>> "If the copyright holder is an individual, the minimum copyright term would extend to the lifetime of the creator plus 70 years after her death."
I'm quite a big supporter of copyright but that's absolutely ridiculous. I think the lifetime of the creator is very reasonable. I can even understand throwing in a decade after that so that the family of a creator who dies young/suddenly are supported for a while. 70 years is 3 or 4 generations of family.
The original US Copyright law extended protection for 14 years with the availability of renewal for another 14. I think that's reasonable and allows the expiration of copyright after 14 years if the owner doesn't take the time to renew.
I wouldn't even mind so much if extensions were potentially infinite. My real problem is that everything gets the maximum "protection" by default. Creative Commons was invented to let authors selectively give up overbearing "protections". We should make some of these opt-in instead of opt-out.
It seems like a sensible plan would be to charge $1 for copyright registration that lasts 5 years, then allow as many renewals for another 5 year period as you like but double the fee each time. At the 150 year mark Disney can decide for themselves whether another 5 years is worth a billion dollars.
How would this system operate on an international level? Whom would foreign creators pay to have their work copyrighted in the US? If you let everyone pay their country's government but still respect their copyright internationally then the country with the lowest fees will see a huge volume of copyright offshoring. If you make everyone pay each country separately then copyrighting one's work will suddenly become expensive for individuals and $properties not being registered on $island will be exploited.
You could just do it like they do for various taxes. You register in every country but you can deduct the fee already paid to another country from what you owe, so the total amount you pay is equal to the fee from the country with the highest fee that you've registered in.
It should be easy to automate this electronically to the point where you upload a copy of the work and check the box for every country you want to register in and it does them all at the same time.
Or you could just have every country charge the same fee and let people register in their home countries to much the same effect.
And I'm not sure what you're talking about with being exploited on $island. You can imagine about the same thing happening there as happens in countries that already don't have copyright enforcement, i.e. nobody cares because nobody there has any real money anyway. It's not like they can export to countries where the copyright is registered.
Agreed in principle. I think the initial slope should be a little lower but after about 30 years things should REALLY start to take off. So maybe $10 a year for the first 15 years and then double it every year thereafter.
Graph the two of them and get back to me. I'm talking about the slope. I do realize that the total sum is basically trivial either way. But slope is an actual mathematical term and I used it as such.
To pre-emptively deny the reform opponent (read "Disney lackey") the opportunity to scare monger people by trotting out the "it's exponential!!" argument.
If it's a flat fee for the first 15 or 30 years then it should take a lot of wind out of their sails.
If people start doing the math and saying "but at 60 years this is completely insane!" then just ask for a list of affected stakeholders that this would bankrupt. I suspect the only people on the list would be Disney.
I think five year increments might be a little short, but I agree with the general idea. One of the biggest problems with indefinite copyrights is that you wind up with big chunks of culture that get sucked up into this copyright black hole. They are too locked up to safely use, but it's difficult or impossible to tell why might actually own the rights. Then it's only a matter of time before large sections of our cultural past fade away forever.
"At the 150 year mark Disney can decide for themselves whether another 5 years is worth a billion dollars."
That's one reason that the plan would fail. One of the reasons I like explicit registration is that allowing these sorts of indefinite extensions for some works makes it less likely that companies would lobby heavily against the plans. By making it deliberatively punitive for these scenarios, you put the plan up against the same forces that are already fighting (and successfully, at that) for blanket copyright extensions.
It might not work the same. Disney's lobbying in this scenario would probably have to take the form of "We, a gigantic and highly profitable corporation, want to unfairly pay less money." I'd say this is less likely to work than the current "Protect the artists!" approach. Maybe I'm just not imaginative enough at how it could be spun.
I agree it should expire and require active effort (and some $ amount) to renew. That way, Mickey Mouse can still be under copyright but most other artistic works will be available for public use.
I'm opposed to regressive copyright charges - which this sort of arrangement could lead to. Perhaps a percentage of the gross of all items sold under the copyright could be charged. That way if I'm making pin money from a few ebooks I don't have to give up that money so that Disney can be charged [at least] the full cost of the registration/renewal?
One needs to write the law/regulations very carefully and be prepared to strike down extremely hard on corps who will try to manipulate this, eg by saying for a movie that the copyright work is on the DVD and you bought that for 1 cent but the packaging and label cost $19.99 and the work isn't available without those (or saying the customer pays for the TMs used separately or whatever other Hollywood accounting means they concoct).
Since Mickey Mouse has become an integral part of modern culture, at some point we should be able to do anything with Mickey we can currently do with the characters of Shakespeare and Grimm.
Or we could make it a gradual process using Creative Commons' layered licenses: Full copyright for 14 years, CC-BY-NC-NDSA license for next 14, CC-BY-SA for next 14 and CC-BY till the life of author and public domain thereafter.
Given the purpose of copyright (to increase the public domain), experience with "lifetime+N" indicates subtle bad effects. That is, without a lot of research, you can't tell if something is in copyright or has entered the public domain. Finding the author is the first obstacle, then finding out if and when the author died is next. The ultimate effect is to keep people from re-using things that almost, but not quite certainly, have entered the public domain.
A fixed term, with required notices, would be a lot better for our purposes in the USA.
Ironically, the last time I ran into this issue personally was discussing with David Friedman (son of Milt) access to several of his referenced papers. One (of which he was the author) had been published in a collection by (the now deceased) Julian Simon. Friedman wrote:
"The optimum population piece was published in one of Julian Simon's books, and he, unfortunately, is no longer alive, so I don't know how I would get permission to web it."
This suggests a few things to me (a lack of clarity on the part of an author over rights to his own works, a surprising lack of knowledge of copyright or rights management, generally, etc.). But it's a quite tangible instance of an author of a work stymied by the question of copyright status due to the death of a publisher / editor.
I'm not buying that - he knows perfectly well how to contact the publisher or find out who's administering Simon's literary estate (most likely his wife), and the DMCA means he could put it up on his website and wait to see if anyone lodged any objection to his doing so (which they almost certainly won't).
> the DMCA means he could put it up on his website and wait to see if anyone lodged any objection to his doing so (which they almost certainly won't).
