More Experts Realizing That The TPP Is A Horrible And Dangerous Deal On Copyright

from the fix-it,-ustr dept

Fri, Sep 4th 2015 3:23pm — Mike Masnick

While the last round of TPP negotiations didn't lead to a deal, and some are questioning whether the agreement has effectively "stalled out," there's still plenty to be concerned about, and the TPP still has a decent chance of moving forward in the near future. David Post, who has studied copyright law and related issues for many years, has a fascinating article up discussing "some pretty nasty" aspects for copyright law, which are "lurking" in "a dark corner" of the agreement. He focuses on the issue of orphan works, which are works where the owner can't be found. As we've discussed in the past, the entire "problem" of orphan works is really a problem created by the automatic application of copyright, rather than requiring registration ("formalities.") By automatically having copyright cover everything, there is no way to easily track down many copyright holders for the purpose of licensing. The Copyright Office has been struggling for years on how to deal with this issue (never apparently willing to explore the issue of returning to a registration requirement). However, as we noted earlier this year, under the current draft of the TPP, the Copyright Office's own proposal on orphan works would not be allowed.

Post digs deeper on that issue, and highlights why the TPP would kill any realistic reform to deal with orphan works:

It appears that the latest version of the treaty contains, buried within its many hundreds of pages, language that could require the U.S. to scuttle its plans for a sensible revision of this kind. [I say that this “appears” to be the case, because, of course, the text of the TPP has not been revealed to the public, so all we have are leaked versions appearing from time to time on WikiLeaks.] Any provision of U.S. law that eliminated “pre-established damage” or “additional damages” for any class of works could be a violation of various TPP provisions requiring that such damages be made available, and it even appears that distribution of orphan works would have to subject the distributor to criminal copyright liability.

And, as he notes, this is actually a really big deal, even as some pretend that orphan works are just a small problem:

And if you’re still wondering “Is this really such a big deal?,” multiply it all by 10 million (or more). Remember Google Books? I don’t know about you, but I was pretty excited by the thought that every book ever published was going to be available to me over the Net — with all the lousy news out there, that sure sounded like a good thing for the human race, no? Well, the Google Books project foundered largely because of the orphan works problem. Even Google is not willing to take on $100 billion or so of potential exposure to infringement claims, and its attempts to reach a settlement that would have waived the rights of “orphan works” copyright holders to get statutory damages was unavailing — on the grounds that no court can approve a settlement waiving the statutory rights of persons who are not only not present in the courtroom to weigh in on the settlement, but who haven’t even been notified — because, of course, nobody knows who they are — that there is a settlement.

And yet, through a few choice phrases in the TPP, we may end up stuck with the orphan works problem... forever. That doesn't seem like a good policy decision, and it's not even one that the USTR will discuss publicly since the agreement is still "secret."

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Filed Under: copyright, copyright office, david post, orphan works, tpp, ustr

32 Comments

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That Anonymous Coward (profile), 4 Sep 2015 @ 3:43pm

The truly hysterical portion of this is the copyright cartels can't see the downside. The still believe copyright is only for them, and it will never be used against them.
They have used copyrights as a weapon, and they've now seen that weapon turned back upon them... yet continue to try and upgrade the weapons.

We need to stop accepting that it is a huge burden to have to tick a box on a card to say I wish to keep my copyright. We need to stop allowing orphan works to be weapons, to only be dug out of the paper files after someone else makes a buck. Transfers & assignments need to be tracked officially, so that the ownership is never in question to someone who might want to built something new. Even those who do the right thing are met with well we might own it, we might not, but if you make a buck we'll find out then and sue you for everything.

Given all of the problems facing the world, keeping a few cartels happy with secret agreements to try and make them billions more they will gladly launder through offshore accounting practices to avoid supporting the system that spends it time fellating them seems like a stupid thing to do.

For a limited time... should be based on human lifetimes, not the lifetimes of corporations.
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Anonymous Anonymous Coward, 4 Sep 2015 @ 4:12pm

Different Realizations
It is not experts that need to recognize the atrocity that copyright (and these trade deals with things like ISDS) has become, it is the politicians and the general public that need to come to these realizations.

