the works and the life of Shakespeare are bound up in a great deal of speculation — some scholarly, some preposterous. The whimsy of that film is, therefore, perfectly applied to one of the English languages primary sources of “remixing,” so who knows how the non-existent heirs of Shakespeare might have felt about it or about Tromeo and Juliet? If there were heirs, then the real life of Shakespeare might be better known, and it’s entirely possible that, under such circumstances, “Shakespeare in Love” might seem ridiculous or more brilliant. Impossible to say.

        As for copyright being “censorship,” I have to reject it semantically and legally. Copyright has been misused as a form of censorship. I just saw a story about a gaming company that granted use of its game to a known online reviewer, then claimed copyright infringement when he gave the game a bad review. They tried to claim they didn’t know his YouTube channel was monetized, but that was clearly nonsense. The company did rescind its takedown request in about 24 hours. This is a terrible misuse of copyright, but were it to become a case, a judge would have found in favor of the reviewer. While this kind of abuse happens and gives the law a bad name, it is not the norm, and it is certainly not the purpose of copyright. It seems that you are wanting to say that any restriction on any form of speech is technically censorship but that some censorship is justified. I get where you’re going, but the premise misses the point that copyright is a civil right, and the boundaries are not about restricting you but about respecting the other. To call copyright censorship is like saying a person’s right not to be bullied infringes on the bully’s right to the pursuit of happiness. Or as is often said, the right of your fist ends at my nose. Also, I think it’s important to note that historically copyright has done a great deal for the preservation of free speech. If the authors of books that some forces would ban were not rights holders and, therefore, financial beneficiaries of their works, free speech might not be as free as it is today.

      • Jason Block says:

        ANON – “….certainly not casually, as if copyright didn’t infringe upon the right of free speech.”

        I’m not sure copyright has to do with speech. Copyright is a publishing right. I’ll grant you that the lines between speech and publishing are blurred in people’s minds lately because everyone can publish their thoughts easily, but copyright has to do with our right to publish, specifically to publish works created by someone else, not our freedom of speech. I think the principles are very different.

      • Anonymous says:

        David Newhoff–
        “As for copyright being “censorship,” I have to reject it semantically and legally. Copyright has been misused as a form of censorship. ”

        I’m not talking about copyright misuse, though. The next quote is more on target:

        “It seems that you are wanting to say that any restriction on any form of speech is technically censorship but that some censorship is justified. I get where you’re going, but the premise misses the point that copyright is a civil right, and the boundaries are not about restricting you but about respecting the other. To call copyright censorship is like saying a person’s right not to be bullied infringes on the bully’s right to the pursuit of happiness. Or as is often said, the right of your fist ends at my nose.”

        I would disagree with you, however. Copyright’s boundaries are entirely about restricting the public. The whole mechanism of copyright is a bundle of exclusive rights that prohibit the public from exercising their free speech rights to copy, prepare derivatives, distribute, perform, display, etc. certain works. It’s not even a restriction on some other conduct which happens to effect speech, such as the owner of a parcel of land refusing to allow people to perform a play there, or a law against murder which is used against a criminal that orders a hit against someone. Speech is very much in the crosshairs of copyright.

        True, any particular copyright is limited in its application to just the work in question, but if the state were to prevent me from standing on the street corner in the middle of the day and reading aloud from a public domain book, we’d all be in agreement that it was censorship. Change the book to something copyrighted, and the state to a copyright holder (who is ultimately using the power of the state to back up his demands) and I don’t think anything significant has changed.

        Also the fist and nose thing doesn’t always hold up. In Cohen v. California, the defendant was in a courthouse and had a jacket upon which appeared the words ‘Fuck the draft.’ He was prosecuted for offensiveness. The Supreme Court found that it was protected speech, despite an argument by the state similar to your fist and nose argument: “Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes.” So in that instance, the fist gets to hit the nose just fine, and if the nose doesn’t like it, it’s up to the nose to get out of the way.

        Now, I’m talking about something beyond the mere subset of speech which is protected, but it’s still speech, it’s still being prohibited directly, and not even collaterally, and I see no better way to describe that than censorship.

        Jason Block–
        I’m not aware of a material difference between speech and print as it relates to this issue.

      • David Newhoff says:

        Anonymous, I’m tired, but I’ll respond to some of that. To your example of reading a copyrighted work in the street, you forget that the state doesn’t do a damn thing with regard to copyright. Only the rights holder can ask you to stop, and his rights are protected by the state, but so is his right to let you continue reading his work, which he just might do. Regardless, the reading of the work aloud would have to meet the standards of an infringement, and the only thing that comes to mind is a public performance, which may or may not apply. If I read an author’s short story aloud in a YouTube video and monetized that video, though, the author probably has a pretty good case for a C&D, but I fail to see how that’s censorship.

        As for Cohen v. California, that sounds like a case in which people tried to censor someone’s speech on the grounds that it was offensive to them. That really would be a chilling of the First Amendment, but offending someone isn’t analogous to the “nose” thing. There is no right to never be offended, but there is a right not to be assaulted just as there is a right to limited but real control of authored or invented works.

      • Jason Block says:

        I might not have followed all sides of the arguement in their entirety but I don’t see how copyright has the function of restricting the public’s access to a work, which is what censorship does. What it does do is restrict the exploitation of an expression – obviously this is more problematic if you’re talking about speech, which is fundamental to being human, than it is if you’re talking about publishing, which remains a public, commercial enterprise, if not for you than for those who control the apparatus.

        I think there’s a reason that copyright and a free press have remained conjoined at the hip for the duration of their history as concepts, and the reason is that one enables the other. Copyright encourages an author to share useful information, instead of hoarding it, so that more people have access to it in fixed form. The opposite of censorship.

  2. Sam Flintlock says:

    I obviously bow to your superior knowledge of the film industry David, but I’m a bit surprised to hear that films are only copyrighted as a whole. Would I really be able to write a book about Captain Jack Sparrow or have I misunderstood your point?

    I think Jason’s point about there being different kinds of derivative works is important. One factor I’d suggest is the difference between a retelling of a story and a full reworking of it. While it’s a superior movie, The Adventures of Robin Hood is obviously derivative of the original legends in a way that Robin Hood: Men in Tights isn’t. And then you get work that has moved so far from its original inspiration that to describe it as “derivative” would be to strip it of all meaning, which I suspect is part of what lies at the heart of David’s distinction between “original” and “derivative”. Pullman’s His Dark Materials trilogy might be partly an answer to CS Lewis & The Chronicles of Narnia. But it’s quite obviously an original work in its own right.

    Jason’s also right on “blandly derivative” work, as far as ideas are concerned. The balance is about right there I think. Nobody is going to get sued for writing a book about a schoolboy wizard. There are occasional problems in this area, but they’re almost always to do with trademark law, not copyright. (Games Workshop trying to trademark the concept of space marines, though they eventually backed down).

    So, really, what we’re looking at reducing copyright terms to achieve is David’s description of works that are “literally remaking or building upon named works or their elements”. Is that a useful goal artistically, enough to be a genuine point in the argument against the current term lengths. I’d argue yes. Obviously, a lot of entirely pointless works would also be allowed. See the effects of Monopoly coming out of copyright for that; it’s led to lots of pointless gimmicky remakes as opposed to anything substantial. But I think there are enough genuinely transformative potential works around to justify it. The most worthwhile being even reworkings that allow the story to be seen differently and satirical uses.

    There are problems with seeing licensing as the answer.

    Firstly, there’s the question of how comfortable we are with artists being limited primarily by how rich they are, instead of how artistically valid their reworking would be.

    Secondly, it pretty much guarantees that the only reworkings allowed will be those that place the original work in a good light. This is particularly the case with corporate owned work like Mickey Mouse or corporate jingles. Where, actually, the point of a lot of derivative works in that area is specifically to critically comment on them, not to celebrate them.

    • David Newhoff says:

      Sam, you raise an interesting point with regard to franchise films like Pirates of the Carribean, Star Wars, etc., whereas I was referring to the majority of films that, like the examples listed in the Duke piece, are one-off works that exist for their own sake and are not likely to yield a McDonald’s Happy Meal toy anytime soon. Not that I don’t want to see McDonalds offer Max von Sydow playing chess with Death action figures in a Happy Meal — I’d collect those personally — but you get my point. The majority of motion pictures are not these kinds of franchises, and those that are naturally have a variety of trademarks and copyrights that, yes, a studio will enforce vigorously as would be the case with Captain Jack Sparrow. My larger point is that those who would complain that they cannot in their lifetimes produce, say, the new legend of Jack Sparrow without permission are making much ado about nothing, just to keep Shakespeare in the mix; and these narrow examples are not good grounds in themselves for limiting copyright. The argument for limiting terms — and remember I don’t insist they’re the right length now — has to show large-scale public benefit that at least equals the benefits we can point to by maintaining strong copyrights.

      As for licensing, it isn’t always a problem, and often it’s nothing more than getting permission without money changing hands.

      Also, you can comment on or parody just about anything without permission. I could depict Mickey as a Nazi in an art piece if I wanted to comment on Walt’s anti-semitism. The company might even try to sue me for trademark violation (I think Mickey is trademarked), but I bet I’d win, as my art would qualify as fair use.

      • Sam Flintlock says:

        And of course the very concept of “The New Legend of Jack Sparrow” would support your point, because it’s not like they’re aren’t large numbers of pirate legends anyone who wants to can utilise.

        I’d disagree with you somewhat on what needs to be demonstrated to make a case for copyright terms being shortened. Because doing so isn’t in any way weakening copyright as a whole. So, really, the question for me is if shorter copyright terms have social benefits that outweigh the social benefits of longer copyright terms.

        Heh, worth noting that we’re coming to this from different perspectives due to the US/UK divide. I, personally, can’t comment or parody something without permission. UK fair dealing laws are more restrictive then fair use and don’t have that provision. It’s currently being debated whether we should do. Actually, from a UK perspective, massively strengthening fair dealing would achieve a lot of what I’m looking for from shortening copyright terms anyway. I’m talking about something more fluid then fair use. Allowing transformative works to be created (potentially with some kind of automatic financial compensation if the works are commercial).

