Slashdot Mirror
TPP Scuttles Attempts To Fix Orphan Works
jsrjsr writes: David Post, writing at the Volokh Conspiracy blog, describes how the Trans-Pacific Partnership treaty may prevent any changes to copyright law regarding orphan works. Quoting: "Big problem #1 is that copyright law doesn’t require the plaintiff to show any damage whatsoever. And it authorizes awards of up to $150,000 in “statutory damages” for each work that is infringed — independent of any damage assessment. ... It appears that the latest version of the treaty contains, buried within its many hundreds of pages, language that could require the U.S. to scuttle its plans for a sensible revision of this kind. ... Any provision of U.S. law that eliminated 'pre-established damage' or 'additional damages' for any class of works could be a violation of various TPP provisions requiring that such damages be made available, and it even appears that distribution of orphan works would have to subject the distributor to criminal copyright liability."
Like it's news that the TPP is a terrible, terrible treaty and needs to be stopped.
This is just one more reason we need to make quite sure that there's bipartisan opposition to this.
Dan Aris
Fun. Free. Online. RPG. BattleMaster.
Orphan works are potential competitors, even if the true authors decide to release them to the public domain.
If someone dug up an orphan work it's a potential threat to the revenue streams of the current incumbents and in its in their interest to keep it buried regardless of what the original owner may think.
This is especially true when without a valid owner asserting their rights you can't even be sure who the statutory damages are even supposed to get paid to.
OK, I get it, intellectual property is a real thing and needs a certain amount of protection. But you know what? Protecting property costs money! I own a condo and I pay taxes on it - something like 2% of the property value per year! Obviously the tax rates for IP need to be set at a reasonable level, but if a company is claiming x billion dollars of IP, perhaps they ought to pay a tax of a few hundred thousand for property protection. And if they lapse in their tax payments, perhaps their ownership rights lapse too, just as the city or state would take over my property if I stopped paying taxes.
--- Often in error; never in doubt!
It must be comforting to live in a World where everything is black and white, right and wrong, 0 and 1.
You sure don't have to think so hard.
The LEGAL meaning for copyright infringement cannot by definition include the word 'stealing'. It is YOU who are wordsmithing. Infringement is not theft, it simply is not the correct term, you cannot use it in that context without being ABSOLLUTELY wrong.
Good-bye
There is a very simple way to fix the orphan works problem and also let Disney have Mickey forever. The root of the problem is giving free, automatic copyright for 150 years or so to every work.
Instead require that copyrights be renewed every ten years with a one year grace period. First renewal is free but you have to fill out a form on-line. Second renewal is $1,000. Fee for each subsequent renewal doubles. This will quickly place all of the non-economically via works into the public domain. It also lets you keep a copyright forever as long as you keep paying the renewal fees.
IF the fee were tiny for statutory infringement, it might still comply with a TPP (Lord protect us) yet have the same effect.
Millionth of a cent per work, unless actual loss could be shown?
I like the idea of charging a fee for renewal that doubles every time copyright gets renewed though. That is even better
for long term, though cutting statutory damage amount to a tiny bit should also be done. Amount should be tiny
enough that payment is trivial even if everyone on the planet infringes many times. Mathematically it is still
non zero.
The big big big power grab in TPP is the corporate sovereignty clauses. These allow company to sue governments if the government passes a law that disadvantages the companies profits:
https://www.techdirt.com/articles/20150325/17151130431/corporate-sovereignty-provisions-tpp-agreement-leaked-via-wikileaks-would-massively-undermine-government-sovereignty.shtml
The court that decides this is a Kangaroo court too, not a legal court, a tribunal of industry lawyers would decide if a law violates a companies profits and needs to be reversed.
Sugary drink taxes, banning cigarettes, banning bee killing pesticides, you name it, the tribunal could override the elected government on all of these matters. Rendering democracy optional.
No wonder its being discussed in secret by a group of people, but thankfully we still have Wikileaks and the draft treaty has been leaked by a few honest people among the negotiators who are allowed to see how bad it is.
What they'd like is for you have to pay for music by the note, for literature by the word, and pay every time you even glance at an image they own.