The big problem with this concept is that ALL the media outlets are seriously invested in copyright as it is, and possibly would like it worse, and the only leverage the public has on politicians is a vote (if that can be trusted) and these things will never be discussed in election rhetoric because of the corporate money in politics.
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Anonymous Coward, 4 Sep 2015 @ 4:39pm

TPP may be horrible, but TP is essential.
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Anonymous Coward, 4 Sep 2015 @ 4:52pm

An anti-copyright holiday weekend cliffhanger. How unexpected!

Maybe one day Mike will actually explicitly admit that he doesn't think authors, artists, and creators should have any copyright rights.

Then again, of course he won't.
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Anonymous Coward, 4 Sep 2015 @ 5:00pm

Response to: Anonymous Coward on Sep 4th, 2015 @ 4:52pm
And maybe you'll stop obsessing the subject. Or not. Bawk!
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That One Guy (profile), 4 Sep 2015 @ 5:03pm

Re:
What's this? Why, it appears to be a link showing that you're lying, how shocking!

https://www.techdirt.com/articles/20150723/17125231743/state-georgia-sues-carl-malamud-copy right-infringement-publishing-states-own-laws.shtml#c663
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Andrew D. Todd, 4 Sep 2015 @ 5:41pm

Automobiles and Food.
Of course we are rather parochial here, and mostly interested in patents, copyrights, trademarks, etc., but what I heard was that TPP collapsed over manufactures (notably automobiles) and agricultural products. The negotiators used the secrecy to tell Mexico one story about automobiles, and China another diametrically opposed story about automobiles; and to tell Canada one story about farm products, and New Zealand another diametrically opposed story about farm products. At the final meeting, with officials who were primarily concerned with being re-elected to office, everything just collapsed. It was like a con-game folding.

All western developed countries have chronic farm surpluses, and most of their social-political problems have, in the first instance, to do with displaced peasants. If you look at an American prison, you will find that most of the prisoners are, at some remove, from the Rural South, refugees from the mechanization of Southern Agriculture. The belief that the crop-subsidy system could be abolished by an administrative fiat of a trade organization was never more than a stoner fantasy.

Basic manufacturing is starting to look rather like agriculture. Detroit is gradually reverting to prairie, and becoming the world's biggest "post-industrial landscape." Mexico is the new Detroit. The last time I checked, Mexico had sixteen automobile plants, and the number is growing rapidly. Mexico's understanding of the NAFTA deal is that, after a transition period, Mexico gets an effective monopoly of producing automobiles for the North American market. China has a nascent automobile industry, but it does not have a nascent automobile market. Given the density of Chinese cities, and the lack of space to build roads, they simply cannot allow everyone to have an automobile, or the food trucks would not be able to get through, and there would be mass-starvation. A Chinese automobile industry would have to be primarily for export.
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Anonymous Coward, 4 Sep 2015 @ 6:35pm

Re:
SOPA dead, TPP dead. Looks like it's backdoor deals for you. Again!

Isn't it strange how every attempt to extend copyright just continues to make you look like a bigger douchenozzle?

Or maybe it's not strange, and that's just how all you copyright fanatics are. Douchenozzles!
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Anonymous Coward, 4 Sep 2015 @ 6:51pm

"More Experts"? You mention ONE alleged expert. When your title exaggemerates besides tries to establish "authority", it's for some purpose...
"David Post, who has studied copyright law and related issues for many years" -- Well, so have I! Perhaps not in weenie-ing detail on statute as the one you deem "expert", but over-arching common law.

Orphan works are minor problem. -- No? State three that not being able to get permission to re-publish even hampers you. Maybe it would a FEW academics, but has never been nor ever will be a concern of working stiffs. -- State three orphan works that you even know of! Just doesn't come up. Popular works simply don't have this problem. The market has spoken. Let dead books lie.

Actually, no one creative -- that means non-academics -- worries about this at all, they just take the idea and re-new it, not only lawful, but might improve! -- Oh, Nina Paley? I tried Sita twice, and it's Hindu nightmare that SHOULD be forgotten: looks good, but is impossible for anyone not drugged or drunk to endure, especially with "the blues" for jarring but still not pleasing contrast. Don't get me started. -- Just name one project that's been commercially successful, and it doesn't have this problem! Popular works don't re-cycle orphan works, oddly enough.

This Post seems startled and piqued that courts cannot give away someone else's intellectual property and rights. Yeah, law is funny that way.

