EU Parliament Takes A Small Step Towards Improving Copyright
from the no-big-bold-changes-yet dept
On Wednesday, the European Parliament Legal Affairs Committee (JURI) adopted a copyright reform proposal based on the report that Pirate Party MEP Julia Reda released earlier this year. There were tons of amendments and some of the important ideas in the original report were taken out or watered down -- something that Reda readily admits. Former Pirate Party MEP Amelia Andersdotter, who had complained about Reda's report from the start, is vocally upset about the outcome, arguing that accomplishing a plan with only moderate ambitions is not what the Pirate Party should be supporting.That said, there are some real reforms in there, including dropping the proposal for ancillary copyrights, better known as a "snippet tax" or "Google News tax" that many are pushing for. Missing from the final result, however, was support for "freedom of panorama" -- an important concept allowing people to photograph things in public (like the Eiffel Tower). Also troubling was the inclusion of an amendment that says copyright holders need to give express permission for works to be performed in public spaces, which could create a huge mess.
In short, it's copyright reform, but like most copyright reform lately, there's a jumble of concepts mixed in -- some good, some bad. When the US Congress finally gets around to releasing its plan for comprehensive copyright reform, it's likely to be something similar. A mixed bag of decent ideas and bad ideas, each designed to trade off on each other, to try to keep "both sides" happy -- or, more realistically, to placate both sides from being too angry about the stuff they consider bad.
But that's no way to create real reform. I understand how both Reda and Andersdotter feel on this issue and sympathize with both positions. Getting anything through on copyright reform is nearly impossible, so even marginally good changes can, quite reasonably, be seen as a big step -- especially after years of most reforms leaning much more heavily on bad ideas, with almost no good ones. Having a proposal move forward that at least has some good ideas in it is... progress.
But, it's also messy and marginal progress that comes along with some bad ideas as well. It becomes more about the politics of getting something than getting the best result.
And that's where this whole process is a bit depressing -- as is politics all too often. You focus on getting something done and it involves a lot of horse trading and marginal improvements rather than big fixes. It's also why it's so frustrating to see so many people continue to argue that copyright is about "two" competing interests -- copyright holders and the public. That's not the case. An ideal copyright system should be maximizing benefit to both. We should be looking at real policy changes that creates greater overall benefit, but no one seems willing to even entertain that possibility. And, for that reason, I share Andersdotter's dismay -- but not with Reda, rather with a process that is, itself, quite broken. Reda got something through that, frankly, would have been close to impossible a very short period of time ago. The fact that it's pretty limited speaks a lot more to the overall political system today than it does to Reda herself. But these small victories are important for the time being, so long as the overall focus is on creating real reforms in the long run.
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Filed Under: amelia andersdotter, copyright, copyright reform, eu, eu parliament, julia reda, juri, pirate party, small victories
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Even before digital media existed, people copied books mix tapes and VHS, not to send a message, but simply because they perceived the item was not up to the asking price. And this is a completely different matter from copyright.
Of course I'm not saying that scientists, educators, curators etc. don't exist or aren't part of the public.
It is these people would be the main beneficiaries of a more permissive copyright/DMCA law, and not necessarily the consumers.
Casual consumers would be better served by:
1) Less region locking / wider availability
2) Sensible prices, in tune with the local market
By the way, these two points become are in conflict from a profit standpoint.
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Not entirely true. Most people didn't copy books, they simply borrowed them from the library (or friends/family). People often copied mix tapes to either edit out the tracks they didn't like, or to share music with in a personal manner with others. For much of the first decade of VHS tapes, there was no reasonable option to buy (studios were scared of video, and most purchase options were well over $100 until they got over that). People copied (either by copying a rental tape or recording from the TV) because they didn't want to go to a store and try and rent a movie every time they wanted to watch it. There were also vibrant second hand markets for all these media types, for people who couldn't afford or couldn't find media in a new format. People had multiple ways to obtain, share and trade content. Piracy still existed and happened often both on commercial and personal scales, it just wasn't as highly visible as it is now.
This is why the industry is so wrong-headed in their attempts to curb piracy. They forget the real reasons why people pirate, they just assume it's the "free" aspect. Yet, reality shows that people will even pay for pirate platforms if they offer better value than the legal options.
