Why public domain

[doubleshuffle]

Originally Posted by leebase

Oh....I fully I understand “I want free and I want to copy” - it’s not a hard concept.

We’ve long past handing down stories verbally. If you want to write a Slytherine comic it’s because JK Rowling wrote a terrific book that her publishers marketed ... and she sold the rights to great movie producers. Money...money...big money turning those characters into household names. And some guy thinks he gets to create a Slytherin comic because it's “cultural heritage”.

To borrow from my culture...Bitch Please.

Not calling you a name....just borrowing a phrase that means “gurl, you cray cray”

Well, you managed to pick out the one example in which the author of the source material is still alive and does have a claim to copyright. Kudos.

But what do you say about my example from several posts ago?

Originally Posted by doubleshuffle

What you are overlooking is the fact that literature is not exclusively about making money. Shakespeare didn't use Holinshed's Chronicles because they were a smash hit, but because they inspired him. Say there was a brilliant writer inspired by Kafka's Metamorphosis. Under current copyright law they can just use the story and do with it as they please. Which is a good thing, because that writer might produce something just as brilliant as Kafka's story, which would benefit all of humanity. But with eternal copyright, our author would have to deal with the Holtzbrinck Group, one of the most powerful corporations in the publishing business, which owned the copyright before Kafka's works became PD. So our author can bury the idea right at the start.

I know your reply: why don't they create their own giant bug? But what if they want to use passages from the actual story, putting them in a different context, and what if precisely this kind of montage was essential for the new story?

This person isn't doing it to profit from Kafka's success, but because he/she is an artist working in a cultural context. Should they have to deal with the likes of Holtzbrinck, a corporation that sued Project Gutenberg over books out of copyright in the U.S. they uploaded to U.S. servers? Do you think our author would have a snowball's chance in hell if Kafka was still one of Holtzbrinck's cash cows? Or do you really think they should have to pay for using Kafka's text?

[hildea]

Originally Posted by doubleshuffle

You can't be bothered to read what people write in this thread, can you?

Originally Posted by doubleshuffle

Well, you managed to pick out the one example in which the author of the source material is still alive and does have a claim to copyright. Kudos.

But what do you say about my example from several posts ago?

Heh, yes, it's annoying to try to have a discussion with people who don't seem to engage with any arguments, they just repeat their own stance over and over again.


Going back to the first post in this thread:

Originally Posted by pwalker8

It's the idea of derivative works that I find a bit more interesting. One of the little secrets out there is there is already a huge body of derivative works out there based on a wide range of books or series of books. It's called FanFic. For the most part, copyright holders politely don't notice FanFic as long as they are not required to notice it for legal reasons. Quite a few mention in passing that some of the FanFic can be quite good. I've seen a number of authors who mention that they got their start in FanFic. Basically, it seems that the rule of thumb is that as long as you aren't trying to make money at it, or do something the copyright holder considers highly offensive (the idea of Mickey Mouse porn is one of the reasons trotted out to support long lasting copyrights), most authors don't have an issue with it.

I've read some truly excellent fanfic. One of the driving forces is that it allows people who seldom get to seee people like them as heroes to reimagine popular stories with heroes outside the standard white-straight-cis-male norm.
Or just, like several posters have mentioned here, to play around with the source material, experiment with what if's, go into detail where the canon stories go fast-forward, put the spotlight on a minor character, move the characters into an alterntive universe, or give a happy ending to characters who have tragic endings in canon.

I'm not sure what the legal status of fanfic is, and less sure what it should be. It seems to me that allowing not-for-profit derivative/transformative works would be a good thing, although there might be potential pitfalls I don't see.
I don't see the Mickey Mouse porn hypothetical as a problem. As long as it's clearly marked, so people don't stumble across it by accident, what's the harm?


Added:

I went looking for information on the legality of fanfic, and found this one interesting: https://transformativeworks.org/faq/ See especially the two first items under Legal:

Originally Posted by Organization for Transformative Works

Why does the OTW believe that transformative works are legal?

