US Trade Rep Appears To Misreport Its Own Trade Agreement To Include Copyright Extension

from the or-maybe-not dept

Soooooooo, you've probably heard the news on Monday about how the Trump adminstration had struck a preliminary trade agreement with Mexico to replace NAFTA. Most of the attention over the deal has to do with the lack of Canada being a part of it, with Mexico making it clear it still thought that this was a new deal with both the US and Canada and President Trump repeatedly acting as if this deal was a "take it or leave it" deal for Canada, and if they left it, it would just be US and Mexico.

There will, of course, be plenty of time to dig into the details of what's in the actual agreement, but on stuff that matters to us, it already looks bizarre. The USTR put out a "fact sheet" about the intellectual property part of the agreement and it's causing quite a bit of consternation. In particular, it claims that copyright will be extended to life+75 years. Literally no one has been asking for this. While the movie and recording industries have pushed to extend copyrights in the past, this time around, they more or less acknowledged that it was a bridge too far to keep extending copyrights this long, and some have even expressed a willingness to shorten copyright terms.

But there's been a lot of confusion about what the "life+75 years" even means here -- and it now seems quite likely that the USTR simply misunderstood its own agreement (yes, really). Current in the US, for works made for hire or corporate works, copyright lasts 95 years, and for those made by individuals, it's life+70 years. In Mexico, it's been an upward ratchet from life+50 years, to life+75 years, to life+100 years as of 2003. There were some stories that during TPP negotiations, Mexico had pushed for life+100 years in the US as well, but that seemed like a non-starter.

So why would the USTR give an okay for life+75 years when basically no one in the US is still pushing for such a thing, and in fact seem to be in general agreement that, if anything, the term should go in the other direction? Either the USTR negotiators have no idea what they're doing (possible!), don't realize why this is a big deal (also possible) or are misreporting what's actually in the agreement. It appears the last one is likely. While the USTR told reporters on a call that they absolutely mean extending copyright to life+75 years, after that, USTR representatives started claiming that this is not an extension of copyright, but was merely supposed to be setting the floor on copyright terms of 75 years, not "life plus 75 years," in which case copyright wouldn't change in either country. But, because this administration appears to be so clueless, someone at the USTR may have taken this news and mistakenly claimed it was now life plus 75, rather than a 75 year floor.

This does not inspire very much confidence in this USTR.

Either way, if this really is an attempt to extend copyright, at some point this would need to come back to Congress to change the law, and that might be a pretty big fight on their hands, no matter how what the administration foolishly agreed upon in this preliminary agreement.

Other aspects of the IP section are also troubling, as it all seems focused on the belief that more draconian patent, copyright and trademark laws and enforcement are what's most desirable:

The new IP Chapter will:

• Require full national treatment for copyright and related rights so United States creators are not deprived of rights in foreign markets that domestic creators receive.
• Provide strong patent protection for innovators by enshrining patentability standards and patent office best practices to ensure that United States innovators, including small- and medium-sized businesses, are able to protect their inventions with patents. 
• Include strong protection for pharmaceutical and agricultural innovators. 
• Extend the minimum copyright term to 75 years for works like song performances and ensure that works such as digital music, movies, and books can be protected through current technologies such as technological protection measures and rights management information. 
• Establish a notice-and-takedown system for copyright safe harbors for Internet service providers (ISPs) that provides protection for IP and predictability for legitimate technology enterprises who do not directly benefit from the infringement, consistent with United States law.
• Provide important procedural safeguards for recognition of new geographical indications (GIs), including strong and comprehensive standards for protection against issuances of GIs that would prevent United States producers from using common names. 
• Enhance provisions for protecting trademarks, including well-known marks, to help companies that have invested effort and resources into establishing goodwill for their brands. 
• Includes 10 years of data protection for biologic drugs and expanded scope of products eligible for protection.

The "full national treatment" details will be interesting to see, but it looks like an attempt to backdoor in a performance right (which most other countries have, but the US has mostly avoided) for musicians. The various "strong protection" lines about patents is problematic, as that generally means more patent trolling. And the biologics data protection stuff was a key point of disagreement in the TPP negotiations, with the US pushing for longer terms, and other countries (such as Australia) pushing strongly for shorter terms. The whole "data protection for biologics" is a way of locking up drugs that could save lives even though they don't have patent protection. Is a dangerous idea, but unfortunately, the USTR remains the home of people who only want to expand protectionism, rather than actually supporting competition.