You're correct - price, availability, artificial restrictions. Make those aspects reasonable and sales will increase. Offer a crippled product at a high price to a small portion of the overall market, and it's amazing that these people are surprised sales don't follow.
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The works published via labels, studios and publishers are but a small fraction of the creative output of people, and works published without the commercial incentive, or expense of and granting copyright to gate keepers now far exceeds the output from these sources. Copyright laws should be changed to meet the needs of creative people, and not the desires of those who have leached for generations off of the works of the few whose works they allowed to gain a widespread distribution.
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- put terms to something that isn't nuts. 10, 20 years, tops
- require registration (which gets rid of most of the silly cases people will only register what has real commercial value)
Neither of these are in. I understand that these are political impossibilities at the moment - which is, as you say, not Reda's fault but a systemic problem.
As an individual, I can ignore copyright as the travesty it is, but there should be companies building businesses off the public domain that can't because stuff is locked up for forever -1 day, or should never have been locked up in the first place.
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An ideal copyright system should be maximizing benefit to both.
I can't agree with you there. An ideal copyright system would maximize the benefit for the public. This may involve providing some benefit for authors, but benefits for authors should only be provided where it is either in the interests of maximizing the public benefit or where they can be provided without reducing the public benefit.
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"Should," as in that's your opinion, or are you somehow deriving all this from the Constitution?
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Both.
Although technically I suppose that the requirement is more that the public interest must be better served by copyright than it would without it. Congress doesn't have to try to maximize it (though benefits to authors remain secondary), but why bother having copyright if you're not going to try to make it the best it can possibly be?
In any case, I've no animus against authors, but the public interest comes first.
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Although technically I suppose that the requirement is more that the public interest must be better served by copyright than it would without it. Congress doesn't have to try to maximize it (though benefits to authors remain secondary), but why bother having copyright if you're not going to try to make it the best it can possibly be?
You seem to be approaching it with the assumption that what's good for authors is not what's good for the public, but I don't think that's the proper interpretation of I.8.8. The public good and the rights of authors are complementary. The Clause envisions giving authors exclusive rights, that is, giving them the power to disseminate their works on their own terms. *That* is what promotes the progress. It's not about maximizing the public good, whatever that would even mean.
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Oh, not at all. I'm saying that we ought to do what's good for the public. If this happens to be good for authors, great. If not, too bad for authors. In practice, a copyright law that maximized the satisfaction of the public interest would have some benefits for authors, and would usually be better for them than no copyright law at all (or at worst, equal), but it would also probably not be everything that every author wanted; some of them would be disappointed that they didn't benefit enough.
The public good and the rights of authors are complementary.
Sometimes, but not necessarily. What's good for the country can be what's good for GM, but it's a mistake to approach it from the other way around.
The Clause envisions giving authors exclusive rights, that is, giving them the power to disseminate their works on their own terms.
The clause also envisages limiting the duration of those rights, whether the authors like it or not. And it envisages doing so in order to promote the progress of science, not to empower authors for their own sake or benefit.
*That* is what promotes the progress.
No, it doesn't. If that were so we wouldn't have constitutional rights of fair use or first sale, both of which directly oppose authors' power to disseminate works on their own terms.
Promoting the progress of science consists of two elements: First, offering authors an incentive to create and publish new original and derivative works. Second, limiting the restrictions that copyright imposes on the public in both duration and scope, so that the works can be used freely and productively, as much as possible, as soon as possible.
The public interest is measured against the baseline of what would happen if there was no copyright, in which some works are created and published (there are incentives other than copyright, after all, sometimes stronger ones than copyright) and there is total freedom to use, alter, and disseminate them. Any copyright necessarily impinges on the freedom aspect, so it had better produce a greater benefit with regard to creation and publication to make up for it. (And it almost goes without saying that where two alternatives produce the same net benefit for the public, the less restrictive one is preferable) The ideal copyright system would see the greatest amount of creation and publication for the least amount of limits on the freedom of the public, for the least amount of time. That is to say, the most bang for the buck. But remember, it's the most bang, not all the bang; we don't worry if some works aren't sufficiently incentivized if they come at too high a cost.
