Even As Copyright Office Has Called For Shorter Copyright, USTR Tries Locking US Into Longer Terms

from the because-ustr-doesn't-give-a-fuck dept

Wed, Feb 4th 2015 8:04am — Mike Masnick

This is hardly surprising, but even as the head of the US Copyright Office, Maria Pallante, has called for the US to roll back the Sonny Bono Copyright Term Extension Act, so that copyright would last the life of an author plus an additional 50 years -- rather than the 70 years it is today -- the USTR is working to make sure that can't happen. The latest report from the latest round of negotiations for the Trans Pacific Partnership (TPP) agreement says that the US has effectively bullied all the other participants into agreeing that the floor for copyright terms must be life + 70.

Officials settled on the arrangement after agreeing with the US's position on the length of term for copyrights. US representatives want copyrights to last 70 years from the release date of films and music and the deaths of authors of books.

As we've noted repeatedly, this is an old trick for copyright maximalists. Go into secret, backroom international trade agreement negotiations, and get them to agree to something like this -- and then when the issue comes up for reform in Congress, scream loudly how we can't possibly reduce the term of copyrights, because it would "violate our international obligations" and create havoc. We've been reporting on this kind of trick for about a decade and it's been going on for much longer than that. The plan is really nefarious. You get very friendly USTR officials (whose next job will likely be working for the industry to push things through in this secret negotiation, for which there is no public debate or ability to let the public have real input on. Then, when an issue actually comes up for debate in Congress, insist that it's impossible to change due to the "international obligations" that these same industries were responsible for slipping into the agreement in the first place.

It's really a disgusting practice -- and despite being called out on it over and over again, the USTR seems to be more than willing to simply do it again. This is yet another reason why Congress should not give the USTR "fast track" authority, as it will back them into a corner, and block their ability to reform copyright law as they would like and the way that even the Copyright Office itself has said copyright law should be reformed.

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Filed Under: copyright, copyright reform, copyright term, international obligations, life plus 70, maria pallante, tpp, ustr

36 Comments

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Ninja (profile), 4 Feb 2015 @ 7:16am

Next they'll be supporting Life + Infinity. Disney approves.
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Shmerl, 4 Feb 2015 @ 8:09am

How can it be repealed?
So is there any way to tank this whole TPP democratically? Or it's a new form of dictatorship when some unelected body like USTR creates new laws any way they wish?
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beech, 4 Feb 2015 @ 8:12am

Response to: Ninja on Feb 4th, 2015 @ 7:16am
Close, actually. I think it was something they were pushing for during the last extension act. Basically the US constitution only allows copyrights to be issued for "limited" durations, so infinite duration copyrights are unconstitutional. So the argument is that we should set copyright terms for "forever minus one day". And, oh boy, i wish i was making that up.
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Jason, 4 Feb 2015 @ 8:14am

Re: How can it be repealed?
The TPP is still under negotiation ("negotiation") and hasn't been brought before Congress yet. If or when it finally is will be the time to pass or reject it, with rejection likely to be the more desirable result if things keep going the way they are. The problem will be actually getting that to happen, what with all the "international obligations" arguments that its supporters will use to try and compel its adoption.
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Anonymous Coward, 4 Feb 2015 @ 8:18am

They should really mix it up and do life + sqrt(-1). I'd like to see the courts define that. It'd be the same with them trying to define forever minus one day.
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beech, 4 Feb 2015 @ 8:23am

Re: How can it be repealed?
Well, iirc, it's still being negotiated. According to US law the Senate would have to ratify it before it becomes official. Which is why the USTR is asking for "fast track" authority to ratify treaties without congressional interference. So, to democratically knock this down, get a huge campaign together to fight "fast track" authority for the USTR, then fight against ratification of the TTP. Also pray they don't go the ACTA route of trying to have Obama call it an executive agreement and sign it himself.

Or hope enough other countries have their shit together enough to have their politicians vote it down so it doesn't enter into force (also like ACTA)
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Anonymous Anonymous Coward, 4 Feb 2015 @ 8:29am

Re:
The USTR and congresscritters are all trained in Hollywood accounting. That means they could not possibly do that math.
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Anonymous Coward, 4 Feb 2015 @ 8:29am

A way to undo the ratchet
> we can't possibly reduce the term of copyrights, because it would "violate our international obligations" and create havoc.