In the end, the details here really matter a lot -- and we don't have them. Furthermore, this administration has an extensive history of not presenting things particularly clearly or accurately. But as a first pass, these "key highlights" the USTR put out suggest an agreement that is out of touch and dangerous for American innovation. Congress should do its job, as outlined in the Commerce Clause, and not let this agreement go forward if it matches what the USTR is now claiming.

Filed Under: copyright, copyright term extension, life plus 75, mexico, nafta, ustr

Irony Alert: Disney (Yes, DISNEY!) Whines About 'Overzealous Copyright Holders'

from the mickey-mouse-is-a-hypocrite dept

Here's one that might create a bit of a stir. The history of the 20th century and maximalist, ever expanding copyright is often associated with one particular company: Disney. I mean, the 1998 Copyright Term Extension Act (CTEA) is regularly called the "Mickey Mouse Protection Act" and Tom Bell once created this lovely Mickey Mouse Curve showing how copyright terms always seemed to expand just before the original movie starring Mickey, Steamboat Willie was about to enter the public domain:

This pattern might finally (miraculously) end this year -- but not because Disney has become enlightened. Rather, it's mainly because Disney's lobbying influence is not what it once was, and SOPA seemed to make both Congress and the legacy entertainment industry realize that they would almost certainly lose another such fight on an issue like this (not that there weren't attempts to slip provisions into trade agreements that had the potential to expand copyright terms).

However, it does seem notable -- as first spotted by Eriq Gardner at The Hollywood Reporter -- that Disney has now been put in the possibly awkward position of complaining about "overzealous copyright holders," and talking about the importance of user rights and fair use to protect free speech and the First Amendment. No, really.

Disney, of course, owns ABC. Back in May (though the complaint appears to incorrectly state March), ABC aired a two-hour program entitled The Last Days of Michael Jackson. The Michael Jackson Estate was not pleased and sued for copyright infringement. The complaint itself is quite a read. It completely mocks the program in question:

Although titled The Last Days of Michael Jackson, the program did not focus on Michael Jackson’s last days. Rather, it was simply a mediocre look back at Michael Jackson’s life and entertainment career. A Rolling Stone review described the program as “offer[ing] little in the way of new revelations or reporting and at times seems heavy on armchair psychoanalysis and unsupported conjecture.” The magazine was being too generous. The program contained nothing “in the way of new revelations or reporting.”

It also digs deep on Disney's well-known history for maximalism:

Disney’s media business depends on its intellectual property and, more specifically, the copyrights it holds in its well-known characters, motion pictures, music, and the like. Disney has never been shy about protecting its intellectual property. Indeed, its zeal to protect its own intellectual property from infringements, real or imagined, often knows no bounds.

a. Disney has threatened to sue independent childcare centers for having pictures of Mickey Mouse and Donald Duck on their walls, forcing them to remove all pictures of Mickey or Donald—and other anthropomorphized mice or ducks—rather than face ruinous litigation from one of the world’s largest corporations.

b. Disney once sued a couple on public assistance for $1 million when they appeared at children’s parties dressed as an orange tiger and a blue donkey. Apparently, these costumes cut too close to Tigger and Eeyore for Disney’s tastes.

c. Disney takes a very narrow view of copyright law’s “fair use” doctrine. For example, just a few years ago, it sent DMCA takedown notices to Twitter, Facebook, and other websites and webhosts, when consumers posted pictures of new Star Wars toys that the consumers had legally purchased. Apparently, Disney claimed that simple amateur photographs of Star Wars characters in toy form infringed Disney’s copyrights in the characters and were not a fair use.

It's hard to deny any of the above. And thus, the complaint, with a healthy dose of snark, notes Disney's fairly blatant hypocrisy:

Like Disney, the lifeblood of the Estate’s business is its intellectual property. Yet for some reason, Disney decided it could just use the Estate’s most valuable intellectual property for free. Apparently, Disney’s passion for the copyright laws disappears when it doesn’t involve its own intellectual property and it sees an opportunity to profit off of someone else’s intellectual property without permission or payment.

It claims "at least thirty different copyright works" were used without permission. These included clips from songs and music videos, concert footage and the Jackson Estate's own documentary footage. So now Disney has answered and finds itself, quite incredibly, arguing against overzealous copyright holders and about the importance of protecting the First Amendment from being harmed by excessive copyright claims. Literally.

