How Copyright Makes Culture Disappear
from the to-promote-the-progress dept
A few years ago, we wrote about some research by Paul Heald that did an astounding job visually demonstrating how much copyright law today harms the dissemination of content. The key graphic was the following one:
It appears that copyright is doing similar damage in Europe. At the latest Chaos Communications Congress in Germany, Julia Reda, the European Parliament member from the Pirate Party gave a talk on the state of copyright law today (you can see the video here and included a similar graphic concerning books available in Europe:
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Filed Under: blackhole, copyright, culture, julia reda, paul heald, public domain
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Follow the money
...
Not only does it not make sense, it leads to the massive gap in those two graphics above -- which is a huge loss for society and culture.
It's a huge loss for society and culture yes, but it's a huge boon to those companies that don't have to compete with older, free works, and who do you think throws lots of money at those policy makers who, for the strangest reason, seem to be completely indifferent to the massive gaps in works available to the public?
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Re: Follow the money
Meanwhile, many successful, profitable series build upon, or incorporate older public domain works. How many more modern stories make use of Dracula or Frankenstein's monster in some capacity for example? Or Sherlock Holmes? King Arthur? Hell, the "Arthurian Legends" are basically one centuries long study in copyright infringement. Or looked at from another perspective, they're "The Legend of King Arthur, and centuries of King Arthur fanfiction." So the various companies themselves should be well aware of how profitable it can be to take advantage of works that have entered the public domain, and they should be delighted at the idea of getting to raid the works of people who died a mere 30 years ago for material.
Yet their fear of losing control of their handful of works of a similar age is apparently greater than their greed for all the other ideas they could be harvesting for more modern use.
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Re: Re: Follow the money
Why do you think this is desirable? This is a serious question. I have never been able to understand how extending copyright past the authors death actually advances the purpose of copyright.
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Re: Re: Re: Follow the money
There is no such thing as a "reasonable amount time after their death".
The copyright on any work should be limited just like patents. This means that if people wait long enough they can go and watch a free version of EVERY movie made or every content provide can charge anything they want to provide you a copy of it.
Trademark will still protect Disney from someone making a copycat Mickey Mouse. If someone wants to remake Disney's the Snow White they CANT because that is a trademark! They would have to change everything Trademarked to Disney contained in the story, but the story itself should be public domain for free use when copyright expires.
There is practically no story that can be told that has not already been told in one format or another anyways!
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Re: Re: Re: Re: Follow the money
IF (let's play pwetend) the purported reason of encouraging creation by giving the 'owner' (let's not open that can of worms) certain monopoly rights for a certain length of time (seemingly arbitrary) which gives them motivation to create; then it is OBVIOUS (?) that there is nothing gained by 'encouraging' them to create after they are fucking dead...
in fact, when you think about it, payments to the creator's heirs AFTER death (um, do korporations ever die ? ? ?) INHIBIT creativity in general, in that the creator's heirs have no reason to create shit, but their signature on daddy's (whoever) royalty checks...
taking that one step further, LENGTHENING the terms of monopoly INHIBIT creativity in a similar fashion: if person A creates thing X and it catches on for whatever reason(s), they then have no real motivation to create anything else, because they know they can milk X for a lifetime plus...
by that logic, monopoly terms should be shorter, not longer...
NOT TO MENTION, as someone did in another blog in the context of 'old' software that has no commercial use/value, but is STILL under the lock and key of copyright and/or patents for -essentially- 'forever'... by the time that software falls out of its monopoly terms, it will be totally useless... IF released today, it could help a lot of people...
as was pointed out in the comments alluded to above, and as is commonly reiterated here, the copyright 'deal' is BROKEN: WE GIVE the creator certain UNNATURAL monopoly rights for a certain length of time, and we are SUPPOSED to benefit from that creation after this term has expired...
BUT, what has happened is, the copyright maximalists have gotten it ALL their way in making ridiculously long terms, preposterous conditions, and constant clawback of fair use, etc; and OUR BENEFIT has been so diluted and delayed that it is close to worthless: we are giving people unnatural rights and not getting ANYTHING in return but IP aggravation and a STULTIFYING INFLUENCE on general creativity at all levels...
in short, we 99% have been blued, screwed and tattooed...
