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The Mouse That Ate the Public Domain
An anonymous submitter writes: "Antitrust lawyer Chris Sprigman has written a thoughtful column In Findlaw's Writ on the issues behind the 1998 Copyright Term Extension Act and the legal challenge (Eldred v. Ashcroft) to that law. I only spotted one mistake. Sprigman states that Disney's 1967 movie The Jungle Book came out a year after Kipling's copyright expired, but I can't see how, under the terms of the 1909 copyright law, an 1894 book could have had its U.S. copyright expire much later than 1950. Except for that one glitch, (if that's what it is) it's a fine column. There's no explicit mention of computer software except in the mention of the title of a 1970 article by Stephen Breyer, but everything he says about the usefulness of the public domain in literature applies with a vengeance to source code. And his is discussion of the U.S. Constitution's framers reminds us (though Sprigman doesn't develop this point extensively, and might not himself put it in as blunt terms as I'm about to) that there's even a deeper reason than utility to cherish the public domain: it is our right."
Read the full text of the Copyright Term Extension Act at the Tech Law Journal.
Sprigman states that Disney's 1967 movie The Jungle Book came out a year after Kipling's copyright expired, but I can't see how, under the terms of the 1909 copyright law, an 1894 book could have had its U.S. copyright expire much later than 1950.
One way it could happen (though I don't know if it's the case here) is that there used to be renewal deadlines, and if you missed them... too bad. An example that comes to mind is It's A Wonderful Life (1946) whose copyright shouldn't be up for quite a while yet... but which became popular when it lapsed into the public domain through someone missing a filing deadline.
But, copyright law was created before the U.S. reached the Industrial age ... The general attitude for copyrights has shifted dramatically during the past 200 years.
Not meaning to pick on U.S.-centrism, but copyright laws were created before the U.S. reached _any_ age, and the original purpose was to... wait for it... protect media cartels from competition and maybe be a handy mechanism for censorship, to boot.
Within the last 200 years, well, fair enough. The U.S. constitution said the purpose was to motivate further technological and intellectual progress. But within many other countries (especially in Europe) there is much more attention/justification around 'author's rights' than around 'scientific progress'.
It's a sad, but true, fact that the obviously insincere rationalization for the Mickey Mouse copyright extension is at least in part true: it _did_ bring the U.S. into line with international copyright practice. (And no, I don't buy the standardization line... I said it was obviously insincere.)
This has been hashed out on CNI many times, but people keep forgetting either when Disney's film was released or when Kipling's copyright expired.
For the record:
Kipling's copyright expired in 1956.
Disney released their version in 1967.
Now let us never speak of this again.
But, copyright law was created before the U.S. reached the Industrial age ... The general attitude for copyrights has shifted dramatically during the past 200 years.
It is true that the Framers felt the early American republic needed some protection against the large content producers of their day in London. But if there is to be a shift, it should recognize that today it is the large content owners in Hollywood and New York that seek protection by means of global trade treaties--and they have the least need in the world for protection--they have already achieved dominance. Developing countries have reasons to oppose strong "intellectual property" laws.
Another point is that the U.S. Constitution Article 1 Section 8 is based on the 1710 British Statute of Anne, which also gave exclusive rights to "authors" and not publishers. The publishers have been trying ever since to win back the monopoly they enjoyed before then with the Stationers' Company guild, in return for censorship of material offensive to the crown.
Today it is a few media giants, large global corporations, who claim to produce and therefore own all ideas and expressions. They are quite willing to censor material for the government or other powerful groups.
it _did_ bring the U.S. into line with international copyright practice...
No, the CTEA did not "harmonize" U.S. copyright law with European law, that is a misconception that Jack Valenti keeps lying about. In fact, there is no way that retrospective extension could be harmonious, because before 1978, U.S. copyright dated from date of registration not from date of author's death--that causes many confusing differences between term in England and the U.S.
As the Jungle Books example shows. Since Kipling died in 1936, his works were protected by copyright in England until 50 years after his death, and so still at the time of the film in 1967--until 2007 now that England increased the term to 70 years after author's death. In the U.S., however, the second volume of the book published in 1895 would have been protected 28, 56 (when renewed) and then 75 years after first publication in 1895, and went into the public domain (IN THE U.S.) in 1966, one year before the film, as the column states. If the CTEA term had operated to harmonize, or if it had applied before 1966, then the work would still be under copyright both in the U.S. and England. Disney would have had to pay many bucks for worldwide rights unless it could, as it did, "pirate" the work from the public domain owned by you and me.