Due to the peculiar economics of the various industries involved, it appears that relatively little copyright is needed to produce a great incentive, but rapidly runs into the realm of diminishing, and eventually negative returns.
It's not about maximizing the public good
It's about increasing the public good. I just feel that if you're in for a penny, you're in for a pound, so you should aim to maximize it.
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Fair use and first sale are not constitutional rights. Give me a break. Like all rights, the rights of authors have limits. Just because they have limits, that doesn't mean recognizing those rights doesn't promote progress. The Clause doesn't just say to promote progress. It says to do so by giving authors the right to exclude others from using their works. That others have interests that curtail the rights of authors just shows that countervailing interests weigh against each other. It's the same in copyright as it is with all property rights.
The ideal copyright system would see the greatest amount of creation and publication for the least amount of limits on the freedom of the public, for the least amount of time. That is to say, the most bang for the buck. But remember, it's the most bang, not all the bang; we don't worry if some works aren't sufficiently incentivized if they come at too high a cost.
And yet this sort of economic/incentive approach to copyright has never been how we in fact create our copyright laws. Your position is not descriptive.
Due to the peculiar economics of the various industries involved, it appears that relatively little copyright is needed to produce a great incentive, but rapidly runs into the realm of diminishing, and eventually negative returns.
And the fact that copyright is not produced under some formula that maximizes public good and creative output should tell you that there's much more going on than the incentivizing theory. Copyright recognizes the rights of authors for their own sake. This holds true even if it's detrimental to society. The same is true for all property rights. Society lets you do as you wish with your property, even if it can come up with all sorts of ways that society would be better off if that control were taken from you.
It's about increasing the public good. I just feel that if you're in for a penny, you're in for a pound, so you should aim to maximize it.
The reality is that copyright has NEVER been about maximizing the public good, where the public good is understood to be how well copyright benefits the public to the exclusion of authors. The Copyright Clause just doesn't say what you think, and copyright law has never operated the way you think it should.
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Well, it would be more accurate to say that they are constitutionally mandated limits on copyright; the underlying rights to fairly use and to engage in later sales are just forms of the right of free speech. But I think you understood what I meant.
Like all rights, the rights of authors have limits. Just because they have limits, that doesn't mean recognizing those rights doesn't promote progress.
Copyright is fundamentally opposed to the right of free speech. It is nothing other than the government engaging in censorship, using all of its powers to do so. The only thing that differentiates it from the sort of censorship that almost everyone agrees is bad is that instead of the government doing it of its own initiative, it (usually) does this when certain private parties request that it intervene on their behalf, and only against most parties, rather than all parties.
It's wrong to pretend that copyright is an inherent right of authors, when it is in fact something that is granted to them. It's wrong to pretend that it isn't censorship. And it's wrong to pretend that it is always a good thing, under every circumstance. It's vitally important that we not delude ourselves, nor allow others to delude us, when it comes to what copyright really is.
Now for all of that, copyright can still, under certain circumstances, be more useful to society than it is harmful. In fact, where copyright provides a net benefit for society, where it does so while producing the least absolute harm, and particularly where it is carefully tailored to produce as much of a net benefit as possible, I'm all for copyright. But you've got to have your eyes open.
The Clause doesn't just say to promote progress. It says to do so by giving authors the right to exclude others from using their works.
The means of copyright is by granting exclusive rights to authors. But the end for which those means are to be employed is to promote progress. Other forms of means are easy enough to imagine; we could have prizes, we could have grants to authors, we could offer tax breaks, and so forth. Much of the genius of copyright lies in its selection of means: By granting rights, rather than directly paying authors, we let the market decide how much of a monetary reward each author might get. We save on payments made from the public purse (though we still pay in the form of limits to our liberty) and the system tends to run itself better than, say, if the NEA were to run all forms of publishing instead. Plus it allows us to exploit authors' poor ability to estimate the financial value of their works, getting us some useful artistic labor for free, as it were.