Now, what does Masnick want? That Google be allowed to "monetize" creative works without asking permission nor paying anyone a cent, its "business model" in everything. Google saw a trove of stored value and has a way to get indirect income, but it's not creating new value, at most re-distributes from advertisers. Why allow the already rich to effectively monopolize and monetize other people's work? Again, the public doesn't care and won't benefit, has in almost all cases spurned those works, probably rightly. It's only Google and a few academics, the greed-weenie axis.
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Anonymous Coward, 4 Sep 2015 @ 6:53pm

Re:
Just because you refuse to take the pills the Dr's give you, doesn't mean everyone else. is high on drugs
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JMT (profile), 4 Sep 2015 @ 7:55pm

Re:
I missed the bit in the article that suggested authors, artists, and creators shouldn't have any copyright rights. Can you point it out for me?
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Privatefrazer, 5 Sep 2015 @ 12:01am

And makes the internet illegal
So the billions of daily photos videos and text that get shared round the Internet are orphan works and that would then become a criminal liability?
"distribution of orphan works would have to subject the distributor to criminal copyright liability."
Got to hand it to Hollywood for this one, that's' genius. Shut down the Internet by arresting everyone.
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Stephen, 5 Sep 2015 @ 3:04am

Google Books
I notice that Mr Post's Washington Post article puts in a plug for Google Books.
Remember Google Books? I don’t know about you, but I was pretty excited by the thought that every book ever published was going to be available to me over the Net — with all the lousy news out there, that sure sounded like a good thing for the human race, no?
Has Mr Post ever actually checked out ANY Google books?

I mean the old out-of-print ones Google sent its minions out to compliant libraries to scan for the benefit of people like Mr Post.

I ask that because, not to put too fine a point on it, the quality of the scans of those books which Google did perform, especially back when it first started out in the scanning business, was APPALLING!

Not only were the scans done in B/W rather than colour or at least grey-scale (resulting in photos & other illustrations in the books looking well-nigh unintelligible) but the scanning seems to have been done by without ANY quality control whatsoever--and by fourth-graders in between classes at that! As a result there were flubbed scans, skewed pages, missing pages, and goodness-knows-what-else in a very high proportion of the scanned books. (And don't get me started on the folded maps and charts which were scanned in the FOLDED configuration!)

Just how high the proportion of errors per book there were can be judged from the fact that before long Google went and put a checkbox beside each scanned page of each Google book. A checkbox which readers could use to flag a problem with that particular page. (I used it myself on more than one occasion.)

That checkbox has now vanished from Google Books' webpages; and to be fair the quality of their book scans do now seem to have somewhat improved. Yet that quality is still nothing to write home about.
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Anonymous Coward, 5 Sep 2015 @ 4:01am

Re: "More Experts"? You mention ONE alleged expert. When your title exaggemerates besides tries to establish "authority", it's for some purpose...
You have contradicted yourself yet again:

Orphaned works are commercially unsuccessful.

Google saw a trove of stored value to get income from orphaned books.
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saulgoode (profile), 5 Sep 2015 @ 8:49am

As we've discussed in the past, the entire "problem" of orphan works is really a problem created by the automatic application of copyright, rather than requiring registration ("formalities.")
I don't see the distinction. If copyright protection is not to be "automatic" then what "manual" mechanism would be used -- other than registration -- to identify that the author desires protection apply to a specific work?
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Prisoner 201, 5 Sep 2015 @ 9:12am

Re: And makes the internet illegal
Not everyone, silly. Just the ones that might compete with them. Or they just don't like.
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Anonymous Coward, 5 Sep 2015 @ 12:00pm

Gotta shut down dissent, it's a cancer on the hive mind
Why do you use 'lying' instead of' incorrect' or 'wrong'?
You do it all the time to people you disagree with.

It is, to quote Mike, intellectually dishonest.
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Anonymous Coward, 5 Sep 2015 @ 2:44pm

Re: Gotta shut down dissent, it's a cancer on the hive mind
Because it's the same person, over and over again. Who consistently claims that Mike hasn't said something, yet Mike clearly has.
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Anonymous Coward, 5 Sep 2015 @ 2:53pm

Re: Re: Gotta shut down dissent, it's a cancer on the hive mind
And the hive mind replies. I love how everyone speaks for everyone else here.
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Anonymous Coward, 5 Sep 2015 @ 8:24pm

Orphaned works
I think orphaned works should fall immediately into the public domain. With virtually perpetual terms on works, that's one small thing to give up.
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Anonymous Coward, 6 Sep 2015 @ 12:55am

Re: Orphaned works
That defeats the objective of perpetual terms, which is to allow control over the market by restricting the number of works available to the public at any time, so that they can limit the competition to the works that they are currently selling. This is also one reason why they hate the Internet so much, it makes it very difficult to control which works are available for sale at any time in any geographic area.
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Anonymous Coward, 6 Sep 2015 @ 2:42am

Re:
For one, you claimed that anyone who liked the Beatles did drugs.

