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What’s the Proper Conservative Position on Copyright Duration?
Who should conservatives side with in the battle between those who favor extended governmental protection for copyrights as the promotion of private property vs. those who believe that too much protection hurts consumers? Steven Tapp makes a strong argument in National Review that we should favor the former:
From the words and deeds of the Founders to the rulings of the Rehnquist and Roberts Courts, it is clear that the American free-market system is designed to promote private-property rights, including copyright, as the best engine of economic growth and freedom of expression.The public domain has its place as a venerable and valuable aspect of copyright law and reasonable people can and do disagree about the best way to write copyright law. But proposals to slash the duration of copyright to expand “public property” simply aren’t conservative.
Tapp is writing in response to a recent proposal by Derek Khanna, self-professed spokesman for conservatives on copyright issues:
In recent decades, a number of special interests called the “copyright lobby” have ensured their copyrighted works would never enter the public domain by keeping their copyright terms continuously elongated. The public-policy goals of this copyright-inflation movement have been in clear violation of the Constitution’s text and its original public meaning.
The recapture of works that would be in the public domain represents one of the biggest thefts of public property in history — and has had significant economic effects upon our culture, personal liberty, and economy.
Where do Ricochet members weigh in? Read both pieces and share your opinions in the comments.
Published in General
It’s a question of scale. Yes, there is a lot of copyright infringement in China, but there is also a massive amount of enforcement of copyright law in China. They only really started enforcing copyright law in 1998. Yes, of course, in a country as large of China there’s going to be a lot of pirates escaping prosecution, but it simply is NOT true that the Chinese government doesn’t enforce copyright.
https://en.wikipedia.org/wiki/Intellectual_property_in_the_People%27s_Republic_of_China#Implementation
Without Berne, there would no longer be any incentive for the Chinese government to recognize US copyright.
The Berne Convention does include provisions regarding fair use. I don’t see much evidence that FanFic published for free is under much threat.
Derivative works published for profit are not covered by fair use, and yet copyright holders have still come up with ways that FanFic writers can publish for profit via Amazon.com.
https://kindleworlds.amazon.com/
At present there is no central repository of copyright. Even if I release content into the public domain after 20 years, it is difficult for someone else to find that release – especially if the author has a limited way to advertise it.
Nor can you go by an assertion by an author they released something to public domain. For example, I do a work for hire. Twenty year later I publicly announce I release the work into the public domain. It is not in the public domain.
Copyright laws have draconian punishments. I will not use something in Wikimedia Commons unless I can contact the copyright holder and get written permission from the copyright holder to use the item – and a written statement they are the copyright holder.
There are items in Wikimedia for which public domain is claimed in which ownership is asserted (typically by corporations). You can use it in good faith and get sued. You might win the lawsuit, but are out the money for your defense.
Seawriter
That’s what I mean -even derivative works published for profit should be allowed. Protect only the work as a whole, none of the component parts. If someone out there (say, Nick Meyer) can write a better Holmes Story than Arthur Conan Doyle, I see no reason to prevent it just because Doyle happened to write it first.
This strikes me as the artistic and literary equivalent of the anti-reverse engineering parts of patent law. You can’t take Sam Colt’s gun, figure out how to make it, and then start producing replicas. But you can figure out how to make a gun that does the same thing as well or better and sell that.
I admit, innovation of an existing design is harder to gauge, but I would rather err to favor innovation.
If you are the copyright owner, and you release something into the public domain, presumably you’re the only person who would ever sue if someone else created a derivative work.
An analogy would be someone who abandons their car in the woods and complains that there’s no repository anywhere that advertises the location of abandoned cars.
The problem you cite about Wikimedia is not the fault of copyright law. It’s the fault of people claiming that a certain work is in the public domain when it really isn’t.
I do not see how that binds the hands of the copyright holder to release their work into the public domain.
They can, after the copyright expires, which is why there are so many Sherlock Holmes stories being made these days.
Once again, this debate simply boils down to, “how many years should copyright last?”
Here is a typical copyright problem.
A science fiction anthology is being assembled. The editor remembers a story from 1976 perfect for the collection written by Wazan Author. Wazan Author wrote six published stories between 1970 and 1980 and nothing else. The editor searches for the author, and cannot find him. The editor cannot determine copyright status. The editor passes on using the story, and re-reprints another Heinlein story because he can contact the estate.
Wazan Author abandoned writing at age 26 because he could not get stories published. He was ahead of his time. He is now 60. Had the story appeared it would have caused a revival of interest in him. He could have a nice retirement career as an SF writer.
