Reinventing Copyright

Might as well throw this in - Japanese Anime/Manga fans are worried that the fanfic doujin scene will suffer if TPP is signed.

The article makes an important point that the anime/manga industries in Japan actively encourage 'doujin' works, with some reasonable limitations, using the scene as both promotion and as a way to scout out talent, a mutually beneficial setup. It's an interesting example of how letting people produce derivative works doesn't hurt the original authors, but could potentially work to the benefit of both sides.

On the subject of realistic legal ways to reinvent copyright, we should probably consider attacking through the path of SCotUS judicial activism.

Not with the current pack of zombies on the bench, of course, but maybe in a few decades. It's still more realistic than pushing a reform bill through Congress. The text is rather simple:

Any copyright that is not explicitly sanctioned by that clause, would have an obvious First Amandment conflict. So everything about what copyright is allowed to be, is inside of that sentence

Unfortunately, the term length can't be criticized by it, as long as it's "forever less one day". On the other hand, there are two other phrases that can be interpreted as very limiting:

First of all, the opening statement, which could be argued to be a conditional limitation. If any given exclusive right to writings DOES NOT promote the progress of science and useful arts, then Congress DOES NOT have the power to secure it for authors.

Second, the phrase "respective" describing what works it can regulate, which could mean that even if an exclusive right could promote the arts, Congress is only empowered to secure it, if it involves control over artists' "respective works", and nothing else.

Either of these two points could demonstrate that Fair Use doctrine is overtly narrow, and ANY creative work with an artist's Sweat of the Brow in it, should be publishable, including derivatives.

There is a bit of a Morton's Fork here: If derivative works are Useful Art made by their respective writers, then the clause only authorizes their respective writers' ability to publish them, no others' ability to censor them. But if derivative works are not useful arts, then copyright has no reason to give control over them to the source's artists.

Is Star Wars VII a creative work that can progress useful arts? If it is, then the more people with the ability to write it and copyright their *respective* versions, the better. No part of the Copyright Clause authorizes anyone to limit creativity, only to promote it. Or would a flood of free derivatives end up limiting our culture's overall creativity? In that case, the "Star Wars franchise" shouldn't be a copyrightable thing in the first place, Congress has no reason for incentivizing anyone in multiplying it, but neither does it have the power to do any other intevention than securing the publishing rights of the already existing repective writings.

In either case, if that change alone could be reached, I couldn't care less about how long copyright lasts. Make it apply to respective writings only, leave creative censorship out of it, and it might as well last 300 years for all I care.

edited 16th May '14 2:36:39 PM by Ever9

Hear, hear!

Although I'll still voluntarily release my copyrights early. 50 years sounds good.

Also, yeah — I'm annoyed by recent Supreme Court decisions. That's all I'll say on that.

The Supreme Court might be more movable than the Congress, because the average voter can be manipulated by the industry's "intellectual property" arguments and perceive it's reform as some communistic redistribution of "stuff" that artist "own", so there is no majority will to push for fixing it, but to a scholarly mind it is more clear that copyright is inherently a government-granted monopoly, and it is their job to rein it in.

Also, if you get past the appeals to status quo, then on a deeper it can have a nice bipartisan support ideologically, as it is both about "leveling the playing field" against the biggest franchise hoarding studios, AND about cutting back government regulations and let the market run more freely.

It's the rare opportunity where an appeal free trade or fair trade, liberty or equality, can both land you on side of copyright liberalization.

edited 18th May '14 6:22:38 AM by Ever9

If anything, about more concerned about the future of copyright's harm limiting derivative works, than about all the internet-based troubles with file-sharing.

I'm pretty confident that we could all just sit on our asses, and historical necessity will drive those of copyright's current excesses extinct. Technology is only going to develop forward, communication will only be easier, and that's what file-sharing is, with the generation that still remebers to it being a simulation of scarce products' consumption. There will be a time at which the stability of the Internet, is more important than the stability of the entertainment industry.

But what really scares me, is that if things go on as they do now, we just grow even more complacent in accepting this current outlandish situation where control over other people's creativity is normal and inherently desired. Attitudes to art won't automatically change by technology. The Internet made "fanfiction"-writing and other "fan art" common, but that does little good if everyone just goes along with the idea that such are inherently inferior.

Technological development might pressure publishers into admitting that they can't stop copying so their revenues must come from other sources, but technology won't pressure them into giving up, or even decreasing franchise controls.

The argument for derivative works not being "useful art" is that any usefulness they might have is canceled out by how they dilute the value of the work they're based on. Licensed works don't get that held against them, because those have a signed document showing that the original work's author doesn't mind.