Some clever wording can work around that. Instead of merely reducing the copyright term, make it the greater of "the reduced copyright term we really want" and "the legacy longer copyright term as present in international obligations X, Y, and Z, but not more than life plus N years". That puts a ratchet in the opposite direction: as soon as the "international obligations" are repealed or updated to a shorter copyright term, the country's copyright term will decrease, and new treaties can't prevent that since the wording explicitly lists the ones which count.
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Anonymous Coward, 4 Feb 2015 @ 9:00am

and block their ability to reform copyright law as they would like

You seem to be under the impression that these extensions *aren't* exactly what those members want.
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Anonymous Coward, 4 Feb 2015 @ 9:00am

Congress seems fond of abducating their authority to others these days
Just look at the leeway that congress gave the president to change Obamacare. Now the president can change the law w/o congress having to do it. There should be a law against congress giving its power away; otherwise what is the point of having a congress?
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John Fenderson (profile), 4 Feb 2015 @ 9:03am

Re: Congress seems fond of abducating their authority to others these days
Forget Obamacare -- where Congress has really gone overboard in terms of giving their responsibility away is when it comes to warmaking.
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Anonymous Coward, 4 Feb 2015 @ 9:49am

I am not certain that the Registrar advocates shortening copyright term. My recollection, which is not infallible, is that she mentioned perhaps a rights holder should have to take an affirmative act for the extended term under the CTEA to apply. This is not quite the same thing as saying the term should be reduced.
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Michael, 4 Feb 2015 @ 10:03am

Preview of 2019
You got it exactly right when you said that the response to copyright reform is to "scream loudly how we can't possibly reduce the term of copyrights, because it would "violate our international obligations."

I suspect this is exactly what will happen when 2019 rolls around and the copyrights on all 1923 works are finally set to expire, 20 years later than they should have thanks to the Copyright Term Extension Act. Copyright maximalists will point to the TPP and insist that not doing anything will "violate our TPP commitments with our international partners."

They will do everything in their power to get a law passed that extends copyrights for all works whose authors died less than 70 years ago. Disney will get its wish and Mickey Mouse will remain under copyright for several more decades, as Walt Disney died in 1966. Of course, the politicians will make a big show in which they claim to be "supporting the public domain" by pointing to those works published in 1923 whose authors died over 70 years ago. Sadly, those works published between 70 and 95 years ago by an author who died more than 70 years ago will remain under copyright.

Of course, this means the U.S. will have the worst elements from both the old and the new copyright laws. In other countries with a life+70 copyright law, ALL works published by an author enter the public domain after 70 years. But under this scenario, the U.S. will have a more maximalist copyright durations than even its TPP and EU partners!

Unfortunately, this is the better case scenario. The worse one is that copyright maximalists convince Congress to "harmonize" America's copyright term with Mexico's life+99 law in a renegotiated NAFTA.
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Anonymous Coward, 4 Feb 2015 @ 10:06am

Re: Re: Congress seems fond of abducating their authority to others these days
"Forget Obamacare -- where Congress has really gone overboard in terms of giving their responsibility away is when it comes to warmaking."

It seems that Congress learned its lesson about ceding its Constitutionally-prescribed war-making authority to the president after the Iraq "WMD" fiasco. That may be why Obama decided to go to war against Libya without asking Congress (as the Constitution requires) and then flatly refused Congress's demand to abide by the War Powers Act, which governs a president's undeclared, unauthorized (and generally unconstitutional) wars.

Though in general, Congress's abdication of authority may make little difference, as very few of them even read the bills they sign.
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Anonymous Coward, 4 Feb 2015 @ 10:16am

Re: Preview of 2019
Thanks to the Internet, it's a good bet that the next copyright extension act will be met with considerably more resistance than the previous extension's rubber stamping.
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tqk (profile), 4 Feb 2015 @ 11:03am

Re: How can it be repealed?
So is there any way to tank this whole TPP democratically?

I'd be more in favor of tanking the USTR. Between "it" and the NSA, I can't decide which is the more obnoxiously imperialistic force of the two. One (NSA) enables the assault of US citizens by over-riding the constitution, while the other enables corporations to assault consumers world-wide.

What a depressing century this's turned out to be. It seems we wasted the last one fighting communism, when we could have allied with the commies to fight fascism. Bastards! It almost seems like the commies were right all along.
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Roger Strong (profile), 4 Feb 2015 @ 11:29am

Re: Re: How can it be repealed?
Ratification? That's so last century.

Thanks to the magic of Provisional Application, countries can be bound by these treaties for decades WITHOUT ratifying them.

Just ask Russia, which last year was ordered to pay $50 Billion (with a B) to investors for not honoring the 1994 Energy Charter Treaty (ECT).

Russia never ratified the ECT and announced its decision to not become a Contracting Party to it on August 20, 2009. As per the procedures laid down in the Treaty, Russia officially withdrew from the ECT with effect from October 19, 2009.

Nevertheless, Russia is bound by its commitments under the ECT till October 19, 2029 because of Article 45 (3) (b) states that "In the event that a signatory terminates provisional application…any Investments made in its Area during such provisional application by Investors of other signatories shall nevertheless remain in effect with respect to those Investments for twenty years following the effective date of termination."

That is, although Russia signed the treaty, it never ratified it. And yet under its terms, it can still be sued, as here -- another good reason never to sign up to these kind of agreements.

TPP insiders assure us, "Don't worry; the public will have a chance to study the treaty before it's ratified." But by then it's too late.
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Anonymous Coward, 4 Feb 2015 @ 12:02pm

International corporate copyright laws. Which trump all sovereign, regional laws. This is 'free trade' in a nutshell. Or to phrase it another way. Corporate law trumps government law.
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Zonker, 4 Feb 2015 @ 12:06pm

Re:
To infinity... and beyond!
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DigDug, 4 Feb 2015 @ 12:10pm

What makes content producers so special???
Meh - roll it back to 15 years max, who cares how long the author lives.

