Copyright Ratchet In Action Again: UK Introduces Yet Another Unjustified Extension

from the faith-based-policy-making dept

Until recently there has been an unchallenged assumption that the more copyright, the better. Although people have begun to realize that's not the case – and that extending copyright diminishes the public domain because we must all wait longer for works to enter it -- governments around the world continue to make copyright longer, stronger and broader.

Francis Davey has written a blog post about an amendment to what he calls a "fairly obscure corner of the [UK] Copyright, Designs and Patents Act 1988" that offers us yet another example. Here's the background:

Section 52 [of the Copyright, Designs and Patents Act 1988] deals with the situation where an artistic work has been exploited in the making of articles by an industrial process and marketing them in the UK. At the end of 25 years after the articles are first marketed, it ceases to be an infringement of copyright to copy the work by making articles (of any kind)

Davey gives an example of what this rule means in practice:

Suppose an artist drew a picture of an iconic vehicle - let's say a car - in a comic strip. After 25 years of marketing models of the car as merchandising, the artist could no longer use copyright protection from preventing others making rival versions of the car, but the artist could still stop the making of stamps, greeting cards and, most importantly, comic books based on the original drawings.

The exceptions mentioned there are thanks to a later modification to the 1988 Act, which excluded a list of objects from it, for reasons best known to itself.

The proposed amendment to the law would remove that limit of 25 years, and enable artists to prevent others from making rival versions (of the car, in the example above) for the full term of copyright -- life plus seventy years. The UK government's press release on the move speaks of:

Deterring the importation and sale of unauthorised replicas of classic designs which qualify for copyright protection and extending copyright protection for mass-produced artistic works to life of the creator plus 70 years. These measures will promote innovation in the design industry and encourage investment in new products, while discouraging unauthorised copies.

Of course, no evidence is offered that this will be the case -- this is classic faith-based policy making. And it's hard to see manufacturers investing anything extra just because their monopoly has been extended -- they are more likely to sit back and enjoy the windfall profits, assuming there are any. Similarly, surely nobody is suddenly going to decide to produce replicas because of possible sales half a century from now. All in all, it's really hard to see why the UK government is wasting the limited time of politicians pushing through such marginal and unnecessary extensions to a copyright system that already reaches too far for too long.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: copyright extension, faith-based policy, uk

Copyright Extension: A Way To Protect Hollywood From Having To Compete With The Past

from the makes-sense dept

There has been plenty of talk over the years about why we keep extending copyright. Of course, we've discussed the infamous Mickey Mouse Curve, showing how copyright extension always seems to happen whenever Mickey Mouse is going to hit the public domain.
However, Julian Sanchez notes that this doesn't explain the whole story. After all, if it was just about protecting the very, very small number of works that still have commercial value after so many years, then you would think we would have evolved away from the "copyright absolutely everything for as long as possible" model, to one that plenty of people have suggested: one where there are regular (and perhaps escalating) recurring fees to keep renewing your copyright registration. That way, works like Mickey Mouse could stay covered by copyright, but all the other works which have been otherwise abandoned can actually contribute back to culture and be used by anyone who wants to make something with them.

As Sanchez notes, you would think that even the Disneys of the world would like this model better. Even if it had to pay such recurring fees, the overall cost will ultimately be tiny compared to the value of the copyright. Plus, it would then open up a treasure trove of public domain material that they could use in their own works -- and Disney, in particular, has a well known history of making use of public domain works.

So why do we still have a "copyright everything for as long as we live, plus 70 years" (for now)? Sanchez posits a compelling theory. That Disney and other big copyright holders like this, because it keeps them from having to compete with their own back catalog:

Insanely long copyright terms are how the culture industries avoid competing with their own back catalogs. Imagine that we still had a copyright term that maxed out at 28 years, the regime the first Americans lived under. The shorter term wouldn’t in itself have much effect on output or incentives to create. But it would mean that, today, every book, song, image, and movie produced before 1984 was freely available to anyone with an Internet connection. Under those conditions, would we be anywhere near as willing to pay a premium for the latest release? In some cases, no doubt. But when the baseline is that we already have free, completely legal access to every great album, film, or novel produced before the mid-80s—more than any human being could realistically watch, read, or listen to in a lifetime—I wouldn’t be surprised if our consumption patterns became a good deal less neophilic, or at the very least, prices on new releases had to drop substantially to remain competitive.

