Then either negotiate with them, break up the cartel, or start a new journal that isn't part of the cartel, or do all of the above.
While I'm perfectly happy to discuss how we ought to change the scope and duration of copyright, I've yet to see any reason to prohibit a copyright holder from exploiting his copyright as he sees fit, including selling it in whole or in part to someone else.
The problem is since US copyright allows the artists to give away their rights, the sheer power of the music cartel has forced the musicians to either accept their terms or not get their music put on disc at all.
Bull.
Musicians can always self publish. Burn your music onto CDR and sell it on the side of the road, if you must. Scrape together enough money and go to a CD pressing plant, and they'll be happy to print up as many copies as you can afford. Go to stores that you think might be interested, and see if they'll buy the discs from you, or else sell them on consignment.
It might not be easy, it might not be rewarding, but it is possible. The music industry has made their niche as publishers (they take care of the details from recording music through to getting it into stores) and marketers (they get customers to come to the store to buy copies). If a musician doesn't want to have to learn about publishing and marketing their own stuff, they have to hire someone to do it for them, and as the leading specialists, a lot of them make deals with the industry.
Further, it's always been possible to get custom records made, or to make tapes. Self publishing is getting cheaper and easier, but it has always been an option. If musicians haven't been doing it, this merely suggests that it wasn't a very attractive option.
So because I'm outnumbered, that means I have no rights to my creation? You need better argument than that.
No, I don't think so.
Of course, you cannot be forced to create something; that would be unconscionable.
And having created something, you cannot be forced to show it to anyone else, to sell it, or to not destroy it; that too would infringe upon your rights.
But having created something, and having shown it to at least one other person, what right do you have to force that other person to not make his own copy? You're the one asking for a right to control other people. You're going to need their consent, or else you're going to have to use force, which would be unconscionable (and impractical).
Real property law works the same way. You can claim that you own the Brooklyn Bridge, but everyone will ignore you. If you try to stop people from crossing it, because everyone else outnumbers you, you'll find yourself in jail pretty damn quick, because the consensus opinion is that you do not own it, regardless of what you say.
The mere fact of creation doesn't change any of this at all. It's a red herring.
the fact that copyright allows labels to benefit from sales more than artists is THE FAULT OF THE ARTIST for signing away forever and ever rights in exchange for an advance from the label.
Yes, I agree. While an author who signs away their rights for a mess of pottage may be sympathetic, no one forced them to do so; they just made a bad deal. It's no different than the person who sells land cheaply, not realizing there are valuable minerals under it, or something. It is offensive and paternalistic to suggest that they should be protected from themselves, and treated like children.
It is copyright that ALLOWS individuals to make a living simply by being creative.
No, there are other ways of doing that without copyright. I used to make a living as an artist, but I never made a penny by exploiting my copyrights, and neither did the copyrights provide value for anyone else. An artist can sell his labor, just as a plumber or a lawyer does. And an artist can sell copies he creates without relying on copyright to protect their worth (e.g. a Picasso is valuable, a poster of a Picasso is not valuable). There have been professional artists for much longer than there has been copyright.
How, again, does making a living making some form of art hamper creativity?
You've framed the question wrongly, I'm afraid. Copyright doesn't guarantee that an artist will make a living; it only offers an opportunity. It does this by giving the artist a monopoly over his works, and stifling competition for commodity goods. And since rent-seeking is a habit of monopolists, there's your answer.
For example, suppose I had a great idea for a trilogy of Star Wars prequel movies. Although the movies would be derivative of the original trilogy, they would nevertheless be creative, with some new characters, settings, music, dialog, plot, and visuals mixed together with, and sometimes based upon, the old. But George Lucas, because he has a copyright, could prohibit me from proceeding. But if I had a great idea for movies based on public domain fairy tales, then even though I would be exactly as creative in that example as in the Star Wars example, I would be free to proceed. So that's an example of how copyrights can be used to stifle creativity.
But take away the profit incentive for people who research, write books, record music, take pictures and make movies and you'll see all of it wane and disappear.
No, not all of it. Whenever I take pictures, I have no profit motive whatsoever, for example. Not all profit that can be generated as an artist or from artistry relies on copyright. And not all works of art are created due to a profit motive. Copyright was first enacted in England in 1710, and then only for a few kinds of works. It didn't spread until the 19th and 20th centuries. But there are tremendous quantities of art that predate copyright. And while there has been a lot of growth in art lately, a lot of it is attributable to other reasons, such as increased leisure time, improved literacy rates, artificial lighting, improvements in technology (printing, photographs, movies, recorded music), improvements in living standards, etc. If civilization collapsed to Mad Max levels, but we somehow retained copyright law (perhaps enforced in municipal thunderdomes), we'd probably see a lot less art being created because we'd be preoccupied with day to day survival. Copyright really is given more credit than it deserves.
The solution is to educate people about what copyright is, how it applies to them, and how to use it effectively.
Indeed. And also to get people to question whether copyright is as good as it could be, how it could be improved, whether it should apply to them, under what circumstances it should be tolerated, etc. I'm also a big fan of education regarding copyright. We'll never get improved copyright unless people know about all the flaws in it currently.
As the US and most industrialized nations shift part of their economies away from manufa
Sorry, but if I or CannonbalHead composes a 5-piece brass ensemble, NO ONE should be allowed to duplicate it without my permission. My composition is not some abstract idea.
Well, the former proposition certainly doesn't follow from the latter. Given that there are more people in the set of 'no one' than there are of you, you are pretty likely to find yourself outvoted unless you can convince everyone other than you that it is in their own self-interest to let you have your way.