Why should any media content creator get to create once and get paid for life?

The rest of us get paid hourly to create our content, be it fries and a cheeseburger or 30,000 lines of code or the next Cray Supercomputer.

I want to write one or 2 scripts and get paid for it for life too, but that's not going to happen, so f' the rest of 'em, they can do more work, create more content to keep getting paid. 15 years is probably too long as well, but it beats life of creator + 50 or 70 years...
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Vincent Clement (profile), 4 Feb 2015 @ 12:13pm

My Incentive Has Arrived
At life plus 70, I finally have the incentive to create content, because at life plus 50, there was just no point in creating content that would be stolen by the masses.

/s
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Binko Barnes (profile), 4 Feb 2015 @ 12:58pm

The really tragic thing about long term copyright is that truly monumental amounts of culture, art, research and historical documents get locked into a state of limbo where they simply cannot be accessed or utilized because somebody somewhere holds copyright even though the works are not commercially available and possibly haven't been for decades.

Long term copyright would be more justifiable if it included some kind of common sense clause about works falling into the public domain after ten years or so if they are not otherwise made available by the rights holder.

But the sad reality is that nothing about copyright will change unless it meets the approval of the massive corporations that own our legislators. And corporations don't give a rats ass about culture, art, history or the general public welfare.
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Anonymous Coward, 4 Feb 2015 @ 1:14pm

Want shorter copyright, we need a clause added that stays that a reproducable copy must be kept for the entirety of the copyright. To be provided at the termination of the copyright.
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Anonymous Coward, 4 Feb 2015 @ 1:17pm

Can also fix the government's financial problems, by including a renewal fee For every 10 years that the copyright holder wants to extend past the initial 10 years
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Anonymous Coward, 4 Feb 2015 @ 1:55pm

Re: How can it be repealed?
You can't sink undemocratic concepts with democracy. They either have to be revolted against or collapsed under its own weight.
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Anonymous Coward, 4 Feb 2015 @ 1:56pm

Who needs book burnings and insane fundamentalists when you have the government and bad laws?
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Anonymous Coward, 4 Feb 2015 @ 2:42pm

Re: What makes content producers so special???
long copyright terms are not intended to benefit the creators who rarely hold the copyright. Rather, long term allow the publishers to control the number of works offered for sale, and prevent older works competing with new works, by keeping the older works off of the market. Long terms are also useful in keeping fan fiction off of the marker until long after the original work has faded into obscurity.
There are a few rare exceptions to this, the very occasional work that wins the lottery and becomes a cultural touch stone, like Sherlock Holmes.
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Anonymous Coward, 4 Feb 2015 @ 3:11pm

Value In Ability To Use
There is a significant value in the ability to use, duplicate, modify and share. That is why I specifically seek out CopyLeft or other liberally licensed data. Be it images, documents, ebooks, audio, video, software or other.
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Anonymous Coward, 4 Feb 2015 @ 3:13pm

Re: Value In Ability To Use
I forgot to mention my point. Longer the term of copyright just makes that value gap ever wider.
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JBDragon (profile), 4 Feb 2015 @ 4:01pm

I think Copyright shouldn't last more then 10-20 years. You've made your money and then some after that long. Try to come out with something NEW in the time frame!!! You know, Innovate, not sit on it for your whole life and your' kids life and your grand kids life. Most of it at this point should be dumped into the Public Domain.
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Zonker, 4 Feb 2015 @ 4:12pm

Re: My Incentive Has Arrived
Yeah, I agree! If I can't maintain exclusive rights over my works for at least 70 years after I die then I won't bother creating anything new. What point would there be?
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Anonymous Coward, 4 Feb 2015 @ 5:36pm

Re: Response to: Ninja on Feb 4th, 2015 @ 7:16am
Maybe what we need a crazy expensive fee to keep something under copyright protection beyond life+50. $1 Million per decade per item and require active use/publishing of the item.

Something that would let Disney protect the mouse house while still letting less profitable things drift into the public domain.
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That One Guy (profile), 4 Feb 2015 @ 7:25pm

Re:
Umm, no. The reproducible copy bit is a good idea, but it needs to be presented at the start of the copyright term, ideally as part of the registration step(which needs to be re-instated). If it happens at the end, there's little reason for them to even care about remembering to do so.
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Sheogorath (profile), 4 Feb 2015 @ 10:11pm

Somebody wasn't paying attention
US representatives want copyrights to last 70 years from the release date of films and music.
That's better than the 95 years after publication that currently exists. Basically, under the above terms, author copyrights remain the same, but copyrights of films and music get reduced by twenty-five years.
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Anonymous Coward, 5 Feb 2015 @ 12:08am

Re:
So THAT'S why that game is called Disney Infinity!
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Pragmatic, 5 Feb 2015 @ 5:50am

Re:
Don't worry, AC, market forces are at work.

Wait...
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