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Originally Posted by GA Russell
Kali, I take it that the "someone" you refer to is a publisher rather than the consumer.
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Correct. E.g. they get a bunch of content without having to pay advances or any other up-front fees.
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Originally Posted by GA Russell
The reason they should get access is because the author is not making a good faith effort to get his book in print, and is therefore withholding it from the public.
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The author or publisher is under no obligation to provide you with the content, even if they have already chosen to publish it.
Matthew Barney created a series of films, and the artist and distributor refuse to do a mass release on DVD. Instead, they occasionally show it in theaters (typically at museums) and did a strictly limited DVD (an edition of 20) that sold for $100,000 each. You may not like it, but it is his right as an artist to release it that way -- i.e. to treat it more like a sculpture or a painting than as a film.
It is irrelevant that you may want to watch it at home on your TV, or that there may be all sorts of benefits to Barney upon wide release. He is intentionally exerting control over the distribution of the work; it's his work and he doesn't want it to be mass produced. End of story.
Or, perhaps I write and self-publish a book in 1990; and in 2010, with hindsight, I decide the book was miserable and inaccurate. I should have the right to pull it from publication, and damn it to obscurity if I so choose.
Similarly, if a publisher takes a risk on my 1994 book, and it turns out to be a total debacle that cost them an arm and a leg, and they don't want to put another dime into converting it to a digital format, that's their prerogative.
Public domain has a different set of standards -- as it should. But until a work is in the public domain, the public does not have access rights that trump the artists' and publisher's rights; and not everything that is protected by copyright is, or needs to be, aimed at the widest possible audience.
And absolutely nothing in copyright law requires that a work, once issued publicly,
must be perpetually available before it goes into PD.
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Originally Posted by GA Russell
Your point that the publisher needs to be audited is no different than today.
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Actually, it is. My understanding is that audit provisions are typically stated in the contract, so I can demand they turn over the relevant records. If I have to sue, then my costs for doing so will inflate drastically since I have to pay a lawyer.
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Originally Posted by GA Russell
I can't speak about photographers. I don't know anything about them. I don't think that the rules of copyright regarding books should be dictated by the circumstances of photographers.
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But by implication, the rules for photographers ought to be dictated by the rules for books?
Or that issues present during transitional periods should become the norm?
Besides, it's not just photographers. Copyright also covers magazines, screenplays, toys, games, periodicals, academic journals, paintings, prints (e.g. etchings, lithos etc), performance art, software, as well as mediums and formats that do not exist yet or are no longer in use.
Also, copyright covers not just big companies but individuals as well. For example: Let's say I am a screenwriter. Under the current system, the instant my screenplay is in a fixed form, copyright is automatically applied. I can submit my screenplay to a dozen movie studios, and know that if they ever want to use my work, they will have to negotiate and pay me. Under your system, however, they can just sit on the screenplay until it is rendered "out of print," and use it at a fraction of the cost -- since the movie studio would only have to pay some pre-set fee, rather than a big advance or up-front cost.
Should Andy Warhol have been required to issue a constant stream of his "Marilyn" prints, or lose the rights? Should he or his estate have been required to publish it as a fine art print
and a poster
and in magazines
and handbills
and postcards, in order to maintain the copyright...?
While you may not be thrilled by it, the reality is that micromanaging copyright on a per-medium and per-format basis would significantly complicate copyright, especially since copyright applies across mediums. Copyright works much better when artists know they will be protected, without needing to satisfy a series of onerous requirements or use complex flow charts to know when the work goes into PD.
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Originally Posted by GA Russell
By the way, should a publisher print a book without permission under my plan, if that edition is a success, the author could then negotiate an exclusive book deal with someone. That would require the non-contract publisher to stop publishing the book.
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?!?
I'm sorry, but your proposal is making less and less sense. What and who defines "success?" Will the 3rd party publisher need to report the income on that specific book to the US Copyright office? What if it "succeeds" in France but not the US? What if it "succeeds" in digital but not a physical medium? How can you get an "exclusive" deal when the book has already been put into public domain?
This would turn into an utter mess, with works constantly going in and out of copyright.
Even if we are talking from a purely practical point of view, it is far, far more feasible for a 3rd party to just
license the works or procure the rights. You are not going to change international copyright law to a mess like you propose in anything resembling a workable time frame.