Copyfraud - public domain's fate?

[Kali Yuga]

I don't hold quite the same view as Andrew H., in that art would still survive in a PD-only world. Eliminating copyright won't stop people from creating.

However, it will destroy most of the financial incentives, the ability of artists to support themselves with their work and many large-scale works of art.

Also, it helps to be cognizant of at least a few basic facts of art history, such as:

• The majority of art was/is created by professionals.
• "Hobbyists" can occasionally make excellent works, but it is a rarity, due in no small part to a lack of time and resources to develop their abilities.
• Donations are not going to work.
• It's ridiculously obvious that many more people are creating work despite copyrights, and that patents are not slowing down innovation.
• It is not inconceivable that content producers would just re-create copyrights by some other mechanism -- e.g. requiring buyers to sign extensive license agreements that bar unauthorized replication or duplicate works, on pain of severe financial penalties.

As to "peoples will do it for free, I swears it" I agree that some work can be done without pay, but other work cannot.

Writing a book while sitting alone in your house is cheap, fun, relatively easy, and is a "social good" for which people may well eschew financial incentives. However, editing a book -- which will dramatically improve the quality of the work -- is not cheap, fun, easy or a social good. It's a market skill, any half-way decent editor is going to expect payment for slogging through your Harry Potter fanfic, and surprise! professionals actually need to eat, and like to get paid for their work.

Similarly, in case you missed it: Major movie productions can cost millions, if not hundreds of millions, to film. You need to coordinate a large staff of professionals for weeks, if not months -- i.e. it's not a job for hobbyists. There is no way people will donate millions to Warner Brothers for the latest Batman movie -- nor is a bunch of schmucks filming their own "$5.95 Garage Batman Re-Revisted" and putting it on Youtube a real replacement.

In short: Throwing out copyright is not going to give us a world full of puppies and whipped-cream bras. And we seem to have the latter, despite the allegedly destructive stranglehold of IP laws.

[DMSmillie]

Originally Posted by Krystian Galaj

This one's absolutely false. I myself spend considerable amount of time daily adding value to common Internet sties, and no one's paying me a cent for it.
Also, I believe both you and me create something valuable to other readers just by discussing this topic. Is anyone paying you money for this?

Posting in forums is hardly comparable to writing a novel, or composing a symphony, or painting a landscape. Nor are you being hampered from posting in this way by copyright laws.

Originally Posted by Krystian Galaj

It doesn't mean those laws are a good idea either.

Getting kind of circular here. You used the expense as an example of what is bad about copyright law. Andrew pointed out that expense doesn't automatically mean the law is bad. That isn't the same as saying it means the law is good - it simply counters your original reasoning.

Originally Posted by Krystian Galaj

I don't believe the world should keep being adjusted so authors can live entirely off their works. 1. If other work pays more, they're free to do it instead. 2. It still seems to me that we're losing more than we're gaining by letting some people get a lock on different stories.

What do you mean "keeps being adjusted"? If you mean the length of time that copyright runs, fair enough, but that's a totally separate issue to whether or not copyright should exist. Copyright either exists, or it doesn't.

Why should authors, songwriters, painters, playwrights, etc, not be entitled to make a living from their artistic work?

Do you really believe that all artistic endeavour should be a hobby, squeezed into whatever time people have left over after doing a regular job, cleaning the house, looking after children, etc, etc, etc? Many, perhaps most, of the artistic works we value in the western world wouldn't exist if their originators had had to do all that. Historically, most artists of all kinds were only able to be artistically creative because either they were born into a family with sufficient money to free them from these day to day needs, or they were lucky enough to attract a rich patron whose money similarly freed them from the need to earn a living in some other way. Even as things are now, there's still a long "apprenticeship" with little money coming in for most who seriously try to be creative, whether that's writing, painting, composing, etc. You would make that "apprenticeship" a permanent state of affairs. How many do you think would persevere without at least the dream of being the next Jane Austen, or Asimov, or J K Rowling, with the possibility of being able to earn a decent living from their writing, and be free to write all of the time, instead of an hour here, an hour there, when other commitments allow?

Originally Posted by Krystian Galaj

Only my situation looks a whole lot more plausible to me

Of course it does, since you imagined it.

Originally Posted by Krystian Galaj

Many people don't have a whole range of abilities Rowling needed to create HP. One person may be very bad with character descriptions, but write brilliant dialogue, another can't describe people, but can make places really come to life. Currently those people are forbidden from improving on single aspects of existing work, which they may have talent for, the creativity is instead restricted to having to create the whole thing. This is just an example of one of many restrictions.

What is currently preventing those who might only be good at some aspects of writing a novel, to use that example, from getting together with others who are good at other aspects, and writing a novel together? Why does it have to be based on something someone else wrote? There are many examples of books being written collaboratively, for many different reasons. A recent and well known example is DRACULAS, written collaboratively by four authors.

Also - why does the argument "If something else pays better, you're free to go and do it instead" only apply to those with the ability to create a whole novel, and not equally to those who are only good at one aspect of writing?

Originally Posted by Krystian Galaj

...all books having print runs only after they gained fame as ebooks.

