Reinventing Copyright

Considering the latest You Tube copyright claim debacle, I think it would be a good idea to step back and re-evaluate what copyright should be about in the digital age, and how it should be limited.

As it is right now, copyright has gone too far. The lengths of copyright terms is beyond ridiculous, and very few works enter the public domain. Companies are obsessed with stamping out piracy when piracy is merely a symptom of greater problems. And, ultimately, copyright does more to limit creativity than foster it.

The thing is, the public domain is important to culture - copyright is a relatively recent invention. We've seen countless old tales told again and again in different ways - whether it be classical mythology, the legend of King Arthur, Robin Hood, Dracula, religious concepts, historical events, and countless other things. Some modern works would simply not exist without the public domain. And in the digital age, people are making 'derivative works' of works that are copyrighted, because those works captivated them in the same way that the works of the public domain did, and yet nobody can make money off these works no matter how inventive the expression.

It can also be argued that copyright in its current form does little to benefit to truly benefit public and "promote the progress of science and useful arts" (the purpose of copyright as stated in the United States constitution, contrary to popular belief, compensating the creator is not the constitutional purpose of copyright, but rather to benefit the public). In fact, some would argue that intellectual property is not actually property, but rather a "privilege" with a few property-like... Erm... Properties. It can also be argued that copyright violates every tenant of free market capitalism, as it is, by its very nature, a government-provided monopoly.

That being said, partly the intent of copyright is to ensure that authors are able to have ownership of their works and have legal means of going after people who either don't pay for them or outright claim said works as their own, which is not cool. While the former is going to happen, copyright or not, there is merit in having legal protection against the latter, while preventing the stifling of creativity due to a limited amount of works/concepts entering the public domain.

So, I'm not gonna go into the overly complicated details of lawmaking, so I'm gonna keep this short and simple. I'm somewhat inspired by Derek Khanna's own paper on how copyright law can be scaled down and repaired to some extent.

• Copyright terms, at the minimum, are at roughly 10 years, with a maximum of roughly 40, with multiple extensions between them. The fee for renewal would be a percentage of revenue from the work, and that percentage increases with each additional renewal term. Under such a system, those who are still exploiting the copyright can continue to hold one, but for most, where there is greater benefit to have the work in the public domain, the work goes into the public domain.
• Concepts that are not the exact work itself (that being the exact expression/product), such as the setting, characters and terms, can be used in other works, but the original creator of those concepts must be attributed until the copyright term has expired. A remix/remake of a work must be sufficiently unique from the original (or the copyright owner's permission has been received) before it can be considered legal (such as a cover song, or a complete remake of a game, or if it's a port, the port must have enough new features to justify its existence).
• Such works featuring copyright material can be copyrighted, as long as everything is fully attributed. If there is missing attribution, the work's author can add the missing attribution after being alerted, as long as the attribution request is valid - accidents happen, and people make mistakes, sometimes it's best to er on the side of caution rather than go legal immediately.
• Copyright is automatic, but works can be registered just to be sure, for the sake of proof. Once again, full attribution is required.
• Certain things such as game mechanics, by their very nature, cannot be copyrighted (this is sorta already a thing, but for some strange reason a few game mechanics such as minigames during a loading screen (thanks, Namco) are under copyright).
• Works such as commentary/Let's Plays are also legal as long as proper attribution is provided, and commentary for non-interactive material is separated from the original work in audio form.

I imagine that there'd be a lot more detail required, but hey, it's a start. I think it's a reasonable balance - it provides authors with protection for their works while also providing a pseudo-public domain for other authors to utilize the concepts within those works provided that they give proper credit to the original author.

