Recording Industry Whines That It's Too Costly To Keep Copyright Terms At Life Plus 50, Instead Of Life Plus 70

from the wait,-what? dept

Okay. I've heard lots of crazy arguments from the record labels, but I may have found the craziest. We've discussed how ridiculous it is that the TPP includes a provision saying that every country that signs on must make sure the minimum copyright term is life plus 70 years. This will impact many of the countries that negotiated the agreement, which currently have terms set at life plus 50. This was a key point that the recording industry and Hollywood fought hard for. When even the Copyright Office recognizes that life plus 70 is too long in many cases, the legacy industries recognized that getting copyright term extension through Congress in the US might be difficult -- so why not lock stuff in via international agreements?

And, of course, the USTR was fine with this, because the USTR goes along with basically everything that Hollywood asks for. But here's the crazy part: having gotten such a ridiculous thing, the recording industry is whining about its own victory. As Kimberlee Weatherall points out, the recording industry in New Zealand is bitching about the fact that the change doesn't go into effect immediately because it's "too costly" for copyright holders.

That's because the TPP has a "phase-in period" that allows countries to adjust and gradually move copyright terms upwards. But the record labels are having none of that:

Meeting before a parliamentary committee this week, Recorded Music chief executive Damian Vaughan said his advocacy group supports an article in the TPP deal that standardizes the terms of protection of a work to the life of an author plus 70 years. (New Zealand is one of several participating nations that currently has a term of 50 years after death.) However, Vaughan thinks a proposed phase-in period for nations upgrading to 70 years is unnecessary and a costly burden for rights holders.

"It's not making copyright simple or easy to understand to the music user or the public whatsoever," he said, according to RadioNZ. "It is making the process significantly more complicated, and it's the rights organizations and the copyright holders who will be forced to administer this… We note the cost we incur will be far higher than any perceived cost savings."

Now, think about what Vaughan is really saying here. Let's be clear: copyright term extension is deliberately removing these works from the public domain. When they were created, a deal was struck between the public and the content creator. That deal said "this work goes into the public domain, but to give you incentive to create it in the first place, we'll give you some limited exclusive rights for this amount of time." That's the deal that was struck. But, now, with copyright term extension, that deal gets thrown out, screwing over the public. They don't get anything back despite the fact that material that was destined for the public no longer is. So there's a massive cost to the public and no payment whatsoever. That's problematic alone.

And to make things even more obnoxious, Mr. Vaughan is whining that not being able to fuck over the public fast enough is unfair because it puts too much "cost" on the record labels? REALLY? Boo fucking hoo. You were the ones who pushed for extending copyright terms, and now you want to whine that it might be too costly to administer the process? Fine, fuck it. Let's just toss out the extension and maybe consider decreasing copyright terms overall. That'll give the record labels a lot less to administer, saving them lots and lots of money. Oh, and also giving the public what they were promised. Seems like a good deal all around.

Filed Under: copyright, copyright terms, new zealand, recording industry, term extension

Copyright History: The Strange Case Of A Book Authored By Mark Twain Via A Ouija Board

from the death-strokes dept

Mark Twain can be the subject of fascinating discussion for any number of reasons, but around these parts we talk intellectual property. Some years back, Mike wrote about Twain's support for copyright extensions, including when he even went so far as to advocate for infinite copyright. Well, it turns out that Twain's concept of infinite copyright might have been particularly germane to his legacy, as EFF's Parker Higgins takes us on a delightful stroll, over at Fusion, through the historical copyright case concerning the novel Twain might or might not have written...from beyond the grave.

The year 1917 was apparently a time in some ways even stranger than our own, in which the public was wrapped up in its interest in the occult. It was during that time that an author by the name of Emily Grant Hutchings attempted to publish the latest work of Twain's, entitled Jap Herron. Twain, the pen name of Samuel Clemens, had died in 1910, seven years earlier. So, how did Hutchings get Twain to write this book even as his body decomposed below ground? Why, through a Ouija board, of course!

The novel Jap Herron was published with an introduction by the purported transcriptionist, a journalist and author from St. Louis named Emily Grant Hutchings, about the book’s mystical origins. It came out in the midst of a “spiritualism” craze in the United States; its Bookman review, which noted that it was “unquestionably in Mark Twain’s style,” was titled “Another ‘Ouija Board’ Book.” Jap Herron wasn’t the first novel dictated from beyond the grave, but it had the highest profile “author,” which considerably raised the stakes.

