What If the Copyright Act of 1909 Was Still Law?

[Kali Yuga]

Originally Posted by Format C:

Can you create a Bilbo Baggins adventure? No.

Can you write your own fantasy story, set in a world with wizards and dragons? Yes.

Some content creators also turn a blind eye to or encourage fan fiction, as long as it stays non-commercial.

Originally Posted by Format C

Can you create a photograph of moonlight over Half-Dome? No.

CommonReader is correct, you can definitely produce your own photos of Half-Dome. What you cannot do is duplicate an Ansel Adams image without the permission of his estate.

Originally Posted by Format C

I think copyright is a limit more than an incentivator for creativity....

I don't really see the evidence for this claim, though, given the massive outpourings of creativity in the last, oh, 200 years, let alone the last 20 years.

[Hellmark]

While personally I do think the modern system of copyright automatically being applied when it is in a fixed form, some sort of registration would be nice. Something to where there is a central database that people can add their info to, so orphaned works would be less of a problem.

[Elfwreck]

Originally Posted by HarryT

It's actually a lot easier now (everywhere except the US, that is). All you need to know to determine whether or not a work is in copyright or not is the date of the author's death. You don't have to search copyright registers, worry about renewals, or anything else of that nature.

Doesn't work on obscure authors, or authors with common names, or pseudonyms. How does one determine if the Bruce Elliot who was the author of "Magic as a Hobby" in 1958 is alive today?

Tying copyright to the author's life requires that people track down personal information about the author which may not be available. What if Bruce Elliot was actually Brenda Elliot, but the publishers were convinced that a magic-trick books with a female author's name wouldn't sell?

What if the book was a reprint of something originally published in 1937, and Mr Elliot died in 1940? How far, and in what countries, should one be required to check for the author's biography?

Life+whatever copyright spans are mostly useful to keep materials from being usable by the public for over a century. They don't bring more money to the author--the vast majority of books are still out of print within a few years, and the extended copyright means nobody can easily pick up on the old ones, republish them, and give the author a popularity surge for their newer works.

[HarryT]

Originally Posted by Elfwreck

Doesn't work on obscure authors, or authors with common names, or pseudonyms. How does one determine if the Bruce Elliot who was the author of "Magic as a Hobby" in 1958 is alive today?

Tying copyright to the author's life requires that people track down personal information about the author which may not be available. What if Bruce Elliot was actually Brenda Elliot, but the publishers were convinced that a magic-trick books with a female author's name wouldn't sell?

What if the book was a reprint of something originally published in 1937, and Mr Elliot died in 1940? How far, and in what countries, should one be required to check for the author's biography?

I accept what you say, but I still maintain that determining whether an author is alive or dead is generally much simpler than having to consult copyright registration records for each and every separate work produced by the author.

[L.Urquiaga]

but I've thought for years that the way to solve this is to create a rebuttable statutory presumption that the year of publication is the author's year of death. Then set up a voluntary registry for authors (or transfer copyright owners on their behalf) to record title, contact and biographical information. Allow only actual damages for non-registered authors.

That way, if you want to know if a book is protected, do an author search (include a web search requirement as well) - if you find the author, you can either contact him/her or at least know whether they're alive or dead. If they're not listed and the book was published over 75 years ago, go ahead and use it as if it were public domain.

I'd also love to see a statutory licensing arrangement for material that was published more than 28 years ago*, out-of-print and "unclaimed."

----
* For the person who asked about the term of years: the original US copyright act of 1790 set a term of 14 years, which could be renewed by the author for a total of 28 years. The 1909 act doubled that to 28 years renewable to 56. And the 1976 act adopted the life+ standard used in Europe. You'd have to ask the Europeans where they got their numbers :-)

[CWatkinsNash]

Originally Posted by Format C:

Actually, copyright limits what you can create before that.

Can you create a Bilbo Baggins adventure? No.
Can you create a Elvis Presley remix? No.
Can you create a photograph of moonlight over Half-Dome? No.
Can you create a new episode of Rawhide? No.

You'll need special permissions from some copyright holder who can veto your ideas.

OTOH, the lack of copyright permitted the release of a masterpiece like Dan Simmon's Ilium....

I think copyright is a limit more than an incentivator for creativity....

I didn't realize I needed to specify that I meant original material. I'm well aware of all of the above - and my original creations get the same protections as (some of) those you listed.

You also make it sound like getting the permission is impossible, but that's not always the case. Remember JXL? And no one is stopping you from doing any of those things - you just can't publicly distribute them or sell them. Be creative till the cows come home - you can't make money off of my property or clutter up Youtube without my permission. Too bad.

Eradicating protection would definitely hamper creativity far more than the current limitations. Do you think independent filmmakers would put up their savings and months, even years, of hard work to create a film if ANYONE could come along and chop it to pieces? It would eradicate entire markets currently available to artists.

