I completely disagree. Copyright holders should bear the burden of placing a proper copyright notice on their works, and registering their works so that in case of doubt the copyright status can easily be determined. This is fair, since the copyright holder faces little burden in doing so, has an incentive to do so, and is in the best position to know this information already.
A minor nit: It's just science. The useful arts is patents.
And since it is to the public benefit for works to be in the public domain, and for copyrights to yield the greatest incentive to authors while being minimally restrictive on the public, it would likely be a net improvement to allow natural persons to engage in otherwise infringing non-commercial activity.
... and it was taken as a given that patents and copyright would exist, so the answer to let the Federal government have exclusive control was obvious.
Well, more that they could. Some states had copyright laws, but not all. I've never looked into state patent laws, so I couldn't say anything about them. And anyway, the Constitution doesn't give the federal government exclusive control, it just lets the federal government participate. It's the supremacy clause that lets the federal government assert exclusive control if it wants. As it happens it wasn't until recently that the federal government got serious about that with regard to copyright law, and there are still a few remnants of state copyright law that are relevant at times.
Pff. The difference between an "idea" and an "invention" is mere semantics, because an "invention", as currently defined by patent law, does not require any sort of tangible aspect. If you say there's something different, something not enshrined in 35 USC 102 or 103 that distinguishes an "idea" from an "invention", beyond the fact that it must be novel and nonobvious, I'd like to hear it.
Utility. Reduction to practice. Patentable subject matter.
Yes - copyright requires a creative work fixed in a tangible medium. Ideas aren't fixed in a tangible medium, so no, you can't copyright an idea.
That's not the reason why. You could express an idea completely in a work fixed in a copy, but still have no rights to the underlying idea. Between Baker v. Selden and the merger doctrine it's really got more to do with what compromises copyrightable subject matter, rather than a mere issue of fixation.
On the other hand, there has never been a requirement that patents protect an invention that is fixed in a tangible medium.
I know. I'm just saying that you can't patent a mere idea floating in the air; it has to have been refined into a proper invention.
I agree regarding different lengths for different fields, which can be handled nicely by a system of very short terms which must be renewed periodically (say, every year or two), but with varying numbers of renewals available depending on the field of the work or invention.
However, for software, I think that no patents are necessary at all. A patent is meant to encourage the invention, publication, and bringing to market of useful inventions and their entry into the public domain as fully and quickly as possible. With software, unlike most inventive fields, the inventors seem to be inventing like mad and publishing much if not all of the information necessary for a person having ordinary skill in the art whenever they bring their invention to market. For example, once Amazon started permitting people to buy via one click, pretty much all the information that anyone who cared was out there. Since Amazon quite certainly would have researched, developed, and implemented one click shopping even if it wasn't patentable, it shouldn't be patentable. The incentive was wasted on them, and the public should not have to suffer such waste. Usually it's impractical to make that determination, but AFAICT it seems to apply to the whole software industry. I'm happy to revisit the issue if the pace of inventiveness in the software field ramps down in the future, but for now, patents are doing more harm than good in that particular field. Business methods too.
I'm not sure if you're talking about Canada or have gone on to the US, but in the US, the history and composition of the federal Constitution basically is as it is due to the failures of the states to ever work together under the previous government established by the Articles of Confederation. So it's not really that patents and copyrights were particularly important, it's just that letting each state handle them independently was turning out to cause problems.
Oh and no, you can't patent an idea. An invention may be patented, but that's significantly more refined and developed than a mere idea. Ideas cannot be copyrighted either, although expressions of that idea may be copyrightable.
If you force copyright holders to allow derived works, market will be flooded with so many crap Batman comics and movies, nobody will associate Batman with good shows.
That's not really correct. All that might happen would be that people wouldn't assume that merely because it was a work about Batman that it was good. Instead, they would look to the author of the particular work. You can see an example of this with classic fairy tales. They're in the public domain, and anyone can publish copies of them or make derivative works based on them. A version of Cinderella by Disney might be good, while a version by Jerry Lewis might be pretty crappy. Rather than just go to anything about the character, the audience will have to check to see which version it is. This is not a tremendous burden.
When you demand free stuff, this is the quality you get.