I have nothing but admiration for the clever, clever system by which copyright is implemented. But it's just a means to an end. Rewarding or protecting authors isn't the goal, or even a goal, of copyright. The details of copyright hinge on how to best serve the public, and the question of whether or not to even have copyright hinges on whether or not it produces a net public benefit; if for some reason there were no possible copyright law that produced a benefit for the public, it would be necessary to abolish copyright straight away.
It's the same in copyright as it is with all property rights.
That's certainly true; all property rights are utilitarian. Copyright isn't really a property right, it's more of a pseudo property right, but it is also utilitarian from head to toe.
And yet this sort of economic/incentive approach to copyright has never been how we in fact create our copyright laws. Your position is not descriptive.
It has been, actually. But I'll grant you that copyright legislation has for centuries been almost completely ceded to unscrupulous, interested parties, to twist for their own benefit. It's a real poster child for regulatory capture, mainly because it was deemed very unimportant. But that's changing now, and increased light on the subject is beginning -- just beginning, mind you -- to disinfect it, and to get it back in the order it was supposed to be in from the beginning.
This holds true even if it's detrimental to society. The same is true for all property rights.
No, again, all property rights are utilitarian in nature. There is certainly a strong preference for a hands-off policy, but at the end of the day no one has any natural right to property beyond what they can personally defend from the world. Everything beyond that is their right only because the rest of the world is willing to agree to it.
This is why I couldn't sell you the Brooklyn Bridge; no one else would agree that I own it, no matter how much I might insist that I do. On the other hand, all that prevents me from owning it is how many people I can get to agree that I do. Property is, at its heart, a question of "you and whose army" involving actual armies. Don't believe me? Then perhaps you have a more plausible explanation for how a bunch of Europeans came to North America and came to be in charge of the place.
The reality is that copyright has NEVER been about maximizing the public good, where the public good is understood to be how well copyright benefits the public to the exclusion of authors.
It's more the exclusion of authors as a special class. Authors, in their generic capacity as members of the public, are certainly intended to benefit from copyright -- in exactly the same way that members of the public who aren't authors are.
The Copyright Clause just doesn't say what you think, and copyright law has never operated the way you think it should.
The Clause says exactly what I've said it does. I agree that the law has never lived up to the ideal, but that's a problem with the law, not the ideal. God knows the US has always had problems living up to our ideals in far more important areas than copyright. But we do try.
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You seem most unfamiliar with the natural rights basis for property rights, including copyrights, despite it going back centuries.
Regardless, let me ask you this since it cuts to the chase: Do you think, descriptively, that the exclusive rights granted by copyright are unconstitutional?
If so, how do you square that with the fact that the Supreme Court has upheld copyrights to constitutional challenges numerous times?
And if not, how do you square that with your position that the Constitution demands utilitarian efficiency (such as your claim that "Promoting the progress of science consists of . . . limiting the restrictions that copyright imposes on the public in both duration and scope, so that the works can be used freely and productively, as much as possible, as soon as possible.")
The fact is that copyrights are not designed with such efficiency in mind. So are they unconstitutional? That's what I'm trying to get at.
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Oh, I'm aware of it, it's just bullshit.
As I said, it's directly in conflict with a natural right of free speech, there's no evidence of a natural right of copyright (i.e. in the absence of positive copyright legislation), there's no common law of copyright, there's nothing. And even states that claim that there is a natural rights basis for copyright all act in a hypocritical fashion by imposing limits on the scope of the right, on the duration of the right, and even with regard to the grant of the right to foreign nationals whose countries don't offer reciprocity. The natural rights theory of copyright is as busted as creationism. I don't doubt that there are people who believe it, but as a result they have no credibility.
The utilitarian theory of copyright is the most solid one yet developed, and also goes back centuries. Even the Statute of Anne clearly claimed to be for the encouragement of learning.
Do you think, descriptively, that the exclusive rights granted by copyright are unconstitutional?
It's possible to have unconstitutional copyright laws, certainly. As alluded to earlier, the origin of fair use and first sale both come from constitutional defects in the statutes of the day. But as a general rule, the Bill of Rights is generally read as being contemporaneous with the Constitution, rather than as modifying it after the fact, as the other amendments do. So no, some copyright law is constitutional, and most of it has been historically. I would disagree with the outcome of Eldred however; the Supreme Court got it wrong on that one.