        As you can probably tell, copyright terms aren’t actually my main priority. I’m naturally inclined to think they’re too long, but I’m not even that radical on the proposed reforms. My strong instinct is that artists should be keeping copyright in their lifetimes and it would take a lot to convince me otherwise. But, really, fair dealing reform is far more important to me. As, even more, is reform of our appalling libel laws. I don’t talk about the latter much on here because it’s obviously a UK-specific issue. But it’s actually the area I spend most of my campaigning energy in offline; I’m a member of the Libel Reform Campaign.

      • David Newhoff says:

        Thank you for the reminder, particularly for anyone following, that indeed the US has one of, if not the, most permissive fair use climates in the world among nations that maintain copyright laws. I recognize that parody and other references are not as easily produced in the UK, although I claim even less expertise in the specifics than I might with regard to this country. Likewise, I also understand that libel is thornier there, and perhaps if I find a quiet moment (Ha!), I’ll educate myself on the subject. In the meantime, Sam, I suspect we have similar gut instincts about copyright and the debate regarding terms, even if we approach from two different directions. As with many things, if one is to have a holistic discussion about something like the rationale for terms being x years vs y years, then it’s helpful to get crazy stuff off the table. I would call the content of the Duke piece the crazy stuff. 🙂

      • Sam Flintlock says:

        I think you’re right. The differences between us seem largely ones of nuance rather then being major points of contention. That may be in part about coming from different sections of the creative industry. I’d assume that most ideas in the film industry are created either by a single individual or a small team. Whereas my background is journalism (where we’re obviously reacting to the actions and works of others a lot) and comics (where it’s standard in the DC/Marvel sector of the industry for lots of writers to have made their mark on a corporate IP).

        I don’t even think that the Duke article is that crazy. Beneath all the rhetoric, really all they’re calling for is a return to pre 1978 law (28 years, renewable for another 28 after that). 56 years is pretty near to most artist’s lifetimes anyway. My problem with the article is that it’s populist to the point of being tabloid. Simply listing works not yet in the public domain is not a serious approach. And the (lack of) critical thinking in it is something I’d expect from a first year undergrad essay. They don’t even acknowledge how important patronage was to Shakespeare, let alone the indisputable fact that it actually had an effect on what he was able to write.

        The crazies for me are the people calling for a reduction to 7 years. It makes sense for the likes of Google, in a cynical corporate way. But the idealists who seem to think that the main effect would be lots of new derivative works as opposed to lots of cheap copies of already existing works are naive at best.

        If you’re interested in finding out more about our libel laws, the Libel Reform Campaign actually gives a pretty good summary of the issues. We obviously come from one side of the argument though. I’d draw your attention to the fact that the standard legal burden of proof is shifted in UK libel law; it’s up to the defendant to prove that a statement isn’t libelous, not the plaintiff to prove that it is. Libel cases are also extremely expensive and often lengthy. You can’t get legal aid for them either. Which leads to it actually not protecting ordinary people at all who don’t have the resources to take out a suit. The tabloids can pretty much libel ordinary people with impunity.

        I’ve only been involved in defending one libel case. We eventually won, but it’s really not an experience I’d like to repeat if I can help it.

      • David Newhoff says:

        Thanks for this response, Sam. Sorry to have missed it among the subsequent string of comments. Regarding the Duke article, our opinions are roughly the same in that my response is asking those who would shorten copyright to propose a rationale and not an emotional PR campaign. Examining the pros and cons of 1976 is the only mature way to address the issue, and when people like the Duke guys don’t bother to do that, it makes me think they don’t have a rationale so much as a privately-funded agenda. Moreover, for nearly every work they mention, I can think of a reason to leave them protected and no reason that they should enter the public domain a day sooner. And, yes, brining up Shakespeare in this context is always amusing. Shall we really entertain an Elizabethan definition free expression? I’d have lost my head a long time ago. The funny thing is, I bet I can find smarter rationale for shortening terms from copyright experts who defend copyrights than from people like those in Duke’s study group.

        Thanks also for the lead on UK libel issues. Will try to find time to dig in.

        Cheers,
        DN

      • Derrek says:

        When one talks about licensing, does that not limit the ability to make adaptations to those with plenty of money? The constitutional underpinning for copyright (IIRC) was to secure exclusive rights to creators for a limited time so that creators could benefit (and survive to create more works) and yet that society would eventually have free access to these works. The 1976 Copyright act tried to deal (among other things) with the needs of heirs to an author by extending copyright from 56 years (if renewed) to authors lifetime plus fifty years, which (IIRC) matched the UK system. That to me made sense, but extending it further and further out seems to benefit corporations more than individuals and prevent some of the creativity that could occur.

        Our present-day system seems to combine longer and longer copyright terms with more and more spotty enforcement that again leaves moneyed interests in a far better position than individual (particularly yet-to-be-established) artists who wish to make an adaptation of some work written since 1923. That’s too long.

      • David Newhoff says:

        Thanks for commenting Derrek. The wealthy are not necessarily favored in these negotiations. Referring to Beckett as cited in the post, I’ve seen his plays in well-funded theaters and un-funded theaters. I can think of struggling musicians I know who have recorded and distributed covers without breaking the bank. Sometimes, all one needs is permission, and no money changes hands at all. Other times, preferential rates are granted based on the type of use. Also, neither I nor anyone I know is ardently arguing for longer terms. I’m simply trying to critique some of the weaker arguments for shorter terms in advance of a more nuanced, legal debate that is sure to come.

      • Derrek says:

        David, When you say (in a 1/12 post) that “…Examining the pros and cons of 1976 is the only mature way to address the issue…” you overlook that the terms stipulated in 1976 are not what we deal with today. I could live with the original terms far better than with the subsequent extensions.

      • David Newhoff says:

        Derrek, the point is that how you feel, how I feel, how anyone feels is entirely irrelevant. 1992 and 1998 amendments are just that — amendments to the 1976 law, which means a review of that law would inherently demand review of its amendments. My point is that emotion is not any way to engage in effective dialogue. Revising copyright terms is not as simple as arbitrarily rolling back to x years because it seems right.

  3. Patrik says:

    I think it might also be important to remember that copyright law doesn’t seem to stifle the creation of derivative works, it mostly stops the commercial exploitation of those derivative works. At least that’s the case in my realm, which is music.

    I always have a good laugh when someone like an academic claims that copyright is holding back a massive wave of derivative creativity, because one needs only to spend ten minutes browsing Soundcloud, Soundclick, and any of the slew of music forums devoted to hip hop and electronic music production to see the disconnect from reality. There are hundreds, if not thousands, of sample-based songs being uploaded and shared every day; copyright be damned. Sure, these guys can’t get their tracks on iTunes or Spotify, but art isn’t supposed to be about making money, right? (Ha! Until you get a little older, that is.)

    In fact, being served a cease and desist letter is damn near a badge of honor among samplers. Being sued outright is a good sign that you’re on to something and might be able to make a living at this! If you’re on the big labels’ radar, you must be doing something right along the lines of promotion.

    These days, it seems the labels are far more concerned with piracy and have pretty much taken a laissez-faire attitude towards sampling… until you start making money/waves.

    • James_J says:

      RE rap music:
      all the sampling actually creates further markets. The more popular the music you want to sample, the more likely you’ll have to pay for the privilege of using someone else’s hard-earned top spot to prop up your own work.
      That said, not all people charge for use of samples… all you need to do is ASK!

      Additional markets are not a bad thing at all… especially when we have a Government mandated CAP on statutory/mechanical licenses…(see ‘rate courts’). Essentially, when it comes to music, the humble songwriter is subsidizing multi-billion dollar tech companies. This hardly seems fair…

      • Patrik says:

        James_J wrote:
        “all the sampling actually creates further markets. The more popular the music you want to sample, the more likely you’ll have to pay for the privilege of using someone else’s hard-earned top spot to prop up your own work.”

        I agree. There are a number of cases where old tracks that never made much of a profit for the performer/songwriter in the initial release ended up being a much needed windfall for the musicians toward the ends of their lives after the song was sampled by famous emcees or producers. I think that’s a good thing for everyone.

        What bugs me is that a lot of the most sampled music was performed by black musicians who were rarely paid anything at all to begin with by the financiers of the recording, who tended to be white men. Now, people want to pocket the remaining bread crumbs left for these performers in order to streamline and shore up the business models of Silicon Valley companies, which tend to be owned and run by, you guessed it, white males. “The more things change…” and all that.

        “That said, not all people charge for use of samples… all you need to do is ASK!”

        Exactly. I’ve had plenty of samples cleared by seeking out the artists and simply asking for permission. Sometimes it takes a little effort to track down the performers in the case of older, more obscure bands, but it’s hardly onerous. The longest part of the process is waiting for the response. And in almost all cases I’ve been given the OK without being asked for any money or percentages. Many musicians see being sampled as a compliment.

        Additional markets are not a bad thing at all… especially when we have a Government mandated CAP on statutory/mechanical licenses…

        I haven’t really given much of a second thought to statutory licensing rates, but I’m coming around to the idea that they are probably outdated and unnecessary these days. It’s probably skewing the market. I mean, if you can license the Led Zep catalog for the same price as bedroom DJ #9,000,000’s, who do you think the stations are going to choose to play? It’s like one of the problems with file sharing in general, in that it eliminates one of the primary advantages of an independent artist: being able to undercut the big guys. Again, when a masterpiece like Dark Side of the Moon is the same (non)price as a younger upstart band still finding their groove, who do you think the listener is going to choose?

    • M says:

      Patrik,

      That’s actually incorrect. What is happening on these sites like Soundcloud and YouTube is massive copyright infringement that is largely tolerated.