Well, there are numerous incentives for authors to create works, such as fame, or art for art's sake, the money that can be had by selling original copies (e.g. Picasso was known to trade drawings for goods and services, but no one would make such a trade if he was only offering a picture postcard of one of his drawings), the money that can be made on the basis of a commission or patronage, etc. All works of art made prior to 1710, and many since then, of various kinds, in various countries, were successfully incentivized on such a basis.
The idea behind copyright is that it can provide yet another incentive to those authors who are not sufficiently incentivized by anything else (remember, incentives can all be added together; there's no need to rely purely on any one). This incentive is that the author can insist on money from anyone who makes or distributes copies of the work, or who publicly performs or displays the work, etc. (subject to various limitations in scope and duration) or else prohibit that person from doing those things. There is of course no guarantee that anyone will want to, or that the copyright will be of any economic value (the vast majority of copyrights are worthless), but copyrights generally act as a funnel, shifting the opportunities to make money from certain uses of the work to the author.
Note, however, that the goal of copyright is not to merely incentivize authors to create and publish works, but also to minimally protect those works during copyright, if at all, and to eliminate the copyright as soon as possible. That is to say, we want copyright to be efficient: we don't want to grant copyrights when they don't incentivize authors, and we don't want to grant one iota more of copyright than is actually necessary. Just as how, if you would wash my car for $20, I'd be a fool to pay you $100, if authors will create most works for very little copyright, there's no point in getting into the territory of diminishing returns. Find the optimal point where we get the most works for the least copyright, and don't stray to either extreme.
Anyway, some authors may be sufficiently incentivized by other means, and so unincentivized by copyright, that it would be pointless to offer them any copyright at all. For example, the US did not offer copyrights on buildings to architects until 1990. We had a thriving field prior to that, and there's been no appreciable change since then. What buildings get built seems to depend on economic considerations completely outside of the realm of copyright -- such as, is there anyone wiling to pay to build it, and having built it, can the building be put to some profitable use. If we eliminated copyright for architectural works, as we should, it is safe to predict that we would see absolutely no change in the number of buildings, or their creativity, or anything, which could be ascribed to the change in copyright, as opposed to the general state of the economy, or whatever.
Since this law produces no public benefit (in the form of new architectural works that authors have been incentivized by the law to create) and does cause public harm (since people cannot freely make use of those works), and since as a general rule, fewer laws are preferable to more laws when the effect of the law is no better than the absence of the law, it is at the top of the list for being abolished just as soon as Congress comes to its senses on this issue.
The original poster seems to have a similar position as to academic works. Academics create and publish works because it is important for them to get degrees, or get faculty positions, or get jobs, or get tenure, etc. They tend to favor the idea of learning for its own sake, and spreading and archiving information widely. While plagiarism is an issue for academics, copyright does not address it (plagiarizing is not necessarily infringement, and infringement is not necessarily plagiarism), and the academic community seems to handle the matter adequately without it having to be illegal.
I do not know about this exact database, but many scientific databases are hand-curated and extensively reviewed. Many do not include every measurement published in the literature, but carefully and judiciously select those data points deemed, by expert opinion, most reliable.
That's tricky. On the one hand, the selection isn't obviously non-creative, but on the other, it is for the facts which are most factual, rather than an arbitrary creative standard, e.g. the best thermodynamic properties to read about at the beach. I would not want to bet on which way a court would go on copyrightability. Still, do remember that effort expended is not relevant for the analysis; only creativity is relevant. Otherwise, the phone book, which does take a lot of effort to compile, but which lacks creativity, would be copyrightable.
Thermodynamic databases do not contains "facts" per se, but measured data points which may or may not be close to the facts.
That's close enough for this purpose. No one is demanding a platonic ideal here. If the scientists who determine them are reporting on something they've found, rather than making up numbers out of thin air, it's going to be treated as factual.
The editing and review process, which is quite an investment, does often create a solid foundation for copyright.
Again, the investment of money or effort is irrelevant, at least under US copyright law. Editing and review (whether cheap and easy, or expensive and difficult) is what counts. But even then, in this case, it seems tricky since creativity and hard scientific data don't always go well together.
Or, if the database is itself non-creative in terms of its selection and arrangement of uncopyrightable information, the database would be uncopyrightable as well. This is the problem that telephone white pages ran into in Feist; they contained all the listed numbers (where the phone company doesn't decide which numbers are and are not listed), in alphabetical order by the last name or name of business associated with the number. That selection and arrangement was non-creative. OTOH, a directory of your favorite places to eat would likely be creative in selection, at least. Arrangements are tougher; there are really only so many in common use.
Generally, any all-encompassing selection is apt to be non-creative (picking and choosing may be creative, but blanket inclusion never is), and many arrangements are non-creative too. This tends to hit databases rather hard.
Two years is too short for the same reasons that 5 years are too short, as RMS has specified.
Well, it's not 2 years, per se. It's 2 years plus an optional 2 years, plus an optional 2 years, etc., up to some maximum. The maximum can certainly be greater than 5.
Besides, in the linked-to article, RMS says that he could support a 5 year copyright for free software if proprietary copyrighted software had its source code released to the public domain upon the expiration of copyright, and he then discusses an escrow system. As you may recall from my other post recently, I think that we ought to require as a condition of copyright, that all copyrighted software have its source code deposited with the Library of Congress in such a fashion that it is useful to others. I don't even think it ought to be put in escrow; just as you cannot patent something and have it remain a trade secret, neither should one be able to copyright something and have it be a trade secret. Copyright is meant to encourage publication, among other things, not secrecy.
RMS is also rightly concerned about EULAs. Frankly, adhesive contracts, of which EULAs are merely one example, are increasingly abused and dangerous. The whole practice ought to be cracked down on across the board. But this is primarily a matter of state contract and sales law. Still, if no reform has come along prior to copyright reforms, I suppose a stopgap for the copyright field might as well be thrown in.