The fact is that copyrights are not designed with such efficiency in mind. So are they unconstitutional?
You're just asking about separation of powers. Barring gross problems, the courts have to allow Congress to handle copyright as it sees fit; otherwise the courts wind up turning into an unelected super-legislature. Copyright is badly broken, and it is not being properly crafted so as to follow the requirements of the Constitution or even common sense. But the best and nearly the only way to deal with it is to elect members of Congress who will take the matter seriously and fix it. The situation is analogous to statutes upheld on rational basis review.
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And yet, if you read any copyright treatise from the 19th century, it grounds copyright in natural law, not utilitarianism. I get that you prefer the latter, but to pretend the former is "bullshit" is just your confirmation bias. It is a descriptive fact that copyright law is historically grounded in natural law. It's not the only basis, but it's a significant basis nonetheless.
As I said, it's directly in conflict with a natural right of free speech, there's no evidence of a natural right of copyright (i.e. in the absence of positive copyright legislation), there's no common law of copyright, there's nothing.
There's much evidence of the natural law foundation of copyright. You seem quite confused to think that its protection under positive law negates any natural law foundation. Lots of things stem from natural law and then later get codified in statutory law. Those free speech rights that come from natural law are codified in the First Amendment, among other laws. Same thing.
And even states that claim that there is a natural rights basis for copyright all act in a hypocritical fashion by imposing limits on the scope of the right, on the duration of the right, and even with regard to the grant of the right to foreign nationals whose countries don't offer reciprocity.
First Amendment/free speech rights come from natural law, yet there are all sorts of restrictions on them. Copyright, libel, treason, etc. You have a weird notion that natural rights = unbounded rights. That's not how it works, in any context.
The natural rights theory of copyright is as busted as creationism. I don't doubt that there are people who believe it, but as a result they have no credibility.
You appear confused about much, that's for certain. Many great minds, including many of the Founders/Framers, subscribed wholly to natural law. I get that you're not familiar with it, but maybe you should look into it before being so "certain" it's bullshit. It runs deeper than you've obviously ever considered or looked into.
The utilitarian theory of copyright is the most solid one yet developed, and also goes back centuries. Even the Statute of Anne clearly claimed to be for the encouragement of learning.
Yep, encouraging learning/progress/whatever is a part of it too. One doesn't completely erase the other. Many people have more than one reason for supporting something. There are numerous foundations for free speech too. One isn't more "correct" that the other.
It's possible to have unconstitutional copyright laws, certainly. As alluded to earlier, the origin of fair use and first sale both come from constitutional defects in the statutes of the day.
What constitutional source supports first sale? That's news to me.
But as a general rule, the Bill of Rights is generally read as being contemporaneous with the Constitution, rather than as modifying it after the fact, as the other amendments do. So no, some copyright law is constitutional, and most of it has been historically. I would disagree with the outcome of Eldred however; the Supreme Court got it wrong on that one.
I have no doubt you vehemently disagree with Eldred. But Eldred is the law, and anything contrary to that holding is normative, not descriptive. I'm trying to get to the bottom of whether you think the exclusive rights granted by copyright are, as a matter of descriptive constitutional law, unconstitutional. You haven't really answered this question, and I suspect you're dodging it because you don't like the answer.
Does the Constitution require the sort of utilitarian efficiency you say it requires, or does it not? I want to know the descriptive, factual answer, not your argument about what it should be? I want to know what it is. I think you and I both know that, in fact, the Constitution does not require what you say it does. Am I wrong? If so, exactly how am I wrong?
You're just asking about separation of powers. Barring gross problems, the courts have to allow Congress to handle copyright as it sees fit; otherwise the courts wind up turning into an unelected super-legislature.
I'm not asking about separation of powers. The Supreme Court doesn't turn away from constitutional challenges to copyright law based on that doctrine. Why invoke it here?
Copyright is badly broken, and it is not being properly crafted so as to follow the requirements of the Constitution or even common sense.
Yep, you hate copyright. I get that. I really do. But is it constitutional or not, in the descriptive sense? I get that you, normatively, think it's broken. I'm asking descriptively, as a matter of actual constitutional law.