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Not sure about dying, but they can 'disappear' via merger or hostile takeover.
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If a person has made and saved money from their copyright, they can of course leave that money to people when they die, just as with everything else. Same goes for any property they own when they die.
But a copyright isn't property or money or anything even remotely like that. Why should it extend beyond death? More to the point, why should its duration be in any way linked to a creator's lifespan? Under the current copyright regime, something you create when you are 20 is "worth more" than something you create when you are 70 -- it's got a half-century of additional exploitable time just by virtue of being made when you were younger. Similarly, a work created by someone who dies young is, in terms of its total copyright lifespan, "worth less" than one created by someone who lives a long time. In fact, the value of a copyright is now tied to a person's health, constitution and luck, rather than being a fixed and evenly limited thing offered to all creators. How does that make any sense?
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Re: Re: Re: Re: Re: Follow the money
Furthermore, in regards to the "worth" of a copyright, what I'm supporting is no different than what we have now. It's worth whatever the creator can make of it in their lifetime. I simply find the current protections post creators death to be greatly excessive, and support greatly reducing them.
I have a far greater objection to copyrights being assigned to corporations. That's the real source of most current copyright problems, and as corporations don't die per se, it's the place a fixed length copyright would make the most sense.
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Re: Re: Re: Re: Re: Re: Follow the money
An authors copyright will only be of benefit to them if they do not transfer it to a publisher, which largely means that they have to self publish, at least at first so that they have an audience when they negotiate with a publisher. With almost all pre-Internet publication, the publisher, not the author or the estate, holds the copyright.
In practice long copyright has been of benefit to a publisher, because they can limit the number of works for sale, which is why they want copyrights extended on a blanket basis. The publishers do not want older works on the market, unless they are still best sellers.
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Re: Re: Re: Re: Re: Re: Follow the money
Why do untimely deaths have to be accounted for? (I'm really not trying to play the "why" game here, I'm just trying to understand the viewpoint.)
"and discourage companies from refusing to deal with older creators"
While this could be a problem, I don't think that distorting the purpose of copyright is the proper way to address it. Also, this may be a temporary problem: it's already completely possible to be a successful author without having to deal with these companies at all, and I think that as time goes on it will become increasingly common.
"what I'm supporting is no different than what we have now"
But what we have now is, in my opinion, wrong and harmful. I would prefer that copyright is actually fixed, not that the current status quo is maintained.
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Oh, well since you put it that way, of course!
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except for independently published authors
most authors and musicians sign away all of
their rights including copyright to the publishers
of their works.
so that means that as long as a publisher keeps the work
available(super easy with online access i.e. amazon etc)
the corporation can keep the work locked up in perpetuity.
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available(super easy with online access i.e. amazon etc)
the corporation can keep the work locked up in perpetuity.
It's not even necessary for them to make it available. They can keep it in their vault and the copyright is still perfectly valid.
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this is NOTHING but social engineering, with the guiding principle being: them that has, gets...
there is no 'inherent right' that some creator benefit from some creation forever, AND their heirs do as well... that is total bullshit...
i'm starting to think urine idjit...
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Re: Re: Re: Follow the money
So how does this encourage the artist to create more, seeing he's dead and all that?
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Even if they decline to make use of it, we would still be significantly better off than we are today with the current post death copyright protection reduced from the current 70 years(in the US and some other places) post death to less than half that (if 30 years) to less than a third of that (if 20 years), and the current 50 years (a number of places outside the US) reduced to slightly more, or slightly less than half depending on whether it was 20 or 30 years.
It would for example, have forced the speeches of Martin Luther King Jr. into the public domain no later than 1998, and we would have been spared further legal tantrums from his ungrateful children for over 15 years now.
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And we would be even more significantly better off if the term were reduced to zero years after death.
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our founding era copyright terms of 14/14 years (and was shorter than that, originally) was made back in the day when we had town criers as teevee, horses packing ACTUAL mail for days and weeks, local papers were LOCAL, and little to nothing of a widespread means of disseminating information analogous to the inertnet... (maybe public houses, at best)
NOW, when we have essentially worldwide instant communications and any number of specialized publications available nearly everywhere, NOW we have to have terms of life plus intolerable ? ? ?
THAT MAKES NO FUCKING SENSE ! ! !
(for the 99%...)