      First of all, just because something is non-commercial doesn’t make it fair use (but it does make the fair use case stronger), it’s unlikely that extensive sampling or covers would be considered fair use. Fair use primarily exists to protect commentary and criticism (aka parody) of works, even if these works copy large portions of the copyrighted work.

      You absolutely need a license to produce a derivative musical work that is not somehow critical of the original work. In the case of YouTube you may need a special synchronization license as well, which is not available via statutory licensing in the United States.

      Funny thing is if copyright was actually properly enforced, it would interfere with the basic behaviors and dealings of so many regular people it would fall apart as a legal regime overnight. That’s why this widespread copyright infringement is tolerated and only the most obvious cases of copyright infringement (massive scale, verbatim copying of large scale works) tend to be in the debate.

      • Patrik says:

        M Wrote:
        “That’s actually incorrect. What is happening on these sites like Soundcloud and YouTube is massive copyright infringement that is largely tolerated.”

        Indeed. That was precisely the thrust of my post.

        Also, while I applaud you actually studying up on Fair Use, do remember that some of us have been at the derivative art game for well over a decade or more, and don’t need armchair quasi-advice from someone who only discovered the concept a few months ago.

        “Funny thing is if copyright was actually properly enforced, it would interfere with the basic behaviors and dealings of so many regular people it would fall apart as a legal regime overnight. “

        You could say that about any number of laws. Specifically traffic violations. Or building codes. Or any number of laws related to owning a house or a parcel of land (did you know that in a number of cities it is illegal to park your car on your own lawn? Some towns even outlaw couches on front porches. And straight to hell with you if you dare string up COLORED Christmas lights!). Let’s not even bring up taxes.

        Although, I’m unsure how enforcement of copyright would affect the everyday dealings of regular people, as you say. Seems a bit of an exaggeration. Incidental copying, like that required by a computer to move a file, is legal as far as I know.

        I still wonder why those opposed to copyright haven’t followed their own logic down the rabbit hole and pointed out that simply observing something creates a copy in the eye of the beholder, literally. I’ve read arguments that memories could be construed as copyright infringement, but never anyone pointing out how the human eye works.

        And mirrors! Why don’t I see any scare-mongering FUD about children being liable for holding a picture in front of a mirror?

        That’s what these arguments about everyday infringement sound like to me. Absurdity in the extreme. God help us if any of these pundits ever study up on philosophy, there is a nearly endless amount of sophomoric anti-IP fodder in that realm. I don’t mean that philosophy in general is anti-IP, but there are a lot of existential uncertainties that could be exploited to render moot the entire concept of a “copy” when one can’t even establish what constitutes “reality.”

        “That’s why this widespread copyright infringement is tolerated and only the most obvious cases of copyright infringement (massive scale, verbatim copying of large scale works) tend to be in the debate.”

        So, if as you say, only the most blatant cases of copyright infringement are pursued, then what’s all the hoopla on the internet, day in and day out, about copyright stifling innovation? What’s your problem with it, then? I mean, I agree with you that copyright is rarely enforced in any meaningful way, but that doesn’t seem to be enough for the mouthpieces churning out angry anti-author rants every single day.

      • M says:

        Patrik,

        Because even the conditions necessary to stop (I shouldn’t even say stop, more like “slow”) massive scale verbatim copying of high budget works are intolerable. That’s just how completely and profoundly broken copyright is.

  4. James_J says:

    As for term limits:
    food for thought>
    One: are we talking about corporate owned “work-for-hire” (ie 95 years from publication) or artist-owned (life-plus 70 years).

    As for the ladder, the long term IMO helps the ‘incentive to publish’… especially in a timely manner. A lot of works are created in an artists latter years… you know, when they’ve had a lifetime of hard work honing their craft to become a master craftsmen…
    ..Along those veins: People want to hand down inheritances to their heirs/kin. We want to know our children won’t fall into poverty when we’re gone (or if we’re in poverty already, a means to rise up). Since most of the time (if at all) it takes the lifetime of a work to earn back the investment made- let alone profit from it (top 10 works are the exception), wouldn’t shortening a work have the effect of people holding back their releases until after their death?
    IE, if i’m getting up in years, and/or are in poor health, i might not publish at all. I would give the song (or other media) to my child instead for them to copyright/register… thus ‘taking care’ of my children, and having that song/album/work actually have a chance to earn for my children (and also extending it until well after THEY are gone…) This could very easily backfire on all you ‘shorten the term’ people.

    Since copyright is our currency, that is what we have to give. We forgo 401k’s and assured paychecks and risk our health and quality of life to pursue our craft. Why can every other person hand-down their money/earthly possessions, but not artists? because someone on YouTube wants to do a ‘mash-up’ and can’t be bothered to ask permission? Really? If that’s the ‘great problem’, don’t talk to me ask my (3-year-old) children for permission… as they’ll be the ones who own the copyright (see above…)

    As i see it, it’s the Google that is the only ‘REAL’ beneficiary to a shorter term… and as far as that goes, they’ve screwed us enough already, thank-you-very-much…

    • Anonymous says:

      James_J–
      “People want to hand down inheritances to their heirs/kin. We want to know our children won’t fall into poverty when we’re gone”

      That’s admirable. Of course, if that’s your goal, you want to be very sure that you accomplish it, right? The problem is that creative works usually have no significant copyright-related economic value. For example, the comment you posted here is copyrighted; will that copyright keep your great-grandchildren fed? No, it won’t. Almost none of them ever do. Then, of the tiny minority of works that ever have a significant copyright-related economic value, the vast majority of those will realize virtually all of it within a very short span of time upon publication in a given medium. Most of the sales of a typical novel will occur within around a year and a half of it first being published, IIRC. The biggest box office weekend a movie will usually have is its first one; the biggest week of home video sales the movie will have is also usually the first week it is available. An issue of a daily newspaper will mostly be sold within maybe eight hours of it being printed.

      There are exceptions, but they’re as rare as hen’s teeth. We just remember the exceptions because the vast majority of works — and by extension the vast majority of artists — are utterly forgettable. For example, tomorrow, January 10th, 2014, two new films will be released in North America: Dumbbells, a comedy about a gym, and The Legend of Hercules, a sword and sandal action movie. I will go out on a limb here even though I haven’t seen either one and say that these are not going to be the next Gone with the Wind and Star Wars which make money perennially. Whatever movies are made this year that become classics that are remembered for the duration of their copyrights, and always make money, they won’t be these two. Nor will they be as profitable.

      Unfortunately, while predicting the long term financial prospects of these movies wasn’t too hard, it’s not really possible to predict sure-fire winners. (The current thinking in Hollywood at least, is gigantic blockbusters with enough action and simple enough plots and dialogue to be exported to foreign markets. It doesn’t always work — see last year’s The Lone Ranger. Well, actually, odds are good that you didn’t.)

      This means that creative works are really gambles from a financial perspective. Most of them would flop if put into a market where their copyright was exploited, so no one tries. Some of them seem to have better chances, but still either flop, fail to recover sunk costs, or were at least worst investments than other alternatives. (E.g. a successful author making $40,000 a year in advances might make more money if he had a day job instead. And certainly the publishers and major investors in big projects are very sensitive to this.)

      If you want to _know_ that your children won’t fall into poverty after you die, you don’t rely on copyrights as a rule. Unless you’re already pretty successful or have some unusual advantage (We can’t all be President Grant, writing his memoirs), it’s as irresponsible as giving your children a big box of scratch-off tickets.

      The better way — and in fact, the fairer way, since there’s no reason that artists should get a unique and special way of taking care of their families — involves thing such as: Saving your money, minimizing spending, and investing what you can, wisely; Obtaining life insurance; and Voting in favor of social welfare programs and progressive taxation to support them.

      In most cases where a creative work has the sort of long-lasting, copyright-related value that would be necessary to help support the artist’s family, the work was one of those tiny tiny handful that are enormously successful from day one. In which case, why didn’t the author save his money and use it in a prudent fashion from day one? I have little sympathy for people who waste their money, then expect to get more. (Though I have some, and it falls under the social welfare category. Even financially irresponsible people should not be left to starve or suffer from lack of medical care, housing, etc.)

      “wouldn’t shortening a work have the effect of people holding back their releases until after their death?”

      Maybe. So we need two changes to term lengths now. First, shorter terms for published works. (Preferably in combination with requiring registration by publication, and breaking the short term into multiple shorter terms) Second, a shorter term for unpublished works, to encourage authors to publish in a timely fashion. This use-it-or-lose-it approach has worked well in the patent field, and as the objective of copyright is to cause the creation and publication of works which, but for copyright, would not have been created and published, it would work well with copyright too.

      True, some works do take quite a while to prepare for publication, and we don’t want to encourage the piracy of manuscripts. On the other hand, there comes a time when the public is better served by the pirated manuscript than letting the work molder in an attic or something. Kafka himself burned 90% of his own work. He requested in his will that the remainder also be destroyed. His wishes were ignored and we’re better off for it. Or if you prefer, there’s the old joke about the museum guard who stops the painter of a painting from continuing to work on it, even as it hangs on the wall. “It’s not finished,” says the painter. “But it belongs to us now,” says the guard.

      “This could very easily backfire on all you ‘shorten the term’ people.”

      Well, this never seemed to happen when the term was 28+28 years. It never seemed to happen when the term was 28+14 years. And it never seemed to happen when the term was 14+14 years. And while some art is timeless, a hell of a lot of it is of its age. Imagine if the greatest disco musician there ever was wrote and recorded the greatest disco album of all time and kept it in a safe since 1979, only to reveal it 35 years later in 2014 in order to provide for himself in his old age.

      “We forgo 401k’s and assured paychecks and risk our health and quality of life to pursue our craft.”

      Then don’t do that then, especially since the payout is usually terrible. Either be more financially responsible, or support fair and widely applicable ways of allowing people to do good but financially irresponsible things (like old age pensions, guaranteed basic incomes, universal health care, etc.), or accept that that’s what’s going to happen. Also 401(k)’s are a joke and most people can be fired at any time without cause, taking their paychecks and health and quality of life too, so don’t go assuming that the grass is so much greener elsewhere.

