Copyright Once Again Hiding Important Cultural Artifacts
from the copyright-getting-in-the-way-again dept
Last week on NPR's Fresh Air, I first heard about the publication of the book Barracoon, which sounds fascinating -- as is the backstory behind the book. The book was actually written in 1931, based on interviews anthropologist Zora Neale Hurston did with then 86-year-old Cudjo Lewis, then the last known living person to have been brought to America from Africa on a slave ship. In the Fresh Air piece, Maureen Corrigan described the decades long delay in publishing the book this way:
Hurston's manuscript has a complicated backstory, but the gist is that the book generated little interest back then from publishers. Only Viking Press was willing to publish it with the stipulation that Hurston change Cudjo's voice, transforming his dialect speech into the King's English. Hurston refused and Barracoon languished, known only to scholars until now.
However, over at the Washington Post, Ted Genoways tells a more detailed story that pins the lack of publication on a key factor of copyright law blocking the publication. It turns out that Genoways had come across this work decades ago and tried to get it published back then. But... copyright got in the way. Specifically, he was unable to establish clearly whether or not the work was in the public domain.
The typescript was thin, just over a hundred pages, with a few emendations and additions in Hurston’s handwriting, but it seemed complete and worthy of note. I looked into getting it published — but the rights to the work were unclear. Had the writing been conducted as part of Hurston’s fieldwork for the Federal Writers’ Project — making it a government work-for-hire and public domain? Or was it a separate literary work controlled by her estate? No one seemed to know, and no one was too interested in finding out. Unable to get answers, I eventually gave up on the effort.
As Genoways notes, under any reasonable copyright regime -- including the copyright regime that was in place at the time Hurston wrote the book -- the book should have gone into the public domain long ago. But, of course, as we've detailed many times over the years, rather than enable that culture to reach the masses, Disney had to protect its mouse (which, as Larry Lessig detailed years ago, Disney created by borrowing heavily from copyright-protected works).
It’s mostly due to the Walt Disney Co.’s efforts to protect ownership of a certain cartoon mouse. Over the years, the company has successfully worked to extend copyright restrictions far beyond the limits ever intended by the original authors of America’s intellectual property laws. Under the original Copyright Act of 1790, a work could be protected for 14 years, renewable for another 14-year term if the work’s author was still alive. In time, the maximum copyright grew from 28 years to 56 years and then to 75 years. In 1998, Sonny Bono championed an extension that would protect works created after 1978 for 70 years after the death of the author and the copyright of works created after 1922 to as long as 120 years.
As Genoways notes, it's surely no coincidence that the focus on Sonny Bono's copyright extension was to cover works created after 1922. The Walt Disney company was founded in 1923. However, as he notes, this is preventing all sorts of cultural works from reaching the public:
Here, Hurston is the rule rather than the exception. I have a file that I’ve kept over the years of significant unpublished works by well-known writers from the era: William Faulkner, Langston Hughes, William Carlos Williams, Hart Crane, Sherwood Anderson and Weldon Kees, among others. The works aren’t really “lost,” of course, but they are tied up in a legal limbo. Because of the literary reputations of those writers, their unpublished works will eventually see the light of day — whenever their heirs decide that the royalties are spreading a little too thin and there’s money to be made from new works. But other important writers who are little-known or unknown will remain so because they don’t have easily identifiable heirs — or, worse, because self-interested, or even uninterested executors, control their estates.
He also goes into detail on the works of the poet Lola Ridge, whose work was celebrated, but much of it kept from publication. Some works fell into the public domain and were re-released, but there are still multiple volumes tied up by copyright that cannot be released.
And lest you think this is a small problem, I'll point again to the research of Paul Heald, who has documented the giant hole in our culture created by lengthy copyright terms. Public domain works published prior to 1923 are available. Works in the last few years tends to remain available. Works from the many, many, many decades in between? Not so much:
Every time I see that image again, I am dismayed about what it says about our culture, and how little supporters of our existing copyright system seem to care about what copyright is doing to our culture. Supporters of the existing system regularly exclaim how they are the ones who support culture and creators with their views on extensive copyright protections, yet they run away and hide when people point out things like this, where copyright gets in the way of culture, locks it up and (unfortunately) sometimes throws away the key completely. As Genoways concludes:
Copyright laws rewritten by major corporations to preserve income from nearly century-old creations have all but erased a generation of less famous writers and unknown works by well-known writers. It is an effect that extends the life span of biases that have long silenced female writers, minority writers and working-class writers. “Barracoon,” to return to the original example, was rejected for publication in 1931, because it was deemed too vernacular by Hurston’s editor. Current copyright law unintentionally conspired to unnaturally extend the duration of that wrongheaded judgment for decades. That is why I bridle at the description of works like “Barracoon” as “lost.” They are not lost — they have always been here — but they have repeatedly encountered power structures that block their publication. It’s time for that to change.