This case is about the right of free speech under the First Amendment, the doctrine of fair use under the Copyright Act, and the ability of news organizations to use limited excerpts of copyrighted works—here, in most instances well less than 1% of the works—for the purpose of reporting on, commenting on, teaching about, and criticizing well-known public figures of interest in biographical documentaries without fear of liability from overzealous copyright holders.

I agree with everything in that paragraph. I'm just shocked that it's Disney stating this. Disney is not the most credible defender of the First Amendment and fair use. Nor is it the most credible defendant to be yelling about overzealous copyright holders. Throughout the answer to the complaint Disney insists that its uses of the Michael Jackson works "were included in the Documentary on a transformative and fair use basis."

Without having seen the documentary, it's impossible to say whether or not the uses truly qualify as fair use, though the argument that they are sounds reasonable. But the idea that Disney is the one fighting for fair use and against overzealous copyright holders remains stunning and bizarre. I'd like to believe this is Disney coming to its senses and making amends for the century of harm its done thanks to copyright, but it seems much more likely that this is just an opportunistic defense of fair use, and the company remains firmly in the camp of supporting ever expanding copyrights.

I wonder how Disney would feel if someone showed up to future hearings in the case wearing an unauthorized Mickey Mouse costume?

Filed Under: copyright, copyright term extension, fair use, first amendment, free speech, michael jackson, mickey mouse, overzealous copyright holders
Companies: abc, disney, michael jackson estate

Copyright Maximalists Throw In The Towel On Term Extension; Admit That Maybe Copyright Is Too Long

from the about-fucking-time dept

Last week, in writing about how this should be the last year (for forty straight years) that no old works have moved into the public domain in the US due to repeated copyright term extensions, I noted that there did not appear to be much appetite among the usual folks to push for term extension. Part of this is because the RIAAs and MPAAs of the world know that the fight they'd face this time would be significantly more difficult than when they pushed through the Sonny Bono Copyright Term Extension Act 20 plus years ago. Not only do they know it would be more difficult, they know that they'd lose. Unlike last time, this time the public is paying attention and can mobilize on the internet.

Indeed, we were surprised a few years back when then Copyright Office boss, Maria Pallante -- who has long pushed for copyright maximalism in many different areas -- suggested one tiny aspect of potential copyright reform could be to make the last twenty years (the life plus 50 to life plus 70 years) sort of optional. Even this very, very minor step back from the idea of automatic life plus 70 years (or more!) was fairly astounding for what it represented. Copyright interests have never been willing to budge -- even an inch, and here was a tiny inch that they indicated they were willing to give up.

Tim Lee, over at Ars Technica, has now (incredibly) got three of the biggest copyright maximalist organizations on the record to say that they will not lobby for copyright term extension, and (even more incredibly) got the Authors Guild (the perpetually pushing for crazy new expansions of copyright law freaking Authors Guild!) to even say that they think maybe we should scale back to life plus 50 again:

The Author's Guild, for example, "does not support extending the copyright term, especially since many of our members benefit from having access to a thriving and substantial public domain of older works," a Guild spokeswoman told Ars in an email. "If anything, we would likely support a rollback to a term of life-plus-50 if it were politically feasible."

The RIAA and MPAA were slightly more muted, basically saying they "are not aware" of any efforts or proposals and it's not something they're pushing:

"We are not aware of any such efforts, and it's not something we are pursuing," an RIAA spokesman told us when we asked about legislation to retroactively extend copyright terms.

"While copyright term has been a longstanding topic of conversation in policy circles, we are not aware of any legislative proposals to address the issue," the MPAA told us.

Of course, those statements are kind of funny, because they both know damn well that the only way such proposals would even be a topic for discussion is if they were pushing for them. That won't mean some nutty copyright holder won't push for an extension, but the RIAA and MPAA's recognition that they would lose (and lose spectacularly and embarrassingly) means that no such proposal is going to go anywhere.

Now, let's see what it will take to get them on board with the Authors Guild plan to start to move copyright terms in the other direction.

Filed Under: copyright, copyright term, copyright term extension, lobbying
Companies: authors guild, mpaa, riaa

Hopefully For The Last Time: The US Has Zero New Works Enter The Public Domain On January 1st

from the one-more-year... dept

For many years now, during the first week of January, we write a post about Public Domain Day. That's the day -- January 1st -- where works that have reached the statutory limit reach the public domain. The Public Domain Review has an excellent collection of the Class of 2018 -- showing what works entered the public domain this week in the "life plus 50" copyright countries (Canada, New Zealand, and many countries in Asia and Africa) and the "life plus 70" copyright countries (most of the EU, Brazil, Israel, Russia, Turkey, Nigeria). For life plus 70 countries, the works of Aleister Crowley and Winston Churchill are now in the public domain. For the life plus 50 countries, Rene Magritte's paintings, the song compositions of Woody Guthrie and Otis Redding, and the writings of Jean Toomer are now in the public domain -- among many others.