Wrong. The DMCA provides safe harbor for online service providers. It provides no safe harbor for those who personally reproduce a copyrighted work, on an online service or otherwise. Rather, it increases the penalties if such reproduction is infringing. And I don't see how David Friedman is under any obligation to take such a risk or research the status of a work to which he owns no rights, did not author, and does not benefit from.
Ok, I misread the post to read that Milton was the author, but apparently he was not relevant. Still, unless David had reserved rights to the piece it doesn't really change his position much. The DMCA has no application and this distortion of its so-called "safe harbor" provision needs to die.
I have worked with public domain texts and you are exactly right, it is extremely valuable to be able to ascertain the copyright status of a work based purely on the date of publication (you don't even have to know the date of first publication if the date of publication you do know is early enough).
To paraphrase a comment I made on an earlier HN thread about copyright:
Consider a short story published in a literary journal last week. Allow a copyright system to exist that covers each eligible work for 30 years by default, and allows multiple extensions of 5 years at a cost of $1000 per extension per work, up to a maximum total copyright term of 100 years.
Someone in 2047 discovers a copy of this particular journal issue, which has now become obscure. They identify that this short story, though never being given acclaim, has had a subtle yet profound cultural influence. They decide to republish the story in their own commercial magazine, but want to check if the copyright has been extended. If it has not, the story is in the public domain. If is has been extended, the story is still covered by copyright.
They can search the central registry for the title of the short story and the name of the author. But they also have to search for the names of the editors of the journal, because it isn't clear whether or not the copyright stayed with the author or was transferred to the journal as part of the submission process. In fact, the copyright might have been granted to the owner of the journal, which may be an individual or may be an institution. The entry for the copyright might be under the title of the short story, or under the title for the journal, or under the title of that particular issue of the journal.
Furthermore, the author of the story, if they retained the copyright, may have submitted the story under a pen name, and/or may have registered the copyright of the short story under a different title than the title they used to submit to the journal, or the title might have been changed by the editors.
Or, the author, after having the short story accepted by the journal, may have sold it to a publisher who published it in a short fiction anthology, the copyright for which is registered completely separately and is essentially invisible to our hypothetical future researcher.
Any of these agents might have extended the copyright. It would be extremely difficult to prove to a high degree of certainty that the story was or was not covered by copyright.
Assign each copyrighted work a unique identifier and require that unique identifier to be included along with the copyright notice on the work. Now all you have to do is punch that unique identifier into the copyright database and see what its current status is.
Building a great search engine is still a hard research problem but building a search engine good enough to solve that problem is within the skills of any good fresh CS grad with a month to work on it.
If the Library of Congress is registering copyrights as proposed, then LOC has the database and the search terms will just be the work you propose to copy. It can be a simple service where you upload a few pages of text and LOC responds in a few seconds with the name of anyone who has registered copyright.
I don't understand why the creator's lifetime ever enters the picture. Nothing else works like that. Most property belongs to you until you explicitly transfer it, and if you die it goes to your heirs. Some things (like patents) expire at a fixed time.
As it stands, the copyright term for a work written by a 20-year-old author will likely be decades more than the copyright term for an identical work written by a 90-year-old author. How does that make any sense? Come up with a sensible fixed term and use that, done, end of story. If the creator outlives the term, so be it. If the creator dies immediately, his heirs can manage the property until it expires just like they would with anything else they inherit.
One thing I thought was particularly gutsy is that Disney started making The Jungle Book while the story was still under copyright, releasing it after the copyright expired:
I don't like it, but that's already the status quo in the US and Europe (which the US extended its terms to match, ie the Europeans did it first). The whole copyright system is in drastic need of reform, but you can hardly blame stakeholders for wanting to maintain the regime they currently have. It's worth bearing in mind that all the TPP negotiating countries are already signatories to the Berne convention and are therefore obliged to respect each others' copyrights: http://www.wipo.int/treaties/en/ShowResults.jsp?treaty_id=15
Having copyright end exactly at the point of death does raise the interesting possibility of people being killed for exactly this reason. Not exactly a likely scenario, but it is possible, and worth thinking about, IMHO.
Well if you had a sense of humour you could see my attempt to convert the conversation into the real reason corporations want this. So they can hedge the ownership rights for $, get rich now based on future use of the IP
First you pass a crazy law - then force your partners to adopt the same. And when you want to extend your crazy law just point at your partners and say: "Its not crazy, everybody seems to be doing it!".
I don't see why copyright terms need to be empirically justified. Land is passed down from generation to generation, and few people ask: "what's the empirically justifiable duration of land rights?" If we're going to have inheritance of property,[1] I see no reason to extend stronger protections to dirt peoples' ancestors stole from native Americans than to creative works they brought into the universe through their own ingenuity.
[1] Which is a controversial issue, but a separate one.
* there is a finite amount of land that costs a certain amount to police
* landowners pay property taxes to cover these kind of costs to society, and land which they don't pay taxes on reverts to the state
* there is a registry of land ownership so it's easy to tell who owns a particular piece of land
* common land is at huge risk of a literal tragedy of the commons, historically through things like overgrazing (the original justification for enclosures - which absolutely were controversial at the time and did need to be empirically justified). In modern times, if one person builds a building on a piece of land another person can't. That's simply not the case for "intellectual property".
That brings up a fun idea. Why not have 'intellectual property tax' along with the yearly expiration.
That would solve the orphaned works issue- an orphaned work would quickly return to the public domain after falling behind on tax.
It'd also give creators of non-orphaned work the impetus to let go of their copyright.
And it might be possible to scale the tax by some factor that would give 'Big Content' a bigger incentive to let go, while levying a nominal cost on individuals that would function more as a tripwire for orphaned works than a financial burden.
What is the jurisdiction? What counts as a unit of copyrightable work? Are we obligated to accept work copyrighted in another county or state as being copyrighted in ours? If yes, what can we do about jurisdictions that set absurdly low tax rates (see race to the bottom https://en.wikipedia.org/wiki/Race_to_the_bottom )?
I guess I should be explicit. My fear is that states will race to the bottom and charge $0.0001 per page per year which will lead to aggregation of perpetual copyright into the hands of copyright trolls.
I am sorry but why does Mickey Mouse deserve perpetual protection under copyright? Why does Disney get to write our copyright laws and dictate foreign policy so much?
> I am sorry but why does Mickey Mouse deserve perpetual protection under copyright?
Why does your grandfather's farm deserve perpetual protections as he hands it down over generations? Or put another way, why does anyone else deserve any rights over Mickey Mouse when Disney is the one that created him?