      “Why can every other person hand-down their money/earthly possessions, but not artists?”

      Actually we limit that too.

      Firstly, we define what possessions are in the first place. Secondly, even when there is agreement that something might belong to someone, it’s not unusual for strings to be attached. We tax inheritances. We limit the ability to grant them (e.g. the abolishment of the fee tail). Copyright is an artificial construct, and exists for the benefit of everyone, not merely for artists. So why wouldn’t we regulate the duration of copyright for the public good?

    • Sam Flintlock says:

      James-

      Since most of the time (if at all) it takes the lifetime of a work to earn back the investment made- let alone profit from it (top 10 works are the exception),

      Actually, most of the serious DIY bands I know are making at least a small profit on their recorded output. Tours, not so much unfortunately. People are lucky to break even there. It’s true that people aren’t able to give up their day jobs but that’s nothing new and existed before the Internet took off. I won’t name them, but I was good friends with the lead singer of a pretty big major label alternative band in the late 90’s (they had a top 40 album, two top 40 singles, front cover of both Melody Maker and the NME etc). The only way he could keep his head above water was to work at the gas board when they weren’t on tour. The whole idea that lots of people were making a full-time living before piracy is based on an overly rosy view of the past.

      As Anonymous has pointed out (as an aside, please choose at least a pseudonym because otherwise things get confusing!), if people are going to try and exploit legal loopholes they can be closed. It happens all the time with inheritance law.

      Really, your position isn’t based on an even playing field for artists. Very few people’s children get to carry on directly profiting from their parent’s labour after their deaths. Instead, their parents have to save while they’re alive in order to pass that onto their kids. There is potentially an argument for treating artists as a protected category of workers due to the social value they create. But we need to be clear that’s what you’re proposing. It is a harder sell then just treating artists like other workers, to be sure.

    • James_J says:

      Can you not hand down that sculpture in your living room to your children (or donate it to your favorite cause)? Why can’t i do the same if i MADE the sculpture?

      RE the weak argument about ‘taxes’ on inheritances… IIRC you only get taxed a high rate on anything beyond 11million (formerly/better known as the ‘estate tax’, but now known as the ‘death tax’)… and didn’t they do away with that entirely? No one really even paid that rate either unless someone died suddenly/unexpectedly without proper planning… ever hear of ‘trust funds’? …
      And if that’s the case, there’s no special treatment for artists, as the heirs have to pay taxes on IP inheritances too… i’ve never heard of an exemption for artists…you made that up! We pay taxes too…

      FWIW, the PUBLIC BENEFIT was given with the Publication of the work in the first place. This puts it into the public sphere and market forces dictate it afterwards. THAT is what is meant by “public benefit” in the drafting… not the “public domain”…
      If a work is not as valuable over a period of time you will see it discounted drastically (ever see a ‘bargain bin’?) that doesn’t mean those (or other works) don’t have value after their heyday.
      So, the question becomes: WHO should be allowed to profit from these works? an Author’s children? or Google or some other corporate entity that scoops up and either charges or otherwise makes money from these works… because i can tell you they are not going to “host” these things for free… there has to be incentive for them. Personally, i would rather see that money go to a persons family instead of a corporate behemoth that didn’t have any stake in anything other than ‘finding it laying on the ground’…

      And to your point about “Blockbusters” and their value curve… I would argue that most of the ‘great’ works aren’t usually found here. The risk takers and more artistic works are usually done by independent artist.. Works that push the boundaries and change the direction of future works aren’t usually popular at first.. and these works value proposition are more of the ‘slow burn’ variety. If you shorten terms to 28 years, you will lose a lot of the slow burns as there incentive to take risks would be greatly diminished.

      And while we’re talking about the 28 year thing + renewal (you brought it up…), go ahead and look at the average age of the artists in that era.. now look at their life expectancy . 28 years WAS taking care of the next generation.

      Re no value to the children anyway. Really? Do you know anyone who inherited IP? I do… Maybe it’s easier to generalize when it’s some fictitious “other people”, but all generalizations tend to happen this way…

      • Anonymous says:

        James_J–
        “Can you not hand down that sculpture in your living room to your children (or donate it to your favorite cause)? Why can’t i do the same if i MADE the sculpture?”

        If you made the sculpture, did you use tools that someone else manufactured? Did you use skills that someone else taught you? Did you sculpt it in a style that someone else invented? Was the subject wholly of your own invention, or was it something that came from somewhere? (Michelangelo didn’t write the story of David) If you deserve rights in a work merely because you created it, why shouldn’t your teacher deserve rights in your work merely because they taught you how to create it, and why shouldn’t the chisel company deserve rights in your work merely because they enabled you to create it?

        Or does this principle of yours just stop with only you getting a special benefit, in the most self-serving way imaginable?

        Artists don’t deserve copyrights because they’re artists. They are not special little snowflakes. They are given copyrights by the public (via the government, which serves the public) because it is in the public interest to do so — if it is in the public interest, and then only to the extent that it is in the public interest. Copyrights are entirely utilitarian, just as the property rights that they somewhat emulate are.

        “RE the weak argument about ‘taxes’ on inheritances”

        The details of our crappy tax laws aren’t the issue. The issue is that limits can be placed on property rights, and on transfers of property, and it’s legitimate to do so. Why would copyright be an exception?

        “FWIW, the PUBLIC BENEFIT was given with the Publication of the work in the first place.”

        No. It’s true that there is some public benefit once a work has been created and published. The world is certainly better off with that. But it isn’t enough. Works only become truly valuable when they are in the public domain.

        There is value in having more copies of a work. This allows more people to access those copies and gain whatever benefits the work can give them, whether it’s just some simple pleasure for a little while, or serious knowledge. It also makes works more likely to survive; the only reason we have as little as we do from antiquity is because people made copies and at least one copy survived long enough for more to be made. More copies can be made once a work is in the public domain, and no longer encumbered by copyright. Lack of copyright results in greater benefit. And once a work is in the public domain, the price can drop to the marginal cost of a copy, since there’s no longer a right for an author or his assigns to charge monopolistic prices. People’s budgets can handle a lot more free or cheap copies than full price copies. Again, lack of copyright results in greater benefit.

        There is value in derivative works. In fact, many great works of art are derivative: Virgil’s Aenid is basically fanfic about the epic poems of Homer. Shakespeare, mentioned above, only ever had one original story idea in his life that we know of; everything else is his version of a pre-existing story or episode from history. Not to mention the common practice of adapting books and plays into films. Even though artistic tastes will differ from person to person, surely the world is better off with hundreds of different film adaptations of Dracula than it would be without them. (Including Nosferatu, which was made while the novel was still copyrighted, and which was ordered to be destroyed, but which survived thanks to the heroic efforts of pirates and turns out to be widely considered one of the greatest films ever made. Again, lack of copyright results in greater benefit.

        Frankly, if the choice was only between lots of new works but eternal copyright, and relatively few new works but no copyright (the latter being perfectly acceptable for the whole world for the vast majority of history), I’d take the latter.

        “WHO should be allowed to profit from these works? an Author’s children? or Google or some other corporate entity that scoops up and either charges or otherwise makes money from these works… because i can tell you they are not going to “host” these things for free… there has to be incentive for them.”

        If a work is in the public domain, everyone can attempt to profit from them. You can, right this second, print up a copy of Hamlet and attempt to sell it to passers-by. Lots of people do this, even though it’s easy to get copies for free because there are actually some people motivated by a charitable impulse to spread knowledge far and wide and not for financial gain. So the idea of the question being an ‘or’ is just ludicrous.

        “And to your point about “Blockbusters” and their value curve… I would argue that most of the ‘great’ works aren’t usually found here. The risk takers and more artistic works are usually done by independent artist.. Works that push the boundaries and change the direction of future works aren’t usually popular at first.. and these works value proposition are more of the ‘slow burn’ variety.”

        My point was actually about ordinary works and their copyright-related value curve: It’s zero and it stays at zero forever.

        My post then continued on to rarer works which actually have any copyright-related value: For them, it’s usually a short spike that then quickly and permanently declines. The actual height of the spike depends on the work: “All Creatures Gross and Slimy” probably won’t do too well but will likely follow the same curve.

        Finally I addressed blockbusters. They exist, and don’t follow that curve, but they’re rare and it’s not usually possible to predict whether you’ve got one or not. Just like people do win the lottery jackpot fairly regularly, but it never seems to be you or even anyone you know, and it’s always with numbers that you didn’t know in advance would win. Planning to be the next JK Rowling is as silly as planning to be the next Powerball winner. It might happen, but it’s unlikely enough to be highly irresponsible.

        So you’re suggesting that great works usually need long terms. Well, we had copyright terms of exactly zero from the days of the first cave paintings through to 1710, and we had some great works in there. And then most of the world other than England didn’t have copyright laws until the 19th and 20th centuries (most European countries didn’t have it until the 19th, and then they exported it by conquering the rest of the world and forcing it on subjugated people). I can’t help but think that there were any number of great works in the pre-copyright era.

        In the US, we got a national copyright system in 1790, and terms were fairly short and it didn’t apply to many works, yet we got some good stuff. Terms were lengthened in 1831 and although it probably isn’t as a consequence of that, we now get a whole host of big names: Poe, Hawthorne, Melville, Longfellow. Stowe wrote Uncle Tom’s Cabin and Abraham Lincoln later greeted her as the woman who wrote the book that started the Civil War. But paintings still aren’t protected in the US until 1870, so the Hudson River School had to somehow be great without the benefit of copyright. In 1909, terms lengthened to 28+28 and we had the golden age of cinema and television, a whole host of major art movements, more musical innovation than you could shake a stick at, and meanwhile architecture still wasn’t protected in the US until 1990, so we may as well not have even bothered with our work on skyscrapers, the Prairie School, Googie, etc. according to you.