Except, as we note each and every year, there is no such "graduating class" in the US. Because, thanks to Disney's heavy lobbying, copyright keeps getting extended and extended and extended. If you're interested, the Center for the Study of the Public Domain at Duke University has also put together its depressing annual "What Could Have Entered the Public Domain..." list for the US, if the law had remained as it was prior to 1978, when the maximum length of copyright was 56 years. Under that setup, Josepher Heller's Catch-22, Salinger's Franny & Zooey and Robert Heinlein's Stranger in a Strange Land all would have entered the public domain. Grok that. Movies including Breakfast at Tiffany's, West Side Story, and The Guns of Navarone all would have entered the public domain as well. And, of course, a ton of music:

What 1961 music could you have used without fear of a lawsuit? If you wanted to find guitar tabs or sheet music and freely use some of the influential music from 1961, January 1 2018 would have been a rocking day for you under earlier copyright laws. Patsy Cline’s classic Crazy (Willie Nelson) would be available. So would Stand By Me (Ben E. King, Jerry Leiber, Mike Stoller), Runaway (Del Shannon, Max Crook), and Let’s Twist Again (Kal Mann, Dave Appell). You could publicly perform or set short films to Surfin' (Brian Wilson, Mike Love) or Crying (Roy Orbison, Joe Melson), all without permission or fee. Today these musical works remain copyrighted until 2057

There's much more as well. As the Center notes in a companion post, this should be seen as highly problematic. Locking up our culture like this does no one any good -- except for a very, very, very, very small number of copyright holders on the few works that are still economically viable. Even worse, because things are locked up for so long, so much of our culture becomes orphan works -- which tend to disappear entirely, as no one can even figure out who holds the copyright in question, should they even want to make use of it. And, without the public domain, we lose access to potentially wonderful aspects of culture:

What happens when works enter the public domain? Sometimes, wonderful things. The 1947 film It’s A Wonderful Life entered the public domain in 1975 because its copyright was not properly renewed after the first 28-year term. The film had been a flop on release, but thanks to its public domain status, it became a holiday classic. Why? Because TV networks were free to show it over and over again during the holidays, making the film immensely popular. But then copyright law reentered the picture…. In 1993, the film’s original copyright holder, capitalizing on a recent Supreme Court case, reasserted copyright based on its ownership of the film’s musical score and the short story on which the film was based (the film itself is still in the public domain). Ironically, a film that only became a success because of its public domain status was pulled back into copyright.

The one bit of good news, hopefully on the horizon is that this should be the last year that nothing enters the public domain on Public Domain Day. While Disney and other big copyright holders have been able to continually push out the eventual entrance of new works into the public domain in the US, if nothing changes, next January we will finally have works published in 1923 enter the public domain in the US. There had been rumblings about another attempt at copyright term extension in the US a few years back, but it's been much quieter in the past few years, as I think even the lobbying powerhouses in the music and movie industries have realized this isn't a fight they could win, or one really worth having. That doesn't mean someone won't try to extend the term again, but I hope most people now recognize what a bad idea it would be.

Of course, it's still ridiculous that it's only now that those works from the 1920s are entering the public domain -- while other countries are at least getting works from the 1940s or 1960s. Rather than worrying about copyright term extension, it seems we should really be exploring ways to bring copyright term back down to a much more reasonable time frame.

Filed Under: copyright, copyright term extension, public domain, public domain day

Our Unfortunate Annual Tradition: A Look At What Should Have Entered The Public Domain, But Didn't

from the this-is-cultural-theft dept

Each year, at the beginning of January, we have the unfortunate job of highlighting the works that were supposed to be entering the public domain on January 1st, but didn't (in the US at least) thanks to retroactive copyright term extension. As we've noted, copyright term extension makes absolutely no sense if you understand the supposed purpose of copyright. Remember, the idea behind copyright is that it is supposed to be an important incentive to get people to create a work. And the deal is that in exchange for creating the work, the copyright holder (who may not be the creator...) is given an exclusive monopoly on certain elements of that work for a set period of time, after which it goes into the public domain. That means that any work created under an old regime had enough incentive to be created. Retroactively extending the copyright makes no sense. The work was already created. It needs no greater incentive. The only thing it serves to do is to take away works from the public domain that the public was promised in exchange for the original copyright holder's monopoly. It's a disgrace. As always, the Center for the Study of the Public Domain at Duke University has the most comprehensive look at what works should have entered the public domain this week, but didn't, due to the scam of copyright term extension that is nothing less than taking away the agreed upon rights of the public.

