What If the Copyright Act of 1909 Was Still Law?

[Kali Yuga]

Originally Posted by SteveEisenberg

Under the Berne Convention, my country and yours is obligated to protect copyright until the end of the 50th year following the author's death.

Life + 50 is only the minimum for Berne signatories.

Originally Posted by SteveEisenberg

The fact that it goes longer that the treaty requires, in the US, is a shameful example of the power of lobbyists and campaign contributions.

Nice theory, but the reality is that most of Europe was already at life + 70 before the US. The US was in part catching up.

[Andrew H.]

Originally Posted by Kitabi

Most of us working stiffs stop getting paid once we die or retire. So, why should a copyright exist after death? On the contrary, if you believe that creativity must be rewarded or if you are plain greedy, why not a perpetual copyright?

If you're paid a wage, yeah, it stops when you stop working. But a copyright isn't like working for someone else; it's property that you own.

And if your income comes from property, it can go on perpetually. If you own rental properties, or stock, for example, you can live from the income while you are alive and pass the entire property on to your heirs. So it's not at all unusual that it exists beyond your death; it's only unusual in that your rights expire after a period.

[FizzyWater]

Originally Posted by Ralph Sir Edward

HarryT, I think a copyright based on publication date is easier that creator life + x. You may not be able to find the the death of the author, but each copyright product has its copyright date stamped (sic) on it...

If it was purely based on publication date, how would you deal with re-releases (real question, not being sarcastic)?

If a book is initially released in 1980, but has a resurgence 20 years later, would it be from original publication date or from the later one?

[Iphinome]

Originally Posted by FizzyWater

If it was purely based on publication date, how would you deal with re-releases (real question, not being sarcastic)?

If a book is initially released in 1980, but has a resurgence 20 years later, would it be from original publication date or from the later one?

original of course, you don't see a new attempt to create copyright everything someone reprints Huck Finn, that's the point of a time limit. Make all you can off the time you have and then return it to the world you used as inspiration.

[Worldwalker]

Originally Posted by Andrew H.

If you're paid a wage, yeah, it stops when you stop working. But a copyright isn't like working for someone else; it's property that you own.

Certain corporations have been trying to define content as "intellectual property" partly so they can insist that copying that property constitutes theft, for quite some time, and it appears that some people have bought into it. It's not the same thing, though.

I'm reminded of a case of a cracker from many, many years back who broke into the AT&T administrative system and, as proof he'd been there, copied a manual about setting up phone systems. In court, AT&T declared that the manual was worth -- and he had stolen -- thousands of dollars, as they added up all the time it took someone to write it, type it up, etc. (for reasons I'll leave open to your speculation, they didn't mention that when they sold this manual, it went for $20) They quite deliberately conflated the idea of taking something away from its owner, who then can't use it, and who has hence lost the value of all that staff time doing the writing, with the idea of copying that item, which, if they hadn't found out from other sources, they would never know had happened.

If I photograph your house, have I stolen the house? Obviously not; you're still living there. It would be ridiculous to say I've stolen your house. But mixing the idea of real or chattel property into the equation, and calling the privileges statutorily granted to content creators "property" as if it was no different from a house, makes people think that it's the same. And it isn't. A publisher can't do a print run of 50,000 copies of your house, or sell as many identical e-houses as they have buyers for. Only one person or specific group can use your house at a time. And once the builder sold that house, it's not his house anymore; he doesn't keep getting paid over and over when you sell the house to me, and I sell it to FizzyWater, and so on. When he stops building houses -- whether he died, or retired, or became a chef instead -- he stops getting paid for houses.

Pensions, life insurance, and so on don't equate either. They're all things that you bought and paid for, and they're paying you back, usually with interest. You can designate a beneficiary for survivor's benefits, but they're still getting paid from (theoretically, at least, unless it's a giant Ponzi scheme) the money you paid in. You may not see it because the payments came from your employer or from your taxes but they're there somewhere. You pay in; it pays you out. It has nothing to do with this situation.