The better question is, why does Disney deserve special rights to Mickey Mouse just because he was the first one with the idea? There is no natural right to an idea the same way there is a natural right to physical property. It's a fiction we came up with because we wanted to see creators compensated for their work. I'm all in favor of the general purpose of copyright, but ideas are inherently non-exclusive things, and any argument based on the opposite assumption is flawed on its face.
What is a "natural right" and who decided it applies to physical property but not ideas? And why is the "natural right" based on the ease of copying something, rather than the word work necessary to bring that thing into existence in the first place? To me, it just seems like you're using the concept as a "because I say so" distinction.
The go-to for people who oppose a moral basis for copyright is the ease of copying intangible versus physical goods, but to me it's a nonsense argument. The ease of copying goes to the enforceability of any monopoly on a thing--it does not go to determining the justification for granting a monopoly on a thing to begin with.
I think you actually understand the philosophical basis of property and why it doesn't apply to ideas better than you're letting on here, but I'll answer this anyway.
Ownership of physical property is natural because physical property is inherently rivalrous and excludable — if you take my hammer, I can't use it, and thus I need to keep my hammer in my shed if I want to have access to it when I need it. Ownership makes natural sense there. It's essential to security.
Ideas are not the same way. Any number of people can think an idea, and in fact an idea becomes just as much a part of everyone who thinks it as the first person who thought it, and you literally can't take an idea back once you have shared it. Ideas are not just easy to copy, they aren't even entities that need copying. The mind is constantly taking in and assimilating ideas and creating its own.
I'm not actually against copyright. I think there is a sound moral basis for it, in that otherwise an increasing number of people wouldn't be able to enjoy the fruits of their labor. I just don't think there is a moral justification for the tortured concept of eternal copyright. Eventually, any successful idea will become so diffused throughout society that it's just an utter farce to pretend it is not part of the commons.
If nothing else, infinitely decreasing the number of ideas that may be legally had is so harmful to society that it outweighs any good that could possibly come from it. In other words, even if we say "Sure, let's pretend treating ideas as property is a natural fit," the Lockean Proviso warns us against allowing them to remain property forever.
> I think you actually understand the philosophical basis of property and why it doesn't apply to ideas better than you're letting on here, but I'll answer this anyway.
> Ownership of physical property is natural because physical property is inherently rivalrous and excludable
While that's one philosophical justification for property, we've had property long before anyone coined the phrases "rivalrous" or "excludable" and it has been justified for reasons that have nothing to do with those economic concepts: http://en.wikipedia.org/wiki/Labor_theory_of_property. Going back further, see Psalm 128:2 ("For thou shalt eat the labour of thine hands: happy shalt thou be, and it shall be well with thee.")
Indeed, and I even referred to the labor justification later on (i.e. copyright is a good thing because creators are entitled to the fruits of their labor). But it's still an unnatural fit, because unlike things that the labor theory of property has traditionally been applied to, ideas are inherently shared, or I suppose you could say created in the head of each person exposed to them. To claim ownership over other people's minds is far, far beyond anything John Locke or King David ever contemplated.
Ideas are just inherently unlike physical property on a very fundamental level. If my neighbor lends me his hammer, I can give it back. If my neighbor lends me an idea, it never left him, but I still can't ever rid myself of it.
No matter how much I care about content creators being compensated fairly — and I do, both for philosophical and selfish reasons — it is a farce to pretend an idea that exists in everyone's heads and originated in none of them is the exclusive property of one person. It is simply unnatural in a way that physical property isn't.
> I suppose you could say created in the head of each person exposed to them.
I created Harry Potter, not J.K. Rowlings? My labor in reading the novels is equal to her labor in writing them?
I think that argument falls flat particularly with copyright because there is no copyright liability in the face of independent creation. Copyright doesn't prevent anyone from owning their original ideas, even if other people independently think of the same idea.
So with that hammer you build products that you might sell and I might want to buy with my money that I got from selling my idea. But if you 'take' my idea I will have to get a new hammer just the same. There are infinitely many hammers as there are infinitely many ideas, but getting new one takes nontrivial amount of effort for both cases. The fact that one is tangible is in my opinion an arbitrary property for the purpose of this discussion.
My grandfather's farm could not be copied and distributed 1000000 times over with a few cents worth of electricity and a glass fiber. If you take my grandfather's farm, he is no longer able to use it for farming.
Copyrights and patents were created specifically for the purpose of recouping development costs that are otherwise non-recoverable by the more obvious laws of microeconomics.
You're not just comparing apples and oranges. You're comparing actual apples to poems that rhyme the word orange.
Because Mickey Mouse is an idea while a farm is not. Claiming ownership of metaphysical concepts like Mickey Mouse is very different from claiming ownership of something that's scarce and rivalrous such as the farm.
Well Disney is dead, so are you saying that all rights to restrict the use of his copyright works should also have died?
The reason others are owed rights is that copyright, as with patents, is a contract between the state and the creator/inventor. Part of the deal is that creators get copyright protection in return for the eventual entry of the work in to the public domain - they pay off the demos with that promise.
State doesn't owe creators of works protection naturally. If creators want to not have a limited right to exclusive use they should be allowed to give that up and then the state should exclude itself from any actions against people who copy that work.
To recapitulate: if you don't want to 'buy' copyright protection with eventual movement of your work in to the public domain then you can instead have that work freely copyable - without tort - based on the ability of anyone who sees/uses it. Without ready movement of works in to the public domain the public are being ripped off, the contract is broken and the public then should consider those works copyable without the possibility of a claim of tort.
If creators want to not have a limited right to exclusive use they should be allowed to give that up
They are. All someone has to do is include in it a statement to the effect of 'I waive my copyright interest in this work and hereby donate it to the public domain.' There is no bar on voluntary placement of work into the public domain; it just doesn't happen that often because when publishers write checks to authors they're purchasing the right to exploit the work commercially. Authors could grant publishers limited licenses to do so and then stipulate that the work would fall into the public domain after a certain date, but that would result in lowered payments from publishers, plus it creates an incentive for the publisher to under-market the work or even withhold it from sale, and then publish it once it enters the public domain without paying anything in royalties.
There are some publishers that make good money of just republishing historical works, even without exclusivity. Some people want a good-quality facsimile of an old book. Dover paperbacks springs to mind.