Ever 9's point is more "Societies need common mythologies and stories, stifling those are generally bad juju". Most of the famous stories that exist are likely derivatives of something else.

Hell, most of Shakespeare, the oft "greatest writer ever" wrote essentially nothing but derivatives.

Oh, I definitely agree that copyright doesn't expire quickly enough. I'd say life-of-the-author + 20 years, or 50 years for a work-for-hire, would be more than enough. That'd put Superman, James Bond, Bugs Bunny, Phillip Marlowe, Godzilla, King Kong, Spider-Man, and the whole of Middle-Earth in the public domain.

But some of what they were saying made it sound like they didn't believe in the right of authors to transfer or license their works, that it's only acceptable for someone besides the original author to base new stories on their works if everyone is allowed to do so. That would actually make copyright laws more restrictive, not less, since an author who doesn't want to lose the rights to their characters would have to declare a complete moratorium on adaptations or Expanded Universe material for their works.

I'd have to disagree with your statement about copyright ending quickly. The purpose of copyright is two-fold: to protect the creators, and to encourage (through economic benefit) the production of material. People already complain about their beloved franchises being "ruined" by remakes or bad movies. Imagine, to take your example, Superman. Now, DC owns Superman, and they have a vested interest in providing quality products so that people will continue to buy Superman things. (Trying to avoid a comicbook Flame War, I'm merely say that they've probably failed at some point or another, but that doesn't negate ) If they lost copyright, than anyone, without that vested interest, could quickly put together some ****, and sell it. It would damage the francise, but they don't care, as they've already made their money.

One also must consider that copyright extends to more than just control of the franchise, or creating derivative works. It also extends to revenue from reprints, syndication, and DV Ds, as well as merchandise. For many works, the latter is where the income/recouping investment comes from. It's certainly the case for actors, with their residuals.

In summery: the problem with copyright is similar to the problem with patents. It's less the existance of the things in the first place, so much as it is companies sitting on them, without doing anything with them. For everything you mentioned, Raven Wilder, with the possible exception of Philip Marlowe, being under copyright has not "locked them away" from creators: they've all had movies, television shows, comics, books, and games more or less continually being produced for them. Heck, the Lord of the Rings is still in print, that is, the original(well revised, as Tolkien was a perfectionist, and his son and literary executor is following in his footsteps) is still actively being sold. Everything you mentioned still needs and deserves copyright protection.

I would support even shorter terms for for-hire and corporately-produced works, but with an unlimited number of extensions, so long as there is a meaningful use of, or expansion of the work.

Also, a distinction: instruction sets and ideas, such as recipes, cannot be copyrighted. They can, however, be patented but that's a non-automatic, and non-guaranteed process.

EDIT: Also, someone mentioned Peter Pan. It was originally under British Copyright, and is one of (I believe) two works there that have special exemption to eternal copyright status. Peter Pan's copyright lasts indefinately, as long as the hospital it was written as a fundraiser for still exists, and the King James Version of the Bible is indefinitely under copyright as the property of the British Monarchy.

edited 4th Jun '14 12:14:10 AM by sharur

Neither of those exceptions has any validity outside of the UK, though. Certainly not the KJV one, and I suspect not the Peter Pan one either.

It's a bit more complex in the Peter Pan case. The Hospital is Great Ormond Street, by the way.

For trivia, I believe the Bavarian state government in Germany owns the copyright to Mein Kampf, which it uses to prevent German print runs being made.

Yeah, they are using it as a way to suppress its spread.

That's the problem in itself. They might have a vested interest in providing quality products, but if that fails, they still have a vested interest in providing any money-making products.

Contrast that with a Public Domain work. No one has such a vested interest in writing high quality Shakespeare reimaginations, 19th century genre fiction crossovers, or fairy tale prequels. But neither they have a vested interest in writing any such derivatives. And therefore, they don't get made. Unless a creator has a particular confidence in their specific work standing on it's own legs, as a quasi "new IP". See The League Of Extraordinary Gentlemen, Wicked, Rosencrantz And Guildenstern Are Dead, etc. Compared to that, the overuse of licensed IPs isn't just "already bad", it is especially bad compared to any other alternative.

And ultimately, if you are concerned about low quality works, you can't just legislate those away. There is a fixed amount of directors, studios, producers, writers, actors, programmers, showrunners, etc, that the public can support. Whether they are all meddling in each other's universes, or strictly restricted to their employer's bundle of IP, the overall quality of an industry won't just increase or decrease. The people your theory just stopped from making shitty Batman movies, will still make shitty Spiderman movies, while the people who made other awesome movies are stopped from making whatever else they would have felt the most appropriate to make.