        To make a long rebuttal short (too late), you’ve yet to show that artistically relevant works are commercially successful works (sometimes they are, sometimes they aren’t) and that long terms are necessary for either. But there’s clearly loads of counter-examples. Let me know when you’re prepared to say that the Italian Renaissance never happened.

        “If you shorten terms to 28 years, you will lose a lot of the slow burns as there incentive to take risks would be greatly diminished.”

        Well, if we don’t experiment in order to find out, we’ll never know for sure. Let’s cut back copyright substantially for, say, a century or two, and then reassess where we’re at. If I was wrong, I’ll owe you a coke.

        “go ahead and look at the average age of the artists in that era.. now look at their life expectancy”

        When Jefferson was discussing patents and copyrights with Madison during the writing of the Constitution, Jefferson, who was mainly against the whole idea, suggested tying the term lengths to actuarial figures. His rationale was that the dead had no place controlling a world that belonged to the living. His proposal, based on math, was 19 years.

        Of course, even given that artists do tend to be poor and poverty doesn’t help with long lifespans, people do often mistake historical life expectancy figures as being easily comparable to modern ones. The key is that there used to be a tremendous infant and child mortality rate. For example, an average white American male born in 1850 had an average life expectancy of less than 40 years _as of the day he was born_. But if he lived forty years and we looked back in on him in 1890, we’d see that average white American males aged 40 could expect to live another nearly 30 years. And when we check back in on him in 1920, if he had managed to live that long, the now 70 year-old man could expect nearly 10 more years of life. And if he made it to age 80 in 1930, he would probably live about 5 more years still.

        If you managed to live to age 5, your chances of living to a decent old age improved tremendously. If you made it to adulthood, the biblical threescore and ten was not unusual.

        Also, the 28+28 era was 1909 to 1978. We are not talking about the distant past here.

        “Do you know anyone who inherited IP? I do…”

        Well, I’d hate to generalize, but yes, virtually everyone who inherited anything in the last several decades did, but probably didn’t notice and didn’t care, so worthless were the copyrights at issue.

        (Also let’s avoid the term ‘IP’ — it’s not only wildly inaccurate and misleading, but it covers things other than copyright, and some of them, like publicity rights in certain jurisdictions, do not survive death and thus could never be inherited)

  5. Dave H says:

    Copyrights exist primarily for the purpose of incentivizing DISTRIBUTION of copyrightable works, not creation. People create things because they’re creative, and copyrights allow them to profit from their creativity. But the main value to society created by the creation of intellectual property rights is the incentive to license your rights as a creator to a distributor who has the means to distribute your work over a far wider network than you could ever do on your own as a mere creator. A great work of artistic expression is nothing if only you and your immediate circle of acquaintances is familiar with it. The exclusive right to distribute is what takes your culturally valuable creation and disseminates it to the rest of society so that more of the people who are more likely to benefit from it are more likely to experience it. But a distributor who has no exclusive rights is unlikely to invest in the distribution of a work since, if people start buying it, all his competitors can start selling the same work, thus free-riding on his initial promotional efforts. Shortening terms therefore actually works to disincentivize the continued distribution of potentially valuable works (i.e., culturally valuable to consumers). And the fewer people who experience it, the less likely that some other great artist will create a great derivative work from it. If you want wider distribution, you need stronger property rights. Most discussion of this issue merely assumes that a great work, once created, will be widely disseminated. This assumption is not supported by real life.

  6. Ranj says:

    First, let me state up front that I’m not an intellectual property rights expert. My feelings about this issue come from my career with a company that depended on patent rights in its business model. What I find appalling the disparity between copyright right protection (life of originator plus 70 years) and patent protection (20 years). Why is there so much difference? I believe it’s related to the pleas of sympathetic, famous actors, authors and singers vs the pleas from “big business”. Intellectual property durations are established by Congress. Who do they like more: famous people or big business? I believe there is a basic fairness question here. It appears to be another case of crony-capitalism… with the crony-capitalists being Hollywood and music stars and their families (and companies) that live off the creativity of their famous, dead relatives.

    • M says:

      Very true. It’s very bizarre.

      Medicine sticks out like a sore thumb especially. Medicines can not be copyrighted (why?). But they can be patented. You can only patent a specific formulation, not a general idea of treating a disease. That means two companies can have two different patents for treating the same disease. Thus a patent of a formulation, much like may encourage the creation of more “creative” (better) formulations by other companies. Does this argument sound familiar?

      But for reasons unknown to me, I’ve gone to tell make arguments to people vehemently pro-copyright. The argument basically stating that medical patents should last at least as long as copyrights. They sometimes go berserk. I’ve never seen an agreement, that’s for sure. This makes no sense.

      Inventing better medicines and curing or suppressing deadly diseases is apparently a form of “evil” work, done by “evil” companies like “Big Pharma”.

      But you know, painting a bloody turd (err I mean “postmodernist art”) or putting out the hundredth million EDM audio track is a higher calling that deserves great praise and the government and the entirety of society should bend over backwards to enable their great work which we would simply be lost without.

    • M says:

      I’ve been doing a lot of thinking abstractly about the issues, especially the issue of art itself. The more the more I think of what art actually is, it becomes clearer to me that it nothing but the a tolerated practice of mass psychological manipulation.

      Art provides no natural truths, no actual value: all of that exists in the mind of man. Only science and mathematics can uncover natural truth.

      Art is the circuses component of bread and circuses. It is a tool to keep the masses sated.

      A tool to make them waste time doing earning artificial achievements of no actual value (eg: video games, and yes I’m especially guilty of this one).

      A tool make false gods (ie. “rockstars”) for the masses to worship.

      Simply put, art in all its forms is propaganda running amok. No wonder why you observe what you do.

      And the profession of the artist is an inherently insidious profession.

      Why does it need to be encouraged? It needs to be stopped!

      • Sam Flintlock says:

        Have you just discovered the Situationist Manifesto?

      • M says:

        Sam Flintlock,

        I guess I may have independently discovered an entire realm of thought I didn’t realize existed. 🙂 Wow. I wonder why it wasn’t so obvious to me until now. George Orwell was apparently also held this belief!

        If the idea that art at its core insidious physiological manipulation is true, suddenly there is no legitimate reason to find a way to “compensate artists” in a post-copyright world. Destroying the financial ability of the creative industry is in itself, perhaps a worthy moral imperative.

      • AudioNomics says:

        @M,
        Spoken like someone with absolutely no art in your life.
        Some people are just wired different. Some lack empathy entirely, and can’t connect with others on a more spiritual level…
        Thanks for sharing your true feelings. I’ll know where to place your opinions on further discussions.
        @David: great blog you have here. Thank you and Happy new year.

      • David Newhoff says:

        @AudioNomics: Glad you like it, Happy New Year to you! @M I wish you a Happy New Year as well, and to that end, hope that you reconsider your relationship to art. Art doesn’t reveal any truths? If a song or an image or a sentence in a novel has never broken your heart, you haven’t lived yet.

      • Anonymous says:

        M–
        “Art is the circuses component of bread and circuses. It is a tool to keep the masses sated.”

        Surely sports are the circuses component of bread and circuses.

        Arts are too likely to be subversive. They don’t have to be, but politically subversive sporting events are a lot rarer.

      • Sam Flintlock says:

        M-

        Really though, actually looking at the anti-art movements of the past makes what’s currently going on look pathetic.

        Dada put urinals in art museums and instigated riots in the theatre.

        Situationism inspired mass civil unrest in Paris ’68.

        Up Against the Wall Motherfuckers! staged mock executions of artists and brought down the fences at Woodstock.

        King Mob dressed up as Father Christmas and distributed toys to the kids at Selfridges.

        What does the current movement have to offer? Allowing Google to scan books and fat nerds to make money from filesharing sites. Calling it a movement is massively charitable, frankly.

        (I don’t know if you were being sarcastic about not having come across the ‘anti-art’ movements before? If not, I’ll happily point you in the direction of some stuff to explore if you want. As a cultural provocation, this stuff is exceptionally good).

      • M says:

        doesn’t reveal any truths? If a song or an image or a sentence in a novel has never broken your heart, you haven’t lived yet.

        What you are saying is art is psychological manipulation. I guess you can say psychological manipulation isn’t inherently evil, but it’s certainly not a good foundation for a free society. Especially mass media (or rather, “successful art”) which is basically influences the emotions and congestive processes of large segments of the populace. Scary stuff.

      • M says:

        Surely sports are the circuses component of bread and circuses.

        True, it’s the most obvious part. But those who aren’t interested sports might find escapism in music, video games or movies. Much like the sports industry, the media industries are very much in the business of distraction and they are damn good at too. We’ve got better at cognitive suppression since Roman times.

      • M says:

        Sam,

        True. It’s funny because the anti-art movement seemed to get assimilated into art world it despised, with Dada being “an art form”. People now respect anti-art as art. The message is lost, it’s incredibly ironic.

        But it shows how completely fucked up the art world is. It’s gotten to the absurd levels that people paint you know a bunch of random “post-modern” shit (sometimes literally.. using shit), and that could all over the walls in your average “art museum” as a “masterpiece”.

        And you’ll have the “artist” basically saying that he painted this to as disgusting as possible, you know literally as a criticism of the idea of art itself, to make it as banal and worthless as possible, as art is itself. And yet it’ll get like its own section in a modern art gallery. The irony is just too much.

        Regardless, I don’t know what problem you have with fat nerds. They are making money for a legitimate reason – they actually work in a field that has value. In the end of the day science and mathematics is the pursuit of real, natural truth. Truth that will be as valid as it is today as it will be beyond the heat death of the Universe. Technology is the practice putting those truths in play to better the world.

        The work of the artist is petty in the grand scheme of things. Art’s meaning comes from the minds of mankind, and artist’s power in the world comes from manipulating those same minds. By actively working to manipulate the emotion and cognition of others they diminish sovereignty of the individual over his own self-actuality. Even with good intentions this practice is malevolent by its own virtue. So not only is the artist’s craft petty, it is also sinister.