Actually, perpetual property rights and unclear title are a huge problem with real estate and capital formation in South America especially. See Hernando de Soto's Mystery of Capital or Niall Ferguson's The Ascent of Money.
Perpetuities ultimately end up with contending claims. Adjudicating those is tremendously expensive.
Sure, what if no-one had any rights over Mickey Mouse? Everyone would be free to use him however they liked. (There are specific issues when you do that with land, but as far as I can tell none of them apply to copyright.)
I agree. I shouldn't be able to sell rusty vans with the Mickey Mouse logo on them claiming that they are made by Disney. Or claim that my shitty b-grade movies were made by DisNEY (TRADEMARK)
Personally, the only part of trademark I care about is impersonation. It should be illegal to claim that Google was involved in building my shitty products.
The Constitution itself offers an empirical justification for copyright "To promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
Emphasis mine. Is a copyright term that is asymptotically approaching infinity actually "limited"?
Is a copyright term that is asymptotically approaching infinity actually "limited"?
The Supreme Court ruled[1] (correctly, I think) that it's up to Congress to decide what "limited" means, and as long as any copyright bill they pass has some limit on the term, it's Constitutional.
Don't like it? Vote for a different Congress. It's not the Court's job to say Congress can't decide how it wants to balance a tradeoff when lawmakers are explicitly empowered to do so.
I always felt like this case was argued wrong. Don't argue it's not "limited", argue that it "doesn't promote the progress of the Sciences and Useful Arts".
There is no possible argument not involving time travel by which we get more works created through retroactive copyright extension of already existing works.
Easily dismissed by pointing to the vast advances in scientific and artistic output over the last century. Unless you could show that the rate of output is slowing (which it isn't AFAIK) you're stuck with trying to argue that it would be even better if copyright law were abridged - a slippery pole argument, if you will. Courts typically eschew such hypothetical benefits in favor of rectifying measurable injuries.
> He's since commented that he should have tried the promotion clause instead. That post-creation copyright extension fails that test.
Honestly, I think he should have tried the "to the creators" phrase, as well: post transfer extensions of copyright no longer held by the original creator creates a new protection that never goes to the creators, and therefore not only fails to serve the purpose of the promotion clause, but isn't even within the scope of the means by which Congress is authorized to serve those purposes.
(Of course, considering this argument alone doesn't stop indefinite extensions, its just means that works transferred before the extension would not be eligible for the extension. But if you include all transfers in that, including by inheritance, your only left with, at most, originally-corporate copyrights that have never been transferred, since the original term of modern personal copyrights already is longer than the life of the original owner.)
It's a political decision. The Court made up its mind that indefinite, unlimited, retroactive extensions of copyright to any finite term (heat death of the universe inclusive) limited only by the will of Congress are within the ambit of the copyright clause and probably good public policy as far as the Court was concerned. Lessig has beat himself up over the loss and perhaps he should have, but I don't think anyone would have won on any argument with that court.
I don't see the precedent changing or a constitutional amendment happening, so really the only way forward is to get enough of a copyright reform caucus in Congress to stop the madness, forestall future extensions, and let works start finally start falling into the public domain again. I also don't see a direct path forward to unwinding the ratchet and shortening copyright terms or requiring renewals. What we really need to do next, in the USA at least, is fight future extensions and do something about orphan works.
Yes, that too. Though the counterargument is that by creating a deep market into which they can sell their works and rights, creators benefit. I see a few holes in the counterargument as well, but I'll hold myself to arguing three sides of this debate.
Though the counterargument is that by creating a deep market into which they can sell their works and rights, creators benefit.
I suspect that particular counter is readily debunked by looking at the amount of money made by huge middleman industries (publishers, record labels, movie studios, etc.) compared to the original artists (authors, editors, musicians, producers, actors, directors, etc.). In particular, how many artists ultimately receive very low compensation for their efforts relative to the proven actual value of the work they create?
Then the marketing/distribution engines have to start justifying their existence based on additional value generated for the original creators of the work. However, it seems likely that any such justification would also support a model where the original creators retain the fundamental rights, and instead only a short-term exclusive licence can be granted to a distributor, who can then renegotiate with the artist to renew their exclusive licence a year or two later (presumably if and only if the distributor still thinks the work is worth promoting and the creators still think they're getting a fair deal).
You'd need some sort of collective licensing arrangement so that one make-up artist or background musician who worked on your blockbuster film couldn't screw up the whole distribution chain by withholding consent, but again that could probably be addressed by tying any decision-making authority to the original artists with some sort of quorum requirement and some sort of up-front agreement on the distribution of any future returns.
Yes, you've fleshed out pretty much exactly the argument I'd been vaguely pointing at.
There's a tremendous amount of pricing and negotiating strength which comes from power imbalances that are misrepresented as market forces. Pitching these as "the market decides" both takes guilt and fault out of the equation and masks what's actually going on. It's a matter which Adam Smith was aware of and spoke of at length -- much of Wealth of Nations concerns these relationships and much of the rest of it is mis-read to studiously ignore this fact.
I agree with you that short-term contracts (a year, possibly two) should be the limit of what can be struck with an author or artist. Another is for mechanical licenses (the spoiler effect -- another element Smith considers).
It gets tiring having these discussions over and over again. Kinsella¹ and others have demonstrated many times the differences between physical property and copyright. It's fine to say that these differences don't apply here for some reason(s), but not even acknowledging them is just spinning wheels, not advancing the debate.
Kinsella's response to pro-IP libertarians is pure hand-waving. He simply asserts that the focus should be on scarcity rather than creation, and proceeds from that premise. His scarcity argument is itself flawed: he focuses on the fact that copies of an intangible good are not scarce, and glosses over the fact the originals definitely are. If you don't already believe his premise his argument is very unconvincing.
He simply asserts that the focus should be on scarcity rather than creation
No, he doesn't. He says the focus should be on scarcity because if it's on creation, and if it's applied in a consistent and non-arbitrary way, life becomes impossible, as "as every conceivable use of property, every single action, would be bound to infringe upon one of the millions of past, accreted IP rights."
He actually has almost six pages explaining the problem with the creation-based IP rights, so saying that he "simply asserts" is just incorrect.
His scarcity argument is itself flawed: he focuses on the fact that copies of an intangible good are not scarce, and glosses over the fact the originals definitely are.