The reason a monopoly on selling a book isn't the same kind of "property" as ownership of a house has to do with the nature of a book: You can duplicate the book without changing the original, or taking its away from the person who owns it. Whether it's a monk in a scriptorium with a quill pen or a person with a computer and a save button, the book is still there; now there are two of them. Or two million of them. That monopoly on sales is granted by legislation of some kind -- in the US, the clause in the Constitution about "to promote the progress of science and the useful arts" -- for specific social reasons. It doesn't mention "for the enrichment of the first person to claim authorship" -- it's for the benefit of society as a whole (promotion of progress), and the benefit to an individual is a way of achieving that, by making it possible to make a living as an author.

This was less of an issue before ebooks because a publisher was necessary to the creation and dissemination of a book. Now, however, that's not the case. Shakespeare's plays were not written as ebooks, but you can get them in several versions now; people decided they were important enough to digitize and release. So all of a sudden, since a publisher is not needed, and nobody actually needs to be paid for the book to be endlessly replicated (whether someone should be paid is another matter), the whole issue comes to the forefront.

Let's go back to Shakespeare, again, for those of you suggesting perpetual copyright. Shakespeare's plays were not, strictly speaking, original. He used plots, themes, characters, even whole plays, that predated his own work. His genius was in perfecting them, not inventing them. So why should there be a perpetual lock on those plays when, in fact, he drew from that common social well? Why should he have taken out, but not put in, that creative water? And while we're on Shakespeare, he had no living descendants. His line died out in a couple of generations. So who, in that perpetual copyright, should own the rights to his plays?

Some people have this idyllic ideal of the great-grandson of a successful author living the good life on a Caribbean island off the profits from the work of someone he never actually met. The odds are, though, that the ownership of his great-grandfather's work was probably sold to a corporation somewhere along the line by someone who wanted the immediate payout, the same way people take a lump sum in the lottery. He'll have inherited the money, if there was any left, but not the rights to the books. There will be very few of those descendants living the imagined idyllic life, and nearly all books will be in the hands of corporations whose goals are necessarily in direct conflict with the goals of the private citizen. A corporation is not only expected but legally required to charge as much as possible while delivering as little as possible; individuals, of course, want to pay as little as possible and get as much as possible. In its former implementation, copyright provided that balance by eventually expiring, returning the works to the society from which they derived. With perpetual copyright, they will remain forever in the hands of groups which, remember, are required to take as much of your money as they can and give you as little as possible in return for it. And they, not our hypothetical great-grandson, will be the ones with the rights to the book.

To promote the progress of science and the useful arts (and the useless arts, and the third-rate books that never should have left their creator's word processor), some duration of copyright is necessary. To prevent publishers from acting like vultures, that should extend long enough from creation that waiting for it to expire for a book that the late author wrote last year is not practical. That could be handled by lifetime or publication+X, for some value of X, whichever is longer. If you finished the book 5 minutes before a bus ran you over, it's in copyright for X years; if you wrote it 2X years ago, it goes out of copyright when you die. That protects the statutory privileges (the monopoly) of the author, and it protects the rights of society. There is balance.

[HarryT]

Originally Posted by screwballl

I think at the time it was extended, it may have been useful. Today technology and so many things change so quickly that something (technology based) manufactured and copyrighted even 5 years ago is almost useless when compared to modern technology. Faster processors, more memory, faster refresh rates, faster read and write rates, higher power cameras in smaller devices, and so on.
I do believe that as far as US copyright goes for technological, it needs to be cut in half effective for all works and items created after 1990, and most everything else set to death + 10 years OR 25 years after creation, whichever comes first.

Generally speaking, copyright law does not apply to physical items; only to "intellectual" property: books, music, computer programs, films, etc. Perhaps you're thinking of patent law? That works in a rather different way, and has a very much shorter term.

[gmw]

Originally Posted by Worldwalker

... That protects the statutory privileges (the monopoly) of the author, and it protects the rights of society. ...

Just curious. What exactly are "the rights of society" in this situation?