What's your thoughts?

edited 11th Dec '13 6:47:45 AM by Cronosonic

It's funny you bring this up, because I was just thinking about this same topic last night. In part of my internal monologue, I compared the current state of copyright to a trope or genre that's become the stuff of jokes. So, like any good Troper, I concluded that copyright policy needs to go through a Decon-Recon Switch. In my rant, I concluded it'd have three phases: Determine what works, rip out everything else, and rebuild it back up, all with creativity and the public good in mind. If I rewrote copyright law, here are some things I'd do:

• Leave Fair Use and Public Domain policy largely intact, while adding (but not subtracting) some provisions — like defining satire as Fair Use.
• You mentioned copyright terms would be 10 years, with extensions adding up to 40 years — that's much better than the "50 years for corporate works or natural life of the author" that I was thinking of.
  • And it gives the author a reason to keep making stuff.
• You also mentioned that game mechanics shouldn't be copyrighted — I'd like to add that game mechanics would likely fall under the "software patent" category. As I understand it, patents haven't changed nearly as much — they're still at a 20-year term.
• And, of course, I'd frequently reiterate that it's intended to benefit the public, rather than the author.

But the way it benefits the public is by providing for and encouraging the author (composer, artist, whatever) to be able to keep creating, ideally (that is, if people want their works enough) without having to do it in only the time they can spare from the job that actually supports them. That's why "life of the creator" makes sense.

For corporate copyrights, I'd say fifty years, no extensions. Period.

This raises a question to me. Let's take MLP as an example - would the copyright belong to Hasbro for 50 years from G1? From FIM? Would it last until the death of whoever originally came up with the idea, or could Lauren Faust sign over the rights to Twilight and company for however long she lives?

I would definitely say life of the creator for individual works, having it as 40 years just seems cruel because for a lot of people that would just make them lose it as they hit retirement.

I also think rather than a simple "year" system though to have a "use" clause, that if someone is not using a copyright within a certain period of time it becomes free game. With the internet it's not as difficult to keep things in print in some capacity. I think this sort of thing would be more important for patents, though it would be nice for copyright too.

Gen-1 My Little Pony would be copyright to Hasbro for fifty years. For Lauren Faust to claim the copyright on Friendship is Magic, she'd have to make the case that it's a completely different work, not simply a continuation or outgrowth of the work Hasbro already holds the copyright on. Basically, if she had to license any part of the original to make FIM, she can't copyright it herself.

As to turning the rights over to someone else, of course that would be allowable. But if an individual sells (or other wise turns over) the copyright to a corporation, it now falls under the "corporate copyright" class and lasts for 50 years, rather than "life of the creator". The creator was (presumably) compensated when they sold the rights (and if they weren't, they're an idiot.) This is basically the same way "work-for-hire" operates now: I pay you to create something for me, with the understanding that I will own the rights as well as the finished product.

edited 11th Dec '13 7:13:07 PM by Madrugada

If copyright term length was based on a "use clause," how would that work? Are there units of "usage"? Is usage defined on an "author" or "public" basis? A good idea, but it might need some work.

, I suppose the "no extensions" idea would be better. And, yeah, having a "life of the author" term would be more beneficial to smaller artists, especially ones with Sleeper Hit material.

Here's a thought for the sake of argument — What happens if someone kills the author so a work goes into the Public Domain? Would it enter the public domain immediately? Is there a buffer time? Should the term be expanded as "natural life of the author"?

edited 11th Dec '13 7:24:03 PM by AwSamWeston

Well "use" would be defined as, say for a book, "in print" or "out-of-print." As in if you're not making money off of something you can't just sit on it until your copyright is up. I don't know if it would be a matter of just flat out losing your copyright but in this period you would not be able to accuse people using it with copyright violations.

This isn't really feasible with only analog technology — it's unreasonable to demand a publisher to always be printing all books they have rights to — but now with digital movies, games, books, etc., it's much easier to keep things in print longer.

For copyright stuff it'd just be nice to have but for patents I feel like it's essential for technology to move forward.

edited 11th Dec '13 7:28:35 PM by ohsointocats

Exactly, and it's really easy for them to have them distributed digitally from somewhere. Abandonware is a real issue.