Remember that as you note, most renewals would not occurr. Much of Linux, for example, would be public domain in only a couple short years.
Well, whether or not renewals occur is entirely up to the copyright holder. If he doesn't care enough about getting a renewal term to fill in a simple form to claim it, why should anyone else care about giving it to him unasked? I have zero sympathy for the lazy copyright holder. It is not too much to expect them to behave like responsible people.
Well, I don't see that it's a bad thing that software should enter the public domain while it still has some vitality left to it. What would you say to the idea of having terms of say, 2 years in length, which the copyright holder may renew, if he chooses, in the last year of the term, up to a maximum length. We can then work out the best maximum length for various classes of works (e.g. software, as opposed to books).
This solution, aside from having roots in traditional US copyright law, and having parallels in current patent and trademark law, where it is not objectionable, has the benefits of tailoring the length of copyright more finely. After all, a work should only be copyrighted for the minimum length of time necessary to encourage an author to create it; more copyright than that is wasteful. Since it is impossible to read the mind of each creator as to each work, we can shift the problem to the creator. So long as he is interested in the copyright, up to the maximum, he need only renew, which should take less effort than filling out a change of address form with the post office. But should he ignore the renewal, it is safe to assume that he is no longer interested in the copyright. During the time when the US had a system of renewals (1790-1978), most works were not renewed, as it happens. While this system gets works that require longer terms incentivized, it avoids mindlessly granting those long terms to works that not even the author cares about for that long.
With your proposal, any work not submitted in full to the copyright office would not be given copyright protections. With dynamic works such as software, this would be a disaster!
Well, it sounds like that's just an issue of deadlines, not a big deal. Let's say the full panoply of copyright protection begins upon the earlier of when all parts of the registration are received by the Copyright Office (provided it is approved), or when the work is made available to the public, provided that the registration is fully submitted (and later approved) no later than a year from the date of first publication anywhere.
It is a bit of paperwork to keep track of, but programmers are already expected to deal with things like renewing their drivers license, or registering to vote, or doing their taxes, and they're clever besides, so I'm sure that some version control software would be modifed to handle copyright docketing too.
Even if applied to non-software works, this could arguably affect art that is dynamic in form, such as some installations.
One of the purposes of copyright is to collect and archive copies of creative works as well as possible. It's not all that practical to have a 1:1 model of a gigantic statue stashed away, but between smaller models, plans, photographs, samples of materials, etc., a decent job can be done. I see no reason to exempt art installations from this. It's better to at least try to preserve what we can than to let it be lost because we couldn't be bothered to make the effort.
Besides, if it is that hard to send in something to be archived, then it is probably hard to pirate that work too. Thus, the copyright is not very valuable, and so changes in copyright law will likely not discourage such an artist.
Revitalizing copyright formalities would help to satisfy both parties. One of the traditional formalities that an applicant for a copyright registration in the US had to fulfill was depositing 'best copies' of his work with the Library of Congress. This not only served as a way for the Library to enlarge its collection inexpensively, but also aided the public by preserving copies of the work, which the public could use.
In the case of computer software, I propose that all people seeking a US copyright for works which include a software portion provide copies of the software in such forms, and with such supplemental material as the Library determines are best in order to preserve the work for posterity, and make the knowledge in the work accessible to at least other persons having a reasonable skill in the art, and which pose no, or the least barrier for people to make any and all lawful uses of that software at any time (such as making adaptations or backups pursuant to 17 USC 117 during the copyright term, or anything at all after the copyright term). This would not make software any more free than it currently is, but would make software less opaque. The non-copyrightable ideas and algorithms and learning that compromise a given program would be more accessible even during the term, furthering the goal of promoting the progress of science, just as pioneering literary techniques may be learned by reading a book, and used freely.
Developers who wished to keep their secrets would, of course, be free to not meet the requirements for copyrightable software. Their public domain works would continue to have secret source code.
I am aware, btw, that this would require that the US withdraw from most of the various copyright treaties. Since no meaningful reform is possible with those treaties in place (such as realistic term lengths), I'm in favor of withdrawal anyway.
We've largely abandoned the notion of fundamental rights in the US, to our great peril. Because of that abandonment it's harder to think clearly about the question.
How so? The US has long settled on a utilitarian model of copyrights and patents, and it has served us well. It's only been in the last century or so that we've allowed authors and inventors too great a voice in setting policy that things have gotten out of hand.
while a song or story is created from a person's mind and so is at least as legitimately the creator's own property?
So long as it stays within the creator's mind, sure, why not? But once he has shared it with someone else, how can the creator possibly assert a right to the minds of others? After all, copyright doesn't particularly empower the creator, it just lets the creator interfere with other people.
Well, not an idea, but an expression of an idea. Other people are free to examine that expression, determine the idea, and create their own expression of it.
That's not copyright law from the year 1852, that's just the sequentially numbered page on that website. If you want to read up on 19th century US copyright law, try this pdf file. It covers 1790 through 1905. It really wasn't until the end of the 19th century that any sort of infringement was criminalized. It made certain infringing public performances a misdemeanor, so infringers faced up to 1 year.
Why would a museum want people to have a worse viewing experience? That's like putting their paintings in a pitch-black room; sure, the light doesn't harm them, but it frustrates the point of looking at them.
If the museum thought the low-res pictures were sufficient, they never would have bothered to take high-res pictures, and if everyone else agreed, there would be no demand for high-res pictures. The truth is, everyone always likes to have as much fidelity in reproduction as possible, at least to begin with. It can always be removed later, but it can't be added. Hence the popularity of HDTV, of CDs and lossless rips thereof, and high quality reproductions of paintings, rather than poor ones.
the biggest problem though, is that most of the output of the BBC is complete crap, vying for the attentions of the lowest common denominator (stupidest) of dole scrounging (welfare) scumbags (jerks) from sink estates (the projects). american translations in brackets for those that need them there...