I don't expect you to see it from my point of view, but from where I'm sitting, getting rid of copyright so that others can do as they wish with my creations is never going to get my vote.

Shorter limits? Yes, I am in favor of that. I would be happy with Life, and Estate getting first option and a limited time to decide, and no renewel. In other words, the Estate can't just hold it for the sake of doing so. I wouldn't want my heirs just sitting on it. If they don't want to make money with it in the time available, turn it loose in PD. I would be perfectly happy with that.

But don't expect me to agree that copyright is bad because of a dearth of Elvis remixes.

[CWatkinsNash]

Originally Posted by Hellmark

While personally I do think the modern system of copyright automatically being applied when it is in a fixed form, some sort of registration would be nice. Something to where there is a central database that people can add their info to, so orphaned works would be less of a problem.

Registration is still available, it's just not mandatory which, seeing as how there is a fee involved, is how it should be. It's still the preferred method of proving origin or ownership. It provides a verifiable paper trail.

You may have heard of "poor man's copyright" which involves mailing something to yourself? It's generally inconclusive in terms of proving first origin unless the other claimant has even shakier evidence, but it stems from the fact that it's cheaper than paying the registration fee. Though most people now know it's not the best method of creating a paper trail, it still happens.

[Elfwreck]

Originally Posted by HarryT

"Publication" is a well-defined concept. For example, in the EU we have the concept of a "typographical copyright" (which I don't think exists in the US). This is protection for a particular "layout" of a work, and has a non-extendable 25 year term from the date of initial publication.

"Publication" was well-defined before personal computers & the internet.

What's the publication date of a (hypothetical) essay that I
(1) wrote on my computer in July 2006,
(2) sent to a select group of friends by email in August 2006,
(3) posted to a blog community only readable by subscribers in January 2007,
(4) posted to a public online forum in April,
(5) had printed in a convention program book in February 2008,
(6) had printed in a paid fanzine in January 20009,
(7) published in an ebook of "Elfwreck's Collected Essays" at Smashwords in March 2010?

Does each of those version contain a 25-year "layout" copyright--and if so, what does that cover? Does a printout of the locked blog post count as a violation of the layout copyright? If someone saves the post as an html file and opens it in notepad, and prints that, does it violate the layout copyright?

The concept of "layout copyright" comes from the notion that publication is a fixed format that looks the same to all viewers.

I'm aware that this means that copyright based on "publication date" is more than a bit of a mess, too. Date of author's death, while possibly not available, is at least *fixed.* That part is simpler; I just don't think that simplicity overrides the good of supplying public access to the millions of abandoned and orphaned books that *could* be reprinted, translated, made into movies or songs, or used as background for new works, if picking up a book would let you *know* if it was in the public domain.

If the rule were "publication + 50," than a book published in 1960 is available for use. Possibly, a book published in 1975 is available because it's a reprint; you might have to track that down. But you know when a book is certainly available, which is much easier than trying to figure out "who is this author really and when did he/she die?"

[Kali Yuga]

Originally Posted by Elfwreck

What's the publication date of a (hypothetical) essay that I (1) wrote on my computer in July 2006....

January, 2007.

Copyright protection kicks in July 2006, though.

Originally Posted by Elfwreck

I'm aware that this means that copyright based on "publication date" is more than a bit of a mess, too. Date of author's death, while possibly not available, is at least *fixed.*

None of these dates we're throwing around are easy to determine.

Originally Posted by Elfwreck

If the rule were "publication + 50," than a book published in 1960 is available for use.

Yes, but again, "publication" is too late.

If I am a novice screenwriter, and I'm shopping my new screenplay around, I want protection now. I don't want to publish it anywhere first.

"Fixed form" is clearly the optimal date to start the copyright term.

[CWatkinsNash]

Originally Posted by Elfwreck

I'm aware that this means that copyright based on "publication date" is more than a bit of a mess, too. Date of author's death, while possibly not available, is at least *fixed.* That part is simpler; I just don't think that simplicity overrides the good of supplying public access to the millions of abandoned and orphaned books that *could* be reprinted, translated, made into movies or songs, or used as background for new works, if picking up a book would let you *know* if it was in the public domain.

The biggest problem isn't that publication dates are a mess, it's that this method would provide NO protection to a lot of works.

Kali mentioned screenplays as an example. Songwriting is another very good example - hundreds of people might lay eyes on a song long before it ever gets "published", and "published" doesn't even mean the same thing in that industry.

People seem to keep coming back to the book model, when copyright affects a heck of a lot more than books. That's why the "publish date" method can't be effective - it doesn't apply in that way to a lot of things that are protected by copyright and even when it does, it comes far too late.