Yes, the point of copyright and patents and intellectual property is so that the creators of something get the money they deserve for coming up with it. However if they are not making money off of it, that should not prevent the rest of the world from benefiting from it. Does that make sense?

How would you determine what the "natural life" of someone who was murdered would have been had they not been killed? It would be a rather arbitrary decision if it was the same set period for everyone, and massively unfair if it was figured for each individual what would you based the decision on — Family history? Average for the time and place they lived?

Maybe the copyright terms expire if the creator dies of natural causes or "Acts of God", but there's a 5- or 10-year buffer period if the creator is killed?

Also, just a random quip: It really says something about Copyright's broken-ness when the artists complain that it's too restrictive.

I think there are too many ways a person could die by accident, as well as too many personal health issues, to attach copyright to a person's lifespan. Nor do I want profit being a measure, as it's too easy to falsify. (How many book authors have friends and family buy books to bolster sales numbers, again?)

My solution is that copyright lasts, like patents, for twenty years (if the rights are not forfeited) after the publication of the last work created under said copyright. Creating and publishing a new work would extend it again. This has the best of both worlds: big companies with old characters like Disney with Mickey Mouse can hold onto them (provided they make use of them) indefinitely, and smaller artists can let things go as they see fit.

edited 11th Dec '13 10:15:04 PM by TotemicHero

Except this makes one of the biggest problems of copyright worse. As long as someone holds onto the copyright and is able to produce works in some capacity, the copyright will never be able to pass on to the public domain, which is bad.

40 years is enough at most. If your latest work doesn't sell gangbusters, it's highly unlikely it's suddenly going to do so at the end of the copyright term. Ultimately, at some point, the public should have the right of access to those works and concepts and be able to do as they like with them - the very notion of an author or group of authors having 'exclusive ownership' of a work is a relatively recent invention, barely a couple of centuries old, if that, and even back then it was devised to benefit companies more than actual authors.

Irony: Back in the early days of the United States, importation of books and inventions from Europe with absolutely no regard for copyright was widely encouraged.

edited 11th Dec '13 11:12:01 PM by Cronosonic

Creator's lifespan + 20 years for individual creators would be good for the creator's survivors and probably adequately discourage people murdering to free up the rights to something.

Also I think with the "use it or lose it" clause of copyright and the second part, that "concepts from a work that are not the exact work" would be enough, I think, to the point where it doesn't matter much if Disney has rights to whatever they have created forever. They can keep selling their Mickey Mouse cartoons but other people can use Mickey Mouse as much as they like.

I have been informed that the "concepts from a work that are not the exact work" clause is potentially ripe for abuse by larger companies who can produce works with larger production values than smaller groups/individuals, and while this is a valid point, this is also true of virtually anything in the public domain, and depends on the type of work being produced. Funny how hardcore Republicans will swear up and down that an unfettered capitalist market can do no wrong, and yet...

Also, while there is the possibility of everyone and their dog making their own stuff using existing characters/settings/concepts commercially, there is an economic incentive to avoid doing the same thing as everyone else - consumers will get tired of it. The death of the Guitar Hero franchise was due to oversaturation.

Though, I have been thinking - in the cases where attribution is required, with works that are heavily based on copyrighted works, perhaps they should be clearly labelled as derivative works, in order to properly inform the public that it is based on something else. Those who like that work will likely check out the original work, creating additional exposure, which benefits the original author. It may also possibly discourage those who are trying to exploit a work purely for money, while people who are passionate about the original work would be more willing to take on that label.

edited 12th Dec '13 2:39:24 AM by Cronosonic

Here's my approach.