I've seen this idea mentioned before and have had some trouble understanding it. I don't quite see where any particular law gives anyone "rights" over anothers writing (etc.). Is there a constitutional right to photocopy? (I'm quite likely missing something obvious, but I'm not too proud to ask.)

[Iphinome]

Originally Posted by gmw

Just curious. What exactly are "the rights of society" in this situation?

I've seen this idea mentioned before and have had some trouble understanding it. I don't quite see where any particular law gives anyone "rights" over anothers writing (etc.). Is there a constitutional right to photocopy? (I'm quite likely missing something obvious, but I'm not too proud to ask.)

Natural rights, if it doesn't physically affect someone else and there were no law against it could you do it? Or to put it another way everything not forbidden is allowed. There is no constitutional right to photocopy, just a natural one, the constitution only lists rights that the government can't take away. That it has the power to take away others doesn't change that they are rights.

The right to copy was traded away for a limited time in exchange for getting more stuff to copy later. The same idea as the patent system, protect an invention for a time in exchange for making the plans public. Protect a book, or what was probably higher on the priority list in the 1790s, a map, for a limited time so that later it could be of use to everyone. That limited monopoly is how society pays the inventor or artist.

[PKFFW]

Originally Posted by Worldwalker

.....A corporation is not only expected but legally required to charge as much as possible while delivering as little as possible;

I'm assuming you are referring to a corporations fiduciary responsibility to maximise profits for its shareholders?

If so, this is not the same as being legally required to charge as much as possible whilst delivering as little as possible.

I know of no such laws in any country that requires what you claim.

Cheers,
PKFFW

[CommonReader]

Originally Posted by K-Thom

What a shame he survived WWII ... any author with a social conscience should terminate his/her life as soon as the one novel that had to be written is out.

If you want to read it, buy it. If you want to publish it, acquire the publishing rights. Especially if the work of is of any value to you. Other people's creative lifework isn't supposed to be the freebie playground for society.

Seriously? Well, guess what, I bought it. However, I guess that most authors would rather prefer to see their work distributed as much as possible instead of giving their publishers and their descendants to the n-th degree an easy life for decades after their deaths.
Finally other peoples' intellectual and creative lifework is exactly supposed to be a "freebie playground for society". We have all enjoyed plenty of "freebies" of other peoples' intellectual and creative lifeworks, collected over millennia. That's what civilization is about. Therefore every author's work is destined to become a "freebie" for all at some point.
It is rather remarkable that intellectual property that is protected by a patent enjoys a much shorter period of protection than the work of e.g. a novelist.

[Kitabi]

Originally Posted by Kali Yuga

They aren't entirely random.

"Life plus" generally makes sense, in part because the creator can perish at any moment after the content is actually created. Does it makes sense that if the author dies 5 days after a book is published, it should go straight into public domain, thus relieving the publisher of any need to pay royalties for the book?

For signatories of the Berne Convention, the minimum term is life + 50, presumably to provide a good incentive and cushion for the estate. In addition, most of Europe was at life + 70 at the time of the last extension in the US. The idea in the US was to both harmonize copyright terms, as well as keep a "trade balance" at least equal in the US. Like it or not, content is a big revenue generator for the United States, and that revenue is largely lost when a work goes into public domain.

I might add that someone somewhere is going to bitch endlessly no matter what term is selected.

I have no issues with what you are saying but that does not address my point in any way. My question is where does the figure of +50 or +70 or +95 come from? I can understand if someone says life + spouse's life or life + children's life but these numbers sound totally random in the absence of an explanation of how they were arrived at.

Contrary to your claim, today most "working stiffs" do get paid upon retirement by Social Security. You can also pass on revenue generators to descendants. Social Security has survivor benefits; life insurance may pay out; stocks, bonds, mutual funds, interest-bearing savings accounts, and other financial instruments do not evaporate upon the owner's demise, and can be willed to individual(s) and/or organizations.

So, this really isn't much different.

That analogy is incorrect. Social Security payouts come from taxes you paid "from your earnings". Any financial stuff you invested in was again "paid for" with cash. I did point out in my argument that passing forms of cash is the general form of inheritance. It is inheritance of intellectual property that's unique to content.