It's not the public that benefits from this, but the largest copyright holders. You are right that it's the same problem as with patents, but it is a systemic problem, not one of bad corporate leaders. If you inflate a set of products' value with a monopoly, you are not incentivizing corporations to be more creative, but to more agressively exploit and hoard more such monopolies.

In 1940, Walter Disney made the Pinocchio cartoon based on an 57 year old Public Domain novel, and now, 74 years after that, the Walt Disney company still has the authority to stop anyone else from publishing new stories based on their cartoon, and will continue for decades to come, in large part because of their own lobbying to extend copyright. This is not "hypocricy", they are doing their job after all, maximizing their profits. But under the current system, their money is most efficiently spent on extending copyrights.

edited 4th Jun '14 6:59:44 AM by Ever9

Another thing we have to remember is that just because a work is in the Public Domain, that doesn't mean the original creator can't make more works from his/her IP. In fact, it doesn't necessarily dilute the brand!

Arthur Conan Doyle was still writing the Sherlock Holmes stories when people started making Fan Fic, but that fanfic hasn't diluted the value of the Sherlock Holmes. If anything, the fan-created works enhanced the original stories' value.

Also, as for specific terms, I think it gets confusing on the "reader" end when we have two different lengths for different works. That's why I support a single copyright term length. And again, 50 years is the most reasonable, happy medium: In most cases, the work's already squeezed out as much money as it can (unless it's a Sleeper Hit, but those aren't as likely).

As John Milton said in 1644, in Areopagitica, a speech for the liberty of unlicenced printing:

"Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties. [...] Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?"

Of course, he said that about factual truths and ideological beliefs being censored, through a copyright licensing system which was blatantly politically motivated, like the above mentioned Bavarian copyright of Mein Kampf but on a wider scale, and not about corporate entertainment-licensing.

But still, if ideologcal truth is put at such a high regard, shouldn't art, the "lie that makes us realize truth", be at least a close second? If there is such a thing as False Art, then shouldn't it and True Art grapple in a free and open encounter, to tell us which is which, instead of letting governments shut down one of them in advance?

If the value of my speech can be diminished by your speech mocking it, then I guess that's a natural aspect of how free speech works.

edited 4th Jun '14 1:03:08 PM by Ever9

I honestly think 50 years is still too much - 20 with an additional optional 20 for renewing copyright terms seems much more reasonable to me, that's how it used to be, and the data from back then says that few authors/companies aside from the movie industry even bothered to renew their copyrights.

My thoughts:

1. Copyright terms should certainly be shortened, though I am uncertain by how much. It could well vary by medium- but then, new technologies and the existence of new forms of media mean the law must constantly be updated to reflect this. I understand for example computer software is pretty much treated as a literary work- but it is not. Most literary works, except textbooks and reference books, do not become outdated anywhere near as quickly as computer software, in the sense of being a marketable product. People are still reading classic works of fiction even now, retro-gaming is but a niche interest and nobody is using MS-DOS or Visicalc (for example) anymore.

The question I think with computer software which is constantly updated is- at what point does it stop competing with itself? I am sure for example that MS Office 97 would be perfectly suitable for the casual user but for compatibility issues with modern Windows versions, but mid-80s versions of Word, Excel etc. would not be.

2. Fair use rights. Apart from the fact your average Youtuber needs educating on what these are or more accurately are not, there is scope for broadening of these especially in the UK. Over here, technically it is (or up until recently was) illegal even to make a copy of music from a CD you owned (say, to tape it or rip it to your computer), for example, though no-one was ever prosecuted for it. I think for any personal, non commercial use or educational use within the confines of an accredited institution, there shouldn't be any limit on copying as a minimum. Another thing is performance rights. Why putting on the radio in a workplace which is not open to the general public should constitute public performance and thus require a license is beyond me- the radio stations already paid royalties to the copyright owner to broadcast to all and no-one is making any money out of having it on.

3. A serious curbing of licensing restrictions. No one-user-one-computer only if it is for non-commercial use for example. Moreover I think OEM licenses for software are frankly absurd, firstly as it requires that software cannot be sold without the hardware it came with, so if one wishes to replace or upgrade it you cant sell on the copy of old version you have; furthermore, it distorts the market- Microsoft must make loads from deals with hardware manufacturers offering cheap OEM versions of Windows, thus distorting the market in its favour and away from rival O Ses. (Granted, the main alternatives comprise any number of basically free Linuxes).

4. What effect would banning exclusivity in distribution rights have? Someone mentioned selling rights to their songs to a particular record company which means they are limited in what they can do with their own songs, which seems awkward. Moreover, it might be good for certain other media- take the whole business with Robotech for example and how it means the entire Macross franchise is prevented from being released in the States without Harmony Gold's say-so.