Copyright is -- according to our Constitution -- "to promote the progress of science." It is difficult to see how locking up a book like Barracoon for all these decades could possibly be seen as accomplishing that purpose.
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Filed Under: barracoon, copyright, culture, history, ted genoways, zora neale hurston
Reader Comments
The First Word
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Just remember, a work isn't very good for all, or even most, unless it's in the public domain where it can be used freely by all
Thus copyright should encourage the creation and publication of new works, but it should also discourage protecting those works one iota more than is necessary for them to be created and published. That is, the public should get the most bang for their buck, as it were. Encouraging creation to the exclusion of all else will not produce optimal outcomes, and may even be more harmful than having no copyright at all.
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Eternal Copyright
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Re: Eternal Copyright
If I instead build a house, it doesn't go into the public domain when I die. The wife and kids still get the benefits of ownership.
Having said that, there should be reasonable limits on copyright. Life of the author plus 70 years plus 20-year extensions is ridiculous.
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Likewise, they get the benefit of copyright via royalties. Take that away and allow unlimited digital copying, and they lose that benefit.
I'm arguing that copyright terms should be reasonable. You're arguing for replacing one extreme with the other.
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"that mine was the middle state, or what might be
called the upper station of low life, which he had found, by
long experience, was the best state in the world, and the
most suited to human happiness"
With digital copying, the scale tips into one extreme and it needs *some* adjustment to cater for both creators and consumers. So fine, give the creators a few years of copyright during their lifetime.
The insanity comes with the legacy producers, in the form of corporations, which don't die.
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They also get the costs and efforts of ownership as well, as houses need maintenance and taxes need to be paid.
How many years pay is one years work worth? Anybody who does not create copyrighted works has to work to earn an income, and save for a rainy day or to protect their family if they can.
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In such a case, copyright becomes a form of welfare for the successful. Why should they be allowed to profit from work they did not do and success they did not earn?
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You must mean "for the spouse/children of someone successful", because the successful one did do the work. It does raise the question of why the author should continue to profit from work that's already been done. The majority of people, including house-builders, don't; they stop getting money when a job's complete. Why shouldn't we expect authors to negotiate payments before writing a book?
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Because the alternative is to punish the author for dying young.
If Philip K Dick had lived longer, he would have made a lot of money, and he would have left that money to his children when he did die. Should his death at a young age mean that his children don't get that money?
I think most of Dick's work should be in the public domain by now. But I've got no problem with its original (mostly 56-year) copyright term being honored and allowed to pass to his heirs.
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Yes.
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The money would not have been made, so could not have been lost :-) It's the same argument that is pushed in favor of the separate court system for failed investments (ISDS and the likes): the investors want to extort money they didn't earn in the first place.
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Again, I favor reasonable limits on copyright. Something much less than life plus 70 years plus 20-year extensions. Rather than replacing one extreme with another.
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In the first case, ownership of a tangible thing—a house—is fair because it is tangible. In the second case, you earned the retirement monies and deserve to distribute them however you see fit.
In the case of copyright, your family would be earning money for work they did not do and success they did not earn. It would become a form of welfare in that they do not have to work for the money to come rolling in; other than proving they own the copyright, they would have nothing else to do but wait for the royalty checks to come in.
Copyrights should end with the death of the author. If their family wants to keep making money from their work, they can do the work to sell that work in spite of the public domain.
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You haven't shown how these are different.
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Retirement monies are monies you already earned. Post-mortem royalties are monies you would have earned if you were still alive, but are no longer able to earn because you are dead. While I would take no issue with a family receiving royalties from copies of works already on the market up to the death of the author (and possibly any new copies distributed within a brief window of time after their death), any monies earned by the sale of any new copies released after that point should go directly to whoever made and distributed those copies.