This created a stir for all of the obvious reasons, but it turns out there was an intellectual property angle to the release of the book as well. The estate of Twain simultaneously expressed its skepticism that the book was authored from beyond the mortal coil, but it also insisted that if that were indeed the case then the estate owned the rights to the book and that publishing it ought to have been done through Harper & Brothers, with whom the estate had a contract for all of Twain's works. But copyright wasn't the only concern involved, either.

At the heart of the case were some novel legal questions: Can the law recognize a dead person as the author of a new work? And if so, could Twain’s ghost (or its human mouthpiece), wiggle out of Twain’s agreement with Harper & Brothers to publish all of his books? Finally, even if those copyright hurdles could be cleared, what about using Twain’s pen name, which the publisher held as a registered trademark? (Twain’s legal name was Samuel Clemens.)

This put Hutchings in a bind: using Twain's trademarked name in publishing Jap Herron served as a source identifier for consumers, helping her in that dispute, but doing so meant that the copyright of the book ought then to belong to Twain's estate. Going the opposite route and leaving Twain's authorship out of the claim relieved the copyright concern, but then any use of Twain's name would appear to be trademark infringement. Hutchings apparently tried to walk a fine line in this.

It seems Hutchings and Kennerley made a weak attempt to pursue this middle path by leaving Twain’s name off the cover—but they included his extremely recognizable picture, along with the caption “A Novel From The Ouija Board.” Even that wink-and-nudge act disappears by the book’s introduction, which describes the grueling ouija sessions in detail, and claims there’s no doubt that the novel is “the actual post-mortem work of Samuel L. Clemens.” To go any further in the distancing efforts would, of course, zap much of the appeal of the novel.

Harper & Brothers filed a complaint anyway, including a claim that the publishing of the book would bring harm to Twain's reputation and the value of the trademark on his pen name. Based on reviews at the time of the novel, that claim appears likely to be true.

It would have been interesting to see the results of the case had it gone to trial. Term lengths for copyright, after all, are dependent on a clear delineation between life and death. If death were to no longer be a barrier to authorship, the concept of copyright terms juxtaposed to its purpose of encouraging creative works would be turned on its head. After all, if one could create from death a work for the living, then death ought make no difference on matters of copyright terms.

Sadly, the mortal world never got to see that trial.

Alas, Hutchings and her publisher saw the writing on the wall and didn’t like their odds. Before the case could proceed through litigation, they agreed to pull the book from the shelves. As a result, paper copies from that era are rare and tend to fetch three- and four-figure prices at auction.

The paranormal copyright questions seem to have faded, and now Jap Herron has an immortality of its own: It is widely available online today. There’s no telling how Mark Twain or his publisher would have felt about that development. At press time, Twain did not respond to a request for comment.

So when we think about some of the insane copyright cases we see these days, remember that there once was a dispute over the rights ownership of a novel purportedly authored by Mark Twain from beyond the grave.

Filed Under: copyright, copyright terms, emily grant hutchings, history, jap herron, mark twain, ouija board, samuel clemens, trademark

Here We Go Again: All The Works That Should Now Be In The Public Domain, But Aren't

from the *sigh* dept

Each year, for the past few years, the wonderful Center for the Study of the Public Domain at Duke University publishes a blog post highlighting key works that should have entered the public domain on January first, but did not. And each year, we write about it again. Here is the list for 2016. These are mostly works that were published in 1959. Under the law at the time they were created, the maximum copyright term was 56 years, and that apparently was more than enough of a bargain for the work to be created. That we retroactively extended those works, taking away the public domain for no actual benefit, remains a travesty. The list includes books like Robert Heinlein's Starship Troopers, William Burroughs' The Naked Lunch, Richard Condon's The Manchurian Candidate, and Strunk and White's famed The Elements of Style. Films that should be in the public domain today include Ben-Hur, North by Northwest, and Some Like It Hot. The original season of the seminal Rocky and Bullwinkle show would also be in the public domain.