What books would be entering the public domain if we had the pre-1978 copyright laws? You might recognize some of the titles below.

• Harper Lee, To Kill a Mockingbird
• John Updike, Rabbit, Run
• Joy Adamson, Born Free: A Lioness of Two Worlds
• William L. Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany
• Friedrich A. Hayek, The Constitution of Liberty
• Daniel Bell, The End of Ideology: On the Exhaustion of Political Ideas in the Fifties
• Arthur M. Schlesinger, Jr., The Politics of Upheaval: The Age of Roosevelt
• Dr. Seuss, Green Eggs and Ham and One Fish Two Fish Red Fish Blue Fish
• Scott O’Dell, Island of the Blue Dolphins
• John Barth, The Sot-Weed Factor
• Jean-Paul Sartre, Critique de la raison dialectique

[....]

Consider the films and television shows from 1960 that would have become available this year. Fans could share clips with friends or incorporate them into homages. Local theaters could show the full features. Libraries and archivists would be free to digitize and preserve them. Here are a few of the movies that we won’t see in the public domain for another 39 years.

• The Time Machine
• Psycho
• Spartacus
• Exodus
• The Apartment
• Inherit the Wind
• The Magnificent Seven
• Ocean’s 11
• The Alamo
• The Andy Griffith Show (first episodes)
• The Flintstones (first episodes)

[....]

What 1960 music could you have used without fear of a lawsuit? If you wanted to find guitar tabs or sheet music and freely use some of the great music from this year, January 1, 2017 would have been a rocking day for you under earlier copyright laws. Elvis Presley’s hit song It’s Now or Never (Wally Gold, Aaron Schroeder) would be available. So would Only the lonely (know the way I feel) (Roy Orbison, Joe Melson), Save the Last Dance for Me (Mort Shuman, Jerome Pomus), and Itsy Bitsy Teenie Weenie Yellow Polka Dot Bikini (Paul J. Vance, Lee Pockriss). Your school would be free to stage public performances of the songs from the musical Camelot (Alan Jay Lerner, Frederick Loewe). Or you could set a video to Harry Belafonte’s Grizzly Bear (Harry Belafonte, Robert DeCormier, Milt Okun) from Swing Dat Hammer. Today, these musical works remain copyrighted until 2056.

The analysis goes on to cover important scientific work, locked up behind a paywall and not available to the public. And it also notes that many works from 1988 would also be available for the public domain, under the old system of having a copyright for 28 years, and then being renewed for 28 years. Many, many copyright holders in the past chose not to renew after 28 years, so many works from 1988 would likely have entered the public domain.

Of course, some countries are at least marginally better off. Another site, the Public Domain Review highlights a bunch of works that are now in the public domain in other countries. For countries that have a "life + 70" system, that means any creator who passed away in 1946 -- including Gertrude Stein, H. G. Wells, W. C. Fields and Alfred Stieglitz. For countries that have a "life + 50" system, it means the works of any creator who passed away in 1966 -- which includes Walt Disney, Buster Keaton, Evelyn Waugh and Lenny Bruce.

But, of course, none of that applies to the US. Even though we're now under a "life + 70" system, for any work published between 1923 and 1977 (and where the 28-year renewal wasn't missed), our lovely Congress decided to ignore the "life + nonsense" and just slap a 95-year term on the work (it was originally 75 years, but, of course, the wonders of retroactive copyright term extension made it 95 years). And that's why we never see any new works entering the public domain in the US and haven't for years.

For those who actually understand and recognize the importance and value of a thriving public domain, this continues to be both a farce and an insult to culture.

