How long should a copyright last?

[arjaybe]

Originally Posted by Hitch

clip some interesting discussion of various kinds of property.

Otherwise, one would find themselves in the position of trying to argue that Harry Potter is only a license held by JK Rowling, and not her creation or her property. He is patently her creation, and she owns him, certainly for the term of her legally-entitled copyright, before he falls into the public domain.

And so thus, back to the thorny issue of the unpublished manuscript in my hypothetical desk: at what point, exactly, does anyone think that this falls into the public domain? To prove (or find fatal flaws in) arguments and theories, you need to extend them out to their possible limits. So, let's start with this one: what's the answer?

Hitch

The manuscript and the right to copy it are not the same thing. The story, characters and other unique features of it are not the same as the right to copy them. Her stories are Rowling's property, which is not the same as the right to copy them.

As for your unpublished manuscript, if you leave it lying around after copyright expires, then whoever finds it can copy the hell out of it. If that prospect bothers you, destroy the manuscript while the right to copy it is still yours.

rjb

[calvin-c]

Originally Posted by Hitch

When courts, lawyers and Congressmen use the term "property," they don't use it loosely or casually.

You're kidding, right? At least about Congressmen being careful about what they say I'm certain you're kidding.

[Greg Anos]

Originally Posted by Hitch

Well, not to hair-split, but, unfortunately, law does hair-split. The copyright protection is the license. The copyright does, in fact, protect a property. (This is one of the reasons I asked the question I did in my last post: at what point would someone be entitled to my unpublished manuscript? That has what is legally termed a "common law copyright." If copyrights expire, as they do, then when is John Doe entitled to my unpublished manuscript? Given the state of the law, is the answer, when the common-law copyright expires, or is the answer, "never?")

And why do I ask that, and bring it up? Because the legal definition of a "common law copyright" (a work that is not yet published nor has a registered copyright) is:



Patently, the manuscript in question is, of whatever "kind," a property right. And it's not merely due to the paper it's typed on, as this exists whether the manuscript is digital or not. Therefore, no matter how you slice it, there is a type of property right that attaches--however slim--to created works.

The first line of the definition of copyright is:



And I won't put everyone to sleep by adding the definitions of "literary property" and "literary works," at least under US Copyright law.

When courts, lawyers and Congressmen use the term "property," they don't use it loosely or casually. Copyright is about the licensing of the production of the work (print, ebooks, plays, whatever). The literary work itself, however, is property, so we should not conflate those two, either.

Otherwise, one would find themselves in the position of trying to argue that Harry Potter is only a license held by JK Rowling, and not her creation or her property. He is patently her creation, and she owns him, certainly for the term of her legally-entitled copyright, before he falls into the public domain.

And so thus, back to the thorny issue of the unpublished manuscript in my hypothetical desk: at what point, exactly, does anyone think that this falls into the public domain? To prove (or find fatal flaws in) arguments and theories, you need to extend them out to their possible limits. So, let's start with this one: what's the answer?

Hitch

To answer your question, as long as it remains unpublished (i.e. in your desk drawer), it is under common law copyright. Theorectically forever.

However, also under the law, once the work is published, the common law copyright property right expires, and is replaced with the limited monpoly right generally know as copyright. And furthermore upon the expiration of the term of the copyright, no further claim of ownership or property can be claimed by anyone, with the exception claim of actual authorship (i.e. RSE can't stick his name on all the Sherlock Holmes stories as author.)

If you want to get into the sticky details, see the following links here on Mobileread.

US. https://www.mobileread.com/forums/showthread.php?t=53991

Canada https://www.mobileread.com/forums/showthread.php?t=57184

The question at hand is, how long should the period of limited monopoly be...

[Hitch]

Originally Posted by calvin-c

You're kidding, right? At least about Congressmen being careful about what they say I'm certain you're kidding.

Calvin:

I'm talking about, in written case law and laws. As cavalier as they seem to be, certain terms (like "property," for one) do have meanings in law, and so, with certain notable exceptions (as in a certain health care law that nobody read), the staff lawyers do indeed take care with that type of thing, to prevent the very type of "yes, it is," "no, it isn't" debate we're having right here.

Hitch

[gmw]

Originally Posted by arjaybe

Another failed attempt to conflate rights with property. The fact that the example used to illustrate it was the creation (painting, manuscript) and not the copyright shows its weakness. The right has some property-like attributes, but that is all. Trying to equate rights with property will lead to ridiculous results. My right to vote is property. My right to turn right on a red light is property, etc.

rjb

Most property, under law, is indeed a set of rights, some of which you can assign, permanently or temporarily, to others. Even if you "own" a block of land, all that really means, under law, is a set of rights - things you can and cannot do with that property. You can rent that block of land for a period of time, during which you assign certain rights to the tenants, removing some of your own rights for that period, in compensation for which you receive money. Another example are mineral rights that can be, and often are, held as a separate property from ostensible ownership of the surface estate.

[pdurrant]

Originally Posted by arjaybe

This would be a pertinent comment if the question had been, "Do you think we can shorten copyright?" But the question is, "How long should a copyright last?" making this appeal to pragmatism irrelevant.

Fair point.

In which case, 50 years flat from publication, or lifetime + 50 years for works unpublished in lifetime of author.

[calvin-c]

Originally Posted by gmw

Most property, under law, is indeed a set of rights, some of which you can assign, permanently or temporarily, to others. Even if you "own" a block of land, all that really means, under law, is a set of rights - things you can and cannot do with that property. You can rent that block of land for a period of time, during which you assign certain rights to the tenants, removing some of your own rights for that period, in compensation for which you receive money. Another example are mineral rights that can be, and often are, held as a separate property from ostensible ownership of the surface estate.