Hell, what they want is if you even dare to remember a few notes and hum them to yourself, you'd have to pay them.
Just cruising through this digital world at 33 1/3 rpm...
In this context, the only thieves are those greedy bastards who think they are entitled to take money out of people's pockets, for works that were created, say 30+ years ago, which had all those years to allow creators & middlemen to profit from, and which are basically zero-cost to reproduce. Especially if end users can do the reproducing among themselves.
And you're right: at least that kind of theft should be stopped. If not by having reasonable written laws on the books, then by technical and/or economic means that bypass whatever laws are in place (or worse: regulations slipped in with trade agreements - like the one discussed here).
Personally, I've lost hope that laws (or treaties!) will be fixed. Mostly because the way they are created is broken as well, with no fix in sight. Hence the "bypass using technical and/or economic means" which imho holds more promise to fix the current situation.
I am glad this is finally catching some attention at slashdot, one of the greatest fraud attempts on people.
If they have to be secretive about it, something is wrong. A global powergrab of multinational corporations, probably a first of that magnitude.
https://www.youtube.com/watch?...
It is theft, just not in the sense of tangible property. What you are stealing is the author's monopoly on control over his own works.
Granted the government itself stole from us by GIVING him that monopoly in the first place, but if you infringe you're still stealing the artist's monopoly.
Copyright basically enables them to create near infinite streams of free money without any effort required to maintain them. Don't expect them to give this up without a fight. Even something as innocent as public domain or fair use is treated primarily as possible threat to their pocket.
what about games / software that owner is unknown / the ip rights are now cut up and owned by lot's of different Corporations.
Or cases where the Corporation that made the software is long gone / some other Corporation owns part of them but they don't know if they even have all the rights to all of the IP.
"People of this generation seem to think (thanks to the influence of euphemisms from the baby boomers) that stealing isn't always stealing"
You don't seem to know what an orphan work is. Think of it as a hundred-dollar bill you find in the street. If you're a scrupulously honest person you will turn the bill in to the cops and they, provided it's not Chicago, will wait for a specified period until someone steps forward to claim it. Alter some period like thirty days, it's yours.
But copyright law as recently amended by media corporations means that you can never spend that money, under any circumstances. Either someone steps up to claim it, or no one ever does, in which case you have to keep waiting.
There is a very simple way to fix the orphan works problem and also let Disney have Mickey forever.
To the geek, "Steamboat Willie" is just a symbol.
Eight minutes of silent era sight gags with a synchronized sound track. What he wants is the use of the trademarked character designs for the Mouse, Minnie, Pete and the rest.
Instead require that copyrights be renewed every ten years with a one year grace period. First renewal is free but you have to fill out a form on-line. Second renewal is $1,000. Fee for each subsequent renewal doubles. This will quickly place all of the non-economically via works into the public domain.
Let's call this what it is:
Copyright protection for the mega-corp.
The distressed writer like H.P. Lovecraft loses control of his work early on. The mega-corp squirrels away everything that might be bankable now or in the future. This is how the system worked in the pulp fiction era of Black Mask and Weird Tales, in the newspaper comic strips in their most creative and productive years, and in the gold and silver ages of the comic book.
The renewal won't double every ten years.
If you believe that, I have shares in a bridge to Brooklyn I would like to sell you.
They will be capped at a number the major players can afford as the snaffle up new titles and old by the thousands.
Silly fiction. Obviously, had dinosaurs ever existed we would still have them because they were supposedly so big and strong that they could beat up any adversary, even without fighting dirty and thus could never have become extinct.
Similarly, our governments would never entertain anything so preposterous as criminal copyright. Life without parole for infringers next? How about capital punishment for x downloads? I won't fall for any of it. We live in democracies, after all, where the government represents the citizens who elected it. Am I right? ;)
You don't have to outright rob someone of everything in order to be stealing.
Even a partial infringement of copyright steals from their monopoly of it.
A monopoly is one of the few things where it's stealing even if you share it, because a monopoly by definition means exclusivity.