The growing access to "print on demand" publishing for individual authors means that any new author, with minimum outlay, can publish their book both in print and as an ebook, without having to wait for someone else to "cherry pick" it from the ebook bestseller lists. And, indeed, with no copyright laws, what would there be to prevent those doing the "cherry picking" from publishing their own version of the book and keeping all the proceeds? What benefit would there be, there, to the original author?

Originally Posted by Krystian Galaj

One thing worth mentioning is that in the absence of copyright the discrepancy between best-selling authors and new ones is projected to be much smaller, ie. the best-sellers aren't selling as much and gaining as much money, but many more small authors gain enough money to be encouraged to create more.

Ummm... I'd suggest that that is already happening, as more and more independent authors take the self-publishing route. The knowledge that their investment of time and effort to write the book is protected by copyright law is encouraging more and more people to write and publish books. I wonder how many would do so if they knew that as soon as others started to buy their books, those others would be free to produce their own versions?

Originally Posted by Krystian Galaj

Now, I wonder if J.K.Rowling is still encouraged by monetary gains to write the next book, at the level at which she's now? It looks like she has enough money to specifically prohibit sale of ebooks of Harry Potter for what seems to be mostly luddite reasons. Is this good for the society as a whole? Is copyright working as intended in her case?

What is the problem with her not wanting to publish the books in ebook format? The books are still out there for people to read and enjoy, the films are there for people to watch and enjoy. Nothing has been kept unavailable. She gets paid, we get to read her books. What isn't working there?

[tubemonkey]

Originally Posted by rkomar

I don't care about the loss of fame for (likely dead) authors. It's our cultural loss that I care about, and the part that some in the business are playing in it.

I don't care about the cultural loss, because authors/copyright holders shouldn't be obligated to give up exclusive rights to their works just because the clock ran out. Their first obligation is to themselves; not society.

[murraypaul]

Originally Posted by HarryT

Copyright law does differ from country to country in this area. UK copyright law, for example, states that if you've expended a non-trivial amount of effort making copies of works that are in the public domain, then you hold a copyright of those specific copies that you've created (eg if you've scanned a book, nobody can copy those scans without your permssion). I understand that US copyright law has no such provision.

Do you have an example case for that?

Interlego AG v. Tyco Industries [1989] 1 AC 217 says the opposite.

Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality. In this connection some reliance was placed on a passage from the judgment of Whitford J. in L.B. (Plastics) Limited v. Swish Products Limited (supra) Cat pages 568-569) where he expressed the opinion that a drawing of a three dimensional prototype, not itself produced from the drawing and not being a work of artistic craftsmanship, would qualify as an original work. That may well be right, for there is no more reason for denying originality to the depiction of a three dimensional prototype than there is for denying originality to the depiction in two dimensional form of any other physical object. It by no means follows, however, that that which is an exact and literal reproduction in two dimensional form of an existing two dimensional work becomes an original work simply because the process of copying it involves the application of skill and labour. There must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work. Of course, even a relatively small alteration or addition quantitatively may, if material, suffice to convert that which is substantially copied from an earlier work into an original work. Whether it does so or not is a question of degree having regard to the quality rather than the quantity of the addition. But copying, per se, however much skill or labour may be devoted to the process, cannot make an original work. A well executed tracing is the result of much labour and skill but remains what it is, a tracing. Moreover, it must be borne in mind that the Copyright Act 1956; confers protection on an original work for a generous period. The prolongation of the period of statutory protection by periodic reproduction of the original work with minor alterations is an operation which requires to be scrutinized with some caution to ensure that that for which protection is claimed really is an original artistic work.

(Emphasis mine)

This suggests that UK law is broadly in line with US, in requiring an element of originality (the 'creative spark' of Bridgeman v Coral).

More recently:
Bailey & Anor v Haynes & Ors [2006] EWPCC 5

It was also agreed that the law on the subject is the same as that which applies to the concept of originality in the copyright field. The notion of originality is not to be equated with novelty as understood in the field of registered designs (or patents); it is altogether less of a hurdle. There are two basic ingredients. First, the work must originate from the author, that is, it must not have been copied from another work. Secondly, there must be sufficient skill and judgment deployed so that the work cannot be characterised as a purely mechanical exercise.

(Emphasis mine)

It is hard to see how automated bulk scanning could pass these tests.

[tompe]

Originally Posted by tubemonkey

I don't care about the cultural loss, because authors/copyright holders shouldn't be obligated to give up exclusive rights to their works just because the clock ran out. Their first obligation is to themselves; not society.

With the same reasoning you can say that society have no obligation to give a monopol to the author so they should remove the copyright laws.

[tubemonkey]

Originally Posted by tompe

With the same reasoning you can say that society have no obligation to give a monopol to the author so they should remove the copyright laws.

Then that same reasoning could be applied to real property and once a landowner dies, his land becomes public property after an additional 70 years.

[HansTWN]

Originally Posted by tompe

With the same reasoning you can say that society have no obligation to give a monopol to the author so they should remove the copyright laws.