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Re: Re: Re: Follow the money
Why do you think this is desirable?
I don't know about the AC you responded to, but I know why I want copyright to extend well beyond the death of the author/creator: without this protection, I can very easily imagine the major movie studios all starting their own wetwork divisions. Disney sees a new novel on the bestseller list that'd make a great movie? Don't buy the rights, just arrange for the author to "commit suicide." Sony Pictures decides it wants to make its own X-Men movie? Stan Lee accidentally falls down an elevator shaft, and boom! Public domain!
Wait a sec, that sounds like the plot a cool novel... and I can feel comfortable writing that novel thanks to strong intellectual property laws. Without copyright, we'd all be murdered in our sleep by bands of corporate ninja death-squads.
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Re: Re: Re: Re: Follow the money
No, you just described a situation with copyright. Without copyright, it wouldn't matter whether the author was alive or dead.
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But if copyright survives for a period after the author's death, then such a person has the added incentive to create which comes from the fact that the income from their new creation can help to support their heirs in their absence.
Thus, for copyright to continue after the author's death provides additional incentive for the author to create even in the face of impending death, which otherwise would not exist.
How big of a difference that makes in practice is another question, but that's what I've always understood the rationale to be.
(Just off the top of my head, I don't see any particular reason why a "life of the author plus X years" model would be needed to satisfy this rationale; a simple "X years" model would work just as well. The only requirement would be that copyright not terminate when the author dies.)
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I think that's a fairly rare circumstance, and such a person would probably have a greater incentive in trying to leave something to the world before they die.
But having copyright terminate on death is silly, and potentially dangerous, since then there's only one thing standing between your work and someone who wants to freely exploit it, and that's your life.
Copyright should be a flat number of years and not depend on death. Really, 50 years is plenty. It means the stuff that came out when you were in high school goes into the public domain about when you retire. That's more than enough time for someone to make their money. It's certainly long enough that you can't just say, "Nah, I won't see that in the theater, I'll wait until it comes into the public domain."
And just look at those charts... the dirty little secret is that no matter how many years we make copyright last, the vast majority of works are not going to be sold decades later to a degree that will provide any real income. You can argue that an author (or his grandchildren) should be getting income 80 years later - but most of them will not, because nobody is buying an 80 year old book. Or even a 30 year old book, unless it's one of the very few that don't go out of print by then.
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You really think it's likely a lot of people would be murdered to get their works into the public domain? Surely somebody with that much incentive would buy the copyright instead, so they would be the only ones able to exploit it. The only possible exceptions would be people desperate to use the work but without enough money to buy it. And they would have to also be borderline psychopathic.
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Re: Re: Re: Re: Re: Follow the money
I've never understood this argument. There are already laws against murder, changing copyright to terminate at death(at the latest) would not revoke those laws, so how exactly copyright would lead to more murders is beyond me.
Copyright should be a flat number of years and not depend on death. Really, 50 years is plenty.
Agreed on the flat rate, disagree on the duration. To me, based upon what's shown in the article above, rolling copyright back to a 14+14, or perhaps 26+26, would seem to be plenty. The creator gets the bulk of their sales in that period, and by the time re-registration comes around, their profits from their creation isn't likely to be worth the effort to bother with, at which point the public would get their half of the bargain fulfilled.
Now, corporations, the driving force behind copyright law for the last couple of decades(or the entirety of copyright law, depending on how you look at it), would likely throw a fit, but given copyright wasn't intended to include them, merely the public and the creators, I couldn't care less how much potential 'lost profits' they would face with a massive decrease in copyright duration.
On a side note, I also believe, strongly, that registration should be re-instated as a requirement for a copyright to be considered valid. It would do a world of good for the orphan works problem, make it so much easier for people to know just who exactly owns a given copyright, and would allow those who do not want to copyright their creations the ability to do so.
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Re: Re: Re: Re: Re: Re: Follow the money
> Agreed on the flat rate, disagree on the duration. To me, based upon what's shown in the article above, rolling copyright back to a 14+14, or perhaps 26+26, would seem to be plenty. The creator gets the bulk of their sales in that period, and by the time re-registration comes around, their profits from their creation isn't likely to be worth the effort to bother with, at which point the public would get their half of the bargain fulfilled.