In America we call those parentheses. Brackets are either square: [] or angle: . Then there are these {}, which are braces.
But if the image is recognizable even (as in your example) as one of one or two similar photos, then I think there is an argument to be made that the use is infringing.
That's a bit silly. If I review a movie, and I use portions of the dialog and plot, if I use audiovisual clips that are recognizable as being take from the movie, this is unlikely to be infringing because I've transformed the portions of the earlier work that I've used into a new work of criticism. Mere 'recognizability' isn't a factor in a derivative work infringement or a defense of fair use against the claimed infringement.
Fair use does not permit you to make something out of someone else's work and benefit from it.
It absolutely does. Take a look at the Supreme Court opinion in Campbell v. Acuff-Rose Music. In that case, the Roy Orbison song 'Pretty Woman' was parodied, and the parody was sold commercially. This was a fair use because the parody didn't harm the market for the original song.
It permits certain uses for educational and critical purposes.
No, fair use permits any use which is fair and otherwise infringing. Any kind of use whatsoever may be fair, but no particular use is necessarily fair (there have been educational and critical uses which were found to not be fair uses when they went to court, for example). Ultimately, each use must be decided on its own merits, given the facts unique to it, generally through the filter of a four-factor test. It's very much a case-by-case thing. Don't feel bad for misunderstanding it, though; even the courts have a lot of trouble with it.
But on a whim? That's not what fair use is for.
Whether a whim is involved is not part of the analysis, though, and probably would never matter in any case. Fair use protects the whimsical infringer as much as the serious one. For example, a person who, on a whim, decides to engage in time shifting, would likely be protected.
Having a lower res means you can still see the art, just in slightly lower quality.
So is that why the museum is itself satisfied with keeping its original pieces of art in climate controlled safes, with only low-res printouts up on the walls for people to see? Or why no one ever replaces their old digital cameras with newer models that have more sensors (and thus more color resolution), and the sensors have more resolution themselves? That's the reason why the world's audiophiles aren't pricks about lossy audio codecs like mp3, and never insist on lossless copies from CD at a bare minimum, not that CD is really good enough anyway, what with it failing to capture all the nuances from vinyl, or if you were in the room when the music was played.
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Aside from just "it's better"?
They don't need a reason at all, but 'it's better' is a perfectly good one. If the museum didn't think they were better, they would not have bothered to make high res images themselves.
The harm all occurred in the UK.
Though that doesn't mean that it is actionable harm. If I have a factory in the UK which only makes products that are exported to Pottsylvania, and I then discover that it's cheaper to close that factory and open a new one in China, this causes harm to the UK; many jobs have been lost, taxable goods are no longer being produced, etc. But the I doubt the UK can sue me because I no longer want to do business there.
Likewise, while this fellow might have caused harm to a UK institution, he did so from the US, and the harm merely consists of being in the US competing with the people in the UK. The UK might allege jurisdiction, but there is very little chance that the US would agree.
"Information wants to be free" and such is a great idea, but not everyone has to go along with it.
Then I guess the museum shouldn't've put their high res pictures online (not that, according to you, they should care about them, with high res being no better than low res, which you seem to think should remain online). 'Information wants to be free' means that information spreads. People copy it, distribute it, ad infinitum. Which is precisely what the museum enabled, could reasonably foresee, and has happened here. I see no problem whatsoever. More people are using and enjoying the pictures, which is good; more information might be preserved in case of a single point of failure somewhere (e.g. when the 1764 fire destroyed the library at Harvard, one of the only books that survived did so because it was checked out and still overdue) which is also good. And no one who cares enough about art to ever go to the UK to see these things, and who has the ability to do so, is likely to forgo the trip due to these pictures online (unless there's some silly legal problem they would face), so no harm there. I suppose that it means that there's no market for an art photographer to take the same damn uncreative picture again and again and again, since only one picture per painting is necessary, but somehow we'll just have to live with that.
Besides, why on Earth does WM need the high-res images?! The NPG have offered low-res images - they're being perfectly reasonable.
Because higher res is always better to have available. You may as well ask an equally silly question like 'Why do you need to copy all the vowels when reprinting Shakespeare?,' or 'Surely you'd be happy with every other note in that piece by Mozart?'
It's not legal in the UK and the work has transferred from a server in the UK to the US for the purpose of distribution.
Copying occurs on the downloader's end. The museum has every right, I'd imagine, to put the works on their website in the UK. And in the US, the person copying them has every right to do that. It's not like he forced the museum to send him the data. Seems like everyone should be happy to me. Well, except the Brits: their laws appear to suck worse than ours in this case, and they really ought to fix that and not grant sweat of the brow copyrights.
The amount effort that went into the photo deserves some recognition.
That's fine, so long as it isn't in the form of some sort of legal right. I'm happy to salute the titan of photographers that managed to take a picture of something without adding any creative contribution of his own whatsoever. Truly his skills are those of the average worker at a copy shop. So long as he has no copyright over his lack-of-creative-effort, I'm happy.
No, it's national, but most countries have agreed to various treaties which impose certain minimum standards. There's nothing compelling any particular country to sign on to these treaties, they just tend to feel it is in their interests to do so, if only in a realpolitik sense.
If a third party were to do so, then I wouldn't hold it against the copyright holder. But that doesn't mean that the copyright holder shouldn't have a requirement for copies it makes itself.
Slashdot Mirror
I like the first two points, but remind me again, how do moral rights promote the progress of science?