Not surprisingly, if horrifically disappointingly, the blog post points out that many of the movies that should be going into the public domain were, themselves, built on public domain works:

Many of these movies were built on public domain works. Ben-Hur was based on Lew Wallace’s novel Ben-Hur: A Tale of the Christ (1880). Sleeping Beauty drew on fairy tales including Charles Perrault’s La Belle au bois dormant (1697) (itself based on earlier fairy tales) and the Brothers Grimm’s later version of Perrault’s story (1812). Journey to Center of the Earth adapted Jules Verne’s 1864 novel of the same name. One work inspires another. That is how the public domain feeds creativity.

But if you wanted to continue to build on those works, too fucking bad. What a massive loss to culture.

The post also details music that should be in the public domain (including Miles Davis' Kind of Blue and the original score to The Sound of Music). Even more terrible is scientific research that is still locked away:

1959 was another noteworthy year for science. C. P. Snow presented The Two Cultures and the Scientific Revolution, an influential lecture about the gulf between the sciences and the humanities. The programming language COBOL was developed. Martin Gardner published the Three Prisoners Problem, a probability theory paradox, in his “Mathematical Games” column in Scientific American. Giuseppe Cocconi and Philip Morrison published Searching for Interstellar Communications, a foundational work for the search for extraterrestrial intelligence, in the journal Nature.

If you follow the link from Nature above (and you do not have a subscription or institutional access), you will see that this 1959 article is behind a paywall. You can purchase it for $32. A distressing number of scientific articles from 1959 require payment or a subscription or account, including those in major journals such as Science and JAMA. And the institutional access that many top scientists enjoy is not guaranteed—even institutions such as Harvard have considered canceling their subscriptions because they could no longer afford the escalating prices of major journal subscriptions.

I hate writing this post each year. It's incredibly depressing. What's worse is when we see people who claim to support "artists' rights" or who claim to be supporters of culture not realize how damaging this is to their own creative output. The usual refrain of "just make your own work" is so ignorant as to be laughable. Everyone builds on the works of those who came before, but thanks to all of this copyright extension we're seeing culture disappear into a giant blackhole. And, even worse, rather than fix this problem, the US government seems focused on making it worse. The TPP agreement would block the US from being allowed to roll back copyright terms, while forcing many other countries to extend their own copyright terms.

It is difficult to see how anyone can support such blatant destruction of culture.

Filed Under: copyright, copyright terms, culture, public domain

Pure Copyfraud: Anne Frank Foundation Trying To Pretend Her Father Wrote Her Diary... To Extend Its Copyright

from the copyright-term-stupidity dept

Quick: who is the author of the famous Diary of Anne Frank? If you said "Anne Frank" you'd be correct -- but thanks to copyright law, the Foundation that holds the copyright on the book is now trying to add her father's name as a co-author, all because of copyright law.

The move has a practical effect: It extends the copyright from Jan. 1, when it is set to expire in most of Europe, to the end of 2050. Copyrights in Europe generally end 70 years after an author’s death. Anne Frank died 70 years ago at Bergen-Belsen, a concentration camp, and Otto Frank died in 1980. Extending the copyright would block others from being able to publish the book without paying royalties or receiving permission.

Of course, there are some problems with this, including the fact that in the original publication of the diary, Otto Frank wrote a prologue insisting that the entire diary was written by his late daughter. The Anne Frank Fonds organization in Basel Switzerland currently holds the copyright, but the Anne Frank House Museum in Amsterdam -- which is a totally separate organization -- had been relying on the upcoming expectation that the book would move back into the public domain to apparently create a public version of the diary.

The museum has been working for five years with historians and researchers on an elaborate web version of the diary intended for publication once the copyright expires. The research is still progressing with a historical and textual analysis of her writing, including deletions, corrections and stains.

Meaning, the two organizations connected to Anne Frank's legacy may end up in court sparring over the copyright on the diary.

Which, you know, should at least raise the following question: who in their right mind thinks that copyright was the "incentive" necessary for Anne Frank to write her diary? I'm sure that the revenue from the sales on the book have been quite good to the foundation, and I'll even assume the foundation has done good things with that money in Frank's memory. But that doesn't justify gaming the system to keep the work out of the public domain, where it is likely to do even more good.

Even more to the point: Otto Frank had over 20 years to claim that he was a co-author. And he did not. It's already somewhat questionable that we extend copyright after death, but to enable an organization to claim that someone else has had a copyright in a work decades after his death when he did nothing during his own life to claim it seems exceptionally questionable.

One of Anne’s own astute diary entries seemed to anticipate the disputes: “Why do grown-ups quarrel so easily?”