Filed Under: copyright, copyright extension, copyright term extension, public domain, us

More Evidence Of How Copyright Makes Culture Disappear In A Giant Black Hole

from the more-distressing-data dept

A few years ago, we first wrote about the supposed missing black hole of culture due to copyright, based on some excellent research by Paul Heald, looking at the availability of new books on Amazon based on the years they were published. It produced this chart: As you can see, there are a bunch of recent books, then a huge drop off... until a sudden spike at 1922 -- also known as the year before which nearly all books are in the public domain. That giant gaping hole on the right side of the graph should be pretty distressing. It counters the totally false narrative by certain legacy copyright system supporters that copyright is necessary to get books published and also that without copyright, no one would bother to sell the works, because they could just be copied by others. But, more importantly, it shows how much important culture is totally locked up because of copyright law -- unable to be published by those who'd like to offer them, and not worth it for the copyright holders to actually publish.

Late last year, EU Parliament Julia Reda published a similar chart concerning the EU: That one also looked at books, in the same manner as Heald's original research. On top of that, Heald himself has continued to explore this issue, including comparing new books to used books and also looking at the music space.

Now we've got even more evidence of how copyright kills such culture. Europeana has taken a similar look at a large corpus of digitized works in Europe and mapped it out. Guess what? Despite being a totally different data set, the graphic looks astoundingly similar: Of course, the "black hole" in this case only goes back to the early 1940s, rather than the 1920s, because copyright terms in Europe tend to be life plus 50 rather than life plus 70, but there have been some efforts to change that as well.

Once again, this should raise serious questions about the problems of copyright term length. It seems fairly obvious that at their current length, copyright terms are actively suppressing a ridiculous amount of cultural output, much of it likely to be lost forever to history -- as by the time it actually goes into the public domain, it may not even exist any more. This is a pretty big problem -- especially given all the claims about how necessary copyright supposedly is for protecting culture. It seems fairly clear from these charts that it's frequently doing the opposite.

And yet... rather than fix this aspect of copyright law, policy makers seem to be focused on making it worse. The final version of the TPP agreement forces all countries who sign on to move to life plus 70 instead of life plus 50. It's likely that the TTIP agreement will include some similar provisions.

Every time we post these charts, we also post this chart from William Patry's book Moral Panics and the Copyright Wars, which showed the copyright renewal rates on various works in 1958 and 1959, back when you had to "renew" your copyright after 28 years. As the chart makes clear, for most types of works the copyright is clearly worth basically nothing after 28 years. Movies are the main exception, as are some maps and at least some musical compositions (this was in a time before sound recordings could even get a federal copyright, though I imagine those might have a decently high renewal rate, probably at least on par with musical compositions).

All of this should raise serious questions about why we have copyright terms that are so long when the vast majority of content doesn't value that protection and (more importantly) the clearly visible harm to culture and public knowledge created by such long copyright term lengths. And, again, it raises the question of why we don't move to a system whereby copyright holders should be required to renew their copyright at specific intervals, to make sure that such monopoly rights are still more valuable than the public interest in those works.

And, in the meantime, anyone pushing for longer copyright terms, given how much of this information is now out there, is outing themselves as someone who is clearly against the public interest and shouldn't be taken seriously. And that includes the current negotiators from the USTR who pushed strongly for the copyright expansion in the TPP in the face of all of this evidence.

Filed Under: black hole, copyright, copyright term, copyright term extension, culture, europe, public domain

New Zealand Confirms That TPP Would Extend Copyright Terms In Many Countries, Block US Plans To Reduce Terms

from the total-failure dept

Previously leaked reports and drafts of the TPP agreement had showed that the US and Australia were strongly pushing other countries to extend the minimum copyright terms to "life plus 70 years," up from the international norm of "life plus 50 years." Mexico was actually pushing for life plus 100 at one point. This seemed bizarre to us. It's hard to see how anyone could legitimately support extending copyright terms, but the USTR refused to back down. This made no sense, given that here in the US, as we undergo a major copyright reform effort, even the head of the US Copyright Office has admitted that perhaps it's time to start moving back towards life plus 50 years here in the US.

So, now with the TPP concluded and no one willing to release the actual text, New Zealand has at least admitted that it and Canada caved and agreed to put "life plus 70" into the TPP.

TPP requires New Zealand to move to 70 years as well, but allows for a transition to do this over time.

This change could benefit New Zealand artists in some cases, but the benefits are likely to be modest. Extending the copyright period also means New Zealand consumers and businesses will forego savings they otherwise would have made from books, music and films coming off copyright earlier. The net cost of extending New Zealand’s copyright term from 50 to 70 years will be small to begin with and increases gradually over 20 years, reaching a relatively constant level after that. Over the very long term, including the initial 20-year period, the average annual cost is estimated to be around $55 million.