That's because the scarcity of the originals is irrelevant to whether the copies should be considered property, any more than it makes me the owner of the light that comes from my light bulb.
The scarcity of the originals is only relevant vis-a-vis the use of the originals.
Charging property tax would be an interesting approach... it would at least address the orphaned work problem if unpaid intellectual property taxes meant that the work reverted to the public domain.
If the general, constitutionally-enshrined idea is to increase the public domain, then don't we have an implied obligation to figure out what term actually does increase the public domain? As copyright stands in the USA, little to nothing enters the public domain. That's definitely not increasing.
> If the general, constitutionally-enshrined idea is to increase the public domain, then don't we have an implied obligation to figure out what term actually does increase the public domain?
But that's not the idea in the Constitution. Instead, the Constitutional purpose of Copyright to "promote progress in science and the useful arts". The only thing in the Constitution that implicitly touches on increasing the public domain is the limitation on means to protection of exclusive rights with limited terms.
I'll bite. How else does copyright or patents or any "Intellectual Property" romote progress in science and the useful arts other than by giving creators a limited monopoly in exchange for disclosing the invention or idea or creative work? "Disclosure" is in fact part of a patent application, and a required part, if I understand correctly.
You're splitting hairs, and not adding to the conversation, but I'll correct my statement: If the general, constitutionally-enshrined idea is to romote progress in science and the useful arts, hen don't we have an implied obligation to figure out what term actually does increase the progress in science and the useful arts?
> How else does copyright or patents or any "Intellectual Property" romote progress in science and the useful arts other than by giving creators a limited monopoly in exchange for disclosing the invention or idea or creative work?
The theory is that, by allowing them to profit by sale of the creation, it encourages creation -- particularly creation of things that are unique and suitable for sale (which is, again in theory, a proxy for "useful"), thereby, without or without separate "disclosure" of the form present in patents, promotes progress in science and the useful arts.
The idea that attaching that making something property that someone can profit from (whether for a limited time or not) was a means of promoting development of that class of thing was fairly prominent at the time the Constitution was written, and extremely influential on the understanding of all kinds of property (not just "intellectual property") rights and their purpose in society around the time the Constitution was being written. (Its even more central in modern libertarian thought.)
Note that I think that disclosure is important, and that for IP the restriction to limited terms (and actual, real, substantive limits, such as the Congress seems to have abandoned for copyrights) are practically important for best promoting progress in science and the useful arts -- increasing the scope of the public domain is, I believe, in practice very important to achieving the Constitutional purpose of IP. But increasing the public domain is itself not the explicit Constitutional purpose, its just an important means to that purpose.
> To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
If congress is not maximizing the progress, it is not doing its job right. And right now copyright rights are suffocating.
> If congress is not maximizing the progress, it is not doing its job right
The Constitution permits Congress to use IP with limited terms as a means to promote progress in "Science and useful Arts", it does not obligate Congress to maximize that progress.
There's a decent moral argument, I suppose, that Congress ought to maximize the ratio (presuming these were really quantifiable in a clear and meaningful way) between that progress and the what society sacrifices to provide exclusive rights to creators, but that's not the same as maximizing progress on its own.
Real estate, for one valid response to rayiner's non sequitur. ("Land is passed down from generation to generation, and few people ask: 'what's the empirically justifiable duration of land rights?'")
Copyrighted material is the ultimate example of "You didn't build that." That's why it's a temporary bargain with the public domain, and not an entitlement.
Uh, real estate is much less "you didn't build that" than Harry Potter. You're almost certainly not the one who brought your land out of the wilderness, cleared and leveled it, etc.
The point is, the underlying real estate was not created by anyone else (subject of course to one's preferred religion.)
Compare what a real estate developer does to what a Disney-esque media conglomerate does. The developer buys the land and constructs buildings for customers who are entitled to exactly what's in the contract, nothing more or less. I have no problem with that. Nobody took anything that wasn't legally theirs (at least not recently). If you lease the building, nobody is going to alter the contract after the fact to extend the lease for 70 more years, or kick you out before the agreed-upon term is up.
Disney, on the other hand, appropriates stories and ideas from our shared culture and erects legal walls around them. They didn't build jack shit, they just slapped on a fresh coat of paint and a stout padlock. They're cultural squatters with their own cadre of Congressmen.
What does the ease of copying have to do with the moral justification for protecting something? Creating a new book certainly isn't an act that happens in a few milliseconds.
As for creating land--the majority of land came into private ownership in the U.S. via one of two means: 1) granted to wealthy people by European kings; or 2) annexed by the sweat of the brow (i.e. clearing a patch of wilderness and farming it). Those acts were sufficient to morally justify a perpetual property right, passed down from generation to generation. In a way, authors do something very similar to (2). Every sequence of bits is already out there in the aether--authors do the hard work of cultivating a particular sequence of bits into something valuable. It's no different than putting in work to bring land out of the wilderness into civilized use.
The public domain provides the raw material for most new works. For example. all of the original Disney cartoons would not have been possible except for the fact that earlier works were in the public domain.
The constitution does not pretend that intellectual property is the same as real property and for good reason. For some reason I don't see anyone who says they are equivalent also saying that copyright holders should also pay property taxes on copyrighted works like they do their house. So even the proponents of this, realize that intellectual property is different than real property.
These giant corporations that are bribing (er I mean lobbying) politicians to extend copyright to infinite terms are destroying our cultural heritage for short term profit.
> What does the ease of copying have to do with the moral justification for protecting something? Creating a new book certainly isn't an act that happens in a few milliseconds.
He/She was asserting it as the moral equivalent. Taking someone's land involves deprivation, passive copying of a book etc doesn't imply that in all/most cases.
In practice, is there any land in the US whose ownership status is "no one knows, so no one gets to use it"? Because that is the case for a lot of copyrighted works. So there's at least one difference between the two that's not related to ease of creation/copying, and an argument for limited terms.
Here's my take. Suppose you have a piece of land which is completely unused: nobody lives or visits there, nothing is being built there, nor is the land held with the explicit intent of being left in its natural state. In that case, since the value of the land is being wasted, there is some merit to the idea that it should morally be usable by other people (although keep in mind that the current owner might want to do something with it in the future). And in fact, if the owner is negligent enough, adverse possession allows someone else to do so in many jurisdictions. There is also common land and literal tragedies of the commons...