Not to mention that your rights can be restricted for what is deemed 'the public good'. Historical preservation that prevents owners from repairing their property? That's why I put 'public good' in quotes. IMO if the public wants to restrict rights on a piece of property they should buy it-but that's not how our government works.

[calvin-c]

Originally Posted by Hitch

I'm talking about, in written case law and laws. As cavalier as they seem to be, certain terms (like "property," for one) do have meanings in law, and so, with certain notable exceptions (as in a certain health care law that nobody read), the staff lawyers do indeed take care with that type of thing, to prevent the very type of "yes, it is," "no, it isn't" debate we're having right here.

Misuse is definitely more common in speech than writing. And it's got to be the lawyers-I'm not sure any of our politicians are intelligent enough to write.

[arjaybe]

Originally Posted by pdurrant

Fair point.

In which case, 50 years flat from publication, or lifetime + 50 years for works unpublished in lifetime of author.

Fifty years sounds reasonable. At least it's definite. Having just learned about a distinction between so-called common law copyright and statutory copyright, the former apparently being eternal, it begins to look less definite though.

In your suggestion, refraining from publication allows for a potential eternity of copyright, unless you make the mistake of dying. Going to take a while to unearth the complications there.-)

rjb

[pdurrant]

Originally Posted by arjaybe

In your suggestion, refraining from publication allows for a potential eternity of copyright, unless you make the mistake of dying. Going to take a while to unearth the complications there.-)

If a work isn't published, no-one can copy it, no matter what its copyright status. One has to have a copy of a work (or the original) before one can copy it, after all.

I add the 50 years from death of author clause to encourage publication of unpublished works.

[6charlong]

Originally Posted by pdurrant

If a work isn't published, no-one can copy it, no matter what its copyright status. One has to have a copy of a work (or the original) before one can copy it, after all.

I add the 50 years from death of author clause to encourage publication of unpublished works.

I agree with pdurrant that 50 years is right. The problem with this debate is that copyright is being applied to the new forms of media. What it takes to incentivize a company to invest 100,000,000 dollars to make a film and what it takes to incentivize a writer to publish a work that his friends and family enjoyed, are two different things, they should not be treated as if they are the same.

The last time copyright was agreed on by governments at a time in history when books and drawings were the only media that existed, 50 years was what they agreed was appropriate. The new media should be treated differently from books and drawings.

[arjaybe]

Originally Posted by pdurrant

If a work isn't published, no-one can copy it, no matter what its copyright status. One has to have a copy of a work (or the original) before one can copy it, after all.

I add the 50 years from death of author clause to encourage publication of unpublished works.

One should be free to write something and not let it be published, but apparently that right expires with the writer? I honestly don't know how this common law copyright works.

rjb

[Greg Anos]

Originally Posted by arjaybe

One should be free to write something and not let it be published, but apparently that right expires with the writer? I honestly don't know how this common law copyright works.

rjb

Let me explain. I'll use as a example RSE Was A Stupid Old Git. (My diary.) I keep it private, and nobody but me sees it. From a copyright standpoint, no statuatory copyright exists. At least under current interpretations of copyright. (Under Berne it gets murky. Once I create it it may fall under statutory copyright. Or it may not. I'll leave the Berne "automatic copyright" confusion to the side.)

As long as it sits in my desk drawer, it's under common-law copyright. My will gives it to my niece. She throws it in her desk drawer. And so on, and so on, down through the years. Now as long as nobody makes and distrubutes a copy of it, it's under common-law copyright. Clear so far?

Now if anybody makes a copy of it and distributes that copy, the common-law copyright is superceded by a statutory copyright, with whatever the terms of statutory copyright at the time (currently life +70, or whatever posthumus copyright rules hold at that time).

Just to make it more confusing, if my niece reads it on a radio show, that is not a copy. It is a performance. Yes, there is now a performance copyright started on her reading, but the original has not been copied, and put back in her desk. The copy of RSE Was A Stupid Old Git is still under that common-law copyright, and won't be under stautory copyright unless copies have been made and distributed.

The great unknown on this is what happens if somebody did a transcript of RSE Was A Stupid Old Git from my niece's reading and publishes it? That violated the common-law copyright, certainly, but did it trigger the statutory copyright change and timer. There may be case law out there that addresses this issue, but I don't know about any...

Did this make the situation any clearer, arjaybe?

[arjaybe]

Originally Posted by Ralph Sir Edward

Did this make the situation any clearer, arjaybe?

I guessed that something unpublished fell under common law copyright.

I guessed that publishing triggers statutory copyright.

You tell me that CL copyright can be willed, so now I understand that it doesn't expire with the creator.

You say that a performance is not a publication. I'll take your word for it.

Yes, it's obvious that publishing a transcript of the performance is a violation of its copyright. I wouldn't think it would be a valid publication, so it shouldn't extinguish CL copyright.

My ignorance of CL copyright is due to knowing about the automatic copyright in Berne. Since learning that, I've always assumed that copyright (now understood to be statutory copyright) was automatically vested in the creator. It didn't occur to me that any other form was necessary.

I can see how CL copyright covers the gap between creation and publication.

rjb

[crossi]

And really if you don't want something private published at all just keep it locked up like any property you want to protect (or like your financial records and passwords) while you are alive and make arrangements to have it destroyed after your death. If some snooping family member get a hold of it or an intruder breaks in and steals it and publishes it I would be looking more at burglary charges than copyright violation.