Then either negotiate with them, break up the cartel, or start a new journal that isn't part of the cartel, or do all of the above.
While I'm perfectly happy to discuss how we ought to change the scope and duration of copyright, I've yet to see any reason to prohibit a copyright holder from exploiting his copyright as he sees fit, including selling it in whole or in part to someone else.
The problem is since US copyright allows the artists to give away their rights, the sheer power of the music cartel has forced the musicians to either accept their terms or not get their music put on disc at all.
Bull.
Musicians can always self publish. Burn your music onto CDR and sell it on the side of the road, if you must. Scrape together enough money and go to a CD pressing plant, and they'll be happy to print up as many copies as you can afford. Go to stores that you think might be interested, and see if they'll buy the discs from you, or else sell them on consignment.
It might not be easy, it might not be rewarding, but it is possible. The music industry has made their niche as publishers (they take care of the details from recording music through to getting it into stores) and marketers (they get customers to come to the store to buy copies). If a musician doesn't want to have to learn about publishing and marketing their own stuff, they have to hire someone to do it for them, and as the leading specialists, a lot of them make deals with the industry.
Further, it's always been possible to get custom records made, or to make tapes. Self publishing is getting cheaper and easier, but it has always been an option. If musicians haven't been doing it, this merely suggests that it wasn't a very attractive option.
So because I'm outnumbered, that means I have no rights to my creation? You need better argument than that.
No, I don't think so.
Of course, you cannot be forced to create something; that would be unconscionable.
And having created something, you cannot be forced to show it to anyone else, to sell it, or to not destroy it; that too would infringe upon your rights.
But having created something, and having shown it to at least one other person, what right do you have to force that other person to not make his own copy? You're the one asking for a right to control other people. You're going to need their consent, or else you're going to have to use force, which would be unconscionable (and impractical).
Real property law works the same way. You can claim that you own the Brooklyn Bridge, but everyone will ignore you. If you try to stop people from crossing it, because everyone else outnumbers you, you'll find yourself in jail pretty damn quick, because the consensus opinion is that you do not own it, regardless of what you say.
The mere fact of creation doesn't change any of this at all. It's a red herring.
the fact that copyright allows labels to benefit from sales more than artists is THE FAULT OF THE ARTIST for signing away forever and ever rights in exchange for an advance from the label.
Yes, I agree. While an author who signs away their rights for a mess of pottage may be sympathetic, no one forced them to do so; they just made a bad deal. It's no different than the person who sells land cheaply, not realizing there are valuable minerals under it, or something. It is offensive and paternalistic to suggest that they should be protected from themselves, and treated like children.
It is copyright that ALLOWS individuals to make a living simply by being creative.
No, there are other ways of doing that without copyright. I used to make a living as an artist, but I never made a penny by exploiting my copyrights, and neither did the copyrights provide value for anyone else. An artist can sell his labor, just as a plumber or a lawyer does. And an artist can sell copies he creates without relying on copyright to protect their worth (e.g. a Picasso is valuable, a poster of a Picasso is not valuable). There have been professional artists for much longer than there has been copyright.
How, again, does making a living making some form of art hamper creativity?
You've framed the question wrongly, I'm afraid. Copyright doesn't guarantee that an artist will make a living; it only offers an opportunity. It does this by giving the artist a monopoly over his works, and stifling competition for commodity goods. And since rent-seeking is a habit of monopolists, there's your answer.
For example, suppose I had a great idea for a trilogy of Star Wars prequel movies. Although the movies would be derivative of the original trilogy, they would nevertheless be creative, with some new characters, settings, music, dialog, plot, and visuals mixed together with, and sometimes based upon, the old. But George Lucas, because he has a copyright, could prohibit me from proceeding. But if I had a great idea for movies based on public domain fairy tales, then even though I would be exactly as creative in that example as in the Star Wars example, I would be free to proceed. So that's an example of how copyrights can be used to stifle creativity.
But take away the profit incentive for people who research, write books, record music, take pictures and make movies and you'll see all of it wane and disappear.
No, not all of it. Whenever I take pictures, I have no profit motive whatsoever, for example. Not all profit that can be generated as an artist or from artistry relies on copyright. And not all works of art are created due to a profit motive. Copyright was first enacted in England in 1710, and then only for a few kinds of works. It didn't spread until the 19th and 20th centuries. But there are tremendous quantities of art that predate copyright. And while there has been a lot of growth in art lately, a lot of it is attributable to other reasons, such as increased leisure time, improved literacy rates, artificial lighting, improvements in technology (printing, photographs, movies, recorded music), improvements in living standards, etc. If civilization collapsed to Mad Max levels, but we somehow retained copyright law (perhaps enforced in municipal thunderdomes), we'd probably see a lot less art being created because we'd be preoccupied with day to day survival. Copyright really is given more credit than it deserves.
The solution is to educate people about what copyright is, how it applies to them, and how to use it effectively.
Indeed. And also to get people to question whether copyright is as good as it could be, how it could be improved, whether it should apply to them, under what circumstances it should be tolerated, etc. I'm also a big fan of education regarding copyright. We'll never get improved copyright unless people know about all the flaws in it currently.
As the US and most industrialized nations shift part of their economies away from manufa
Sorry, but if I or CannonbalHead composes a 5-piece brass ensemble, NO ONE should be allowed to duplicate it without my permission. My composition is not some abstract idea.
Well, the former proposition certainly doesn't follow from the latter. Given that there are more people in the set of 'no one' than there are of you, you are pretty likely to find yourself outvoted unless you can convince everyone other than you that it is in their own self-interest to let you have your way.
Would you like to take a stab at it?