There are numerous social benefits to works going into public domain after a limited term.

Like what? In a lifetime + 70 scenario what exactly is the relevance of placing something in public domain except for historical study?

Estates, descendants and families also don't necessarily exist forever. As such, stewards of a perpetual content would inevitably lose track and/or become too divided to be manageable.

And that's their headache. They WANTED these rights in the first place.

[Kali Yuga]

Originally Posted by Worldwalker

Certain corporations have been trying to define content as "intellectual property" partly so they can insist that copying that property constitutes theft, for quite some time, and it appears that some people have bought into it. It's not the same thing, though.

Perhaps not, but in many cases infringement can be very close.

"Piracy" is not limited to Jane Doe downloading a few songs here and there. It also includes people who sell pirated movies, CD's or software (very common in China and SE Asia, less common but still happens in NYC for example), or people who sell counterfeit goods. IP is routinely ripped off for profit rather than individual enjoyment.

Originally Posted by Worldwalker

....They quite deliberately conflated the idea of taking something away from its owner, who then can't use it, and who has hence lost the value of all that staff time doing the writing, with the idea of copying that item, which, if they hadn't found out from other sources, they would never know had happened.

Or, they treated it like someone getting unauthorized possession of an item, not unlike shoplifting.

Regardless, infringement is still infringement. The inaccuracy of the description doesn't change the fact that it is still illegal and, arguably, unethical.

Or to put it another way: It is completely unnecessary to conflate "copyright infringement" and "physical theft" in order to admonish people for the former. They are two separate acts; the law treats them differently; we can still assign them distinct ethical status.

Originally Posted by Worldwalker

Pensions, life insurance, and so on don't equate either.... It has nothing to do with this situation.

You've missed why this was brought up. Kitabi asserted that people don't pass on income-earning assets, when in fact they do.

Originally Posted by Worldwalker

[The copyright clause] doesn't mention "for the enrichment of the first person to claim authorship" -- it's for the benefit of society as a whole (promotion of progress), and the benefit to an individual is a way of achieving that, by making it possible to make a living as an author.

This has been examined in subsequent legislation and judicial review. From what I can tell, Schnapper v. Foley concluded that Congress was not limited by the "preambular" part of the Copyright Clause.

Originally Posted by Worldwalker

This was less of an issue before ebooks because a publisher was necessary to the creation and dissemination of a book. Now, however, that's not the case....

Where have you been for the past 20-odd years? Digital distribution is not new.

Originally Posted by Worldwalker

Let's go back to Shakespeare, again, for those of you suggesting perpetual copyright.

No one here is suggesting perpetual copyrights. Sonny Bono is not participating in this discussion.

Originally Posted by Worldwalker

Shakespeare's plays were not, strictly speaking, original. He used plots, themes, characters, even whole plays, that predated his own work....

Contemporary copyright does not exclude such things, unless the derivative work is adopting highly specific aspects of that creation.

E.g. I could easily write a play that covers the same topics as "Cat on a Hot Tin Roof" or "Death of a Salesman," I simply cannot reuse the specific characters in those works without the author's permission.

Plus, drawing counterfactuals from Shakespeare is not terribly persuasive. Many of his works drew on history, and others were completely invented. It's also rather clear to me that if for some reason Shakespeare was unable to use a specific character or situation, he was more than capable of writing equally good work.

Originally Posted by Worldwalker

Some people have this idyllic ideal of the great-grandson of a successful author living the good life on a Caribbean island off the profits from the work of someone he never actually met.

...or, the income goes to the estate; or no one is interested in reading the work. The scenario you describe (someone sells the book rights to some type of clearinghouse) seems rather rare to me.

Originally Posted by Worldwalker

A corporation is not only expected but legally required to charge as much as possible while delivering as little as possible....

I concur with PKFFW, this is a ridiculous claim. No such legal obligations exist. In fact, a company can lose money and drive itself into debt for as long as its creditors will support it; non-profits can also hold copyrights.