I think the next law we should pass, in fact the next law that every country should pass is to make it illegal to negotiate any international agreement in secret. Also I believe this law should make any international treaty or agreement that results from secret negotiations should automatically be null and void, or at the very least automatically subject to referendum, with a 3 month lead up period and that failure to approve should automatically trigger national elections.
Jumpstart the tartan drive.
The buying sounds terrible. How is someone supposed to value a song not knowing what's going to happen to it in the future? When a band starts out they don't know what their breakout song will be or even if they will have one. If you look at the popularity of tracks on the albums at iTumes there's usually only one or two that are popular. A band isn't going to know which ones those are going to be ahead of time. And even if they could they couldn't predict how much they would sell. Then there's the completely unpredictable stuff such as getting your song on a major hit show a couple of years after the album was released so that the song gets a ton of exposure or it's selected for an ad campaign.
A band starting out can't afford to value every song as if it's going to be a viral hit. And under that system someone else would just come along, buy the rights to the song once it got popular, and profit while the person who did all the work got very little with no ongoing royalties. It makes the current system look good.
I wonder to what extent phrasing a copyright registration requirement as a property tax would allow circumventing the Berne Convention's prohibition on formalities. It worked for the Affordable Care Act's individual shared responsibility mandate.
Then overdeclare for the first couple years. Declare a living wage plus other costs of producing the work. Once a work proves its value or lack thereof, you can correct your declaration in subsequent years, and if it does get bought out, at least the proceeds from the buyout will fund your next work.
Copyright would be a personal right of the creator of work, held by that person alone and expiring with the creator.
God help you if a hitman is cheaper than what you ask for a license.
Eight minutes of silent era sight gags with a synchronized sound track. What he wants is the use of the trademarked character designs for the Mouse, Minnie, Pete and the rest.
Said trademarks will probably cease to be distinctive once copyright in the original Mickey trilogy (Plane Crazy, The Gallopin' Gaucho, and Steamboat Willie) expires, which under present law is due to happen in 2024. The Supreme Court of the United States in Dastar v. Fox ruled that a trademark cannot be used as an ersatz copyright.
Even with hyperinflation, it still costs the prevailing wage for a document preparer to file the renewal forms on a copyright owner's behalf.
I don't see your post as flamebait, a little naive, maybe, but how do you expect to pay for protection of your freedom?
I don't have points and wouldn't have downvoted you, but it is rather simplistic to think that all the modern things you enjoy are somehow without cost.
e.g. it's not theft to pay property taxes if those property taxes pay for your ability to drive to your property, enjoy protection on your property should it be targeted by criminals or should catch fire,. to say nothing of the education of you and the people around you to enable you to have money to make and do those things in the first place.
The sad thing is that I suspect this language is present in the treaty at our (the U.S.'s) request. We want other countries to respect our copyrights so we insist their laws be stronger, even when we are starting to realize our own laws are too strict. One would be tempted to think this is aimed at China, except they're not a participant in the treaty. It would be much better if trade treaties were limited to simply stating that "Trade between our countries shall be free and unrestricted." That might put a lot of lawyers out of work but it would be much easier to negotiate and have a lot fewer unintended consequences.
Smile, it makes people wonder what you're up to.
And even if you perform an exhaustive search for the owner of that $100 bill/orphaned work, come up with nothing, and spend the money/use the work, the real owner can step forward after the fact and demand reparations. Even worse, they might not be the real owner and only a lengthy and expensive lawsuit might prove it one way or the other.
My sci-fi novel, Ghost Thief, is now available from Amazon.com.
Have they not also ruled that the Congressional scheme of passing copyright extensions every 20 years is absolutely fine?
In its opinion in Eldred v. Ashcroft , the Supreme Court recognized this possibility of circumventing "for limited Times" in the copyright clause but that the plaintiff had not established a pattern of "legislative misbehavior". Congress has enacted only two substantial copyright term extensions since World War I (in 1976 and 1998), and a third extension in the coming decade may establish "legislative misbehavior" more clearly.
But the root of the problem is movie studios' in-kind donation of campaign publicity through their co-owned news outlets. Now let me go donate to the Lessig campaign.