Well, there are numerous incentives for authors to create works, such as fame, or art for art's sake, the money that can be had by selling original copies (e.g. Picasso was known to trade drawings for goods and services, but no one would make such a trade if he was only offering a picture postcard of one of his drawings), the money that can be made on the basis of a commission or patronage, etc. All works of art made prior to 1710, and many since then, of various kinds, in various countries, were successfully incentivized on such a basis.
The idea behind copyright is that it can provide yet another incentive to those authors who are not sufficiently incentivized by anything else (remember, incentives can all be added together; there's no need to rely purely on any one). This incentive is that the author can insist on money from anyone who makes or distributes copies of the work, or who publicly performs or displays the work, etc. (subject to various limitations in scope and duration) or else prohibit that person from doing those things. There is of course no guarantee that anyone will want to, or that the copyright will be of any economic value (the vast majority of copyrights are worthless), but copyrights generally act as a funnel, shifting the opportunities to make money from certain uses of the work to the author.
Note, however, that the goal of copyright is not to merely incentivize authors to create and publish works, but also to minimally protect those works during copyright, if at all, and to eliminate the copyright as soon as possible. That is to say, we want copyright to be efficient: we don't want to grant copyrights when they don't incentivize authors, and we don't want to grant one iota more of copyright than is actually necessary. Just as how, if you would wash my car for $20, I'd be a fool to pay you $100, if authors will create most works for very little copyright, there's no point in getting into the territory of diminishing returns. Find the optimal point where we get the most works for the least copyright, and don't stray to either extreme.
Anyway, some authors may be sufficiently incentivized by other means, and so unincentivized by copyright, that it would be pointless to offer them any copyright at all. For example, the US did not offer copyrights on buildings to architects until 1990. We had a thriving field prior to that, and there's been no appreciable change since then. What buildings get built seems to depend on economic considerations completely outside of the realm of copyright -- such as, is there anyone wiling to pay to build it, and having built it, can the building be put to some profitable use. If we eliminated copyright for architectural works, as we should, it is safe to predict that we would see absolutely no change in the number of buildings, or their creativity, or anything, which could be ascribed to the change in copyright, as opposed to the general state of the economy, or whatever.
Since this law produces no public benefit (in the form of new architectural works that authors have been incentivized by the law to create) and does cause public harm (since people cannot freely make use of those works), and since as a general rule, fewer laws are preferable to more laws when the effect of the law is no better than the absence of the law, it is at the top of the list for being abolished just as soon as Congress comes to its senses on this issue.
The original poster seems to have a similar position as to academic works. Academics create and publish works because it is important for them to get degrees, or get faculty positions, or get jobs, or get tenure, etc. They tend to favor the idea of learning for its own sake, and spreading and archiving information widely. While plagiarism is an issue for academics, copyright does not address it (plagiarizing is not necessarily infringement, and infringement is not necessarily plagiarism), and the academic community seems to handle the matter adequately without it having to be illegal.
Thus, if academics a
I do not know about this exact database, but many scientific databases are hand-curated and extensively reviewed. Many do not include every measurement published in the literature, but carefully and judiciously select those data points deemed, by expert opinion, most reliable.
That's tricky. On the one hand, the selection isn't obviously non-creative, but on the other, it is for the facts which are most factual, rather than an arbitrary creative standard, e.g. the best thermodynamic properties to read about at the beach. I would not want to bet on which way a court would go on copyrightability. Still, do remember that effort expended is not relevant for the analysis; only creativity is relevant. Otherwise, the phone book, which does take a lot of effort to compile, but which lacks creativity, would be copyrightable.
Thermodynamic databases do not contains "facts" per se, but measured data points which may or may not be close to the facts.
That's close enough for this purpose. No one is demanding a platonic ideal here. If the scientists who determine them are reporting on something they've found, rather than making up numbers out of thin air, it's going to be treated as factual.
The editing and review process, which is quite an investment, does often create a solid foundation for copyright.
Again, the investment of money or effort is irrelevant, at least under US copyright law. Editing and review (whether cheap and easy, or expensive and difficult) is what counts. But even then, in this case, it seems tricky since creativity and hard scientific data don't always go well together.
Or, if the database is itself non-creative in terms of its selection and arrangement of uncopyrightable information, the database would be uncopyrightable as well. This is the problem that telephone white pages ran into in Feist; they contained all the listed numbers (where the phone company doesn't decide which numbers are and are not listed), in alphabetical order by the last name or name of business associated with the number. That selection and arrangement was non-creative. OTOH, a directory of your favorite places to eat would likely be creative in selection, at least. Arrangements are tougher; there are really only so many in common use.
Generally, any all-encompassing selection is apt to be non-creative (picking and choosing may be creative, but blanket inclusion never is), and many arrangements are non-creative too. This tends to hit databases rather hard.
Two years is too short for the same reasons that 5 years are too short, as RMS has specified.
Well, it's not 2 years, per se. It's 2 years plus an optional 2 years, plus an optional 2 years, etc., up to some maximum. The maximum can certainly be greater than 5.
Besides, in the linked-to article, RMS says that he could support a 5 year copyright for free software if proprietary copyrighted software had its source code released to the public domain upon the expiration of copyright, and he then discusses an escrow system. As you may recall from my other post recently, I think that we ought to require as a condition of copyright, that all copyrighted software have its source code deposited with the Library of Congress in such a fashion that it is useful to others. I don't even think it ought to be put in escrow; just as you cannot patent something and have it remain a trade secret, neither should one be able to copyright something and have it be a trade secret. Copyright is meant to encourage publication, among other things, not secrecy.
RMS is also rightly concerned about EULAs. Frankly, adhesive contracts, of which EULAs are merely one example, are increasingly abused and dangerous. The whole practice ought to be cracked down on across the board. But this is primarily a matter of state contract and sales law. Still, if no reform has come along prior to copyright reforms, I suppose a stopgap for the copyright field might as well be thrown in.