When you're being a malicious asshole, calling it "lying" is very much justified.
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That One Guy (profile), 6 Sep 2015 @ 5:50am

Notably absent from your comment: An admission to making a false claim
Ah the good old 'Look a distraction!' ploy, classic.

You made claim X. I posted a link showing the claim to be incorrect. For you to be wrong, you would have to have never read any of Mike's posts talking about the subject at hand, and were instead basing your claim off of a lack of information, which if you're going to make claims about what someone has or has not said, is not a good way to do things.

However, given your claim has been parroted again, and again, and again, practically word for word, odds are good that you are indeed a regular, one who has posted the claim before, and who has had people show you why the claim is false before. As such, to continue to state it as though it were true is absolutely lying on your part.

Still, kudos for trying to avoid admitting to being wrong or lying by turning it around with the personal attack, certainly never seen that tactic used before, let me tell you, so congrats on the unique response there.
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Vladilyich, 6 Sep 2015 @ 6:50pm

Orphan Works
The authors of this article are again being deliberately misleading. I happen to be a published author (of fiction, non-fiction, and software) and hold a U.S. copyright on all of them. I am, however, purposely difficult to find (keeps the governments of several countries away). I went through the dance several years ago with Google books and they did pull my works from availability on their site.

Under current law, declaring something an "orphan work" is written in Jello. All a publisher or producer needs to say in court is that they performed "due diligence" attempting to contact me and my rights are automatically forfeit. That lying publisher can then collect 90% royalties on my work and I am due less than 10%.

Regardless of what Techdirt's opinions on the subject, the creator of a work or IP is still due reimbursement. We don't do what we do for free or with altruistic motives. TPP would have basically removed any and all copyright protection from any work and allow a foreign corporation to have free rein to steal whatever they can and keep the profits.
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That One Guy (profile), 7 Sep 2015 @ 3:12am

Can't have it both ways
Your own statements seem to conflict with each other.

'...the creator of a work or IP is still due reimbursement.'

Which most people here would agree with, but...

'I am, however, purposely difficult to find'

Paying the creator when they go out of their way to make it difficult to know who they are is just a tad problematic. If you want to be paid for your creations, it helps if people are able to know that they are your creations, so they know who they need to pay.

If you don't want to be easy to find for whatever reasons, fine, but you don't then get to turn around and complain when people/companies aren't able to find you and you end up having difficulties because of it. Easy to find, or not easy to find, pick one.
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That One Guy (profile), 7 Sep 2015 @ 3:14am

Re: Can't have it both ways
The above was meant to be a reply to the 'Orphan Works' comment by Vladilyich in case it wasn't clear.
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Anonymous Coward, 7 Sep 2015 @ 7:36am

Re: Orphan Works
I am, however, purposely difficult to find

Unless the publisher/distributor/paypal/or someone at least know a bank account for you, or an address to send the checks to, getting paid will be very difficult. However getting paid means governments can find you if they want to, as they have at least one means of tracking you down. To go completely anonymous to avoid government attention you have to give up being paid for you work.
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Anonymous Coward, 7 Sep 2015 @ 7:24pm

Re: Orphan Works
If you purposefully make it hard for people to find you and give you money you have no real reason to complain when people can't give you money.
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PRMan, 8 Sep 2015 @ 6:14am

Re: Re: And makes the internet illegal
Not everyone. Just ANYONE THEY WANT.
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PRMan, 8 Sep 2015 @ 6:18am

Re: Can't have it both ways
He needs to publish a royalty amount and a bitcoin address in his books.
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Anonymous Coward, 8 Sep 2015 @ 6:45am

Re: Re: Re:
No one with an ounce of intelligence is going to defend a mindless spambot like you. Deal with it.
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nasch (profile), 8 Sep 2015 @ 9:39am

Re: Automobiles and Food.
China has a nascent automobile industry, but it does not have a nascent automobile market.

True, it's not nascent. It's the biggest or maybe second biggest automobile market in the world.
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