1. Once you create a work, it's licensed to you. You gain exclusive copyright until that work makes you a million dollars or until you die. If you die, move to step 3.
2. Once you make a million dollars off the work, a timer goes off. Your exclusive copyright lasts for three more years, at which point it expires.
3. Upon expiration (either by death or because your exclusive copyright ended as in step 2), your work is open to the public under a Creative Commons license much like the one TV Tropes works on. Only you (or your heirs or publishers) can make money off of it, but anyone can use it openly for non-profit purposes, including self-advertising (aka feel free to put fanart and fanfiction in your professional portfolios). If a derivative work is sufficiently different, it may be ruled a new license (FIM as sufficiently different from the original MLP is the example I'm thinking of); this may need some fleshing out.
4. 10 years after you die, your licenses become public domain, which anyone can use for any purpose.

The problem I have with the "benefits the survivors" argument is that, historically, Copyright encourages creators to make more stuff. If you die, you can't make more stuff, thus losing the reason to take Copyright's incentive. Or something like that.

And if your kids benefit from your copyrights after you die, your works fall into the same trap as Mickey Mouse — constantly extending the copyright terms until we get back to the insanity we have today.

So maybe it should be on a 40- or 50-year basis? I dunno, I'm kinda on the fence about "life of the author" vs "flat rate length."

Also, re: "Disney can still own Mickey Mouse," you have to remember that it likely wouldn't enter the Public Domain, which violates the U.S. Constitution.

From Wikipedia's page on the Public Domain:

edited 12th Dec '13 3:48:12 AM by AwSamWeston

Intellectual property should be non-transferable. People stealing your ideas? Bad. People stealing ideas you own because you bought or inherited them? How is that even a thing?

Why not both? Until the death of the last author or fifty years, whichever is longest.

I'm not going to argue about the inheritance one (except to state that I'm a supporter of 100% inheritance taxes, but while we're sticking with our current economic models it's entirely reasonable for artists to want to pass something on to their heirs and for the law to allow that), but allowing people to sell their rights — or, preferably, signing an exclusive distribution license with a publisher — is what makes copyright worth having in the first place. Allowing those large companies with dedicated legal teams to sue infringers, rather than forcing the author to do so, is simple division of labour.

It's funny how this topic was once a thing in piracy in On-Topic, but that thread gave way in order for this one to be made.

That said, I always welcome the discussion about this flawed mechanic concerning works of art. If you want to talk about intellectual property, then I have to pose some questions: Where does the 'intellect' part begin, and the 'property' part end? And where is the sense in layers red tape being required to enforce that, instead of the artists being protected by default like it's a constitutional privillege?

As a tangent to what I just said, and being on-topic at the same time, the act of reinventing copyright cannot be successful without redefining what 'intellectual property' means. The reason why I presume this is the case, is because in general senses of word and logic, whoever makes anything should be given a credit for it. If anything is bought, the payment should be given to whoever in return. However, since 'copyright' became a thing due to the rise of 'duplicatable media' like discs and data, the focus is lost in the storm of red tape and some paranoia (unjustified) that artists/creators are massively plundered by 'pirates'.

Time and time again, we can see (for ourselves) that just because something can be copied, it doesn't mean that profit becomes nonexistent. However, what we are concerned about is how.... ineffective the current system is when it comes to delivering payment to the creators.

edited 12th Dec '13 4:59:39 AM by Culminus

It could be argued that "Intellectual Property" is a disingenuous and possibly intellectually dishonest term - while IP does have certain properties associated with the concept of property, it's also missing major properties as well. "Intellectual Privilege" is quite possibly a much more appropriate term for it.

Regardless of copyright or piracy, if you provide a product or service in a convenient manner with a reasonable price tag, people will happily pay for it. This is especially evident if you can provide benefits that the pirates can never provide.

edited 12th Dec '13 5:55:41 AM by Cronosonic

For me, I prefer the term (I've never seen used) Creative Ownership. It denotes both the entitlement of the creator, and the fact of the product's relationship to the maker.

Then where do works like those of Johann Sebastian Bach or Ludwig Van Beethoven fit into this debate, if at all?

They died too long ago for people to care about that kinda shit. However with today's MAFIAA things might be different