But the best and nearly the only way to deal with it is to elect members of Congress who will take the matter seriously and fix it. The situation is analogous to statutes upheld on rational basis review.
It's not simply analogous to rational basis review, as a matter of constitutional descriptive fact, Congress gets to decide what promotes the progress. The Supreme Court reviews that determination under rational basis, and so far, it has never found that a copyright statute fails that review. This is my entire point. You're not arguing about what the Constitution in real-life requires. You're arguing about what you want it to mean. The fact, as a matter of actual constitutional law, is that the Constitution doesn't require of copyright that which you would prefer. Agree? If not, why not? How am I wrong?
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Oh? Here's Jefferson in 1813. He's talking about inventions and patents, but the argument works equally well for creative works and copyright.
Perhaps you'd prefer Macaulay in 1841?
I get that you prefer the latter, but to pretend the former is "bullshit" is just your confirmation bias.
Not at all. It's more like creationism v. evolution. Creationism is bullshit. It's not a matter of preference, it's just not any good as a theory for explaining anything, or as a justification. I get that you like Locke, but Locke simply didn't know what he was talking about.
Does the Constitution require the sort of utilitarian efficiency you say it requires, or does it not?
It requires that if there is to be copyright law, it must promote the progress of science, it must involve a grant of copyright initially to the author, for the author's writing, and the grant must be for a limited time. So yes. But the vast majority of details for how this is to be implemented are up to Congress; it's inappropriate for the courts to courts to overturn copyright law merely because it isn't maximally useful.
For the moment, Eldred says to ignore whether it promotes progress at all. But Eldred is wrong in much the same way that Bowers v. Hardwick was wrong; it was wrong at the time it was decided.
Yep, you hate copyright. I get that. I really do.
Not at all. I think it's a brilliant idea, and under the present circumstances, extremely useful. It just needs significant reform.
Similarly, I think that it's a good idea to have regulations controlling the manufacturing, distribution, and use of alcohol and drugs, but I also think Prohibition was monumentally stupid, and our drug policy needs to be overhauled from top to bottom.
Don't call me a copyright abolitionist; I would not support that position unless there were literally no better option. And certainly don't say that I hate copyright when the opposite is so manifestly the case.
You're not arguing about what the Constitution in real-life requires. You're arguing about what you want it to mean.
That is certainly the position that the losing side argued in Lopez, and the losing side argued in Heller as well as any number of other cases. And it even sounds like it's correct until suddenly it's not.
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You seem unaware that copyright is a very recent right, only only dating back to the statute of Anne. For almost all of human history, including the first 300 years of printing, the only right an author had with respect to their work was whether to seek publication or not, but once they had made copies available to others, they had no rights to control the production of further copies. Only governments and the church tried to control the production of copies or works, giving rise to imprimatur, the official stamp of approval of a work, and copyrights granted to printers licensing the production of works that the government at least did not officially object to.
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I'm well-versed in the history of copyright. More so than most. What's your point? How does any of that disprove the undeniably true natural law foundations of copyright?
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Copyright is just too long
Thanks to SCOTUS, 160 years is considered an acceptable "limited time."
Copyrights should expire at a maximum of 70 years. Break it up into 5 14-year periods which do not automatically renew. If the creator dies, copyright should expire at the end of the current extension.
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That is what was and is claimed by the middlemen. Does that reason stand up when the majority of the works are made available to the public for free via various Internet based distribution services.
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Maximalists and their apologists want ever-increasing control of the ideas themselves and they're not going to stop until every letter of the alphabet is owned by someone and we have to pay license fees to speak or write. So, dear friends, please don't use maximalist words and phrases to describe the experience of intellectual output, it just helps to reinforce their position because we're on the back foot defending ourselves from their infringement on our rights to privacy and ownership of our devices, etc. If you don't like my terms make up your own and let's agree on the ones to use. It's time we took over the narrative and raised awareness of the harm that maximalism does to our society in its reduction of the commons and its insistence on treating us all as potential thieves when we legally buy creative items.
That Reda has got anything done is great but we really need to build on it. The fact is, if she'd tried to be more ambitious she might have lost all credibility and got nothing done at all. In the present political climate, it was the best she could have done.
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