He has never released his works into the public domain because he never thought about it. Even if he did, the announcement went unnoticed. Oh well.
Seawriter
The problem is that the copyright holder often signs over some of those rights in work for hire agreements or to a publisher. This means that the creator doesn’t necessarily have full rights to his own work so he or she can’t legally release it into the public domain. A copyright registry would solve this issue as then the various rights are then centrally and filed.
It does not. But if people refuse to republish or use the work due to fear of infringing copyright law, it effectively still is in copyright.
Seawriter
I’m not sure if you’re missunderstanding me or being puckish. I am saying that Copyright should only affect the actual book, that derivative works like Seven Percent Solution should not have to spend years languishing in publishing limbo because of the Doyle Estate, or even because of Doyle himself. The Star Trek: TNG Sherlock Holmes episodes (all 2 of them) languished for the same reason -and this is why there are only 2 of them. The purpose of copyright is to encourage new arts, not to delay new arts 50 years, allow people who’s only claim to fame is having the idea first to get a slice of someone doing it better, or employ lawyers.
Going further in this – it is madness that the FCC is involved in setting royalties rates to radio stations, streaming services, etc. This is price fixing and high corruption.
I think one of the things that strikes me about copyright law as it stands now is not just its length but also its scope. The original copyright laws of the Founders only protected the right to make copies of the original. They imposed no restrictions on derivative work. What I think really restricts and hurts consumers is the access to derivative work that current copyright law restricts. I am far more willing to entertain longer copyrights if their focus in narrowed.
Also original copy right laws did not apply to things like painting and music.
Hi, I hope you all check out the actual report.
Tepp is a major MPAA lobbyist, who lobbied for SOPA which was opposed by all major conservative groups (Heritage Action, RedState, FreedomWorks etc.). Something NRO doesn’t feel fit to mention as a disclosure. This article is one of the most error ridden articles I have ever seen run by a major publication. Tepp is entitled to his own opinions, but this is borderline libel.
As a reader here pointed out, he spends most of his time attacking the “R Street plan.” Except, the R Street report has no such plan. It has no plan at all. It does mention the RSC plan from 2012, but Tepp makes up a new version, a straw man, which he proceeds to break down. The plan that he criticizes me for, not only wasn’t advocated in R Street report – it literally doesn’t exist.
200 years ago James Madison warned us that copyright/patents were very dangerous as “monopolies” and were likely to be abused, therefore, citizens needed to “guard them with strictness aga[inst] abuse.” NRO should take this down, fact check it, and sponsor a live debate.
It’s funny. When I read the two articles, I came away not especially satisfied with either. But I read the comments here and I felt it largely came down the way I thought about it. A certain number of years to protect the creator and then a work goes into public domain, with alarm that the term of protection was getting too long. Glad to see I wasn’t alone.
I play and sell music for a living and, to me, copyright law protects me half the time, and creates problems half the time, especially for derivative works. I don’t expect this issue to gain consensus of supporters either way with any part of the political spectrum, ever.
I certainly do not dispute this however I also do not see why that should constrain policy decisions. Many laws which protect monopoly practices are extremely lucrative however that hardly means they should form the basis for policy decisions that effect all 300 million+ US citizens.
More rational copyright policies will inevitably mean less profit for media consortiums which detest my nation, I do not see why this should influence those not directly profiting by such policies.
After all what did the original clause state?
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
Well as a performer perhaps you could share your perspective as to the outcome that makes sense to yourself and then perhaps we can then debate it.
When an ongoing business uses a fictional character as a continuing revenue stream by creating new works based on the old character, that character should be treated as a trade mark, not a copyrightable work of art. And trade marks do not expire, as long as they are in active use.
Trademarks are different from fictional works though. You can trademark a character, sure, but you copyright your use of that character. Steamboat Willie, for instance, is a copyrighted work. If its copyright were to be allowed to expire (as it should) people could use it in their own works or reproduce it without Disney’s permission.
there are similarities, but trademark and copyright do not protect the same things.
I’m going to be harmed or helped either way. I can adapt. I see both sides. However, if a company, large or small, invests its money in the current system, and the courts or legislature changes the system, thereby devaluing what they invested in, that’s confiscation. I’m not for that. If you want to change it going forward, fine. I open to ideas.
A copyright of the author’s life plus 70 years is reasonable. I agree with the NR piece that suggesting that copyright is monopolistic is a sloppy attempt to re-define ‘monopoly’. Copyright protects the individual author as much as large firms.
My thinking was influenced by Mark Helprin’s excellent book, “Digital Barbarism”.