      • James_J says:

        Wow, M, just…. WOW.

        I would go into some thing like momma never hugged you as a child, but i’m beginning to feel sorry for you. To never experience this thing that we call ‘human’… to look around and see nothing that is there, but dwelling on the inevitable end of the universe as your only reality. I feel bad. We are all here for a very short time. A blink of an eye. Yeah, sure, do your tech thing, it has the potential to do good… but i must say, if you don’t believe in this human experience at all… what the hell are you working towards? Do us all a favor: turn off your devices, go outside, and experience the world…

    • Anonymous says:

      Ranj–
      Part of the discrepancy is because patents are vastly more expansive than copyrights. The greater scope of the rights weighs against a longer duration.

      For example, if you invent Chemical X and patent the substance, you have rights to prevent anyone from using it. If I later discover that Chemical X can be used as a completely green fuel for vehicles, and I patent the method of using it for that purpose, we are now at odds. You can prevent me from doing absolutely anything with it. And I can prevent you from using it as a wonder fuel, sold at filling stations worldwide. Maybe we can come to an agreement, but maybe not. There was an enormous lawsuit over the patent on the laser, which is a great fundamental technology which only really became widespread once the basic laser patent expired and people could start using them for purposes that the inventors had never thought about or cared about.

      Whereas while a copyright grants broad rights in a particular work, no one is about to shut down entire industries with them. (Well, possibly the copyright for “Amen, Brother”)

      You’re not far off otherwise though: artistic types are good at getting public sympathy and using that politically for commercial ends. And they’re totally insatiable. But patent terms have ratcheted up too. Originally patents lasted 14 years, then 17, and now 20.

      If you were wondering, by the way, the actual reason for 14 year terms seems to be rooted in trade guild practices in medieval Europe. An apprenticeship lasted 7 years. So a term of 14 years meant that a guild master could train up at least two full generations of apprentices in the new technology before it entered the public domain. As I recall, copyrights, which came along centuries later, borrowed the 14 year term length. There’s never been serious consideration by legislatures as to what would actually be a good term length. Rufus Pollock wrote an economics paper with math which is beyond me, that concluded that a 15 year copyright term is ideal. You can read it here: http://rufuspollock.org/papers/optimal_copyright_term.pdf

      We need more research like Pollock’s. Whatever they conclude, I’d quite like copyright and patent laws to be scientific rather than feel good artsy-fartsy nonsense.

      • Jason Block says:

        “There’s never been serious consideration by legislatures as to what would actually be a good term length. ”

        I think that statement deserves to be qualified. Maybe the Congressional debates over term length weren’t focused on economic theory, but they were serious.

        Property rights aren’t generally justified scientifically.

    • David Newhoff says:

      All I can say Ranj is that it’s a bit facile to assume that the differences in these terms is because movie stars are cool and inventors are nerdy. Sonny Bono, performer turned congressman who led the 1976 copyright extension, was so totally not cool by anyone’s definition, even when he had his own TV show. If you’re actually interested in unpacking the rationale behind copyright terms vs patent terms, this is not the blog for that. There are several hosted by actual legal experts in both areas. I can recommend George Mason University Center for the Protection of Intellectual Property as a source for patent information and Copyhype as one of the best sites for non-lawyers to read about copyright. I don’t want to get into an epic thread on comparing and contrasting two fairly complex bodies of law in which none of us can boast proficiency, but I will suggest that, although both systems were born in the same clause in the Constitution, they are fraternal twins whose destinies have been shaped by radically different market forces.

      CORRECTION: In my haste to make the joke, I mistakenly associated Sonny Bono with the 1976 Copyright Extension Act, which is not the case. I’m pretty sure Bono was still doing Sonny and Cher in 1976. He was the author of the 1998 amendment to the 1976 law.

      • M says:

        Well you are discussing copyright term lengths on this blog. So it is only natural to compare it patent term lengths. Remember, they started at the same length, but copyright term was extended over and over, and especially in recent history.

        It’s worth discussing why biotechnology patents can have their patent expire while they are actively generating tons of revenue for the company. You don’t realize how much economic damage it does to a biotech company when one of their blockbuster drugs go generic. It can be on the order of a billion dollars per year in loss. There are few companies that can operate under the same levels of employment or research capabilities with $1 billion dollars less in revenue.

        This all while apparently out of print books still deserve the strongest levels of copyright protection. Because we can’t have the evil tech industry and the “fat nerds” working make knowledge more accessible!

      • David Newhoff says:

        I don’t talk much about patents for a few reasons. One is that I don’t feel nearly as qualified to talk about the industries that depend on patents as I do about those that depend on copyrights. The second is that copyright infringement is a more significant (for now) social issue affected by the Internet than patents, which tend to be a B2B matter. That may change somewhat, but it’s hard to imagine large-scale patent infringements by individuals that would rival something like billions of illegal music downloads per month.

        All that said, I’ve worked for several pharma companies in my experience in marketing and communications, and I understand that these companies are sometimes screwed when they are forced to give over to generics, but this is not the best industry you could pick to discuss patent terms. For one thing, while a drug is protected and because pharma companies are allowed to market the way they do, I have personally watched the mechanisms by which a big producer will turn what might be hundred-million-dollar drug into a multi-billion-dollar drug on salesmanship alone — not because they’re necessarily meeting a real medical need. In fact, there was a very interesting article I read several weeks ago (I don’t remember which magazine) in which top oncologists are questioning the morality of prescribing drugs to terminal cancer patients that might cost their families $300K over a year and a half in order to buy the patient maybe an extra month of life (that’s a rough paraphrase). Pharmaceutical companies are a really tough example to talk about in this context because they’re a huge beneficiary of a universally dysfunctional healthcare system. Hence, patent terms are one item in a massive knot of issues related to that industry.

        At the moment, I can’t think of a better example, but I stand by my response to Ranj that copyrights aren’t longer than patents because movie and rockstars are cooler. That’s not a premise for serious inquiry.

      • Sam Flintlock says:

        @ M

        To be fair, Google are mostly skinny nerds from what I’ve seen. :p

        That aside, the problem is that Google aren’t, in any way, wanting to make books available for the public good. If we were talking about something like the British Library putting out of print books online, there would be a much stronger case.

        Your argument rests on a assumption of goodwill from Big Tech that is simply naive. As can be demonstrated with one simple question.

        If Google really think information should be publicly available, why don’t they release their search algorithms? In fact, they do the opposite. Google are extremely protective of their code.

        Even if you think that as many books as possible should be in the public domain, Google can’t be trusted with that task. They voluntarily censored Google China up to 2010 and they only stopped because of a hacking attempt by China. Their motivation was not, in any way a commitment to anti-censorship. So, there’s no guardsmen they won’t do something similar if it’s in their corporate interest.

      • M says:

        Sam,

        Well the issue of why Google is doing it and nobody else is because Google has some expensive copyright lawyers and lobbyists that make life easier from them. Nobody else can copy Google’s work in this area because they don’t have the money to deal with all the lawsuits. If copyright law wasn’t as restrictive, there could be more competition.

  7. Carl L says:

    The issue for me is not about duration, but clarity. Right now it is basically impossible for many works to answer, “Is it in the public domain?” The only way to find out is to track down the owner and ask. But works abandoned by the passing of authors or lack of business success leave no such avenue. Anyone who picks up and tries to expand upon such a work takes the real risk of some heir or long dormant company popping up and saying, “That’s ours!” So many creative works just die and disappear, which is a shame, regardless of what one might think of their quality. It would be better to know the answer through the Library of Congress or some other mechanism so one can clearly know whether a particular work public domain or not.

    • David Newhoff says:

      Thanks, Carl. You’re referring to the notion of Orphan Works, and I’m linking an article by Terry Hart for some context, in case it’s of interest. As for the situation you pose, I have to wonder how often this a problem. If you find an out-of-print book in an attic and think it would make a great movie, there’s a pretty decent chance you’re going to be able to get some information about its author, whether the rights were sold, find out if derivative works exist, etc., and determine whether it’s in the public domain. All that research is easier now than it was before the Internet. Of course, every scenario is different, and you’re not citing a specific example, but I don’t think the system is that unclear for the majority of circumstances.

      http://www.copyhype.com/2013/02/did-the-1976-copyright-act-lessen-the-orphan-works-problem/

  8. Overviper says:

    IMHO what this conversation should really be about is the fact that the copyright term is so long at this point that the original creator is long dead. The people who are invested in continuing to hold rights are mostly distributors. As anyone who has worked in any creative industry can pretty much tell you, they don’t want to pay content creators anyway. So this begs the question of: “Why should I make Warner-Chappell rich?” They make me audit them to get my money.

    Cole Porter is long dead, but the rights to most of his songs won’t free up for years. Meanwhile, his publishers keep getting paid.

    Public domain is really useful for many reasons, and I’m for shorter terms and more Fair Use.

    • John Warr says:

      Many works don’t become valuable until many years after creation. I think it took some 10 years after publication before Lord of The Rings really took off. For many years it was considered impossible to do justice to as a film, and although there was an cartoon version of the first half of the first book in 1978 (20+ years) after first publication, but it took 45 years from first publication (27 years after Tolkien’s death) until it could be realized as a film. The Hobbit has taken another 10 years. Why, I wonder do you think that the Tolkien estate is not entitled to some income from that?

      Indeed why would any publisher buy the rights to any work, given that the author could die in a car or plane crash in a year’s time, and their investment rather than realizing a profit over at least 70 years, is reduced to say 20 years?

      • fusesoul791 says:

        Here’s a question: Who is currently heading the Tolkien estate.

        The answer: Not Tolkien and certainly not the people from the Tolkien family. It’s the same thing with estate of Arthur Conan Doyle, with a lot of his Sherlock Holmes works now in the public domain.