Indeed -- 14 + 14 or 28 + 28 was deemed quite sufficient in the Age of Steam, when everything was shipped by horse powered cartage, steam-powered rail, steam or sail powered ships, or possibly transmitted by telegraph.
So one would expect that in today's world, with our vastly improved transportation, communications and distribution (not to mention advertising, payment and banking) infrastructure, costs and reasonable profits should be realized far more quickly and easily than ever before.
Or is that just too sensible?
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Re: Re: Re: Re: Follow the money
I can't imagine an artist at the end of their years deciding that they don't want to create art because they won't live long enough to profit from it.
Not all artists have heirs either, so saying that copyright should extend after an author's life for the sake of their heirs doesn't hold true for all artists anyway.
If an artist is concerned about securing their heir's future with a good inheritance, they can do what a lot of other people do and invest the money in a retirement fund or savings account or bonds or some form of interest-earning financial instruments.
There's no reason to perpetually lock up our culture for the same of one contributor's children's children's children's sake.
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Re: Re: Re: Re: Re: Follow the money
Not necessarily untrue. However, modern civilization depends on people being physically/financially able to specialize in what they're good at. We get better art, literature, science, music, and everything else when people are able to do that.
Too bad copyright doesn't serve this purpose quite so much anymore (if it ever did), now that it's been re-tasked as a tool for corporations seeking profits from ownership and rent, rather than creation.
--
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Re: Re: Re: Re: Re: Re: Follow the money
Not necessarily so.
Chuck Palahniuk wrote the office related aspects of Fight Club because he worked in an office and got into fights outside of the office which inspired significant aspects of the story.
George Orwell (Eric Blair) wouldn't have been able to write Keep the Aspidistra Flying without his personal experiences in the "prostitution" of an artist's abilities to survive financially.
Many bands are criticized for losing touch with reality and producing more "commercial" but less artistic, "honest" work once they've "made it" because they've become disconnected from the average everyday experiences that inspired their earlier works.
As Ezra Pound said, "Nothing written for pay is worth printing. Only what has been written against the market."
Even fictional authors are depicted as having to have "day jobs" in order to inspire their writing, such as Richard Castle having to work with the NYPD and Det. Beckett to gain material for his Nikki Heat series.
Many artists have to do other things to get by, and often times those experiences drive their work. Art is not created in a vacuum.
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But there's this multiplier of talent, called "craft." Few masterpieces ever spring forth from a virgin birth without lots of sweat, failure, and more sweat in the beginning. On top of that, there are some art forms in which it's absolutely critical for an artist to have a deep reservoir of experience as a craftsman, someone who can combine technical know-how with a trained eye or ear, to have any hope of success. This more often than not is acquired from being in the trenches a while; whether behind a stage, in an orchestra, or in a studio. As you've noted, there are exceptions; in particular, in disciplines where one's craftsmanship can be honed outside of an industry setting.
I can't begin to tell you how many young artists I've encountered who have natural talent, but lack the skills to be more than just another amateur who's waiting tables. That's a different kind of vacuum- an ignorance of the tools and techniques that are needed for success, and another place where art goes to die.
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Why doesn't Techdirt or Mike Masnick write about that?
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Second (and more importantly), you're setting up a straw man here. Literally nobody is saying that content creators shouldn't be paid for their works.
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Wait, what?
Your argument is totally wrong.
If an artist has to do additional work to support their creation of art, aren't they now actually producing both cultural benefit through their art and ALSO tangible benefit through their non-creative work? What you are arguing seems to be a bigger gain rather than a loss.
Now, you MAY be able to argue that without having to do other work they could be producing more cultural beneficial works than they are able to now, but that would also suggest that their works need to produce a very balanced amount of money that both keeps them able to survive without other work but yet ensures that they have to continue to produce their art basically until they die.
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If you want to complain about artists not getting paid fairly for their work, join the rest of us in opposing the rampant corruption in our political system that allows the causes to be perpetuated.
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The ones taking from creators aren't people that look at an end product. It's the people trying to inflate prices to fill their own coffers while selling inferior goods.
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Response to: Anonymous Coward on Dec 31st, 2014 @ 8:25am
Perhaps because the mpaa/riaa screams that at the top of their lungs anyway and just copypastaing those talking point contributes nothing to the discussion?