[majolo]

Tangentially to the topic of when copyright starts--

In 2010, Volume 1 of the Autobiography of Mark Twain was published, in accordance with his wishes. He specified that the work would be published (in 3 volumes) 100, 125, and 150 years after his death (I gather this from wikipedia). In the US, I understand copyright begins when the work is first "fixed". Am I right that this new (to the public) work is instantly PD? (Of course, commentary, introduction, etc. by U. of California Press would be under copyright.)

[Andrew H.]

Originally Posted by Ralph Sir Edward

Andrew H, I'm not certain you grasp the difference between Real and intellectual property. The difference is massive and important.

Simply put, when you sell a piece of real property, of whatever sort, you transfer total ownership of said piece of property. The new owner is under no obligation to do anything you may prefer to the property. it his property now.

Umm, from the post you quoted:

If I own a store and you steal my inventory, I lose money because I can't sell it to anyone else. If I write e-books and you give away copies of my e-book to people who would otherwise have purchased it, I lose money because I can't sell it to them. This is really simple point. And it is a much more important point than esoteric arguments that nonrivalrous goods aren't property.

With I.P. you claim to retain all rights to copy. But you Sold a property!
You can't have it both ways.

Why not?

The difference between rivalrous and nonrivalrous property is of long-standing and I don't know of anyone who would seriously contend that nonrivalrous property isn't property that can be owned, bought, sold, leased, etc.

Property is a collection of rights, and you can still have an ownership interest in property without having all the rights. If I rent you a house, you don't have the right to sell the house, but you do have the right to occupy the house, to exclude others from the house, and maybe to sublet the house.

If I sell you an e-book, I am selling you the right to read the book and to otherwise use it in accordance with whatever terms you agree to when you buy the book. You still have property rights in the book, even though you may not have some rights in the book. But it doesn't matter from a property perspective that I could sell the same book to someone else.

And you certainly haven't pointed out why it should matter. The fact that I sell an e-book to you, granting you certain rights and retaining other rights, is no different from many other types of transactions in property.

The fact that I can sell the same book to someone else means that we're dealing in with nonrivalrous property, which has some different characteristics from rivalrous property (as does personal property vs. real property), but that fact has no bearing on the sales transaction between purchasers and sellers. I mean, how would it - because I sold you a nonrivalrous good, you are allowed to sell it to everyone? Of course that doesn't make any sense; if you want to sell it to everyone, you should buy the copyright.

Again, if I lease you a house and put a "no-sublets" clause in the lease, you still have many rights in the property: you can occupy it, exclude people, etc. But you're not allowed to lease it to anyone else...even if you aren't occupying it. If you wanted that right,you would need to buy the house,or pay more for the right to sublet.

Society allows it to be both ways for a limited period of time to encourage more I.P. production. Period. Not to create a perpetual new kind of property, just an extra carrot.

Yes, that's the reason society allows IP...and IP isn't perpetual. But society has fiddled with property for as long as there has been property. You couldn't even *sell* real property in England until 1290. IP isn't really any different. But it's still property.

[CWatkinsNash]

Originally Posted by majolo

Tangentially to the topic of when copyright starts--

In 2010, Volume 1 of the Autobiography of Mark Twain was published, in accordance with his wishes. He specified that the work would be published (in 3 volumes) 100, 125, and 150 years after his death (I gather this from wikipedia). In the US, I understand copyright begins when the work is first "fixed". Am I right that this new (to the public) work is instantly PD? (Of course, commentary, introduction, etc. by U. of California Press would be under copyright.)

The content and elements that make it "new" are protected separately, and that edition is protected as a whole because of that. In other words, you can't photocopy that edition, etc. The source content's PD status does not change.

[tompe]

Originally Posted by Kali Yuga

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.

It is still America lobbyists that are guilty. They pressured Europe to change the laws to be able to use that as an argument to get the US to change the law.

[Gwen Morse]

Originally Posted by HarryT

I don't know how it works in the US, but in the UK, the directors of a company have a legal duty to run the company "in the best interests of the shareholders". That certainly doesn't always mean maximizing profits.

In the US, the law instead requires that the directors of a company run a business in the best interests of the "corporation", and, in fact, there's a rule that states it's automatically ASSUMED that directors do this.

This is why boards can pay themselves huge bonuses that are _not_ in the interests of the shareholders. They can argue that that it allows them to attract the best executive talent and that talent is in the bests interests of the corporations. The shareholders have to lump it .

While shareholders vote for a board, the board does not work for them. The board works for the corporation.

It's kind of like if a corporation was a cash-generating kid and the board are the guardians. As long as the kid doesn't show up to school with broken arms and legs and a bloody nose, they can do what they want with it, because they can always argue that something self-serving trickles down to help the kid.