This is hugely problematic and, once again, shows how even if the TPP doesn't directly require changes to current US law, at the very least it locks in a very dumb provision that the US has already expressed interest in changing. And now we won't be able to because an unelected bureaucrat, negotiating behind closed doors with help from the MPAA & RIAA, pushed through provisions like this one.

Filed Under: copyright, copyright term extension, copyright terms, life plus 70, new zealand, public domain, tpp, ustr

Jamaican Government Steals Years Of Public Domain Works From Its People

from the jammin'-the-jammin' dept

Just under four years ago, Techdirt reported that Jamaica was planning something extremely foolish: a retroactive extension to its copyright term. As that article noted, when the European Union did something similar, the European Commission's own figures showed that the move would cost the EU public around one billion Euros, and it was inevitable that the Jamaican people would also lose out if the move went ahead.

The fact that we've heard nothing for four years might have nourished the hope that the Jamaican government had come to its senses, and thrown out any plans it had to short-change its own people in this way. No such luck, of course. Indeed, a depressing post from the EFF reveals that the recently-passed legislation is down there with the worst:

The copyright term in Jamaica is now 95 years from the death of the author, or 95 years from publication for government and corporate works. This makes it the third-longest copyright term in the world, after Mexico and Côte d'Ivoire respectively with 100 and 99 years from the death of the author.

But there's more:

The extension was made retroactive to January 1962. Besides being the year when Jamaica attained independence, 1962 also just so happens to have been the year when Jamaican ska music (a popular genre in its own right, but also a precursor of the even more popular reggae) burst onto the international music scene. The parallels with the extension of the U.S. copyright term in the "Mickey Mouse Protection Act" are quite eerie. But, worse than what happened into the U.S., the retrospective effect of the law means that works that have already passed into the public domain in Jamaica are now to be wrenched back out again.

Under the new copyright law, foreign users of Jamaican copyrights are not bound by the extended copyright term, and yet Jamaicans are obliged to honor foreign copyrights for the full extended term. As the EFF notes:

all that this measure has accomplished is that citizens of Jamaica, a developing country, will be paying more money into Hollywood's coffers, while Jamaica's own rich cultural heritage draws in not a penny more in return.

What's especially ridiculous here is that Jamaica's own ska and reggae success owed much to the lack of copyright protections at the time. It was that lack of copyright enforcement that allowed the music to spread and become a global phenomenon.

This law is so bad that you might hope a future Jamaican government would simply repeal it. After all, there is no rule that says copyright can only be extended, never shortened -- that it is subject to an irreversible ratchet. But imagine what would happen if this were proposed. Copyright companies and artists would be apoplectic, and doubtless start screaming that their rights and property were being being "stolen," because something they had would be taken away from them under the change.

But the same logic applies to situations where copyright is extended, and the passage of works into the public domain delayed, especially if works that are already in the public domain are actively removed from it. In this case, the public has inarguably had something taken away from it -- a right to use a huge number of works in any way without needing to obtain a license from somebody. And that, of course, is exactly what has happened in Jamaica, thanks to the introduction of this retroactive 45-year term extension. It's a perfect example of real copyright theft, not the fake kind claimed so often by fans of a greedy intellectual monopoly that always wants more.

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

Filed Under: copyright, copyright term extension, copyright terms, jamaica

Can You Really Be A Copyright Expert If You Think Copyright Should Last Forever?

from the all-kinds-of-cluelessness dept

A couple months ago, a so-called "expert" in copyright law in Australia, Dr. George Baker, the director for the Centre of Law and Economics at the Australian National University, argued that rather than pushing back on over aggressive copyright law, New Zealand ought to be making copyright law a lot more strict, to the point that he actually argued copyright should last forever:

"Why not have copyright law like property law - ie it lasts forever?"

And then he claimed -- really -- that if copyright law were infinite it "would in turn increase the investment in industries like music." Does he have any support for this at all? If you look through the actual academic evidence on these things, no one has ever found any proof that longer and longer copyrights leads to greater investment. It's not as though Universal Music is going to think "gee, if only copyright lasted another century we'd invest more in it now." No one makes decisions like that. A key study from 1998 (the last time the US extended copyrights) in fact found that increasing copyright terms would "not be a useful" as an incentive to create more content. Even more ridiculous is Baker's focus on music, as that same study pointed out that, of all the major types of content, the revenue generated by copyright extension would have the smallest impact on music.

But Baker isn't done with his ignorance. He's also against any kind of fair use/fair dealing, even for research. Yes, this is an academic arguing against research exceptions to copyright.