This story certainly fits with Disney -- who famously decides to completely stop selling certain old classics and put them "in the vault" for a while, pulling them off the market entirely. For Disney, it's all about keeping out competition, which it wouldn't be able to do if copyright didn't last so long.

This actually reminds me of the missing 20th century of books that we discussed a few months back, highlighting how the amount of new works from each decade drop off rapidly the further back you go, until you hit 1923 -- the current cut-off for the public domain.

Sanchez does note that it's possible this actually drives more investment into new works, since they don't have to compete with the old. And, if you believe (which he doesn't) that new works automatically have more value than old, then you could make a twisted sort of argument that this kind of protectionism, and effective locking-up of about a century's worth of creativity, does "promote the progress" in that it moves the focus to newer works, rather than older ones. But I don't buy that at all. It ignores the fact that the giant gap doesn't just represent competitive works, but also raw material and inspiration for all kinds of amazing new works -- which are effectively killed off.

That gap represents lost culture. But, for the big legacy entertainment players, it might also represent repressed competition. That shouldn't really be surprising. After all, that is the whole purpose of government-granted monopoly privileges.

Filed Under: competition, copyright extension, julian sanchez, mickey mouse, public domain
Companies: disney

How Copyright Extension Undermined Copyright: The Copyright Of Parking (Part I)

from the parallel-parking dept

What do copyright and parking laws have in common?

The short answer: no one takes either very seriously.

According to a recent article in L.A. Magazine, only 10% of parking citations ever get written. Which is to say that 90% of the times that people park illegally, there are no consequences. Those who violate the increasingly strict parking rules in most U.S. cities are more likely to associate a ticket with bad luck or personal hostility against them than with the fact that they broke the law.

In other words, when you get a ticket, you don't feel guilty. You feel victimized. As John Van Horn, the editor of Parking Today, explains, low levels of enforcement undermine the deterrent intent of parking laws. "We break the law often and get away with it. Deep down inside we know that. What makes us mad is getting caught the few times we do. 'Ninety percent of drivers on this street got away scot-free today, but I get the ticket?' That makes us crazy."

Part of what drives us to rage at getting a ticket is that we don't actually believe parking should be illegal in the first place. The freedom to park wherever there's space is deeply ingrained in the American psyche if not the law. The invention of the parking meter in the late 1930's was greeted with near-riots across the country. Editorials railed against the new devices as "illegal," "immoral" and a "perversion." The Alabama state Supreme Court declared meters unconstitutional in 1937, and ordered them removed from Birmingham streets.

"I truly believe that when men and women think about parking, their mental capacity reverts to the reptilian cortex of the brain," says UCLA's Donald Shoup, perhaps the nation's only academic devoted to the study of parking.

A law that is rarely enforced—indeed, which is not cost-effective to enforce except sporadically—is no law at all. Which brings us to copyright.

Overprotective and largely unenforced rules, combined with a deep-rooted sense of entitlement, create an explosive combination. The problem is the same with parking and copyright. As copyright law becomes more strict, and its penalties more byzantine, Americans are less likely to make the effort to follow the rules, or to believe that new forms of technology-enabled copying are immoral in the first place.

We refuse to see our behavior as illegal, even when we know it is. Recent surveys by the Pew Research Center, for example, report that 72 percent of Americans between ages 18 and 29 "do not care whether the music they download onto their computers is copyrighted or not." Rightly or wrongly (if those terms even mean anything anymore in this context), the added penalties, extensions, and limits on copying, along with decreasing rates of successful enforcement, are making it less, not more, likely that Americans will obey the rules.

We are collectively living in a state of cognitive dissonance, uncomfortably embracing two conflicting beliefs at the same time. Copying is illegal. Copying is not wrong.