Copyright is intended to protect the creator’s right to profit from her work for a period of time to encourage creative endeavor and the widespread sharing of knowledge. But this does not preclude the right of others to respond to the original work, either with critical commentary, parody, or, we believe, transformative works.

In the United States, copyright is limited by the fair use doctrine. The legal case of Campbell v. Acuff-Rose held that transformative uses receive special consideration in fair use analysis. For those interested in reading in-depth legal analysis, more information can be found on the Fanlore Legal Analysis page.

What exactly is fair use?

Fair use is the right to make some use of copyrighted material without getting permission or paying. It is a basic limit on copyright law that protects free expression. “Fair use” is an American phrase, although all copyright laws have some limits that keep copyright from being private censorship.

Fair use favors uses that (1) are noncommercial and not sold for a profit; (2) are transformative, adding new meaning and messages to the original; (3) are limited, not copying the entirety of the original; and (4) do not substitute for the original work. None of these factors is absolutely necessary for fair use, but they all help, and we believe that fanworks like those in the archive easily qualify as fair uses based on all these factors.

[tubemonkey]

Originally Posted by hildea

Heh, yes, it's annoying to try to have a discussion with people who don't seem to engage with any arguments, they just repeat their own stance over and over again.

The argument is simple. I make no differentiation between physical property and intellectual property in terms of ownership. Both forms of property belong to the owners/creators until such time as they voluntarily relinquish their rights.

Copyright is nothing more more than legalized theft of intellectual property just as eminent domain is legalized theft of physical property. I disdain both forms of theft.

[Thasaidon]

Originally Posted by tubemonkey

The argument is simple. I make no differentiation between physical property and intellectual property in terms of ownership. Both forms of property belong to the owners/creators until such time as they voluntarily relinquish their rights.

Copyright is nothing more more than legalized theft of intellectual property just as eminent domain is legalized theft of physical property. I disdain both forms of theft.

What is your philosophical justification for your view? Or do you not have one?

[pwalker8]

Originally Posted by hildea

Heh, yes, it's annoying to try to have a discussion with people who don't seem to engage with any arguments, they just repeat their own stance over and over again.


Going back to the first post in this thread:



I've read some truly excellent fanfic. One of the driving forces is that it allows people who seldom get to seee people like them as heroes to reimagine popular stories with heroes outside the standard white-straight-cis-male norm.
Or just, like several posters have mentioned here, to play around with the source material, experiment with what if's, go into detail where the canon stories go fast-forward, put the spotlight on a minor character, move the characters into an alterntive universe, or give a happy ending to characters who have tragic endings in canon.

I'm not sure what the legal status of fanfic is, and less sure what it should be. It seems to me that allowing not-for-profit derivative/transformative works would be a good thing, although there might be potential pitfalls I don't see.
I don't see the Mickey Mouse porn hypothetical as a problem. As long as it's clearly marked, so people don't stumble across it by accident, what's the harm?


Added:

I went looking for information on the legality of fanfic, and found this one interesting: https://transformativeworks.org/faq/ See especially the two first items under Legal:

Fair Use was originally a judge created exception to copyright that was later written into the law. As far as I know, the idea that fanfic would fall under fair use has never gone to court, and I suspect is on fairly shaky legal ground.

I think that where fanfic runs into philosophical problems is the idea of indirect profits, i.e. you have a website devoted to Buffy the Vampire Slayer fanfic. You don't charge people to read the stories, but you do have advertisement on your website.

[MarjaE]

My view is that property is a way to protect privacy, and avoid disputes over scarce goods.

I think it undermines privacy, and creates more disputes, when greatly unbalanced and when extended to infinitely reproducable goods or their creation.

I hope some other way to reward writers, artists, and researchers can be found.

[Alanon]

Originally Posted by pwalker8

I think that where fanfic runs into philosophical problems is the idea of indirect profits, i.e. you have a website devoted to Buffy the Vampire Slayer fanfic. You don't charge people to read the stories, but you do have advertisement on your website.

