Copyright As Emphysema: Bad To Begin With And Only Gets Worse
from the now-there's-a-quote dept
An anonymous reader points me to the comment section of a recent Doc Searls post discussing problems with the copyright system. The post itself is interesting (though covering ground familiar to those around here), but the comment in question has this rather unique analogy from Searls comparing copyright to emphysema:I won't speak for Bill Patry, but I'm beginning to see copyright (and patents, at least for software and business methods) as emphysema of the marketplace: something that is bad to begin with and only gets worse.To support that point, he then asks an interesting question:
Can either of you name a single legislative or regulatory instance (in any country) when the concept of copyright has been challenged successfully -- or the scope of its restrictions (in time or any other dimension) has ever been reduced? I can't, but I'm not a lawyer.It's a good question. I left a comment pointing to the only one I could think of off the top of my head: which was the US's decision that federal gov't documents could not be covered by copyright. That, of course, is a tiny tiny minor push back on copyright, and many other countries haven't even gone that far, preferring to use "crown copyright" to allow governments to claim copyright on documents. In thinking about it a bit more there are two other possible points -- though both are again pretty minor. First is the fact that the 1976 Copyright Act codified "fair use." Before that it existed in common law, but was not directly in the law. However, considering that we basically gave up nearly the entire public domain on modern works, that Act was hardly a step towards less copyright. In fact, it was the single largest step towards copyright expansion in the US's history.
The only other (again tiny) pushback on expansionist copyright law was not from the legislature, but the recent court ruling (pushing back on a legislative expansion) that found a certain classification of works that were temporarily in the public domain couldn't be pulled back under a copyright regime. That case is going to be in appeals for years, and it applies to such a small class of works, it's barely worth mentioning at all.
But, of course, as we were recently discussing, the expansion of copyright has been quite massive during the entire history of the US. But, again, like Searls, I'm not a lawyer (or a historian), so perhaps we can get some others more knowledgeable on the subject to weigh in on Searls' question: what examples are there of legislatures actually decreasing the scope of copyright restrictions?
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Filed Under: copyright, doc searls, emphysema, expansion
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Who's "we", exactly, AC?
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Golan
I'm surprised that you do not regard the Golan litigation as being more important. Granted, a win for Golan will result in only a small class of works re-entering the public domain. That said, there are some seriously important works in the class....but that is not the point of my comment.
Golan is of major consequence for a number of other reasons, though. First and foremost, if the URAA is allowed to stand, then the case will represent a dramatic shift in the legal recognition of the public domain. Allowing works to be removed from the public domain and granted an additional term of copyright could be grounds for further retroactive extensions. Second, the case will tell us a lot more about the Supreme Court's holding in Eldred v. Ashcroft. At the moment there is hope that Congress' power to legislate copyright is checked by the "traditional contours" test, which would allow for heightened review of Congressional copyright statutes that alter those contours. In other words, the case is important not for the works that may be pushed into the public domain, but for the effect the case will have on future copyright challenges.
In my opinion Golan is a critically important case to keep an eye on.
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Re: Golan
I'm surprised that you do not regard the Golan litigation as being more important.
Hi CT. No, I agree that it's *important* and could become a big issue if the ruling stands... but in terms of what it means right now for a pushback on copyright, is pretty small.
So, yes, it's quite important, but I think the bigger impact won't be felt for quite some time.
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Of course, that's the courts and not the legislature reeling things in.
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I have to disagree with this. All "modern" works will enter the public domain at some point. It might not be fast enough to be "in your lifetime", but it isn't lost.
The 1976 legislation followed the same steps that have happened over the years, with copyright time being expanded, in keeping with the durability of much of the material copyrighted. Mickey Mouse is as vibrant and fresh today in new material as the mouse was 50 years ago, so why suddenly push a whole bunch of material into the public domain? Would the world suddenly be a better place if you could make legal copies of Steamboat Willie?
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Re:
Maybe it will, maybe it won't.
As long as Disney keeps using Congress to extend copyrights further and further (I think the next expansion is scheduled for 2023 or thereabouts), we'll never know, will we?
Would the world be a better place if Shakespeare's heirs still held the copyright on Romeo and Juliet?
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Well, lets see when Mickey Mouse enters the public domain then.
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"...in keeping with the durability of much of the material copyrighted."
First, most of the material that is still under copyright is not "durable", in that they do not stand up well to the ages. To state otherwise is to not only grossly underestimate the amount of works that are under copyright, but to overestimate the value of those works by just as wide of a margin. Hell, the vast majority of it is already forgotten after 20 years (the average span between generations).
"Mickey Mouse is as vibrant and fresh today in new material as the mouse was 50 years ago, so why suddenly push a whole bunch of material into the public domain?"
Some minute fringe of copyrighted works that still get some attention is not any really any justification to keep kicking the rest of copyrighted works along with them. Actually, I would content that the outside of the few fringe examples, public domain is required to keep most works "vibrant and fresh".