In this case, the answer is: "because of screwed up copyright law and, of course, lots and lots and lots of money."

Of course, the folks who run the foundation are pulling out bogus arguments about protecting Anne. Because they're liars.

The foundation’s officials said that their aim is to “make sure that Anne Frank stays Anne,” Mr. Kugelmann said, by maintaining control and avoiding inappropriate exploitation of the work. “When she died, she was a young girl who was not even 16. We are protecting her. That is our task.”

Critics, he said, are wrongly looking at the intended change as a financial matter. “It is not about the money,” he said.

Except that's not the purpose of copyright law. And, at some point the book is going into the public domain no matter what. So what is he really "protecting"? The only thing that this protects is the money. That's it.

Oh, and in the meantime, none of this really matters, because as the link above notes, in 1991, an editor named Mirjam Pressler "revised, edited and added 25 percent more material from Anne Frank's diary for what was called a 'definitive edition'." And, amazingly, Pressler was given the copyright on that edition, which she then transferred to the foundation. As the report notes, Pressler is still alive, and thus the Foundation will retain the copyright on that larger edition at least until 70 years after Pressler passes away.

And, of course, since that misleadingly titled "definitive edition" in 1991, additional content has been released as well. In 2001 some extra pages were published. Apparently, those were subject to something of a copyright fight as well -- with the Netherlands State Institute for War Documentation claiming to hold the rights to them and the same Anne Frank Fonds organization claiming that it was "absolutely illegal" for Otto Frank's friend to share the pages with an author. Eventually that fight was settled when a $300,000 donation was made.

And, of course, even more recently, the same foundation apparently released a fully "unedited" version that put back in a bunch of the stuff that had been cut out of all previous versions (which some deemed to be scandalous). Of course, as an unedited version, there shouldn't be any claim to a separate author -- so in theory that complete version should be entering the public domain in many countries in just a couple months. Of course, here in the US, where we keep extending copyright terms, we've got to wait longer anyway. Because, again, without that, why would there be any incentive at all for her to have written her diary...

Filed Under: anne frank, copyfraud, copyright, copyright terms, diary of anne frank, otto frank
Companies: anne frank fonds, anne frank house museum

Copyright Terms And How Historical Journalism Is Disappearing

from the into-the-memory-hole dept

The National Endowment for the Humanities announced last Wednesday the "Chronicling America" contest to create projects out of historical newspaper data. The contest is supposed to showcase the history of the United States through the lens of a popular (and somewhat ephemeral) news format. But looking at the limits of the archival data, another story emerges: the dark cloud of copyright's legal uncertainty is threatening the ability of amateur and even professional historians to explore the last century as they might explore the ones before it.

Consider that the National Digital Newspaper Program holds the history of American newspapers only up until 1922. (It originally focused on material from 1900-1910 and gradually expanded outwards to cover material from as early as 1836.) Those years may seem arbitrary—and it makes sense that there would be some cut-off date for a historical archive—but for copyright nerds 1922 rings some bells: it's the latest date from which people can confidently declare a published work is in the public domain. Thanks to the arcane and byzantine rules created by 11 copyright term extensions in the years between 1962 and 1998, determining whether a work from any later requires consulting a flow chart from hell—the simple version of which, published by the Samuelson Clinic last year, runs to 50 pages.

The result is what's been dubbed "The Missing 20th Century," after it was brought to light by the striking research of Paul Heald, which shows copyright restrictions are tightly correlated with the lack of commercial availability of books. He analyzed the titles available in Amazon's warehouses to find a steep drop-off in titles first published after 1923, which carries through until just the last few years. As Heald's research shows, the number of books available from the 1850s is double the number available from 1950.

Despite what advocates of copyright term extensions like to say, the data suggests that after the first few years of a book's publication, publishers as a group are much less willing to print a text that's under copyright than one in the public domain.

The situation with newspapers is worse. After all, while books may tend to see their value to readers taper off after a few years after publication, for newspapers that same tapering happened in just days. Today's newspaper issue may be incredibly valuable in the right hands, but yesterday's is more likely to line bird cages or wrap fish than to end up preserved for posterity.

The big players keep their own archives. The New York Times, for example, makes articles available dating back to 1851. But that's an incomplete solution for two major reasons. For one thing, it sets up a single point of failure that could allow catastrophic losses. Just last month, flooding threatened a priceless collection of photos in the New York Times archive; had those images been digitized and widely copied, no single flood or fire would pose a risk. But also, even a robust archive from a major publication like the Times can't provide the kinds of insights that come from looking at a diverse collection from multiple different sources.