Where did we get the idea of a right to free content? In large part, from the content producers themselves. An older generation grew up with music, movies and television programs beamed directly to their televisions and transistor radios at no charge. Those consumers can't understand why saving content onto some medium and enjoying it again or later should suddenly transform a strongly-encouraged behavior into a felony.

A younger generation, raised on cheap Internet access, was likewise encouraged to enjoy all manner of copyrighted materials freely and frequently by content providers who wisely chose to rely, as their predecessors did, on advertising and other indirect revenue to pay their costs and generate profits. That's the message of newspapers, magazines, and broadcast networks who offer some or even all of their content without a paywall. And the movie industry teases consumers mercilessly with trailers, interviews, and production blogs that show just enough of upcoming movies to make us feel entitled to see the rest, one way or the other, the sooner the better.

Yet when fans enthusiastically encourage others to embrace their preferences by posting clips or copies of popular content to YouTube or by ripping CDs and DVDs to repeat their enjoyment on other devices, they instantly cross the legal line from well-trained consumers to dangerous criminals—even terrorists.

Copyright may be the law, in other words, but it no longer holds any moral authority with most consumers. There's no longer an ethical imperative to obey it or even understand it. Self-enforcement is fading, and the rules are so severe and so frequently violated that effective legal enforcement has become nearly impossible.

It's a meter, and we all know that the meter is rarely checked. Copyright is a law in name only—as obsolete and irrelevant as rules still on the books in some jurisdictions that regulate who can or must wear what kind of clothing.

Next: How making the law stronger makes the law weaker »

Filed Under: copyright extension, enforcement, free content, parking

Why Johnny Can't Read Any New Public Domain Books In The US: Because Nothing New Entered The Public Domain

from the and-won't-for-many-years dept

Every year, January 1st is "public domain day" around the globe. It's the day when all works that have had their copyrights expire enter the public domain, since copyright term is based on the year of publication, rather than the exact date. While some parts of the world still have something to celebrate on public domain day -- such as how the works of James Joyce are now in the public domain in the EU, here in the US as we've noted in the past, we're left waiting... for nothing. Because thanks to massive changes to copyright law, as well as copyright term extension, absolutely nothing has or will enter the public domain for many years in the US (minus a specific declaration by the copyright holder... and even then it's not entirely clear that qualifies).

The good folks at the Center for the Study of the Public Domain at Duke University put together a depressing list each year of what would have gone into the public domain under copyright law if the law prior to 1978 remained in effect. You can check out this year's unfortunate list of works seized from the public in a retroactive one-sided renegotiation of the deal the copyright holders had with the public. These works should be in the public domain, and they're not... and the public got nothing in exchange for having these works taken away from us. Pulling from their writeup, here are just a few of the works that I thought you might find interesting:

• Rudolf Flesch's Why Johnny Can't Read: And What You Can Do About It
• J.R.R. Tolkien's The Return of the King, the final installment in his Lord of Rings trilogy
• Michihiko Hachiya’s Hiroshima Diary: The Journal of a Japanese Physician, August 8–September 30, 1945, translated by Warner Wells, md
• Evelyn Waugh’s Officers and Gentlemen, the second book in his Sword of Honour trilogy
• C.S. Lewis' The Magician’s Nephew, the sixth volume his The Chronicles of Narnia
• Vladimir Nabokov's Lolita
• Jerome Lawrence & Robert E. Lee's play about the Scopes “Monkey Trial,” Inherit the Wind
• Isaac Asimov's The End of Eternity
• Jack Finney's The Body Snatchers
• Arthur C. Clarke's Earthlight
• Elvis Presley's first TV appearance (on Louisiana Hayride, March 5, 1955)
• Episodes of "I Love Lucy"
• The first issue of William F. Buckley's "National Review."
• "The Seven Year Itch," directed by Billy Wilder; starring Marilyn Monroe and Tom Ewell
• "Lady and the Tramp," Walt Disney Productions' classic animation
• Alfred Hitchcock's "To Catch a Thief," starring Cary Grant and Grace Kelly
• Two of James Dean’s three major motion pictures: "East of Eden," directed by Elia Kazan and co-starring Raymond Massey and Julie Harris; and "Rebel Without a Cause," directed by Nicholas Ray and co-starring Natlie Wood, Sal Mineo, and Jim Backus