I believe that in most legal systems the fair-use concept needs to be arbitrated in some sort of proceeding. So there's no actual iron-clad legal standard except as noted in individual cases? I could be completely wrong, though, I'm not a legal scholar.

For the most part fanfiction has remained non-commercial, at least for original content creators. Fanfic platforms could argue that that they do not discriminate and merely cover the costs of making the material available, and since they remove any content at the behest of authors, I don't think that it's a particularly hard sell.

A thing to note, however, is that the premise of indirect profits cuts both ways. Fan fiction might make the original work more popular, and as a consequence, more profitable, yet no one seems particularly interested in having a discussion on compensating those folks? No one has put forth any justification for having hordes of people that popularise original work for free, that's somehow become a given.

It's an interesting paradox - great fan fiction authors might do the work of entire PR teams, completely free of charge, and still be constantly at risk from litigation, and suffer the snobbery of internet trolls telling them their work is not original and is somehow near-worthless. I suppose if impartiality is too much to ask from our culture, we might at least hold some hope for impartiality in resentment.

[murraypaul]

[QUOTE=Alanon;3904297A thing to note, however, is that the premise of indirect profits cuts both ways. Fan fiction might make the original work more popular, and as a consequence, more profitable, yet no one seems particularly interested in having a discussion on compensating those folks? No one has put forth any justification for having hordes of people that popularise original work for free, that's somehow become a given.

It's an interesting paradox - great fan fiction authors might do the work of entire PR teams, completely free of charge, and still be constantly at risk from litigation, and suffer the snobbery of internet trolls telling them their work is not original and is somehow near-worthless. I suppose if impartiality is too much to ask from our culture, we might at least hold some hope for impartiality in resentment.[/QUOTE]

The situations are not the same.
The fanfic authors chose to be in this situation, the original authors didn't.

[JSWolf]

Originally Posted by issybird

Only straight men and lesbians, then?

How about life+life of spouse and/or kid(s) and if there is no spouse or kid(s), then it's just life+0?

[ekbell]

As far as I can tell if copyright became perpetual, there would be four initial possibilities upon death of the initial creator(s).

a) The creator is a careful person and sets up some sort of legal entity that will care for their works as long as possible. As long as is feasible the creator's stated wishes for the publication of their works will be followed. At some point the legal entity will cease to exist and the copyrights will either linger in limbo or be purchased someone else (likely a publishing/production company).

b) The creator gives the copyright to one or more people in their will. Anyone hoping to publish the works will have to discuss it with the heir(s) who may or may not care about the wishes of the creator. Given normal levels of will making and the laws dealing with the assets of someone who dies without a will the copyright will eventually be either shared between a cumbersome number of heirs or become the property of the state (if there is no traceable heir). In either case the chances are that the copyright will linger in limbo unless someone manages to buy the copyright which may be difficult, particularly if no one has been bothering to keep track of ownership.

[A interesting problem with intangible assets is the need for good records to maintain knowledge of the asset so that it can be passed on, something that tends to be less of a problem with physical assets. As copyright is of international concern the ability to provide reasonably available records of copyright is not simple, hence the current rules under which we can normally figure out the status of a particular work.]

c)The author doesn't bother to make a will. See b

d) The author has no heirs. See b

The most likely result of perpetual copyright is that the best chance for a creation to be available to consumers after the creator is dead would be in being bought by a business with little to no connection to the original creator for a publish on demand catalog (ebooks/mp3s/vids are essentially very cheap to make publish-on-demand products). However given the amount of trouble vs the low chance of making money I doubt most creations would be worth the bother. Or to put it bluntly most businesses probably wouldn't bother to go around obtaining copyrights for old creations except for the sort of creation worth publishing even when public domain.