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Most retirement plans you've built up or paid into over the years - whether home ownership, a pension plan, investments, building a successful business etc. - don't disappear when you die. You earned them and your family benefits from them, as you say, post-mortem. It's one of the big motivators for savings and investment.
There's still no difference between your two cases.
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You do not build up a copyright; it exists when the work does (though registering a copyright makes the proving of ownership less of a hassle). You do not pay into copyright; it requires no payments to remain active. Why, then, should we treat copyright as we treat retirement plans when they are not the same thing? Why should someone’s heirs be entitled to money made from works that said someone made and (possibly) distributed without the help or input of said heirs?
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That hardly seems relevant, seeing as we've only had automatic copyright since 1978.
If you registered a pre-1978 copyright, then should it be eligible for inheritance? And if the answer is still "no", then why did you bring up automatic copyright at all?
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The original reasoning behind copyright is sound: It encourages new works for the good of all. Of course it had shorter, more reasonable copyright terms.
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Just remember, a work isn't very good for all, or even most, unless it's in the public domain where it can be used freely by all
Thus copyright should encourage the creation and publication of new works, but it should also discourage protecting those works one iota more than is necessary for them to be created and published. That is, the public should get the most bang for their buck, as it were. Encouraging creation to the exclusion of all else will not produce optimal outcomes, and may even be more harmful than having no copyright at all.
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a) revert to the original 28yr maximum it used to be
b) not be some kind of welfare scheme
c) end at the cessation of the copyright term
We've forgotten that royalties are disbursed to authors in exchange for copyright, which belongs to publishers. Okay, so how can we ensure that authors (and their families) benefit from the works? I propose that a deal be struck with the publishers to:
a) share profits from all publications of the works in question even after copyright terms expire on the grounds that if the publisher didn't have a work to sell, they wouldn't have a profit in the first place
b) set up a life assurance scheme into which a proportion of the profits are paid. This might have to be a mutual fund. This is then made available to the author and/or the family of the author in the event of a catastrophic event
c) buy shares in Google, etc., in order to share the dividends out among the authors. That ought to stop the complaints about Google profiting off piracy
Basically, publishers need to work with and for authors and the internet instead of being greedy and blaming us for their failure to adapt to the digital age.
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Meh. The only serious investigation of optimal term length I've seen came up with was 14 years. I'd rather it vary depending on the nature of the work. Computer software, for example, probably doesn't need terms as long as movies.
> I propose that a deal be struck with the publishers to:
> a) share profits from all publications of the works in question even after copyright terms expire on the grounds that if the publisher didn't have a work to sell, they wouldn't have a profit in the first place
> b) set up a life assurance scheme into which a proportion of the profits are paid. This might have to be a mutual fund. This is then made available to the author and/or the family of the author in the event of a catastrophic event
> c) buy shares in Google, etc., in order to share the dividends out among the authors. That ought to stop the complaints about Google profiting off piracy
Go nuts trying, but remember that they'll have little incentive to agree to that, especially given that publishers outside of that agreement will not have to pay permanent royalties for publishing public domain works. Also, what do you do about derivative works? Do those authors have to kick back some of their permanent royalties to the original authors?
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**remember that they'll have little incentive to agree to that, especially given that publishers outside of that agreement will not have to pay permanent royalties for publishing public domain works. Also, what do you do about derivative works? Do those authors have to kick back some of their permanent royalties to the original authors?**
And there I was thinking I was so clever. Truth is, I'd given no consideration to that. However, I think we can agree that ultimately all works are derivative, e.g. The Shannara Chronicles, and indeed Babylon 5 owe their origins to Lord of the Rings.
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https://en.wikipedia.org/wiki/The_Seven_Basic_Plots
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Yes, and if you died ten years later, they'd have that same money, and wouldn't have done any more to earn it than the case where you died young.
Are you arguing against the entire concept of inheritance?
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For writing it takes a body of work over decades, just like you pay into a retirement plan for decades.
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Copyright and patents (at least as enacted in North America) give no special privilege to "sweat of the brow". A 30 second speech and the Great American Novel are equal in the eyes of copyright law.
Whether someone scribbled that book out as a lark over a couple of weeks, or laboured over it for decades, whether it runs 40 pages or 1400 -- it's all the same.