They also list out a bunch of songs:

Unchained Melody (Hy Zaret & Alex North), Ain't That a Shame (Antoine "Fats" Domino and Dave Bartholomew), Blue Suede Shoes (Carl Perkins), Folsom Prison Blues (Johnny Cash), The Great Pretender (Buck Ram), Maybellene (Chuck Berry, Russ Fratto, & Alan Freed), and Tutti Frutti (Richard Penniman (aka Little Richard), Dorothy LaBostrie, & Joe Lubin),

As they point out, it's really even more ridiculous than this, because under pre-1978 copyright law, most works didn't even go to the full 56 years of copyright protection. Instead, the vast majority of works gave up their copyright after 28 years. If the rates from the time held up, about 85% of the works created in 1983 would be in the public domain today. Instead, they'll be locked up until most of us are dead. Isn't that wonderful?

The thing is, with the list of works from 1955 above, when they were all created, the maximum term of copyright of 56 years was a perfectly acceptable trade-off for those creators. They got their monopoly, and they created their works. What I can't understand is what the logic is in extending those rights retroactively. Clearly the incentive to create was fine as it was. Why should it change after the work was created?

Filed Under: copyright, copyright extension, public domain, us, why johnny can't read

Jamaica The Latest To Embrace Retroactive Copyright Term Extension And Screw The Public Domain

from the sad-news-for-jamaican-music dept

Last month we wrote about Europe retroactively extending copyright, which, in effect, seized works that were supposed to go into the public domain. A study found that the cost to the public was 1 billion euros. To date, we have never seen a reasonable justification for retroactive copyright term extension. The purpose of copyright is to benefit the public by inspiring new works, by giving the creator a temporary monopoly. It makes no sense to retroactively change the deal, because obviously the deal was sufficient at the time the content was created. Nothing in retroactive extension increases the incentive for new works. If anything, it does the exact opposite -- it gives the record labels more incentive to keep squeezing money out of old songs, rather than to invest in new ones.

So it's disappointing to hear that Jamaica appears poised to follow suit and extend copyrights from 50 years to 70 years as well. In the video below, it starts off with an impassioned plea by a recording industry representative, who misrepresents some research. He notes a WIPO paper that says the copyright industries' return on investment is higher than other sectors. That may be true, but that is almost entirely unrelated to copyright term extension. There can be investment in the same sectors without copyright, and just because the copyright is extended, there is no reason to believe there is greater investment in those industries. The basic fallacy presented by Evon Mullings, is the idea that retroactive extension leads to greater investment. In fact, as noted, it gives the labels less incentive to invest in new works.

Unfortunately, the speaker after Mullings is the Minister of Culture, Olivia Grange, who flat out says: "You won't have to advocate. You won't have to fight for it. It is going to be done." This is especially ridiculous when it comes to Jamaican culture and Jamaican music. For many, many years, we've spoken about how Jamaican music was a great example of the success of embracing a remix culture. In addition there's been plenty of recent research talking about the explosive creativity in Jamaican culture spurred on by technology, not by copyright law... It's a shame that rather than understanding this, it appears the industry and politicians there are simply repeating myths and passing legislation that will significantly harm the public.