Also, there is absolutely no reason why I should not see any any of the works copyrighted within my lifetime pass into the public domain. Copyright was only to be insured for a limited period of time. "Not within my life" is not what most people would define as "limited". For an individual, that would be indistigishable from being permanent.
"Would the world suddenly be a better place if you could make legal copies of Steamboat Willie?"
Again, another fallacy. First, there is no reason why anyone should have the right to continuely profit from the same work by merely republishing it under a new format again and again. It's not just about making exact copies either, but the ability to make derivative works without the threat of litigation. You're ignoring that the real point of copyright is only to give artists and writers a limited period of time to for them to seek personal benefits from their work before letting the whole of society completely benefit from it. One of the beauties of art is that others will find uses of a work that the original creator could not have imagined. Do you think that the authors of the public domain books that Disney had repurposed to build almost the entire extent of his "classic" films could ever have even conceived the idea of "motion pictures"? To continually deprive generation after generation of the same right that Disney had is by far the greater crime!
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Nope - they would have had to been alive a couple of hundreds years to see that, which would be past the current expiry of modern copyright. Amazing how that works out, isn't it?
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Also, the belief that copyright should last for "hundreds of years" is complete idiocy.
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All "modern" works will enter the public domain at some point. It might not be fast enough to be "in your lifetime", but it isn't lost.
That remains to be seen. We have already seen calls in Europe for an extension of the copyright in phonograms from 50 to 95 years. (More recent proposals knocked this down to 70 years, but an extension will still pass if the Council of Ministers agree to it). And writer Mark Helprin has already begun beating the drum for yet another U.S. extension. Is he a lone crackpot, or a pilot fish for the robber-barons? We'll see in a few years, when the copyright in Steamboat Willie will again approach expiration.
You also wrote:
Mickey Mouse is as vibrant and fresh today in new material as the mouse was 50 years ago, so why suddenly push a whole bunch of material into the public domain? Would the world suddenly be a better place if you could make legal copies of Steamboat Willie?
The world would be a freer place if we had freedom to market competing editions of Steamboat Willie. This is called "free trade" and "competition". Deluxe versions would go for more, but still, lower prices would be available for those who wanted them, as budget editions would be sold at prices close to the marginal cost of production. The monopolistic market would become a competitive market. The monopolist's surplus would become a consumer's surplus. Ordinarily competitive markets are considered better than monopolistic ones. Ordinarily consumer surpluses are considered better than monopolistic surpluses. That is how the world would be a better place if the copyright in works published in 1923 through 1928 were to expire.
And of course the market for Steamboat Willie should become a free market while the film is still "vibrant and fresh". Just as the patent on an antibiotic drug should expire while the antibiotic is still near the height of its potency.
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Spain
To say that unpublished works would "never" have entered the U.S. public domain is to overstate the case, just as it would be an exaggeration to state that the common-law right of first publication (RFP) was "perpetual". It is more accurate to say that the RFP was indefinite. It could last for generations if it was carefully maintained, but unless it was carefully maintained, there might after a few generations have been no one able to claim the right, and hence no one able successfully to challenge a would-be publisher. Under such circumstances an "unpublished" work could in practice be published by anyone who came into possession of the manuscript.
The biggest problem with the indefinite RFP was that for two classes of works, sound recordings and plays, public performance of the work did not count as "publication", resulting in the unfair situation that a work that was being publicly exploited might not have its copyright clock running. The 1976 act took care of this problem. The 1976 act. The 1998 CTEA was completely unnecessary.
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Re: Spain
Well, with the constant expansion of copyright one never really knows.
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Re: Spain
Wow, is this seriously the BEST you can do. Pathetic.
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Re: Spain
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The law only matters if you obey the law
http://radgeek.com/gt/2009/02/07/countereconomic_optimism/
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Re: The law only matters if you obey the law
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Revolution
http://www.earlyamerica.com/earlyamerica/firsts/copyright/
The 1976 Act was a huge jump -- extending maximum copyright from 56 years (1909 Act) up to about 100 years or more, depending on the lifespan (and early writings) of the author. The greediest part of the grab was including unregistered, unclaimed, and even *unpublished* works, all of which makes no sense when the point is to get new works into the public domain rather than kept secret. "Fair Use" can hardly be seen as recompense, as a more liberal interpretation was already widely held by common law. The U.S. didn't even join the Berne Convention in respecting the copyrights granted in other countries until 1988. TRIPS was another huge encroachment on the sovereign rule of independent nations committed in 1994. A lot of damage to the U.S. public domain was done during the Clinton years, which is the main reason I'm not a fan.
http://en.wikipedia.org/wiki/United_States_copyright_law
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Re: Revolution
You're right, and we've talked about this sort of thing before. Much of the reason the U.S. advanced is because it ignored intellectual property from other countries and "stole" their technology. Now that intellectual property is starting to reside here more and more our advancement is slowing down.
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