    • Anonymous says:

      “fusesoul791 on September 7, 2015 at 8:49 pm
      Here’s a question: Who is currently heading the Tolkien estate.

      The answer: Not Tolkien and certainly not the people from the Tolkien family. It’s the same thing with estate of Arthur Conan Doyle, with a lot of his Sherlock Holmes works now in the public domain.”

      Patently false.
      https://en.wikipedia.org/wiki/Tolkien_Estate

      • opaloka says:

        I think if you read a little closer, you’ll find that the directors (and owners) of the Tolkien estate are family members. I think it’s likely they also own his house, but no one makes a fuss about that.

  9. Pingback: Copyright Doesn't Restrain Culture - Part I - The Illusion of MoreThe Illusion of More

  10. Matt says:

    I’ll point out that the onus of justifying long copyright terms—that is, justifying extensive government-enforced monopolies—falls on the shoulders of those proposing them. The null postition is no copyright at all; any power of government needs to be justified. It’s not up to us to explain why copyright terms should be shorter; it’s up to you to explain why copyright terms should be so long.

    The rest of this post is a ramble.

    Preamble: Copyright is an artificial construct created specifically to encourage the production of new creative works, and granting a temporary monopoly on the monetization of those works. These works, while under copyright, enrich our society by virtue of disseminating their ideas. (Call this Primary Enrichment.) I don’t think anyone seriously disagrees with this statement.

    In exchange, after a period of time those works enter the public domain, which further enriches society (Secondary Enrichment), as others besides the author can now expand upon the original work, create derivative works, and widely distribute copies cheaply without needing the author’s permission. It fuels the development and exchange of ideas, which benefits our society for all the usual reasons that, I would assume, Mr. Newhoff does not need explained to him.

    (Secondary Enrichment is not necessarily of lesser magnitude or importance than Primary Enrichment; it is simply second, in terms of ordering of time. SE is of a somewhat different nature than PE.)

    Copyright terms that are too short would reduce PE, and thus eventually SE, because fewer works would be created. (Although even absent copyright, especially in a society like ours with near-universal literacy and incredibly cheap creation and distribution technology, the amount of creation would still be orders of magnitude larger than it was a thousand years ago.)

    Copyright terms that are too long would increase PE by a small amount, but not as much as one might think, because the increased volume of ideas that are still under copyright would preclude many works. Meanwhile, these long terms would reduce the power of SE, because by the time works entered the public domain, they would be so old that the probability of any individual work having any relevance would have decreased. The increase in PE would not offset this.

    (The financial support of heirs beyond those heirs’ aging into adulthood is not really relevant. The number of people who receive significant income from their ancestors’ copyrights is tiny. We’re better off addressing that issue as one of the Anonymous posters said: social safety net, etc., not by trying to make copyright terms long enough to help out those people. I’m also not sure why we would; if an author’s child grows up, why doesn’t that kid get a job like everyone else? Why would he be dependent on his parent’s copyrights?)

    As such, we need some intermediate length of copyright (or several, possibly, depending maybe on the type of medium—there’s no inherent reason why films, books, music, and software should all have identical copyright durations, given the differences in the media).

    A lot of people (pretty much everyone who gives it any thought, and isn’t actually funded by copyrights, either their own or those of their employers) think copyright terms are getting too long. A work still being under copyright potentially a hundred and twenty years after creation is self-evidently ludicrous. What possible reason could society have for ensuring such a long monopoly?

    • David Newhoff says:

      Matt–

      All rights protected by government are artificial constructs, and it has been well argued that a property right in the fruits of one’s labor stems from the same Lockean trunk as other rights we in the U.S. hold dear. I’ll spare everyone that lecture. While neither I nor anyone else can refute the significance, let alone the constitutionality, of the public domain, this has little to do with my critique of the article by the Duke organization. As is often the case, the authors simply trotted out a bunch of works and declared it “a shame” that these are still under copyright, but they offer no concrete, or even anecdotal, evidence to prove the shame of it. Meanwhile, the most recent term extensions are not the result of whimsy or industry manipulation, but predicated on maintaining parity with our trading partners. Hence, any proposed revision to the present terms must address the rationale for their current status, otherwise the revised terms would be entirely whimsical. I don’t insist that the terms must be what they are today, only that it is insufficient merely to say, “Well, they should be fifty years because that feels about right.” And above all, I think we should distrust copyright revision proposals derived from the Internet industry; these are not offered in the service of society, but by people with corporate agendas that prove themselves more rapacious than the greediest publisher, label, or studio.

      • Matt says:

        “but they offer no concrete, or even anecdotal, evidence to prove the shame of it.”

        It’s not the Duke article’s responsibility to offer an explanation why; we already all know why, because we accept the basic premise that it benefits society to have a robust and growing public domain. From what I understand, nothing (or next to nothing) in the United States (barring explicit grants by authors) will enter the public domain for another three years. Tell me with a straight face that it benefits society to have virtually nothing enter the public domain for years and years on end. Corporate coffers grow and grow, and the public domain gets nothing.

        It’s up to those defending these absurdly long copyright terms to justify them. You might as well complain that an article decrying beating orphans fails to justify why doing so is bad.

        Hence, any proposed revision to the present terms must address the rationale for their current status, otherwise the revised terms would be entirely whimsical.

        No rationale was offered for extending the 28+28 to 95/lifetime+70 except “Well, other countries are doing it.” Oh, there’s the nonsense about how we’ll somehow suffer in the international market if our copyrights aren’t as long, which is bollocks. No significant number of atuhors are going to move to France just because copyrights are longer there (and you can still publish in both the U.S. and France even if you live in a country with no copyrights at all). And it pays no heed to the other half of the equation: the implicit damage done to our cultural development when copyright lasts an absurdly long period of time.

        What possible value to society could there be in copyright terms lasting for upwards of 150 years? What does society gain out of that? What additional works are created when authors can expect a seventy-year copyright that would not be created when authors can only expect a fifty-year copyright? If the Copyright Clause’s “limited times” don’t actually promote the Progress of Science &c., then the clause is meaningless. Technically, a billion years is a limited time, but no sane person would claim that such a term was reasonable, or that such a term actually promotes the Progress any better than a term of a hundred years.

        Meanwhile, the most recent term extensions are not the result of whimsy or industry manipulation, but predicated on maintaining parity with our trading partners.

        The assertion that it’s not the result of “industry manipulation” is ludicrous. Isn’t it interesting how the term changes are always to lengthen the term of copyright (never to reduce them by any significant amount), thoroughly supported by the copyright cartels? Disney’s efforts alone to get copyright extended are legendary; the CTEA of 1998 is one fruit of their labors. We’ve ended up with a leapfrog effect, where terms just keep getting longer and longer, and no real justification for it is ever given.

        I ask again: What benefit does society get out of these ever-lengthening copyright provisions? What exactly is the economic, social, or moral justification for continuing copyright on a work that was created by people who are not only all dead, but whose children have mostly passed away? How does it benefit society to do this?

        And even worse, what possible justification can there be for retroactive copyright extensions of existing works? The works were already created! Is a retroactive extension somehow going to make the author go back in time and… create the work twice? How do retroactive extensions promote the Progress?

        I don’t insist that the terms must be what they are today, only that it is insufficient merely to say, “Well, they should be fifty years because that feels about right.”

        And yet those in favor of these chronic increases never justify it except with vague assertions of “protecting artists,” when in fact those that benefit most are giant corporations. If you really do think changes need to be justified, then why haven’t they ever been justified?

        And above all, I think we should distrust copyright revision proposals derived from the Internet industry; these are not offered in the service of society, but by people with corporate agendas that prove themselves more rapacious than the greediest publisher, label, or studio.

        It’s funny how you accuse the like of Google of having rapacious corporate agendas, and ignore Disney, Viacom, Universal, and so on, who each hold more copyrights than a hundred Googles, and are the companies that are actually the driving force behind the last 40 years’ worth of copyright extensions.

        Even the cartels don’t try to claim with a straight face that longer copyrights will increase the amount of work produced. They just know that if they can hold onto popular IP for another 20 years, they’ll make another billion dollars.

        You can claim that you’re just pointing out flaws in the Duke article all you want, but what you’re really doing is siding with those who want copyright to last, as Jack Valenti once put it, “forever minus a day.”

      • David Newhoff says:

        Matt, if I may boil your position down to far fewer words:

        1. Any fool can see that copyright terms are too long.
        2. How the current status quo occurred is bullshit.
        3. It’s all Disney’s fault.
        4. Any fool can see that copyright terms should be shorter.

        No system can be rationally altered without a frank discussion as to how it achieved its present status. If you want to dismiss the more complex rationale as to why terms are where they are today, that is your prerogative, but it does not make your argument reasonable.

        Throughout this blog, you will find references to copyright professionals I know personally who would be open to shorter terms; but as professionals, they know this is a complex matter with ramifications—possibly both positive and negative. As I am not a professional with 20+ years of experience working in IP, I have the humility to admit that I do not know where terms ought to be in order to maintain the ideal balance inherent in the goals of the original clause. (Though, I look around, and we seem to have more works than I personally can consume in a lifetime, so there’s that.) You, it seems, have no such humility, though it does not sound like you are an IP expert either. Nevertheless, you are absolutely sure that terms are too long and must be shortened because “any fool can see they must be.”

        What I can see is that there are cases in which long terms appear to be of little value and cases in which long terms appear to be of tremendous value. I think in this post I cited the stewardship of Jerome Robbins’s works, which converts nearly 70% of the licensing fees from ballets and shows like West Side Story into donations to current dance and theater companies developing new works. It’s hard to imagine those rights providing greater benefit if the foundation were not able to manage them, but then, the Silicon Valley reformers wouldn’t care because choreographic works don’t make easy digital fodder to turn into ad revenue.

        Oddly enough, West Side was one of the most naive references in that Duke paper, which was presented as though the only work in that musical were the basic narrative traceable back to Ovid. Never mind the individual expressions like the lyrics, music, or choreography, which combine to make the musical a unique expression as a whole.