In all other cases, someone is getting some use out of the land, and in general allowing anyone else to use the same land would impair that use. (In some special cases, there are again laws on the matter: in most US states it is illegal to hunt on others' private property, but only if the owner posted a sign or applied specially colored paint. If not, since the hunting would likely have minimal impact on rural property, it is allowed.) Perhaps, according to someone's standard, the owner is making inefficient or wasteful use of the land; perhaps they have barely changed it from its natural state, while a developer would like to add it to their adjoining property full of valuable businesses or whatnot. But this is subjective, and doesn't change the fact that the 'better' uses would deprive the current owner of something - depending on the owner's sentimental attachment to the land, potentially something subjectively irreplaceable.
I do not have enough knowledge to directly argue in favor of capitalism. There are plenty of theories under which to posit that the current owner should be deprived anyway in the interest of the common good. But at least it is clear that our current system has certain significant benefits.
To take the argument to its obvious conclusion, for copyrighted works, the public domain would at most deprive someone of money they could potentially be making, which is hardly the same thing. Meanwhile, it would allow many different people to enjoy passive use of, or build interesting things on, the same property without getting in each other's way. The flipside is of course the standard justification for copyright: the prospect of that money encourages people to be creative, and getting that money allows them to make a living through creativity. But this does not mean copyright has to last forever. (It also doesn't inherently imply copyright should a right of exclusive control; in the special case of radio broadcasts of songs, making it purely a mandatory royalty, open to all by law, seems to have worked out pretty well. And then you get to fair use, but of course there are far more detailed arguments to be found there.)
But you know all that. In another post, you said:
> While that's one philosophical justification for property, we've had property long before anyone coined the phrases "rivalrous" or "excludable" and it has been justified for reasons that have nothing to do with those economic concepts: http://en.wikipedia.org/wiki/Labor_theory_of_property. Going back further, see Psalm 128:2 ("For thou shalt eat the labour of thine hands: happy shalt thou be, and it shall be well with thee.")
For one thing, I don't think coining the phrases "rivalrous" or "excludable" means much. If you're making a theory of property, where property is defined as actual physical objects or land, you don't need to make up terms to describe what obviously applies to all property; it's only when you start calling data property that you have to distinguish it from the rest. Any older philosophical argument in favor of property, regardless of whether it explicitly addresses the matter, was written, and should be read, with some broad ideas in mind that do not apply to data. This certainly applies to the Psalm you cited.
But actually, Locke makes it quite explicit - right near the beginning of the chapter "Of Property" in his Second Treatise on Civil Government:
And tho' all the fruits it naturally produces, and beasts it feeds, belong to mankind in common, as they are produced by the spontaneous hand of nature; and no body has originally a private dominion, exclusive of the rest of mankind, in any of them, as they are thus in their natural state: yet being given for the use of men, there must of necessity be a means to appropriate them some way or other, before they can be of any use, or at all beneficial to any particular man. The fruit, or venison, which nourishes the wild Indian, who knows no enclosure, and is still a tenant in common, must be his, and so his, i.e. a part of him, that another can no longer have any right to it, before it can do him any good for the support of his life.
This is just stating the concept of "rivalrous" without using the word! And it clearly does not apply to intellectual property at all; when a basic premise of his argument is voided, we should be hesitant to apply his conclusions.
edit: There is also the matter that as eager as philosophy is to be concluded from first principles, in general I think empiricism is superior. (And don't confuse 'common wisdom' which at least somewhat reflects centuries of empiricism with first principles.) Capitalism has its moral arguments, communism has its moral arguments, and neither are necessarily wrong; in my drastically oversimplified view, in practice it seems like pure communism doesn't work out very well, but socialist economics tries to satisfy some of the moral precepts of both in a more achievable way. But we haven't had centuries of empiricism when it comes to intellectual property - not that long a history of protection nearly as strong as today, and certainly not of the fundamentally new practical properties of digital intellectual works.
Why are you acknowledging Little Red Hen's rights to the original loaf of bread? Hen used communal property and facilities, why should Hen have any exclusive rights to the bread at all?!? What's different about Hen's assertion of control over the original loaf of bread (made from communal property) and a copy loaf of bread (made from communal property)?
I didn't make myself clear; I don't dispute her ownership over any single copy of the bread. What I dispute is her ownership over all possible copies of the bread - over the very intellectual concept of that bread.
As for the communal property, you're missing the point. I don't dispute her ownership because it "belongs to everyone". I dispute the concept of ownership over non-scarce things like the shape/smell/color/etc of a abstract loaf of bread.
It's not that she doesn't own it, it's that the very idea of ownership doesn't apply.
I can't understand any situation that you think ownership does apply. You mention land, but "ownership" of land is merely an application of power, intimidation and dominance. I don't see any reason why application of power, intimidation and dominance cannot or must not be applied to books or copying of books.
Ultimately what I'm saying is that it seems very, very easy to admit an actual need to encroach on land rights (precisely due to land's actual utility and scarcity), whereas the need for copying a book (particularly books of mere entertainment value) falls into "nice to have" at best. The justification for copying books for entertainment must always be much stronger than the justification for encroaching items that have actual utility (land, food).
With respect to Hen, you either admit sweat equity or you do not. If you admit sweat equity, you must admit you will have ultimately to admit the existence of intellectual property.
What about a contract like this: the copyright holder declares the value of the copyright (on the quarter; on the year; but the declared value may only increase); we then tax them on that value---say 1%. The flip side is that the copyright may be purchased 'into the public domain' by simply paying the full amount of the copyright to the owner of the copyright. (The owner has no right of refusal; however, they may increase the value of the copyright by paying the difference in taxes.)
For patents, have the tax be $300 for each year of the age of the patent. Surely, a patent is worth $300 in its first year; and, any patent that is still 'interesting' after 10 years is worth at least $3000?
Multinational patents/copyrights are payed to the originating country, so that there's no multiple payment issue.
This is a bad idea. You want to impose a tax on people when they create something? Penalizing people for innovation is the exact opposite of what copyright protection is intended to do.
If I create something, and a corporation with deep pockets wants to take it from me, they can just keep upping their bid until the tax for me to keep it would bankrupt me, forcing me to give it up? No thanks.