5. Furthermore, there's the exclusive right of rights-holders to control the import/export of their product. This seems unworkable in the internet age when it's easy to download or stream media from a particular source, or buy a copy online from anywhere. Yet we have regional lockouts and coding for DV Ds etc. to stop this happening. Interest in a given work isn't tied to one particular market anymore, either- how many foreign works have you heard of that you would never have known about if it weren't for the internet? (I can think of various anime/manga, tokusatsu shows, and various examples of world cinema I'd not have known about were it not for This Very Wiki, for example!) So why not make it clear that there is a world market for this stuff, and that you are only depriving yourself of potential custom by limiting distribution to specific national or regional markets. This might harm some local distributors, but it could be said these are simply out of date anyway.

In the UK, one thing hampering this is the Video Recordings Act which prevents the supply of any video recording (other media aren't affected) not submitted to the BBFC for rating. This needs updating.

6. DRM. I am not saying publishers can't put DRM on their stuff if they want to, but the idea workarounds should be banned by law is silly- it actually prevents people from exercising their fair use rights.

Yeah, that does make sense. But realistically, Hollywood wouldn't like Congress decreasing the length of copyright. If it did happen, it wouldn't be anything as "radical" as 20-40 years.

Also, I like nice solid numbers where I can take the year a work was published and calculate — just with that — when its copyright expires. So the whole "renewing copyright" idea turns me off.

edited 5th Jun '14 7:19:37 AM by AwSamWeston

There is also the WTO treaty to pay attention to; it does have some copyright strings (the so-called TRIPS) attached.

To be fair, you just need to add another whole number onto that year for the extension expiration, and if you want to know if said extension was applied for, a simple google search would do the trick.

TRIPS is surprisingly less restrictive than I expected when I read a summary of the details, though it could be argued that TRIPS is somewhat outdated and needs to be replaced with something else in general, anyway, and that it does more harm than good in today's world.

I don't really see what's the purpose of a renewal system, especially if it will end up rewarding the biggest corporations that have the bureocratic competence to "remember" all their copyrights and keep renewing them.

If any distinction should be made between specific works' term length, it should be in the exact opposite direction, favoring smaller independent creators.

And I'm not just saying this because "durr hurr corporations are evil", but because following from copyright's original purpose of incentivizing artists, it can do a lot more good there. Any industrial scale $100 million project is going to either fail or suceed in it's first months, the rest is pretty much just fluff. But one man projects can suddenly go viral even after a decade of sleeping on the shelves, and even if they don't, they might keep selling by a slow-burning word of mouth.

By the way, this is also another point in favor of my previously discussed stance on franchise rights: They are ineffective, as they disproportionally reward the already most successful works. No one is writing Lone Ranger fanfiction, and there is no market demand for unauthorized sequels of starving writers' novels. The ones who do create such demands are usually the novelists who made their effort worth a thousandfold, and movies that profited tenfold.

edited 5th Jun '14 8:07:23 AM by Ever9

I like to think your point about franchises is an "already-won" situation: "After 50 (or whatever) years: If you haven't made back your investment, you won't, so you should give up your copyrights. If you have made back your investment, you've already made a profit, so you don't need your copyrights anymore."

So in general, by the time a work's copyright has expired, you won't (usually) need it anymore.

Of course, that argument has a hole in it thanks to Sleeper Hits. BUT! those are so rare that the point isn't worth using. In fact, I'd argue that most Sleeper Hits would still happen within 50 years of being published, so it still holds up.

EDIT: Sorry, I say "Sleeper Hit" but I mean something like a "Cult Classic". My bad.

edited 5th Jun '14 9:12:16 AM by AwSamWeston

I should've specified - the optional extension applies only once. So the maximum term is 40 years.

Yeah, I get that. I still feel that it's useless. Either have it last 20 years or 40, but a renewable system is just there to give twice more to the ones that need it the least.

That principle is supposed to be true for the current system, even if 95 years are an excessively long number for it.

I peronally think that a large part of how they got away with it, is the framing of the issue as "Intellectual Property". As long as corporations can present their copyrights as "their property" they can tug at the heartstrings of libertarian America about how the Public Domain is all about moochers feeling entitled to "taking away their property", (even though entertainmet isn't a necessity, so those people don't even *need* it), therefore it should be kept at bay as long as possible.

Thy completely reversed the expectation from them having to justify their need for entitlement to copyright monopolies (that are granted with practical considerations), to treating it as their property that should only be taken away if the public can justify their need for it.

edited 6th Jun '14 5:34:11 AM by Ever9