Remember that as you note, most renewals would not occurr. Much of Linux, for example, would be public domain in only a couple short years.
Well, whether or not renewals occur is entirely up to the copyright holder. If he doesn't care enough about getting a renewal term to fill in a simple form to claim it, why should anyone else care about giving it to him unasked? I have zero sympathy for the lazy copyright holder. It is not too much to expect them to behave like responsible people.
Well, I don't see that it's a bad thing that software should enter the public domain while it still has some vitality left to it. What would you say to the idea of having terms of say, 2 years in length, which the copyright holder may renew, if he chooses, in the last year of the term, up to a maximum length. We can then work out the best maximum length for various classes of works (e.g. software, as opposed to books).
This solution, aside from having roots in traditional US copyright law, and having parallels in current patent and trademark law, where it is not objectionable, has the benefits of tailoring the length of copyright more finely. After all, a work should only be copyrighted for the minimum length of time necessary to encourage an author to create it; more copyright than that is wasteful. Since it is impossible to read the mind of each creator as to each work, we can shift the problem to the creator. So long as he is interested in the copyright, up to the maximum, he need only renew, which should take less effort than filling out a change of address form with the post office. But should he ignore the renewal, it is safe to assume that he is no longer interested in the copyright. During the time when the US had a system of renewals (1790-1978), most works were not renewed, as it happens. While this system gets works that require longer terms incentivized, it avoids mindlessly granting those long terms to works that not even the author cares about for that long.
With your proposal, any work not submitted in full to the copyright office would not be given copyright protections. With dynamic works such as software, this would be a disaster!
Well, it sounds like that's just an issue of deadlines, not a big deal. Let's say the full panoply of copyright protection begins upon the earlier of when all parts of the registration are received by the Copyright Office (provided it is approved), or when the work is made available to the public, provided that the registration is fully submitted (and later approved) no later than a year from the date of first publication anywhere.
It is a bit of paperwork to keep track of, but programmers are already expected to deal with things like renewing their drivers license, or registering to vote, or doing their taxes, and they're clever besides, so I'm sure that some version control software would be modifed to handle copyright docketing too.
Even if applied to non-software works, this could arguably affect art that is dynamic in form, such as some installations.
One of the purposes of copyright is to collect and archive copies of creative works as well as possible. It's not all that practical to have a 1:1 model of a gigantic statue stashed away, but between smaller models, plans, photographs, samples of materials, etc., a decent job can be done. I see no reason to exempt art installations from this. It's better to at least try to preserve what we can than to let it be lost because we couldn't be bothered to make the effort.
Besides, if it is that hard to send in something to be archived, then it is probably hard to pirate that work too. Thus, the copyright is not very valuable, and so changes in copyright law will likely not discourage such an artist.
Revitalizing copyright formalities would help to satisfy both parties. One of the traditional formalities that an applicant for a copyright registration in the US had to fulfill was depositing 'best copies' of his work with the Library of Congress. This not only served as a way for the Library to enlarge its collection inexpensively, but also aided the public by preserving copies of the work, which the public could use.
In the case of computer software, I propose that all people seeking a US copyright for works which include a software portion provide copies of the software in such forms, and with such supplemental material as the Library determines are best in order to preserve the work for posterity, and make the knowledge in the work accessible to at least other persons having a reasonable skill in the art, and which pose no, or the least barrier for people to make any and all lawful uses of that software at any time (such as making adaptations or backups pursuant to 17 USC 117 during the copyright term, or anything at all after the copyright term). This would not make software any more free than it currently is, but would make software less opaque. The non-copyrightable ideas and algorithms and learning that compromise a given program would be more accessible even during the term, furthering the goal of promoting the progress of science, just as pioneering literary techniques may be learned by reading a book, and used freely.
Developers who wished to keep their secrets would, of course, be free to not meet the requirements for copyrightable software. Their public domain works would continue to have secret source code.
I am aware, btw, that this would require that the US withdraw from most of the various copyright treaties. Since no meaningful reform is possible with those treaties in place (such as realistic term lengths), I'm in favor of withdrawal anyway.
We've largely abandoned the notion of fundamental rights in the US, to our great peril. Because of that abandonment it's harder to think clearly about the question.
How so? The US has long settled on a utilitarian model of copyrights and patents, and it has served us well. It's only been in the last century or so that we've allowed authors and inventors too great a voice in setting policy that things have gotten out of hand.
while a song or story is created from a person's mind and so is at least as legitimately the creator's own property?
So long as it stays within the creator's mind, sure, why not? But once he has shared it with someone else, how can the creator possibly assert a right to the minds of others? After all, copyright doesn't particularly empower the creator, it just lets the creator interfere with other people.
Well, not an idea, but an expression of an idea. Other people are free to examine that expression, determine the idea, and create their own expression of it.
That's not copyright law from the year 1852, that's just the sequentially numbered page on that website. If you want to read up on 19th century US copyright law, try this pdf file. It covers 1790 through 1905. It really wasn't until the end of the 19th century that any sort of infringement was criminalized. It made certain infringing public performances a misdemeanor, so infringers faced up to 1 year.
Why would a museum want people to have a worse viewing experience? That's like putting their paintings in a pitch-black room; sure, the light doesn't harm them, but it frustrates the point of looking at them.
If the museum thought the low-res pictures were sufficient, they never would have bothered to take high-res pictures, and if everyone else agreed, there would be no demand for high-res pictures. The truth is, everyone always likes to have as much fidelity in reproduction as possible, at least to begin with. It can always be removed later, but it can't be added. Hence the popularity of HDTV, of CDs and lossless rips thereof, and high quality reproductions of paintings, rather than poor ones.
the biggest problem though, is that most of the output of the BBC is complete crap, vying for the attentions of the lowest common denominator (stupidest) of dole scrounging (welfare) scumbags (jerks) from sink estates (the projects). american translations in brackets for those that need them there...