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Has the copyright on Neanderthal cave art expired yet?
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**Correction**
Has the copyright on Homo Sapian cave art expired yet?
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I think your online dictionary had a database error and gave the definition of the word "opinion" in place of the word "fact".
How about we blame the economic system instead? Because of money, people can't simply do what they love, regardless that it provides societal value, because they have to sacrifice their time to occupations that earn money. Even if they can earn money doing art, they have to concede to market demands. They often can't do the art they truly desire to make, but have to make art that consumers want. That's a tragedy in itself.
The point being, it's easy to cast blame.
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Not that you'd let real facts get in the way of your pretend facts.
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Why doesn't Techdirt or Mike Masnick write about that?
Because it is NOT a fact.
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How about getting a job and producing something of value like everyone else? Most of this garbage could disappear and nobody would notice or care, in fact they would have to find something else to occupy their time which might do us all a lot of good.
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Fact - the first breakthrough work of any artist is NEVER funded by the cconsumer. It is ALWAYS necessary for the artist to have a day job.
Often that first breakthrough work is the best (or even the only work of substance - Harper Lee, JD Salinger). The subsequent works are inferior because copyright royalties take the pressure off. Great art is seldom produced in well funded luxury.
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you know why ?
Fact: because EVERYONE is a 'creative' (sic)...
and MOST OF US don't get a chance to practice our creative sides any near as much as we'd like because we have a fucking job (or kids, which is a job by itself)...
some of us don't feel entitled enough to think of ourselves as such speshul, pwecious, pwecocious, sparkle-pony's that we not only DESERVE, but DEMAND that the rest of society SUPPORT US in our endeavor to goof off all day and (with a near 90% certainty - see sturgeon's law) produce a thing of unbeauty that you foist off on your adoring public...
you know, the job market is bad enough as it is, but why am i guessing that you, personally, a non cow, don't have any marketable skills except being a 'creative' of some sort...
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I think there was also an enormous and highly lethal flu outbreak during that time.
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No, that was just a cover story.
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The rights can be transferred with a piece of paper, that doesn't need to be filed anywhere. This keeps anyone who wants to bring things back to market from even thinking about doing so, because the lawsuits are so insane. You can be sure that the work is in the public domain, but still face large lawsuits (Doyle Estate anyone?) and threats... that make it easier to just let them keep it locked away than to spend money fighting to prove the truth. (And with Garcia v. Google out there, it can be death by 1000 lawsuits and filings by anyone who ever touched it.)
Reform needs to happen.
The original intent has been warped by corporations to protect their business model, allowing them to ignore the public who is the stakeholder who gave up so much and gets jack shit in return.
Copyright was never meant to keep a family in the style to which they wished to become accustomed for generations. The benefit to the creator is minimal, the benefits are all to the gatekeepers who extract a pound of flesh over and over even after the author is long dead. They exist only to rend a few more cents from the corpse of what once was a great work, but anyone who remembers it is long dead & is not telling others about these forgotten gems. Dare to try and introduce a new generation to the content, and the gatekeepers are there demanding their cut when they have done no work to promote the work. They lie in wait for someone else to do the heavy lifting then pounce.
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Requiring registration is unnecessary
With that said, I do agree that either the copyright term should be shortened dramatically or else that registration could be required to get an extended term of copyright after the initial automatic protection wears off.
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Re: Requiring registration is unnecessary
Back when registration used to be required (not all that long ago), these weren't problems. The way it worked was that you affixed a copyright notice to the work, submitted for the copyright, and published without waiting for the copyright to be granted. Once granted, the term of copyright began on the day of submission.
As to unpublished works, you could submit for and get copyright on them. Copyright law requires that the work be fixed in a tangible medium. It does not require actual publication.
The HUGE problem of not requiring registration is that it become very difficult or impossible to determine if a work is under copyright and who is the holder of that copyright. I think that was the entire point of dropping the registration requirement: to create a world where you can't tell the copyright status of individual works and therefore have to assume that everything is off limits.
In my opinion, automatic registration is one of the big three reasons why people disrespect copyright.