Dr Barker was also critical of the exceptions that have crept in.

"It has become like Swiss cheese where someone can turn up and say I'm doing research and therefore I don't have to pay you copyright. It makes it impossible to secure investment in creative goods."

Impossible? Is he crazy? The US has decently broad fair use rights. Is he seriously arguing that it's "impossible to secure investment in creative goods" in the US because of our fair use policy? No serious person would ever make such an argument, which raises questions about just how serious Dr. Baker truly is.

Meanwhile, over at the EFF's Deeplinks blog, another New Zealand based academic, Eric Crampton, has posted a detailed rebuttal explaining why the idea of an infinite copyright is absolutely ridiculous.

So why shouldn’t copyright be infinite?

Five years ago, Larrikin Music, who bought the rights to an old Australian folk song, sued Men At Work for including an 11-note flute sequence from it in their 80s-hit, “Down Under”. Where Men At Work had intended homage in its celebration of all things Australian, Larrikin, and the law, saw copyright infringement.

But does that really go far enough? If an 11-note sequence counts as infringement, how much do modern artists owe Pachelbel’s descendants? The four-chord sequence making up the core of his Canon in D has been repeated in dozens, if not hundreds, of subsequent songs. Should evidence produced by Australia’s Axis of Awesome be used in copyright lawsuits by anyone who can document that, ten generations back, Johann Pachelbel was a great-great-grandfather? It seems absurd.

Even from the perspective of a profit-seeking artist, copyright is a double-edged sword. Stronger copyright both increases the rewards from having produced a piece of work and increases the cost of creating new works.

As the piece concludes:

Current creators draw on a global commons in their artistic creations, and future generations of artists deserve a commons too

A true expert in copyright would actually understand that simple fact.

Filed Under: copyright, copyright term extension, copyright terms, eric crampton, george baker, infinite copyright, new zealand, tpp

Now That USTR Has Fast Track, Hollywood Ramps Up Demands While USTR Brushes Off Public Interest Group Concerns

from the because-of-course dept

You had to know this was going to happen. Now that the US Trade Rep (USTR) has fast track authority after Congress caved in and passed the Trade Promotion Authority bill, efforts have ramped up to complete the Trans Pacific Partnership Agreement with meetings in Hawaii this week. Of course, with fast track in hand, the USTR doesn't need to concern itself at all with things like the "public interest" anymore and can focus on the real agenda: big corporate interests. Reports from the negotiations include one from the legal policy adviser from Doctors Without Borders, noting that the USTR organized a briefing for "US stakeholders," but only invited industry representatives. Oh, and the US Chamber of Commerce (the main lobbyists for SOPA) was allowed to book a room next to the negotiating room and got a private briefing from the USTR. Meanwhile, James Love from KEI notes that in a USTR briefing, USTR staffers are deliberately ignoring anyone representing the public interest.

You know who they are listening to, however? You guessed it: Hollywood. Politico notes that now that fast track is in hand and the USTR has more or less free rein in completing the negotiations, Hollywood has jumped in with a bunch of demands to expand copyright laws via TPP:

We've seen the Hollywood versus tech copyright fight play out over everything from SOPA to the Library of Congress. Now the major movie studios are pushing for key items on their wish list as negotiators hammer out the final details of an Asia-Pacific trade agreement. The studios hope the 12 countries working on the pact will agree to copyright protections that, in many cases, last longer than what’s currently in place, Pro Trade’s Doug Palmer reports.

The movie studios also want stricter penalties on piracy, especially as Internet access expands throughout the region.

And, because the USTR almost always gives in to Hollywood (it helps that the MPAA hired the top USTR negotiator on IP last year, so the current negotiators recognize that their next jobs are on the line with this agreement), it appears that the US has convinced a bunch of other countries -- who should know better -- to agree to lock in a life + 70-year copyright term, even as the US Copyright Office has suggested that current copyright terms are too long and should be scaled back.

There is no way to explain this as anything but selling out the public interest to appease corporate interests of Hollywood. It's a fairly disgusting display of the kind of "dealmaking" that the USTR has been pushing for more quietly for years, but now that it has fast track, it knows it can play hardball to help its friends in Hollywood. Fuck the public domain, Hollywood wants to keep getting paid for works from decades ago.

Filed Under: copyright term, copyright term extension, fast track, hollywood, life plus 70, tpp, ustr
Companies: mpaa, us chamber of commerce