The Jungle Books example shows also that copyright is also used to suppress the creation of derivative works as much as it is to give incentives to produce new works. How can Kipling be given an incentive to produce any new books--he died in 1936! Why should not every schoolchild be allowed the right to draw her own figures from The Jungle Books without having to pay Disney a royalty or even get permission? But Disney and other large corporations claim to produce and own all our culture and ideas--even our genetic information--and the right to rent it back to us as pay-per-view forever.
I'd love to see the opposing lawyer shoot that argument down by pointing out that with computers and the Internet, anyone can "keep a work in distribution", and that copyrights are typically the main thing keeping works out of distribution -- not the other way around.
Indeed, you are right. Read the briefs online at http://eldred.openlaw.org
Life plus thirty was never the law in the U.S.
True, but Disney's The Jungle Book was also released outside of the U.S. in at least one market with life-plus-30 law.
Nowadays, DVD region coding prevents Joe Sixpack from playing (say) U.S. Disney's Peter Pan DVDs in the U.K., where James M. Barrie's works are still copyrighted, and Disney has to absorb the royalty in the price of the Region 2 DVD.
Will I retire or break 10K?
> Repeat after me, class: Intellectual "property" is not property . The whole stupid term only came into use within the past two decades
If you're claiming that copyrights were not sold or transferred in a commiditized fashion before 20 years ago, I think thats flat out wrong.
http://www.publaw.com/1976.html:
Under the Copyright Act of 1909 the ownership of a copyright could only be transferred in whole, and not in part. If the copyright owner assigned anything less than the entire copyright such transfer was only recognized as a license and not an assignment. The owner of the entire copyright was called the "copyright proprietor."
Seems to suggest that even the 1908 copyright law included the right to transfer (only in whole, not in part), a copyright, thus, effectively making it property.
Whether or not we use the stupid IP term or not doesn't change that copyrights were transferrable by law long LONG before you claim they were.
Now, what constitutes infringement is a whole other thing. I think 50 years, period is sufficient. But don't let your distaste for the current legal and social climate of copyright issues get in the way of recognizing that even if we've 'swung too far' towards the private interests with respect to the private vs. public implications of copyright law, copyrights have long since enjoyed the ability to be transferred to another party. Thus, it is property, and has been for a long time. As it relates to the parent post, the fact that a copyright can be transferred via a will plus the ever-growing copyright lifetime, allows heirs (as the parent poster noted) to live off the fruits of their parents/grandparents/etc. I think it's wrong, but that doesn't mean that it hasn't been that way for a long time.
"Old man yells at systemd"
Robert Heinlein in "Life Line," one of his earliest published stories:
Had a bitch of a time finding it. Eventually, I found it in a Jon Katz artice on"There has grown in the minds of certain groups in this country the idea that just because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with guaranteeing such a profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is supported by neither statute or common law. Neither corporations or individuals have the right to come into court and ask that the clock of history be stopped, or turned back."
--- Think of it as evolution in action ---
The length of terms is something which can be debated ad infinitum. Maybe what's needed is some formula like "3 times the mean anount of time a typical publisher will attempt to make money from this kind of work."
This was one area of Lawrence Lessig's proposals that I really liked. He suggests a short copyright term (five years) that can be renewed a large number of times, but requires active effort from the copyright holder to obtain each renewal. Further, he suggests that a fee be associated with the renewal and that the terms of the renewals become progressively more onerous.
Besides being quite a logical approach, it's also a reasonable compromise. Copyright holders who really, really care can still maintain control of their IP for a long, long time (which would obviously appeal to Disney and the like), but nearly everything would fall into the public domain rather quickly. Out-of-print books, for example, would almost certainly become public shortly after going out of print. Even megacorps like Disney probably wouldn't choose to maintain protection over the majority of their works, because managing and paying for all of the renewals on thousands of no-longer-saleable works would be difficult, expensive and pointless (no ROI).
As I said in a comment attached to another story, Mr. Lessig's suggestions don't work well for software, but I think he's got some very good ideas about books, movies, music and the like.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
IAAL, altho not strictly speaking a constitutional one...
The 'no ex post facto' provision in the Constitution only applies to criminal laws....or, rather, the general application is that a state or the federal goverment cannot pass a law that punishes a person for behavior that occured (1) prior to the passage of the law and (2) was legal at the time of the behavior. See generally Calder v. Bull, 3 U.S. 386 (Dall.) (1798) at http://www.constitution.org/ussc/003-386.htm
However, this provision does not prevent a legislature from remediating a past wrong, which is how retroactive enactments which are not punitive in nature would be seen. "Punitive" here typically means acts arising from a criminal proceeding, not 'civil' acts. Since any harm from a civil act could be taken to court or repealed by later legislation and would not deprive persons of their liberty (prison), ex post facto is deemed not to apply.
HTH