A 1% tax is a little bit steep. But what if the tax was only .1%? Or maybe you make it a 0% tax for the first ten years, .1% tax for the next twenty years, and 1% a year after that?
If the tax was only .1%, the corporation with big pockets would have to raise their bid to millions of dollars in order to bankrupt you. And in that case, just take their bid and walk away with the millions!
It seems fair to me. If you want something protected by the long arm of the state, if you want to impose a burden of DMCA compliance across all of industry, you should have to pay some tax to pay for that service.
> You want to impose a tax on people when they create something?
The proposal seems to suggest the tax applies to those who want the government to help them exclude others from using their creations, which isn't quite the same thing.
I like the idea of an exponential increase. $1 for the first year, then double it for each subsequent year. If you don't want to pay a $1 then it probably doesn't deserve protection. If you can't afford $2047 over ten years then maybe you don't need a decade of protection. You don't even need to put in an explicit limit, since the available money on the planet will present a natural one eventually.
Yes, though the overhead of requiring annual extensions might be a bit much.
The pre-1976 scheme required a filing and fee, though it was relatively modest. All non-registered works were public domain, and the circle-C symbol (or phonogram cicle-P) and notice were required.
I really wish we'd go back to something more like that.
It could be adjusted pretty easily. For example, do it every five years, and multiply by 100 each time, or whatever seems to make sense. Heck, if you're worried about people who aren't aware of the requirements getting screwed, have automagic and free copyright for the first five or ten years, then start requiring filing.
Interesting. I feel that "intellectual property" already penalizes people for innovating. It supports the original creator directly, but it prevents all the other innovators from creating more work in the same direction that is inspired by the first. Perhaps the tax helps balance this value?
What we're talking about is a system in which individuals and small startups are at a disadvantage by design. The closer you are to missing your rent, the easier it will be for me to take your work.
I agree that IP law is harmful. But I don't think the solution is to penalize innovation while further tilting the playing field toward large corporations.
I don't know - it seems to make sense to me. The copyright holder is paying a tax so that the state protects the monopoly that's granted with copyright. Seems fair to me. Otherwise, we've got the current situation where some corporations get a huge benefit by getting free monopoly-enforcement from the state.
> You want to impose a tax on people when they create something?
Interesting reaction. So you're against taxing the idea guy (or girl), but not against taxing the working people that make the idea become real?
If the copyright has value and is being protected, the copyright owner ought to pay the state for this protection in a proportional way to his work's worth.
I've never heard of the idea posited by the OP before and I must say as someone that doesn't believe in intellectual property laws (because it's not real property and ultimately unenforceable), it is a good idea that makes sense.
The idea reifies the value of the work by putting a bounty on it. If the bounty is paid the work is released. Until the bounty is paid the author of the work will subsidize its protection by paying a fraction of what they make from profits from that work. OP, where did you read this idea? It's very interesting.
What if the author can't afford to pay? Does being poor mean you don't deserve to own the work you've created?
How can (s)he not afford to pay, if it's "a fraction of what they make from profits from that work"? In any case, that sounds like a poor objection to the general idea of a tax - it could simply have a minimal cutoff, like many taxes.
If you're more interested in replying with Wikipedia links than understanding what I'm trying to ask, I don't think we can have a productive conversation.
How am I supposed to respond? Here is what you said:
So you're against the income tax?
Control + f, "income tax"
Arguing a straw man is precisely what you did. I said I think it's a bad idea to tax copyright ownership, and you responded by claiming I'm against income taxes.
I'm sorry, but that's just an absurd way to argue. In no way did I make any statement remotely close to arguing against income taxes. That doesn't have anything to do with the topic at hand.
If you're truly interested in a public conversation, then respond to what I actually said.
I said I think it's a bad idea to tax copyright ownership, and you responded by claiming I'm against income taxes.
I wasn't actually claiming anything. I was just asking based on your reply to innguest's post. It wasn't supposed to be an argument related to the tax on copyright. But fair enough, I apologize.
In any case, I still think you've stopped reading the second part of my post too soon. I wasn't saying you were arguing against the general idea of taxes, but against a tax [on copyright]. All I meant is, even if the tax is bad for poor people, you can simply make it only apply for people with higher incomes and corporations. It's not actually a good argument against a tax [on copyright].
> What about a contract like this: the copyright holder declares the value of the copyright (on the quarter; on the year; but the declared value may only increase)
Why? With the right of public purchase, a declared value decrease means its cheaper for the public to buy. And, realistically, the value of copyrights does decline.
Or is this intended to not only allow purchase into the public domain, but to quickly de facto compel surrender to the public domain for most works to avoid paying more in taxes than the work is worth?
But it is much more powerful than the trade deals of the previous generation. Whereas those earlier deals dealt exclusively with trade, new deals also include 'non-tariff barriers', i.e. things which are a mixture of trade and domestic policy, like regulation of food, product safety and the environment. But the mechanism for negotiating the deal remains the same as before. That is manifestly unacceptable.
From the U.S. perspective, NAFTA and GATT are more powerful than TPP would be. Both address NTBs and were negotiated this way.
On top of that, international security agreements like NATO and the Anti-Ballistic Missile Treaty were negotiated this way, and those arguably have more serious import for a nation than trade.
We need a more nuanced copyright system, that takes into account the on going use of a work. I can completely understand the Disney should still have a copyright on the image of Mickey Mouse. But only b/c it is still relevant to their on-going business. The idea of somehow putting a value on a copyright, so the public could conceivably buy it out once it's value falls into an affordable range, that makes a lot of sense, but how to do that fairly?
That's a good point. So the image of Mickey is still protected for them.
I am trying to imagine if I created a company like Disney and a cartoon like Steamboat Willy. Would I want it to go into the public domain after I died if my company were still going strong? If it were not for the company then sure. Let the public domain have it. But the company would be like an extension of myself. In that case I am not so sure.
As an iconic trademarked character, Disney is the only company able to produce new entertainment or durable consumer products featuring Mickey Mouse.
By use of copyrights, Disney can also prevent the legitimate purchaser of a 1928 film reel from turning it into a digital video file.
The difference can be seen more clearly in the character of Peter Pan. The copyright on the original publications have expired in most of the world. But GOS Hospital and Disney can still claim trademark over some elements, inasmuch as they continue to be used in their business. You can write a new novel or play about Peter Pan, but woe to you if you make a new animated film, or use it to promote your children's hospital, or even try to use it to sell peanut butter.