Why have society pay for the author's livelihood (through social services) or force authors to spend all their time to work on some other job? Isn't it much easier for society to create a mechanism that offers authors a chance to make money off his/her work from those who actually enjoy the books? Copyright is such a mechanism. Somebody has to pay, why not the readers?

[tompe]

Originally Posted by HansTWN

Why have society pay for the author's livelihood (through social services) or force authors to spend all their time to work on some other job? Isn't it much easier for society to create a mechanism that offers authors a chance to make money off his/her work from those who actually enjoy the books? Copyright is such a mechanism. Somebody has to pay, why not the readers?

Yes, it is a very good idea but is is just a mechanism with a goal. I was just responding to the strange idea that the society had to give authors this chance for whatever time (or infinite time) that that author required.

[tubemonkey]

Originally Posted by tompe

Yes, it is a very good idea but is is just a mechanism with a goal. I was just responding to the strange idea that the society had to give authors this chance for whatever time (or infinite time) that that author required.

One of the strangest notions society has is that the exclusive rights an author (or copyright holder) has to a book, should have an expiration date.

[FF2]

Originally Posted by tubemonkey

One of the strangest notions society has is that the exclusive rights an author (or copyright holder) has to a book, should have an expiration date.

While it might be strange, it is enshrined in the US Constitution although no timeframe has been specified:

"To promote the Progress of Science and useful
Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings
and Discoveries;"

[ypocaramel]

I can't give a detailed analysis because it's just before finals, but the general approach to UK (and UK derived, Tyco is a Hong Kong case after all) Copyright Law is that it requires originality, yes, but there is more emphasis on protecting publishers' rights than the author's and as regards to originality, it tends to follow the strict / merger approach rather than the sweat of the brow approach.

[HarryT]

Originally Posted by murraypaul

Do you have an example case for that?

Sure. The one that springs to mind was the claim brought by the National Portrait Gallery in London against Derrick Coetzee, for making available on "Wikimedia Commons" some 3000 high-resolution photographs of the Gallery's collection.

In July 2009, lawyers representing the National Portrait Gallery of London (NPG) sent a demand letter threatening possible legal action for alleged copyright infringement, to an editor-user of the free content multimedia repository Wikimedia Commons, a project of the Wikimedia Foundation. The letter claims that Wikipedia editor Derrick Coetzee obtained more than 3,000 high-resolution images from the British National Portrait Gallery in March 2009 and posted them on Wikimedia Commons.[1][2][3]

The NPG letter stated the claim that while the painted portraits may be old (and have thus fallen into the public domain), the high-quality photographic reproductions are recent works, and qualify as copyrighted works due to the amount of work it took to digitize and restore them,[2][4][5] that the action of uploading the images infringed on both the NPG's database rights and copyrights,[3][4][6][7] and that the images were obtained through the circumvention of technical measures used to prevent downloading of the prints.[8] The NPG also stated that the public availability of the images would affect revenue acquired from licensing the images to third parties, revenue also used to fund the project of digitizing their collection,[7] an effort that the NPG claims cost the organization over one million pounds.[1] The NPG had requested a response by July 20, 2009 from Coetzee, and also requested that the images be removed from the site, but noted that the NPG was not considering any legal action against the Wikimedia Foundation.[2][3] The NPG announced that Mr. Coetzee had responded via his legal representative by the requested deadline.[4][9] Coetzee's legal representation is provided by the Electronic Frontier Foundation.[2][10]

Coetzee publicly posted a copy of the legal letter from the NPG, indicating that he desired to "enable public discourse on the issue".[1] On July 17, 2009, NPG gallery spokesperson, Eleanor Macnair, stated that “contact has now been made” with the Wikimedia Foundation and “we remain hopeful that a dialogue will be possible.”[2] The NPG has stated that it would be willing to permit Wikipedia to use low-resolution images, and that it hoped to avoid taking any further legal action.[1] The NPG had previously attempted to contact the Wikimedia Foundation in April 2009 regarding this issue, but did not receive an immediate response.[1]

The British Association of Picture Libraries and Agencies (BAPLA) has expressed support for the gallery.[5]

In early 2010, an NPG spokesperson reported to heise Open, a division of German publishing house Heinz Heise, "We had a constructive discussion in December and are now considering how best to come to an agreement."[11]

Full article here.

[Worldwalker]

Something to consider, for the people who say "no author would write anything without a monopoly on it" -- or, nowadays, a monopoly for people who were born long after anyone who ever knew him was dead:

Copyright is a rather recent invention.

Books are not.

[pdurrant]

Originally Posted by HarryT

Sure. The one that springs to mind was the claim brought by the National Portrait Gallery in London against Derrick Coetzee, for making available on "Wikimedia Commons" some 3000 high-resolution photographs of the Gallery's collection.

This isn't a court case yet, which is what I think was being asked for. The really interesting bit about the NPG case is that they haven't taken anyone to court. My guess is that this is because they expect they'd lose such a case.

[ypocaramel]

Seems like an out of court settlement to me though - not quite a precedent. But yea, American courts are kind of fuming about the UK injunctions on primarily US publication or content thing, especially with libel, which is easier to establish in the UK apparently. It's a conflict of laws / private international law thing though.