Originally Posted by Worldwalker

If you finished the book 5 minutes before a bus ran you over, it's in copyright for X years; if you wrote it 2X years ago, it goes out of copyright when you die. That protects the statutory privileges (the monopoly) of the author, and it protects the rights of society.

Congratulations, you've managed to come up with a more complicated scenario than the current one.

At any rate, most nations are signed to the Berne Convention, which has Life + 50 as a minimum, and many use Life + 70. It may not be to your tastes, but I think you'll survive with a slightly longer copyright term, as will society and culture at large.

[Kali Yuga]

Originally Posted by Kitabi

My question is where does the figure of +50 or +70 or +95 come from? I can understand if someone says life + spouse's life or life + children's life but these numbers sound totally random in the absence of an explanation of how they were arrived at.

My best guess is that it is vaguely related to expected life spans. They were also the result of gradual increases in copyright durations.

"Life + descendant" doesn't necessarily work, because copyrights can be assigned to estates, corporations and/or non-profits, which do not have a "lifespan" in any meaningful sense.

Originally Posted by Kitabi

That analogy is incorrect. Social Security payouts come from taxes you paid "from your earnings"....

You claim that income-bearing instruments are not inheritable, when clearly they are. There's quite a bit of latitude in what is inheritable.

Originally Posted by Kitabi

Like what? In a lifetime + 70 scenario what exactly is the relevance of placing something in public domain except for historical study?

All of Shakespeare's works are in the public domain. This allows anyone to use it as a resource, without concerns over licensing or permission.

A theater group can perform "Macbeth" at no cost; they can set it in Mughal India if they like; Tom Stoppard can write "Rosencrantz and Guildenstern Are Dead" without getting sued.

Issues with orphaned works (e.g. copyright is still in force, but the rights holder cannot be determined or located) also get resolved by works going into public domain.

The idea is that you balance out the benefits of copyright protection against the benefits of public domain, by offering copyright for a limited term.

[Kitabi]

You claim that income-bearing instruments are not inheritable, when clearly they are. There's quite a bit of latitude in what is inheritable.

I did not say income bearing instruments are not inheritable. I did question whether copyright should be seen in such a light.

All of Shakespeare's works are in the public domain. This allows anyone to use it as a resource, without concerns over licensing or permission.

A theater group can perform "Macbeth" at no cost; they can set it in Mughal India if they like; Tom Stoppard can write "Rosencrantz and Guildenstern Are Dead" without getting sued.

And they would pay a royalty and perform it anyway if the work was popular and not in public domain. Same goes for referencing a work in a book.

Issues with orphaned works (e.g. copyright is still in force, but the rights holder cannot be determined or located) also get resolved by works going into public domain.

The idea is that you balance out the benefits of copyright protection against the benefits of public domain, by offering copyright for a limited term.

If the heirs see such an eventuality, they are free to sell off their rights. If no heirs exist, a time limit for claiming rights should exist. After that, there are no options left...

[Kali Yuga]

Originally Posted by Kitabi

I did not say income bearing instruments are not inheritable. I did question whether copyright should be seen in such a light.

I don't see why not.

If I start a company from scratch, it's inheritable. If I hold any patents, those are also inheritable.

Nor does the standard of "what the working stiff has to pass on" really seem viable. A billionaire is obviously going to have a very different portfolio than a janitor, who will have a different portfolio than a fine artist. The law needs to recognize that different people have different classes of assets.

Originally Posted by Kitabi

And they would pay a royalty and perform it anyway if the work was popular and not in public domain. Same goes for referencing a work in a book.

Actually, a copyright holder can bar performances, derivative works and unauthorized. When a work is in public domain, there are no longer any restrictions.

Go to Project Gutenberg and you may get an idea of one set of benefits of public domain.

Originally Posted by Kitabi

If the heirs see such an eventuality, they are free to sell off their rights. If no heirs exist, a time limit for claiming rights should exist. After that, there are no options left...

You're missing the point.

Officially an orphaned work is in limbo, because no one knows who really owns it. So if no heirs exist, the book is officially inaccessible. By going into public domain, it can be accessed by anyone. Problem solved.