Trademarks do not expire, as long as they are defended. But trademarks are more narrowly defined, and restricted to a particular purpose.
I'm not confusing the two, I'm discussing derivative works which clearly fall under the copyright regime. Trademarks have to do with fraud, i.e. im trying to pass myself off as disney to sell you something. It's completely different.
And yet many of Disney's most successful movies retell much older stories, only possible because those stories went into the public domain. Bit of hypocrisy there.
Those characters and stories were not (substantially) created by Disney though.
Everyone else /should/ be able to make those same stories in similar media. Disney /really/ needs to be more proactive about using their brand name's trademark within advertising as the consumer protection measure as that is the intended to function of trademarks.
That, BTW, is what is stopping others from making a Disney(tm)'s Mickey Mouse(tm) in steamboat willy(c, expired); and not stopping others from making a more generic 'mouse piloting a steam boat' movie.
Whether it is 'just' or not, however you're defining that, it does not align with the way human culture works, and degrades cultural innovation resulting in fewer works of poorer quality. If cultural progress is one of the things you want to optimize for in copyright law, then this is bad policy.
Do you not see how this would rig the system in favor of deep pocketed corporations even more? You basically said it yourself:
"I can completely understand the Disney should still have a copyright on the image of Mickey Mouse. But only b/c it is still relevant to their on-going business."
A more fair system might be to embrace the "property" rights that media companies hold so dear, and charge steadily increasing property taxes on copyrighted works. Any profitable works would be worth paying the taxes to maintain protection, and unprofitable works would return to the public domain where they belong.
If copyrights are "intellectual property" then they should be subject to property tax.
The vast majority of creative works (which automatically receive copyright protection) are worthless. There's no reason why they shouldn't quickly become part of the public domain.
absolute copyright - life of the author + 21 years (too account for minor children)
Derivative work would be treated like trademark after life of authors plus 21. You have to continuously use it in commerce. If you have the James Bond rights, you gotta still be in the business of making James Bond movies. The caveat would be it has to an identifiable brand. Like Trademark, you won't be allowed to license it readily either.
For direct copyright, I'd still banning the commercial distribution of the actual work unless the work falls out of print and is no longer widely available for purchase.
I would do, 30 years, in increments of 10 years. The first 10 'automatic' and registration not required. The two extensions requiring substantial (say a flat filing fee of 100 USD plus 1% per year from creation (per year) of proceeds on use/sales paid as a tax) payment, submission of a 'master copy' of the work (in the clear) and a clear and easily looked up way of determining if that work was in fact extended. Extension searches would, BTW, be free as the database of titles, authors, dates, etc would be public bibliographic information.
“If the US gets its way, then criminal penalties will apply even against users who were not seeking financial gain from sharing or making available copyrighted works, such as fans and archivists,” write Jeremy Malcolm and Maira Sutton of the Electronic Frontier Foundation (EFF). “Such a broad definition is ripe for abuse.”
... while the last leaked draft of the TPP, dated November 2013, showed strong international opposition to this criminalization plan, Canada now seems to be the only serious hold-out. This may, suggests James Love of Knowledge Ecology International, be because this new draft gives some countries extra time to implement the agreement – meaning that current governments won’t necessarily have to carry the can for their decisions."
These agreements are supposed to reduce barriers in both directions, so there is an interest for businesses on both sides to reduce friction and allow greater access to foreign markets.
Unfortunately, this laudable process has been more and more hijacked by special interest groups, to the point where international treaties are used as backdoors to impose legislation that would otherwise be very unpopular at home. An MP voting in, say, New Zealand to extend copyright terms, would get a lot of stick; but now he can say "hey, there is some good with the bad, less barriers are good for the economy blablabla" and vote for the whole bundle with significant political cover; he can then collect his copyright-lobby cheque AND keep his seat, win-win.
In a way, this is natural; this sort of dealmaking was commonplace at local and national level at most times in history, and it took a lot of effort to make it fairly transparent through the democratic process; now it gets done at a global level, where there isn't a democratic process yet -- we don't vote for a "world parliament" where this sort of issues could be thrashed out in public, we rely on ambassadors and special envoys with wide negotiating powers and no accountability, which naturally results in corruption.
Actually, for New Zealand, there are huge benefits in terms of market access for their primary industries (milk and meat).
Add to that the indirect benefits that the movie industry brings to the tourism industry (yep, they measured it), and you have an agreement that is beneficial to the top two industries.
New Zealand wants to sell Americans milk and lamb. Then they're going to want to come over and teach Americans how to grow your _own_ milk and lamb.
Well ... those kind of agreements are used often as vehicles to bypass national sovereignty. Lets say that official X wants to make law Y, that has a slim chance of passing trough the national legislative body or public. But if it signs an agreement that have these provisions, than the country has to change its laws to fulfill the treaty.
Due to reasons US Congress can vote only binary on approving the agreement. Take it as is or throw it all away. In other places it is similar. So there are internal politics to consider.
You're correct about the carrot but the stick is that companies will pay another politician, who'll get funds to be elected instead of the one who refused to be bribed.
I imagine the multinationals get to play both sides of the negotiation — they can lobby it to both governments. Hence it's probably mostly all carrot ("Sign and you'll get lower barriers to your own products"). I can imagine there may be some stick too: Sign this or you'll lose access to Disney and pharmaceuticals.
TBH, I would imagine that the reason that there is no requirement to renew copyright is because Big Content knows people are lazy and that the more content from the past stays copyrighted by default (even if the author doesn't care to assert that right) means there will be less free content to compete for attention in the future.
Not requiring formal registration and renewal is a clear attempt to reduce the commons, not merely protect the copyrights owned by Big Content.
> multinational entertainment conglomerates, who have twisted what is notionally a trade negotiation into a special interest money-grab
Honest question here, is there really a difference between the two? Is there some doctrine somewhere that specifies exactly what constitutes a trade negotiation and what is considered corruption of said negotiation? I see these kinds of statements thrown around a lot without a lot of justification.
I'm quite a big supporter of copyright but that's absolutely ridiculous. I think the lifetime of the creator is very reasonable. I can even understand throwing in a decade after that so that the family of a creator who dies young/suddenly are supported for a while. 70 years is 3 or 4 generations of family.