It's the same with music: it doesn't matter whether the author struggled over that bit of music for years, or dashed it off in an inspired coffee break -- the copyright is exactly the same.
The copyright exists only to protect, promote and preserve useful expression -- how long it/how much effort it takes to produce that copyrighted work is the artist's problem.
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I think that's getting a little closer, but Stephen's criticism of that analogy is a fair one: you continually pay into a retirement account, so it's not quite the same as an individual work.
I think an individual investment might be a little nearer the mark: a one-time purchase of a stock, or some similar item that you hope will appreciate in value but whose future performance is not guaranteed.
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Copyrights aren't houses.
They've already tried copyrighting house designs. Give them time. I'm sure the IFPI will eventually bribe, I mean, figure something out.
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Copyright isn't a retirement plan. It's not a pension.
It's a pact the government makes with creators that that says we will temporarily let you control copies of your work so that you can try to earn a living from it (although it's not required that you earn anything) because society considers that valuable.
Copying is a natural act that all people do. Copyright is a government imposed restriction on that act for the benefit of culture (not the benefit of creators). It's an incentive for you to create, not an end-of-life financial plan.
You take that money you earn off copyright and put it into a retirement plan for your family, or build your house with it, but saying it should belong to your heirs the same way a house does is damaging to culture (read the above article) and denying it to the rest of the world.
Just because some people (the lucky few whose IP is actually valuable) see it as a gravy train that doesn't stop until long after they're dead doesn't mean that why copyright exists or should exist. And sadly all the non-valuable IP has been drug along with it, making a century's worth of culture inaccessible.
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Sure it is. (With reasonable limits. More reasonable than now.) The author has invested sweat equity in creating it.
If you finally have a bestseller but die soon after, you wouldn't get those benefits to invest to protect your family. It's not like earning a regular salary where you can invest or pay into a retirement fund a bit each paycheque.
Even on a bestseller, some of those royalties may not arrive until a decade or more later. Like royalties on movie rights. Or book adaptation rights. (It's common now for movies to arrive with freshly-written book adaptations, even when the movie was based on a book. I could go SO far off-topic on this...)
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Copyright isn't there to make sure the artist can make as much money as possible or to support their family after their deaths. Copyright is merely supposed to give you an incentive to create.
An author might invest sweat equity in creating something, but their ownership of the right to make use of it is at the expense of the public and culture at large. That's why they don't have complete and total ownership of the creation, and that's why it's not a retirement plan, even though some people depend on it as such.
> Even on a bestseller, some of those royalties may not arrive until a decade or more later.
That's more of a problem with the publishing industry than a problem with copyright.
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You don't see the connection?
For someone with a family - or who plans to have one - meaning most people - the ability to support them IS copyright's incentive to create.
It's not a problem; it's just reality. There's no reason to expect that any movie based on your book would happen in the first year.
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There's no reason to expect that your specific book will *ever* be adapted into a movie. The vast majority are not. Why should hypothetical possibilities of what might happen in another medium factor into the status of your novel writing? Especially since the argument is apparently that he shouldn't even bother starting the book unless he can get that.
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What I'm saying is, work you have chosen to undertake of your own free will, unless it's work for hire, is of your own free will. If you've got a book deal you'll have got an advance based on projected sales and they'll expect at least five books off you. In that case, assuming the publisher at least breaks even on the deal, you've had your money. You've been paid. Your sweat equity has been released. If the publisher makes more money than projected you make your share of that in royalty payments. If you get a movie deal, good luck to you. Enjoy!
What I don't want to see is an entitled attitude from someone who believes that just because they put effort into creating an item outside of work for hire they deserve to be paid. The market doesn't work like that whether it's free or not.
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For some reason, the current copyright regime has people thinking that simply the act of writing a novel should be enough to be able to live off the work forever, regardless of its actual commercial potential. That not only is not possible with the number of authors out there, it never has been. You just have more chance of getting your book into the hands of the public - but then so does every other author.
It seems everyone wants to be Stephen King, but forget that he only got to where he was by struggling for years to get published, has worked prolifically and obsessively for several decades and has had great luck with capturing the popular zeitgeist at various points in his career. Some people seem to think that he just got that fame and fortune by publishing Carrie and getting a couple of movies made.