Filed Under: copyright, copyright extension, jamaica

How Copyright Extension Is Harming Classical Music

from the for-shame dept

With all the talk of the EU's decision to retroactively extend copyright from 50 to 70 years, despite no evidence that this is needed or useful, very little attention was paid to the massive harm this causes. Multiple studies showed that such an extension wouldn't provide much, if any, money to musicians, but most of the money would actually be diverted from artists to major record labels. And it gets even worse. Copycense points us to some reports about how copyright extension is guaranteeing that plenty of classical music won't be heard:

Last week, the EU ratified a new law extending copyright in music recordings to 70 years. That, argued Bob Stanley, was a bad thing for most musicians, and for music itself: much would now remain locked in the vaults of the big record companies. Stanley had been looking at the world of rock and pop, but PristineAudio, who runs a label specialising in out-of-copyright recordings, explained the ruling had far-reaching implications for classical music as well. "One major release of ours earlier this year illustrates well something this new act most certainly will kill off. A historic concert given in 1960 by British conductor Leopold Stokowski with the Philadelphia Orchestra … fell into the public domain in Europe [in 2011], and we were able to transcribe the conductor's own copies of the master tapes, prepared for him by the radio station, and release in the highest quality a concert that has long been of great interest to collectors.

"The irony of copyright law as it stands is that historic orchestral broadcasts are often almost impossible to reissue by anyone, until they pass into the public domain. The standard contract with an orchestra would allow for an initial broadcast and then a single repeat transmission. Thereafter, a new contract would need to be drawn up with the musicians for any further use of that recording. Trying today to track down the performers (or their estates) for a symphony orchestra that existed in 1960 is well-nigh impossible."

That's not the "irony" of copyright. It's the design of copyright, which has always been about granting monopolies to a few players, while limiting the market. It's a protectionist plan designed to protect a few industry leaders, rather than do what it says on the face of the box: promoting progress by increasing cultural output.

Filed Under: access, classical music, copyright, copyright extension, europe

The Cost Of Copyright Extension In Europe: 1 Billion Euros Paid By The Public

from the what-a-disaster dept

Martin Kretschmer has a post up at the 1709 blog discussing the recent wholesale seizure of the public domain in Europe, and how it not only won't help most musicians (which is the basis for passing it), but will cost the public over 1 billion euros, based on the EU Commission's own figures:

It is not surprising that many performers’ organisations and collecting societies support the Directive. They do not have to carry the costs – which will exceed EURO 1 billion to the general public (based on the Commission’s own figures – see calculations in Joint Academic Statement issued by Centre for Intellectual Property Policy & Management (CIPPM, Bournemouth University), the Centre for Intellectual Property & Information Law (CIPIL, Cambridge University), the Institute the Institute for Information Law (IViR, University of Amsterdam), and the Max Planck Competition and Tax Law (Munich)

72 percent of the financial benefits from term extension will accrue to record labels. Of the 28 percent that will go to artists, most of the money will go to superstar acts, with only 4 percent benefiting those musicians mentioned in the European Council press release as facing an "income gap at the end of their life times". Many performers also do not appear to understand that the proposal would lead to a redistribution of income from living to dead artists.

In an interview with the NY Times yesterday, I said: "This is a dreadful day for musicians and consumers. Policymakers are schizophrenic, speaking a language of change and innovation, but then respond to lobbying by extending the right which gave rise to the problem in the first place. This only entrenches a cynical attitude toward copyright law and brings it into further disrepute."

It's really amazing what a disaster this is. It doesn't help most artists. The ones it does help don't need it. And the real beneficiaries are the major record labels who have failed to adapt. And the public loses out in a big, bad way.

Filed Under: copyright, copyright extension

Reasonable Anger In Europe Over Ridiculous Copyright Extension

from the your-public-domain-is-being-seized dept

One of our most popular stories last week was about how Europe was retroactively extending copyright yet again. It's been interesting to see the reaction to the story among Europeans, where I've seen nothing but very palpable anger about this. Pretty much everyone who isn't a record label seems to think that this is a complete joke, and nothing more than an attempt to grant subsidies to big record label companies. It's even coming through in the more mainstream press in the UK, where Shane Richmond has cynically blasted the plan in The Telegraph (and reminded us that the main person driving this worked for the record labels just a few months ago). Is it that cynical when the regulatory capture by a single group of companies is so obvious?

I’ve written at length about this before so I won’t go over the arguments again here but study after study has shown that longer copyright terms do not protect creativity; they harm it. And yet copyright terms keep growing, in the face of the evidence.