In the world of media journalism, we talk a lot about the future. But we can't have a coherent conversation about that without thinking about the past and the present. And those thoughts, in turn, rely on access to the history that we've allowed to be locked up under effectively unlimited copyright restrictions or as orphan works.

Because this issue is bigger than the entries into a particular contest, or the way today's history students can explore the past. The Atlantic documented last month the near-total disappearance of a groundbreaking series of investigative journalism from just eight years back. If copyright continues to jeopardize the unrestricted ability of archivists and researchers to preserve and contextualize our history, how much will we lose?

Filed Under: archives, chronicling america, copyright, copyright terms, history, journalism, missing 20th century

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.

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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

While Other Countries Debate Copyright Terms, Canada Just Takes Record Labels' Word That It Needs To Increase

from the because-of-course dept

Pretty much since the dawn of copyright, there have been debates about what the proper length of copyright's term should be. Sometimes these debates can be heated and passionate. Go all the way back to 1841, in the UK, where Thomas Macaulay gave his famous speech against copyright term extension, in which he noted how it was being done based on no actual evidence of necessity:

Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. My honorable and learned friend talks very contemptuously of those who are led away by the theory that monopoly makes things dear. That monopoly makes things dear is certainly a theory, as all the great truths which have been established by the experience of all ages and nations, and which are taken for granted in all reasonings, may be said to be theories. It is a theory in the same sense in which it is a theory, that day and night follow each other, that lead is heavier than water, that bread nourishes, that arsenic poisons, that alcohol intoxicates.

If, as my honorable and learned friend seems to think, the whole world is in the wrong on this point, if the real effect of monopoly is to make articles good and cheap, why does he stop short in his career of change? Why does he limit the operation of so salutary a principle to sixty years? Why does he consent to anything short of a perpetuity? He told us that in consenting to anything short of a perpetuity he was making a compromise between extreme right and expediency. But if his opinion about monopoly be correct, extreme right and expediency would coincide. Or rather why should we not restore the monopoly of the East India trade to the East India Company? Why should we no revive all those old monopolies which, in Elizabeths reign, galled our fathers so severely that, maddened by intolerable wrong, they opposed to their sovereign a resistance before which her haughty spirit quailed for the first and for the last time? Was it the cheapness and excellence of commodities that then so violently stirred the indignation of the English people?

I believe, Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Companys monopoly of tea, or by Lord Essexs monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil but the evil ought not to last a day longer than is necessary for the purpose of securing the good.

Since then, of course, there have been many, many debates on the proper length of copyright terms. But usually, at the very least there is some debate about it, with people weighing in on various sides.

That's why it was somewhat astounding, last month, when Canada just announced with no warning that it was extending copyright as part of a budget update. There was no discussion around it. No public debate. Nothing at all.

And, now, as Michael Geist has discovered, Prime Minister Stephen Harper's correspondence with the recording industry shows that he just decided to ratchet up copyright term himself, without even asking for public input or even bothering to consider how such a move might harm the public.

Thank you for your recent letter regarding the copyright term for sound recordings. I have reviewed this material carefully, and share your view that the current term of copyright protection for sound recordings falls short of what is required to protect artists and ensure they are fairly compensated for their work.

Please know that, as announced today in Budget 2015, our Government will extend copyright protection for sound recordings from 50 to 70 years. The extension will be incorporated into the Budget Implementation Act, and will be in effect immediately upon passage of the legislation.

This is quite incredible on many different levels. Harper must know that any change to copyright law is controversial and deserves public debate and discussion. After all, he's been through a few debates concerning copyright reform in Canada. Did he really think that he could just do this without anyone noticing?

And, really, considering that this is a move to flat out take away the public's rights, you'd have to think that it's only appropriate to at least hold a public discussion about whether or not extending copyright in such a manner makes sense. But, nope. The head of the Canadian recording industry lobby sent a letter, and Harper said "Sure, let's slip that into the budget."