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Re: Re: Requiring registration is unnecessary
Under the 1976 Act registration likewise is not a requirement to secure a copyright, but it is prudent to do so in many instances, and mandatory if an infringement dispute is looming. The key change under the 1976 Act is that via an amendment about 1995 the requirement for a copyright notice was eliminated to conform to treaty obligations that had their origin under European national law (most notably France...who can also be blamed as the genesis for the incredibly long terms currently associated with copyright).
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"Much of the [Copyright Act of 1790] was borrowed from the 1709 British Statute of Anne. The first sentences of the two laws are almost identical. Both require registration in order for a work to receive copyright protection; similarly, both require that copies of the work be deposited in officially designated repositories such as the Library of Congress in the United States, and the Oxford and Cambridge universities in the United Kingdom."
https://en.wikipedia.org/wiki/Copyright_Act_of_1790#Provisions
"That from and after the passing of this act, the author and authors... shall have the sole right and liberty of printing, reprinting, publishing and vending such map, chart, book or books, for the term of fourteen years from the recording the title thereof in the clerk’s office..."
(emphasis mine)
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Now what we have is a work being deemed preserved under copyright law from the moment of its creation, no requirement for the work to bear a copyright notice, and a requirement to register a copyright claim only as a condition to be met before a suit in federal court can be maintained against an alleged infringer. IOW, unlike what used to be an opt-in type of system (publication plus notice), we now have what is essentially a automatic system (no requirement for publication and notice) without any effective opt-out provision.
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Re: Requiring registration is unnecessary
"Unpublished works" should fall under an entirely different set of legal theories that don't pretend that every worthless scrap of paper is some masterpiece that has to be protected.
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Re: Requiring registration is unnecessary
Nothing wrong with requiring a registration after 50 years or something, though, if we're going to insist on ridiculously long copyrights. A very small percentage of works are still commercially exploited after 50 years.
It seems to me that this is a compromise the studios could live with (they don't get shortened copyrights on THEIR stuff since they'd just reregister) and would still help the public domain by releasing relatively obscure works before the books or reels decay.
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Re: Re: Requiring registration is unnecessary
As someone who has registered quite a number of copyrights, I have a couple of points:
First, it's completely unnecessary to register a copyright on everything you create. There's little point in, for example, copyrighting something that you will never publish or distribute, and there's little point in copyrighting things that don't have substantial economic value.
Second, registering a copyright is one of the easiest things you can do, and it's cheap. Yes, it's paperwork, but it's a form that you can complete in about 10 minutes. I don't think that the burden of registration is an issue, but the benefit to the copyright holder as well as the general public is enormous!
Registration makes it possible for people to know that your work is under copyright, and that you are the holder of the copyright. This allows people who would like to license your work to actually find and pay you.
Registration places a legally recognized date on the start of copyright, which can be very useful if there's a dispute.
Registration places your work in the collection of the Library of Congress, which helps to ensure that when the work will still exist when it enters the public domain.
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Copyright law
May 31, 1790
First copyright law enacted under the new U.S. Constitution. Term of 14 years with privilege of renewal for term of 14 years. Books, maps, and charts protected. Copyright registration made in the U.S. District Court where the author or proprietor resided.
The purpose of copyright was to force works into the public domain.
I think 28 years should be the upper limit to "limited times". Rights should extend to heirs and estates only if the 28-year time period has not expired.
Orphaned works should also fall into the public domain, although with a 28-year limited time, that's less of a concern.
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Re: Copyright law (Edit to original)
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Disney copyrighting all public domain fairy tales
I fully expect Disney to snatch Odysseus from Homer's cold, dead hands.
Poof! Copyright destroys culture once again!
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Re:
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Public Domain Day...Wait till 2054
http://web.law.dukeedu/cspd/publicdomainday/2015/pre-1976
But....we have to wait until 2054.
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The Constitution, Article I, Section 8, Clause 8
"[I]t leads to... a huge loss for society and culture."
If copyright leads to a huge loss for society, it contravenes the Constitutional purpose for the law permitting the copyright monopoly in the first place.
The Constitution limits exclusive rights to just the authors and for only a limited time so that authorship is encouraged, but society also benefits, in exchange.
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Term
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I'd prefer it if the copyright length was about 5-10 years. Not more than that, and people are free to remix our creations as they see fit.
"What about my heirs?" Fuck them, let them go create something else, that's new and awesome.
The entire planet needs a revolution in how everything works, and is run right now.
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