We need to take anyone with a nutty scheme about variable copyright term, variable renewal fees, and the like, and lock them inside a pressure vessel with Newt Gingrich. The runaway megalomania reaction could solve the energy crisis.
The bureaucracy and accounting nightmare of any of those schemes would make Obamacare look simple.
Nope. Copyrights are just a license to sue.
Individual authors lack the resources of large firms. They can only sue when a sufficient amount of money can probably be recovered to make the cost of a lawsuit remunerative. This protects individuals from the most egregious forms of copyright violation. (As it should be.)
Large firms, with lawyers on staff, can use the courts even when there is only a tentative possibility of copyright infringement. This serves to chill transfer of ideas (another major purpose of copyright). This makes it difficult for individuals to use characters that are in the public domain when a corporation asserts ownership. (Sherlock Holmes was one example.)
I avoid using images dated after 1922 or even those created prior to 1922 contained in books published after 1922 in my works unless I know no one is asserting claim to the image and the image is demonstrably in the public domain even when the preponderance of the evidence indicates the work is in the public domain. Why? I cannot afford the cost of a lawsuit to prove the resource is in the public domain.
Seawriter
Before we even talk about what the correct length of copyright should be we need to first discuss what is the proper punishment for copyright violations. To me this is the most perverted and unconstitutional part of the laws.
Someone forwards to one person an unreleased album for them to listen to. That person then distributes the album to people online. The person who forward the album to one person then get 2 years house arrest plus a few years probation for the most criminal argument you can make is he is a first time offender stealing a $20 dollar album. The person who actually did the distributing get nothing and is not even prosecuted. I knew a guy this happen to.
Yet for Samsungs supposed patent violation of millions of instances only money is exchanged no-one in the company gets a criminal record. If that is not a complete perversion of the law and does not violate crual and unusally punishment then please tell me what does.
I don’t think anyone can agrue copyright protection is an order of manguate more important to our society and economy than patents are. No it is the complete oppiste.
Many of the perceived grievances over copyright orbit around corporate involvement of intellectual property. We may soon see that influence begin to abate somewhat. Thanks to the late Sonny Bono (of Sonny & Cher), there is a provision in the law that allows the creator(s) of a copyright that has been contractually assigned to another party (publisher, record company, etc.) to reclaim ownership of the copyright after a period of 35 years. This affects copyrights created after 1979 only. The first of those elgible copyrights have just become reclaimable.
As one who has a significant number of copyrights languishing in music publisher’s catalogs, I intend to reclaim my work. I may not be able to do much with my old material, but at least I can try. Very few music publishers make any attempt to work their old catalog properties.
I suspect we are about to see one of the biggest transfers of wealth ever in the music world as recording artists and songwriters from the 1980s on begin to either take back their work or accept significant cash pay-outs to leave the copyrights in the hands of the corporate owners.
No it’s not. “[T]he system” you’ve invested in is entirely the invention of the legislature, and therefore has, as a fundamental component, the ability (indeed, the tendency) to change.
If you want to invest in things the legislature didn’t make and can’t change, you can. But all of ‘intellectual’ ‘property’ is a modern and ever-shifting invention: change (for good or ill) is baked in.
If the US reverted to the Berne Convention minimum (life+50), that would place a metric whack-load of material into the public domain immediately.
Right now anything produced after 1923 isn’t even eligible for the public domain in the US until 2024. That’s insane.
If the US reverted to the Berne Convention minimum, mostly everything produced between 1923 and 1966 would enter into the public domain.
Sure, plenty of people would say that still isn’t enough, and theoretically I might be inclined to agree, but I still say it would be a metric heck of a better situation that what the US has currently, and it has the added benefit of being the simplest solution to implement.
Gutenberg’s Copyright FAQ: http://www.gutenberg.org/wiki/Gutenberg:Copyright_How-To
This looks like is aimed Derek Hanna (and me for the proposal I suggested here).
I am a scientist, so I understand the patent system better than the copyright system. The patent system is broken. The backlog of patent applications is so large that it takes literally years for many patents to be issued, and in the end, like Seawriter said, it is merely a license to sue. Most small firms try to avoid patents by using trade secrets as much as possible to avoid the high costs of getting and then protecting a patent.
The best option I think is to get the government out of the way and use private enterprise to manage the copyright bureaucracy to the benefit of all involved. If you align the incentives right, Amazon and Apple (through iTunes), would do all the copyright needed.
I don’t think there should be any expiration of copyrights or patents. These things are properties belonging to others. I don’t think anyone else has a right to them in any way.
No extensions with payment or otherwise.