In the end I expect we'd either get de facto public domain for works too old or obscure to bother figuring out who actually has copyright or they would disappear at an even greater rate then they already do with our current copyright lengths (think about what will happen to our knowledge of history if the second happens and all but the most popular original sources disappear forever).

That's assuming that the laws are followed however, given the popularity and abundance of reworked folktales, legends and myths in all available mediums, I think that it is safe to say that the ability to freely retell tales is something that appears to be value to humanity as a whole. Given that such has been done since the beginning of history (and likely longer) I expect that laws to prevent this would likely be as effective as the laws forbidding production and sale of alcohol were and for much the same reasons (although I doubt there would be the same level of violence). People will continue following long-held and enjoyable cultural practices particularly if they can't be proven to do positive harm to any individual.

[tubemonkey]

Originally Posted by ekbell

As far as I can tell if copyright became perpetual, there would be four initial possibilities upon death of the initial creator(s).

My proposal for perpetual copyright is life + renewal (every 'x' years).

After an author dies, works would be required to be renewed every 'x' years. If the copyrights aren't renewed, these works would be declared orphans and immediately placed into the public domain. If someone can prove ownership of the copyright within 'x' years after it first enters into the public domain, then the copyright will be re-established.

If during this interim, new works are created based on these temporarily orphaned works, the new copyright holders will be allowed to keep those works indefinitely, provided they renew when required. At no time would they be required to pay the original copyright holders for use of the original works.

Bottom line, keep good records. You can keep your copyrights forever, provided you renew them when required. Failure to do so immediately places these orphaned works into the public domain.

[JSWolf]

Originally Posted by tubemonkey

My proposal for perpetual copyright is life + renewal (every 'x' years).

After an author dies, works would be required to be renewed every 'x' years. If the copyrights aren't renewed, these works would be declared orphans and immediately placed into the public domain. If someone can prove ownership of the copyright within 'x' years after it first enters into the public domain, then the copyright will be re-established.

If during this interim, new works are created based on these temporarily orphaned works, the new copyright holders will be allowed to keep those works indefinitely, provided they renew when required. At no time would they be required to pay the original copyright holders for use of the original works.

Bottom line, keep good records. You can keep your copyrights forever, provided you renew them when required. Failure to do so immediately places these orphaned works into the public domain.

I don't like the idea of perpetual copyright. I also don't like the US copyright being so stupid. Life+95 is because Mickey Mouse bribed the government to up the copyright time.

[arjaybe]

Give 'em an inch ... Oh, wait. Someone might have copyrighted that, so I'd better not complete it.

[Alanon]

Originally Posted by murraypaul

The situations are not the same.
The fanfic authors chose to be in this situation, the original authors didn't.

In a way, they did. No one begins to write with a goal of producing a mediocre book that will have no impact? Every author believes (or wishes) that he/she will write a great book in their chosen niche. And such books have always inspired others, which in today's situation equates to fan fiction. To be clear, I'm in no way advocating for a laissez-faire attitude towards actual copyright infringement. However, I believe that we are at a point where successful literature now contains the implication of fan fiction. The fact that some authors haven't gleaned on to this yet doesn't change things, especially not when the bulk of their readership understands and practices this.

The difference is that today, unlike centuries years ago, there are both greater gains for original authors, and greater burdens imposed on those influenced by them to create fan fiction. Cervantes might have actually been harmed from the falsified second book of Don Quixote, and he couldn't touch whomever made the false sequel. Harry Potter, on the other hand, might not have turned into a wildly successful film franchise without a dedicated fan fiction community spreading the word. And yet one word from Rowling could end it all.

[DuckieTigger]

Originally Posted by JSWolf

How about life+life of spouse and/or kid(s) and if there is no spouse or kid(s), then it's just life+0?

Life+0 is not a good idea unless you want to create motive to shorten an authors life to end the copyright. Some short, minimum length after publication, regardless of death, should do. Maybe life+10. Life+life of spouse is not a good idea either. A near end of life successful author might simply marry the lowest legal age spouse possible.