This is part of an ongoing pattern - a more cynical person might even call it a campaign - in which copyright will be extended until it never expires. In 15 years or so, you can expect a renewed campaign to extend the copyright on sound recordings to 95 years, matching the term in the US. After that, we’ll see pressure to extend terms further, so that recording artists receive the same protection - life plus 70 years - as composers and lyricists.

The thing that amazes me about all of this is how the supporters of this law don't realize how much harm they're doing to their own cause. When stories like this come out, there's so much anger directed at the system, the politicians and the law that it makes people respect copyright law a hell of a lot less. If the industry still believes that they just need to "educate" people, the education people are getting is that copyright law is a joke that serves no purpose other than to protect the interests of a few big companies.

Richmond, nicely, contrasts the laughably false claims by the IFPI that copyright extension benefits artists, by pointing to the upcoming termination rights battle in the US, to show that the major labels and their trade groups (RIAA/IFPI) clearly do not have the artists' best interests in mind, and it's ridiculous for them to pretend they do:

It’s expected, according to Rolling Stone, that the record labels will argue that these artists were “work for hire” and therefore not entitled to their rights back. Labels like to talk about the rights of artists until the artists’ interests conflict with their own. How will the IFPI spin this argument? We’ll see soon enough.

The real shame is that the EU politicians, who approved this, will never actually have to answer for their seizure of the public domain, and for the fact that they reneged on a deal which the public made with content creators with no compensation. Those who voted for copyright extension -- in the face of widespread evidence that it does nothing to help artists and plenty to hold back culture -- should be seriously ashamed. They've sold out the public, who they're supposed to represent.

Filed Under: copyright, copyright extension, uk

EU Officially Seizes The Public Domain, Retroactively Extends Copyright

from the stealing-from-the-public dept

As was unfortunately expected, despite no evidence that this made any economic sense at all, the member states of the EU have agreed to retroactively extend copyright another 20 years, at which point you can expect it to be extended again (thanks to jtdeboe for sending this over). This is nothing short of governments and the entertainment industry seizing works from the public domain. As we've said before, the purpose of copyright law is to incent the creation of new works. If existing copyright law was enough to incentivize the creation at the time, then there's simply no reason to retroactively extend the law.

This proposal, which various studies have shown will do little to help content creators, has been pushed for a long time by the record labels. It had been blocked in Europe for a while, but for reasons unknown, Denmark recently changed its mind, thereby enabling this effort to flat out seize material from the public.

It's especially sad that this comes just a few months after the Hargreaves report, which explicitly points out that so much policy is made without evidence -- and copyright extension is a perfect example of that. Citizens of the EU: your politicians just sold you out to the record labels, taking away content that was legally yours and no longer will be.

Filed Under: copyright, copyright extension, eu

Seizing The Public Domain: Europe Trying To Extend Copyright Term Retroactively [Updated]

from the total-failure dept

The last century of copyright law has basically been one story after another about how the "deal" between content creators and the public has been shifted further and further away from benefiting the public in any way. The worst of the worst is the idea of retroactive copyright term extension. This simply makes no sense whatsoever. The point of copyright law is to provide incentives to someone to create new content in exchange for a limited monopoly, after which the work goes to the public. If the term of copyright protection was enough at the time of creation, then the incentive "worked." Changing it retroactively makes no sense, and appears to be a pure violation of the principles of unilateral contract changes. Copyright is a contract with the public, but under retroactive copyright term extension the public gets the terms of its deal changed without any compensation or recourse.

So it's sad to see that it looks like Spain may be the latest country Europe is the latest to take up retroactive copyright term extension (Google translation from the original found via Copycense). Given that Spain has generally been pretty reasonable on copyright laws (though, under pressure from US special interests, some have been trying to change that), it's sad to see them look to seize the public domain right out from under its citizens like this. Update: Sorry for the confusion. The Copycense piece said Spain, but as is noted in the comments, this is actually across the EU and not specific to Spain. Which doesn't make it any better. It actually makes it worse.

Filed Under: copyright, copyright extension, spain