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That's literally an unconstitutional justification for copyright. See Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)
Authors of bestsellers aren't who we need to concern ourselves with the most. Surviving family members of authors can starve equally well whether the author wrote a bestseller or not, and there's a lot more authors (and family members) without bestsellers than with.
So if you actually are motivated by concern for widows and orphans, you need social welfare policies to protect them; copyright will not get the job done. Plus, survivors of people who aren't authors at all have the same problems. Why should authors' families get special privileges?
Good financial planning, life insurance, and welfare programs solve the problem you're obsessing over way better than copyright ever could, and for more people, and more fairly.
Copyright policy should ignore widows and orphans and stick just to what benefits the public at large.
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Life assurance policies ought to be part of the deal offered to authors — that would solve the "orphans and widows" problem.
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Then let's extend that idea to everyone. If a worker dies then let the spouse and children be looked after by collecting that worker's paychecks for 70 years after death.
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a) As I wrote in the same post: Having said that, there should be reasonable limits on copyright. Life of the author plus 70 years plus 20-year extensions is ridiculous.
b) A worker's paychecks don't continue after death. But a worker's retirement plan - whether home ownership, a pension plan, investments, building a successful business or something else - DOES continue to protect his family after death. There's no reason why royalties - within reasonable limits - shouldn't do the same.
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I have no problem with copyright extending beyond the death of the copyright holder, but it's entirely unreasonable to base the reason for doing so on the old 'widows and orphans' rationale.
Remember: the vast majority of copyrighted works have no copyright-related economic value. Of the small number that have any copyright-related economic value, the vast majority of those have their value 'front-loaded.' That is, most of the value is realized in a short period after publication in a given medium. For example, most of the profit that will ever be made on a book will be made within 18 months or so of first publication. It's extraordinarily rare to have a work that has long-lasting significant copyright-related economic value. It's like winning the lottery.
Your mistake is that you seem to be assuming that it's the norm, or that we should base general policies on super-rare outliers. Your idea is as useless for the vast majority of widows and orphans as suggesting that the soon to be late author should put all of their money in scratch-off lottery tickets to provide for their family. Relying on copyrights to provide for them is just as irrational.
If you're worried about the families of dead authors, support social welfare systems and sound financial planning. It will work infinitely better than having long copyright terms.
As others have noted, the best option for copyright terms is to make them simply predictable terms of years. If the copyright on a book were, say, a maximum of 20 years, taking all renewals into account, then it doesn't matter whether the author dies just after the term starts, or in the middle, or after the work enters the public domain.
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When you want to sell or license the exclusivity to a work, the buyer will want a period he can plan on. If you say that the exclusivity might expire on the very day the contract is signed (accident, murder, etc.), the contract will have a very random value. The publisher might not like that.
Instead, make it a set duration. Registration (to keep track of both the author and the date of creation, also keeping current beneficiary) for a minimal fee (a fee low enough to not be a barrier of entry something like $1), possibly short times renewable a few times. 5 years renewable twice, or ten years renewable once, that kind of duration would be ok since I've read somewhere that a close-to-optimal copyright duration is 15 years.
Not a lifetime (you want to encourage creation? don't provide a lifetime revenue to craetors).
No expiration on death (to keep exclusivity deal worth the paper they were signed on).
Then, it's the author's responsibility to save his revenues and/or create more work as with any other job.
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Very well, thank you.
It promotes the progress of science (useful arts are patents) by limiting restrictions on what the public can do with works while still encouraging their creation and publication. And by making terms more predictable than something based on lifespans, while remaining reasonably short, it encourages publishers to do business with authors, which is fundamentally the mechanism by which authors make money from their works (since few authors are equipped to, or are good at, self-publishing).
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Coming back to copyright, your proposal sure could be used, but with some limitation. Exclusivity rights should only be able to be sold in the first 7 years of the copyright. After that, the Damokles Sword of sudden death can swing if it wants.
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Maybe the rule (law) should be that any transfer of copyright would be limited, and temporary. Wait, that's what we had before the Disney/Bono fiasco.
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While the concept of copyright originated in England, our laws originated here. The rules for copyright are stated in the Constitution, but the Constitution did not require copyright to exist, it mere gave Congress the authority to do so. I think the legislative interpretation of 'a limited time' 14 years with a 14 year extension was certainly better than what we have now. Studies, however, have shown that most of the value of copyrights are expended within the first 7 years. So I would be in favor of there being a cost to apply for that 14 year extension, a significant cost. I would also support shorter terms.
