>> If something is not legally available then copyright law ought to make it eligible for free distribution.
Ok. Past Futurama episodes are now $10,000 per view. That is still available and not an absurd cost (just ask anyone dealing with with patented technology). So we would need some sort of commission to decide what a reasonable cost should be, which would be a quantum leap away from free market principals.
We jumped away from "free market principles" the moment we forbade copying of those past Futurama episodes for 90 years. There is nothing naturally scarce about copies of creative works; we impose artificial scarcity through a government-granted monopoly in order to allow the creation of those works to be funded through the sale of copies[0].
Having a government commission decide what is and isn't a reasonable price does smell of command economy, but creative works already exist in a command economy. The only difference is that you can't Disney Vault your shit anymore. Boo hoo. In my opinion, once you've sold your work, recouped costs, and paid everyone, you shouldn't be able to then pull the coin out of the vending machine and take works off the market. We give monopoly rights in exchange for creative works being made and publicly available, not for them to be made and then thrown into a fire.
My personal opinion as to how to fix this problem would be to authorize the Copyright Office to issue compulsory licenses to reproduce works that are over 10 years old and either are orphan works[1] or whose known owners are unwilling to license[2]. These licenses would only be issued to libraries - i.e. either government-run libraries or non-profit agencies with substantially similar goals to one, such as the Internet Archive. And if someone can actually assert both ownership and a pattern of ongoing licensing then they can cancel the compulsory licenses that the libraries get.
We can actually determine what a 'willing license' would look like by looking at comparable deals in a particular market. If whoever owns Futurama wants to charge $10,000 a view but Disney is licensing The Simpsons and Family Guy out to Netflix for a few pennies per view, then we can safely conclude that the $10,000/view price is there just to keep the work off the market. We don't need the Copyright Office to say "anything more than $X per stream is too much."
[0] This is not the only way that creativity could be funded, of course. But it's the only way that mainstream buyers of creativity are willing to participate in.
[1] Works whose current ownership is unable to be determined. A lot of the games that are legally unavailable in the VGHF study are unavailable because the owners went out of business and the rights are tied up between four different creditors who all don't know what they own.
Compulsory/statutory licensing would be one solution. As I understand it, that's what allows libraries to exist. Music on the radio (at least here in Sweden) is handled through collective licensing, which is nominally optional, but practically impossible to avoid if you want any radio money.
The incentive of exclusivity could be reasonably preserved by making the statutory license valid only after some amount of time has passed since release.
> Compulsory/statutory licensing would be one solution. As I understand it, that's what allows libraries to exist.
I don't think that's the case. At least, what allows libraries in the US is the "first-sale doctrine." From https://en.wikipedia.org/wiki/First-sale_doctrine , "The doctrine enables the distribution chain of copyrighted products, library lending, giving, video rentals and secondary markets for copyrighted works (for example, enabling individuals to sell their legally purchased books or CDs to others)."
Something similar is why I can place an ad to sell my used Mac without violating Apple's trademark.
I assume Sweden (and the EU) have something similar. If not, that makes second-hand book, magazine, or any product sales rather difficult.
> 19 § När ett exemplar av ett verk med upphovsmannens samtycke har överlåtits inom Europeiska ekonomiska samarbetsområdet, får exemplaret spridas vidare.
Translated:
> 19 § When a specimen, with the consent of the author, has been transferred within the European economic area, the specimen may be further transferred.
The law goes on to carve out exceptions for computer programs and movies specifically, as well as renting generally -- those kinds of transfers are not allowed without author approval.
However, in combination with Biblioteksersättningen/författarfonden ("the library compensation/author fund"), which collects money based on the amount of lending in public libraries and distributes it to authors, it comes pretty close to statutory licensing in practice. It's not immediately clear to me that the payout is proportionally divided, though, so depending on how that skews, I may be way off.
"Technically correct"? That seems like the same concept.
> as well as renting generally -- those kinds of transfers are not allowed without author approval.
Could you elaborate? If I set up a used car rental service in Sweden, and that car includes a user manual, then do I need permission from the copyright owner to include that manual in the rental?
] This is because it only benefits domestic authors. In the Nordic countries, library compensation has not been part of international copyright but part of national cultural policy. Other consequences of this are that the library compensation has a maximum amount, so that the most borrowed authors do not receive compensation in proportion to the lending and that no compensation is paid for loans from research libraries.
That quote tells me the payout is not proportionally divided.
I would be pretty OK with capping the price of old games at 2× median sale price during the period they were on market or $40 adjusted for average inflation since the year they were released. Applicable no sooner than 10 years since their initial release.
Ok. Past Futurama episodes are now $10,000 per view. That is still available and not an absurd cost (just ask anyone dealing with with patented technology). So we would need some sort of commission to decide what a reasonable cost should be, which would be a quantum leap away from free market principals.