        It’s easy to hate on Disney, Matt, but it is obtuse to talk as though they have cornered the market on creativity. Sure, they own the Marvel universe, and this rustles the jimmies of people who feel Captain America et al should belong to the commons. We could debate that principle, and I have produced arguments to suggest that the commons can destroy as well as create. Meanwhile, Disney does not own super heroes; and anyone is free to invent new ones thanks to the idea/expression dichotomy in copyright.

        Finally, I like how everyone picks on Valenti because he’s an easy target, but nobody ever picks on Mark Twain, who testified before Congress that he didn’t really see a reason for copyright terms to have limits. Either way, hyperventilating about “forever” is irrelevant because it would be unconstitutional. At the same time, I know of no efforts to extend terms. The producing industry (calling them a “cartel” is a bit childish) are mostly focused today on not being ripped off by outright piracy or the semi-piracy of YouTube.

      • John Warr says:

        “as Jack Valenti once put it, “forever minus a day.”

        What Valenti once said is not the same as what Google do on a daily basis. You confuse polemic with reality.

        The public domain has millions of works, a number that vastly exceeds the popular IP of the last 50 years. So when I hear talk of reducing term lengths I have two thoughts:

        1. This is a claim for the benefit of some corporation that wants to exploit a work which others have already promoted to the attention of the public. Nothing less than piracy as it was originally conceived back in the 17th century.
        2. This is a claim for the benefit of some entity that sees a market opportunity for a unknown work and wants to exploit it with out sharing any of those profits with the creator.

      • Matt says:

        3. This is a claim by individuals who want the public domain to be continually enriched and growing with works that are less than a century old, because they understand the value of it. Not everyone works for Google, and not everyone is looking for a “market opportunity.” The fact that you literally can’t comprehend the idea that some people (like me) value the public domain for its own sake demonstrates a kind of insanity; either that, or you work for Disney.

        The public domain may indeed contain “millions” of works, but how many of those works are less than, say, 75 years old? A tiny sliver. None of those works (excluding a tiny handful explicitly released into the public domain by their authors) have entered the public domain in the last several years, and none will until 2019, three years from now. You cannot seriously claim that there is any benefit to the public by having nothing enter the public domain for several years in a row, due to the extension (retroactively) of copyrights.

        The exchange of a temporary monopoly for eventual entry into the public domain was never intended to allow authors to enjoy a lifetime of profit, with the work only entering the public domain once every penny was squeezed out of it. The intent was to encourage constant production, with a fair chance to profit off those works for a while before they entered the public domain.

        I’ll also note that you haven’t actually addressed any of the issues; you simply state “anyone who wants to lessen copyright must be doing it for selfish, greedy reasons!” So, again, explain to me how exactly it benefits society to have copyrights that last more than a century.

      • John Warr says:

        Nothing answers why having something enter the PD is that important.

        There are a multitude of legal access points for copyright material. It doesn’t matter whether some song or film from the 40s is still in copyright or not you can still consume it. I suspect that most films from that period are hardly watched at all. 50s B-Movies were a cult thing even in the 70s. You can buy classic Disney movies on DVD for a fiver. Old books that are still in copyright you can buy for pennies. I bought a 100 old blues recordings a while ago for £2.50

        Being in copyright has not affected the consumers ability to see, listen, or read anything.

        Do creators need these things in order to create new things? Well creators have at least two ways of proceeding 1) get permission, 2) work around the copyright elements aka “50 shades”.

        Alternatively use something that is out-of-copyright, I’m pretty sure that there is still a wealth of material and ideas in Ovid’s Metamorphosis that hasn’t been surfaced. Similar with Homer, the Bhagavad Gita, and even the bible.

        As I said the shortening the terms crowd are mostly concerned with the ability to make straight copies rather than anything actually new.

      • John Warr says:

        Example do you really think that Pasolini’s film exhausted everything in this:
        http://www.sparknotes.com/lit/medea/summary.html

      • John Warr says:

        Another example: Edvard Munch (him what painted “The Scream”) wrote prose description of the themes behind almost everything he painted. He reworked the prose numerous times during and after he’d finished the painting:
        http://www.allaboutjazz.com/ketil-bjornstad-sunrise-a-cantata-on-texts-by-edvard-munch-by-john-kelman.php

        or how about this which is also mentioned in the above review, and casts Out-of-copyright material into a very contemporary setting
        http://www.allmusic.com/album/seafarers-song-mw0001334607

        And the public is being stiffed because if the inability to make Mickey Mouse merchandise?

      • Jason says:

        http://www.bpmlegal.com/cotwain.html

        Mark Twain on Copyright

        “Why put a limit at all?”

  11. Ethan says:

    For the sake of documentation, since I don’t see any other commenters mentioning this point:

    The main thrust of this post seems to be that the linked Duke article gives no reasons as to why those works entering the Public Domain is a good thing — why extending their copyright was a bad thing. However, I see reasons all over the page….

    [Books and Plays]
    1) “You would be free to translate these books into other languages,”
    2) “create Braille or audio versions for visually impaired readers (if you think that publishers wouldn’t object to this, you would be wrong),”
    3) “or adapt them for film.”
    4) “You could read them online or buy cheaper print editions, because others were free to republish them. (Empirical studies have shown that public domain books are less expensive, available in more editions and formats, and more likely to be in print – see here, here, and here.) Imagine a digital Library of Alexandria containing all of the world’s books from 1957 and earlier, where, thanks to technology, you can search, link, index, annotate, copy and paste. (Google Books has brought us closer to this reality, but for copyrighted books where there is no separate agreement with the copyright holder, it only shows three short snippets, not the whole book.) Instead of seeing these literary works enter the public domain in 2014, we will have to wait until 2053.”
    [Films]
    5) “Fans could share clips with friends or incorporate them into fantastic homages. (There are certainly some good candidates.)”
    6) “Local theaters could show the full features.”
    7) “Libraries and archivists would be free to digitize and preserve them.” “These works are famous, so we’re not likely to lose them entirely – the true tragedy is that of forgotten films that are literally disintegrating while preservationists wait for their copyright terms to expire.” (“The law allows libraries and archives (not preservationists generally) to digitize works during the last 20 years of their copyright term, but only in limited circumstances: the library or archive first has to determine through a “reasonable investigation” that the work is not being commercially exploited and that they cannot obtain another copy of it at a reasonable price.”)
    [Scientific Advances]
    8) “Many articles from 1957 remain behind paywalls, including those in major scientific journals such as Science, Nature, and JAMA. … You can’t read those articles unless you pay or subscribe (the first costs US$20 for one day of access; you can purchase the second for US$32). … Under the pre-1978 copyright term, all of this history would be free to scholars, students, and enthusiasts. Now, to get these articles from the publisher, you need a credit card or institutional subscription. And the institutional access that many top scientists enjoy is itself not a stable solution – even institutions such as Harvard have considered canceling their subscriptions because they can no longer afford the escalating prices of major journal subscriptions.”
    [General]
    9) “… in most cases, the cultural harm is not offset by any benefit to an author or rights holder. Unlike the famous works highlighted here, the vast majority of works from 1957 do not retain commercial value, but they are presumably off limits to users who do not want to risk a copyright lawsuit. This means that no one is benefiting from continued copyright, while the works remain both commercially unavailable and culturally off limits. The public loses the possibility of meaningful access for no good reason.” “A Congressional Research Service study indicated that only 2% of works between 55 and 75 years old continue to retain commercial value. As explained on this website, many works from 1957 are technically in the public domain, but there is often no way to determine public domain status, so users have to presume that they’re still under copyright.”

    I certainly didn’t read through all the comments, but in the main article and the comments I did read, only 3, 4, and 5 were addressed at all. The arguments that seem most persuasive to me (1, 2, 7, and 9) aren’t mentioned.

    • David Newhoff says:

      Thanks for the comment, Ethan. Without going into great detail about each of the possibilities, the broad response is that many of the uses described occur with works within the boundaries of copyright; some of their proposals are purely hypothetical but beg other questions; and some occur right now in spite of copyright. It’s easy to generalize, but each specific work and use has its own story, of which copyright is only one aspect. For instance, even if a classic feature film is no longer under copyright, you can’t very well show it in theaters unless you get your hands on a print, which will be somebody’s property. People make mash-ups and remixes (homages) right now with all sorts of works, some by permission, some by virtue of fair use, some that may be questionable but get away with it anyway. As for works that are under copyright but no longer retain any commercial value, this is a consistent complaint but again is fairly meaningless absent specifics. For one thing, this has always been true–that copyright has lasted longer than the commercial value of most works; Twain remarked on this in his 1906 testimony before Congress, arguing to extend copyright from 42 years to life of the author plus 50. There is no realistic duration of term short enough to change this dynamic. How many copyrighted works that are just a decade old have already lost their commercial value? A lot. If copyright lasted five years, nobody would be able to create value out of most of those works.

      My general point is that it’s very easy to write a litany of hypotheticals; and invariably, there will be some valuable use that will run into a copyright challenge. But, if that use truly has value, then the individual or entity proposing said use does have avenues to pursue in order to determine the copyright status of a work. It isn’t necessarily as hard as critics make it sound. And presumably, the more valuable the proposed enterprise, the more resources may be brought to bear to do the research. Short of that, it just sounds like whining, especially in an age when so many works are turned into click-fodder for cash-cow websites that don’t add anything to our culture at all.

      On item #7, their assertion sounds highly suspicious, and again really begs specifics. The owners of important films, both large and small, take considerable care to preserve and also digitize the works they own. So, which films would be digitized by which libraries?

      Overall, if the Duke authors wanted to identify clear cases in which opportunities are being missed or works are being lost due to copyright terms, then they ought to have written that piece and not wasted time with headliners like Bergman, Beckett, and West Side Story. Because with regard to those major works, they’re completely full of it.

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