And, if we could talk the legislature into coming to their senses (unlikely unless we change the way 'soft money' and 'lobbying' (a.k.a bribery/coercion) work, they should also return all copyrights to these time frames.
As to the changes in publishing techniques, those shouldn't change the fact of copyright, but might change pricing. In fact, some think that giving away their works helps to increase sales. Oh look. They were right.
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Modern copyright law may start there, but the concept was around much earlier.
Wikipedia: Battle of Cúl Dreimhne
3,000 casualties. Fought over copyright law in Ireland somewhere between 555 AD and 561 AD. Really.
The copyright offender was later made a saint. But that was over converting the Picts to Christianity by vanquishing a monster in the River Ness. (That's right, the Loch Ness Monster is part of Christianity.) So pirates probably can't claim holy backing.
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The origins of the basic trade-off of a monopoly on an otherwise unprotectable thing because it benefited society actually dates at least as far back as about a thousand years earlier to an ancient Greek joke.
The joke was that the citizens of Sybaris (a Greek colony in what's now southern Italy) were so dedicated to their hedonistic lifestyle that they deliberately encouraged the development of new forms of luxury by giving out one-year monopolies on them to the inventors.
Copyright originated as a publisher's monopoly (indeed, that's what the story you mention supports) but the modern utilitarian model is basically patent-like.
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RE: copyright somewhere between 555 AD and 561 AD, I dimly remember a documentary about that. LOL at the offender being made a saint. But that's copyright for you, always getting in the way of the public good.
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If 14 years (with an option for 14 more if it seemed worth the copyright holder's while) was good enough for when communication and shipping were conducted by horse, steam, and sail, then that 14 years should certainly be more than good enough today -- when copyright holders can, more easily, reach far, far larger markets in a far shorter time-frame.
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We do that all the time without reassigning copyright—eg. Techdirt has permission to distribute this comment. Works for hire also operate without a transfer (the payer holds copyright ab initio).
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An author could never be able to retain copyright and protect the interests of the publisher because it is in the publisher's interest to own the copyright so they can protect their investment.
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Which interests are these? Why wouldn't a copyright license (exclusive or not) protect them adequately?
Distribution of royalties is easily handled by a contract.
In the domain of books, I thought authors usually kept copyrights already.
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Not about copyright: to gain money publishing existing works.
You also casually conflate unpublished manuscript with "book".
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Re: Not about copyright: to gain money publishing existing works.
SO I ask: Does "Kickstarter Masnick" pay a fee to "Techdirt" for the advertising? Cause, that seems "valuable" promotion.
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Re: Re: Not about copyright: to gain money publishing existing works.
Yeah, he pays himself. Now get back under your rock.
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Re: Not about copyright: to gain money publishing existing works.
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Re: Not about copyright: to gain money publishing existing works.
You seem even more extraordinarily confused about the subject than normal. Getting ready for the weekend a little too early?
But, hey, glad you agree that money isn't everything and some laws need to be skirted for cultural heritage.
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Re: Not about copyright: to gain money publishing existing works.
And then he could be face a lawsuit by someone claiming to own the copyright, which would result in a lot of time and money being wasted in pursuit of the truth. I cannot imagine many people who would want to face a lawsuit over this kind of situation, even if what they think they did was morally in the right.
Of course, none of this would be an issue if copyright terms did not last for a hundred-plus years. If copyright terms had not been extended by Disney and their government grunts, none of this would likely even be an issue.
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Then they should be digitized and given away.
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Who pays the legal bills when somebody claims that they are the copyright owner, or some troll lawyer decides to act to protect the unknown copyright holder?
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Some Clarification
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Works lost forever
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What happens when life is extended?
As an aside, have there been any Techdirt articles on the new copyright bill in Congress? Wired has an article at
https://www.wired.com/story/congress-latest-move-to-extend-copyright-protection-is-misguided/
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Re: What happens when life is extended?
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https://www.techdirt.com/articles/20180521/01034439868/how-recording-industry-hid-latest-attempt -to-expand-copyright-why-you-should-call-your-senator-to-stop-it.shtml
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