In America we call those parentheses. Brackets are either square: [] or angle: . Then there are these {}, which are braces.
Wait, are you saying that Andy Warhol wasn't commercial and self-serving?
But if the image is recognizable even (as in your example) as one of one or two similar photos, then I think there is an argument to be made that the use is infringing.
That's a bit silly. If I review a movie, and I use portions of the dialog and plot, if I use audiovisual clips that are recognizable as being take from the movie, this is unlikely to be infringing because I've transformed the portions of the earlier work that I've used into a new work of criticism. Mere 'recognizability' isn't a factor in a derivative work infringement or a defense of fair use against the claimed infringement.
Fair use does not permit you to make something out of someone else's work and benefit from it.
It absolutely does. Take a look at the Supreme Court opinion in Campbell v. Acuff-Rose Music. In that case, the Roy Orbison song 'Pretty Woman' was parodied, and the parody was sold commercially. This was a fair use because the parody didn't harm the market for the original song.
It permits certain uses for educational and critical purposes.
No, fair use permits any use which is fair and otherwise infringing. Any kind of use whatsoever may be fair, but no particular use is necessarily fair (there have been educational and critical uses which were found to not be fair uses when they went to court, for example). Ultimately, each use must be decided on its own merits, given the facts unique to it, generally through the filter of a four-factor test. It's very much a case-by-case thing. Don't feel bad for misunderstanding it, though; even the courts have a lot of trouble with it.
But on a whim? That's not what fair use is for.
Whether a whim is involved is not part of the analysis, though, and probably would never matter in any case. Fair use protects the whimsical infringer as much as the serious one. For example, a person who, on a whim, decides to engage in time shifting, would likely be protected.
Having a lower res means you can still see the art, just in slightly lower quality.
So is that why the museum is itself satisfied with keeping its original pieces of art in climate controlled safes, with only low-res printouts up on the walls for people to see? Or why no one ever replaces their old digital cameras with newer models that have more sensors (and thus more color resolution), and the sensors have more resolution themselves? That's the reason why the world's audiophiles aren't pricks about lossy audio codecs like mp3, and never insist on lossless copies from CD at a bare minimum, not that CD is really good enough anyway, what with it failing to capture all the nuances from vinyl, or if you were in the room when the music was played.
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Aside from just "it's better"?
They don't need a reason at all, but 'it's better' is a perfectly good one. If the museum didn't think they were better, they would not have bothered to make high res images themselves.
The harm all occurred in the UK.
Though that doesn't mean that it is actionable harm. If I have a factory in the UK which only makes products that are exported to Pottsylvania, and I then discover that it's cheaper to close that factory and open a new one in China, this causes harm to the UK; many jobs have been lost, taxable goods are no longer being produced, etc. But the I doubt the UK can sue me because I no longer want to do business there.
Likewise, while this fellow might have caused harm to a UK institution, he did so from the US, and the harm merely consists of being in the US competing with the people in the UK. The UK might allege jurisdiction, but there is very little chance that the US would agree.
"Information wants to be free" and such is a great idea, but not everyone has to go along with it.
Then I guess the museum shouldn't've put their high res pictures online (not that, according to you, they should care about them, with high res being no better than low res, which you seem to think should remain online). 'Information wants to be free' means that information spreads. People copy it, distribute it, ad infinitum. Which is precisely what the museum enabled, could reasonably foresee, and has happened here. I see no problem whatsoever. More people are using and enjoying the pictures, which is good; more information might be preserved in case of a single point of failure somewhere (e.g. when the 1764 fire destroyed the library at Harvard, one of the only books that survived did so because it was checked out and still overdue) which is also good. And no one who cares enough about art to ever go to the UK to see these things, and who has the ability to do so, is likely to forgo the trip due to these pictures online (unless there's some silly legal problem they would face), so no harm there. I suppose that it means that there's no market for an art photographer to take the same damn uncreative picture again and again and again, since only one picture per painting is necessary, but somehow we'll just have to live with that.
Besides, why on Earth does WM need the high-res images?! The NPG have offered low-res images - they're being perfectly reasonable.
Because higher res is always better to have available. You may as well ask an equally silly question like 'Why do you need to copy all the vowels when reprinting Shakespeare?,' or 'Surely you'd be happy with every other note in that piece by Mozart?'
It's not legal in the UK and the work has transferred from a server in the UK to the US for the purpose of distribution.
Copying occurs on the downloader's end. The museum has every right, I'd imagine, to put the works on their website in the UK. And in the US, the person copying them has every right to do that. It's not like he forced the museum to send him the data. Seems like everyone should be happy to me. Well, except the Brits: their laws appear to suck worse than ours in this case, and they really ought to fix that and not grant sweat of the brow copyrights.
The amount effort that went into the photo deserves some recognition.
That's fine, so long as it isn't in the form of some sort of legal right. I'm happy to salute the titan of photographers that managed to take a picture of something without adding any creative contribution of his own whatsoever. Truly his skills are those of the average worker at a copy shop. So long as he has no copyright over his lack-of-creative-effort, I'm happy.
No, it's national, but most countries have agreed to various treaties which impose certain minimum standards. There's nothing compelling any particular country to sign on to these treaties, they just tend to feel it is in their interests to do so, if only in a realpolitik sense.
If a third party were to do so, then I wouldn't hold it against the copyright holder. But that doesn't mean that the copyright holder shouldn't have a requirement for copies it makes itself.