As Michael Geist notes, the whole thing is incredible on many levels:

The letter is remarkable as it confirms that the copyright term extension for sound recordings was strictly the product of behind-the-scenes industry lobbying with no broader public consultation or discussion. While other countries spent years debating the issue with careful study, the Canadian government simply caved on the issue based on a little lobbying from foreign record labels. The Conservative government did not consult with Canadian companies or retailers about the impact of their changes, nor did they dig into the data that would have revealed that this change will decrease revenues for many artists. Instead, the major record labels pulled out all the stops to block competitive new records from entering the marketplace and the Prime Minister obliged by including copyright reforms in a budget bill.

Filed Under: canada, copyright, copyright terms, debate, lobbying, stephen harper

UK Green Party Speculates On Idea To Shorten Copyright To 14 Years... Leading To Mass Freakout

from the copyright-term-insanity dept

Last week, the Green Party in the UK got a bunch of attention when someone noticed its "Policies for a Sustainable Society" had put in a clause advocating for lessening copyright terms down to 14 years (which you may note is the same as it was originally in the Statute of Anne -- as well as under the original US copyright law). By itself, it's not a crazy idea and, in fact, it's one that's been advocated by a variety of people as a better way to benefit the public. And, indeed, when questioned about it, someone from the Green Party said that this was based on the research of Rufus Pollock, who had argued that 14 years was an optimal time period for copyright length (we wrote about this years ago, and Pollock actually recommends 15 years based on his research). In short, there are perfectly legitimate reasons to argue for a 14-year copyright term (hell, patents only last 20 years, and there's plenty of debate on how that's way too long as well). Furthermore, as we've discussed plenty of times, back when the US had terms of 28 years and then you could renew for another 28 years, the vast majority of copyright holders (outside of movie copyright holders), chose not to renew, suggesting that there was little benefit in copyright terms so long: Either way, it appears that the whole thing was overblown. As Tom Chance (the former Green Party spokesperson for Intellectual Property) explained in great detail, those Policies for a Sustainable Society are decided democratically by members of the party, and are a more long-term vision, rather than short-term plans. And, more importantly, the actual plan was for it to be "life plus 14":

The vision then goes on to propose “generally shorter copyright terms, with a usual maximum of 14 years”. By this, we mean that rather than the current maximum of 70 years after the creator’s death, it should only be 14 years after their death. Unfortunately, as written, this appears a bit ambiguous and has caused confusion, so it needs clearing up!

Honestly, this doesn't make much sense either. If, as the Greens claimed, they were basing the plan on Rufus Pollock's research, then "life plus 14 years" doesn't fit at all. Frankly, some of this sounds like a cop-out by a Green Party that had no idea what it was advocating. That doesn't necessarily speak well of the Party.

Either way, a bunch of folks absolutely freaked out over the idea that the Greens might support such a shortening of copyright length, with laughable claims like "how are we supposed to earn a living?"

WHAT? Green Party aim to cut down copyright to 14 years. How are we supposed to earn a living? http://t.co/JF9JBeqVfG pic.twitter.com/dvl1V9Ys06

— Sarah McIntyre (@jabberworks) April 22, 2015

I don't know, but in most jobs, you don't get to keep earning money off the work you did a year ago, let alone 14 years ago.

Either way, as the chart above shows, it appears that the true economic life of most books was at least well short of 28 years. Perhaps there's a magic number between 14 and 28 (again, Pollock suggests it's 15), but it hardly seems like "life plus 14" is really going to create any real hardship for anyone other than the likes of Disney or other multinational corporations.

Alas, none of it really matters, as the confused position of the Green Party quickly resulted in the party backing down and admitting that it will now review its copyright policy. Going back to Tom Chance's post, he gives a reasonable discussion as to why excessive copyright terms are a bad idea, and also highlights that the nature of copyright in the UK and the US was always about benefiting the public, not providing a "natural right" for creators to earn a living.

This is something that all too frequently gets lost in the copyright debates. Copyright system supporters insist that copyright is like a form of welfare: a right to earn money. That's why you see these ridiculous and misleading campaigns lately about "fair compensation" for creators. But that's ridiculous. Many artists make no money at all because no one likes what they produced. Or not enough people. Copyright gives you one way to earn some money, but it was never supposed to be the only system by which creative people made money. The fact that some act as if it's a natural right, and some sort of welfare program that is required to "earn" them a "living" is a perversion of history, and it makes having honest rational discussions about the optimal setup of copyright nearly impossible.

Filed Under: 14 years, copyright, copyright terms, green party, rufus pollock, uk