It is inappropriate for copyright law or policy to care about quality. The government shouldn't be the arbiters of taste for everyone. Copyright should look to quantity instead, by encouraging the creation of as many original and derivative works as possible. Given that 90% of everything is crap, more of everything is the only sure way to get more of the good stuff. Since no one is forcing you, or anyone else, to watch bad things, it's easy to ignore it.
The author used his own time and skill to create a work for your enjoyment. He does not owe you any work unless he is your slave.
I agree completely.
Therefore, he has the right to charge a reasonable price for his work for his own personal benefit.
Provided that you mean he has a right in transactions in which he is a participant, and given that markets tend to dictate prices (would you pay as much for a DVD of Gigli as you would of Citizen Kane?), I'd agree with that too.
But copyright isn't about either of those things. Even without copyright, both of those would still hold true.
What copyright does is it prohibits third parties from making copies of the work, distributing them, etc., instead allowing the copyright holder to monopolize the market for the work, so that he can charge above-market prices, since for some reason copyright proponents don't ever think that the market price is ever "reasonable." There's certainly no natural right to a monopoly. It might be sensible to give such a right to a copyright holder, but given that it means a loss of freedom for everyone else, and having to suffer monopoly pricing, there really ought to be a good reason. The mere fact that the author created the work is not a good reason.
So you're saying that if all the other countries are jumping off of a cliff, our country ought to be allowed to do that as well? That's never been a good argument.
A copy is a tangible object in which a work is fixed; If an infringer, say, recites copyrighted poetry aloud in public, he isn't fixing the work into a new copy, but he's still infringing.
As for Berne I'm not that familiar with the methods used to ratify international treaties in the US (except one is via congress and one not, I think?)
Well, I'm no expert in international law, but as I recall, in the US, we only regard a treaty as being in force if the President has ratified it and the Senate has consented to it by a supermajority vote. It's also possible for the President to make agreements other than treaties with foreign countries on his own, provided that the agreement only concerns matters that are within his power anyway, and both houses of Congress together with the President can do likewise, again if it's in the scope of their normal authority. The difference mainly is that a treaty can concern itself with matters that go beyond the possible scope of constitutional federal legislation. Of course, for an actual treaty, as opposed to a mere agreement, mere ratification by the President means nothing without Senate consent. Other states may disagree, but that's how we view it.
In any event, aside from separation of powers issues, any sort of international agreement would only have the force of federal legislation at most, and since we have a last-in-time rule, Congress can always pass a new law that overrides the force of the treaty within the US. (Naturally, the other treaty parties and the language of the treaty itself might disagree, but that has no effect on US law) Likewise, a treaty that violates the federal constitution would be considered unconstitutional here. The President can also break a treaty unilaterally, at least in practice, since the courts won't intervene, considering it to be outside their jurisdiction.
Further, while a treaty might be binding on the US as a state, it has no actual domestic legal effect unless it is a self-executing treaty, which basically requires that the treaty indicate that it is. Non-self-executing treaties require enabling laws to bring our domestic laws into compliance with whatever the relevant treaty obligations are.
The Berne Treaty is not self-executing, and we know this because Congress passed a law saying so. Of course, Berne also supports this interpretation, as it requires parties to undertake measures to comply with Berne's minimum standards; if it were self-executing, no such action would be required.
but as a signatory to Berne - on ratification - the US agrees to bind its citizens with that law.
No, we'd regard this as the US agreeing that it has an obligation to modify its laws to bring them into compliance with Berne. Whether or not the US actually lives up to this obligation is another question entirely. And if the US decides to enact some laws in response to a treaty, it is easy to imagine the US and other treaty parties disagreeing as to whether or not we had done a good enough job.
Indeed the BCIA 1988 appears to be solely purposed in saying the regulations as set out in Berne apply but not because Berne applies but instead because they're set out in this act. That sounds crazy to me.
The Berne Convention Implementation Act is the enabling legislation that Congress passed to amend the Copyright Act up to Berne standards, as we believe them to be. If BCIA hadn't been passed, the US wouldn't be in compliance with Berne at all since the latter has no legal weight here.
The US is saying its citizens are not bound by Berne, despite having signed and ratified, but expect Berne to protect its citizens?
Well, I can't set US foreign policy, but I would imagine that we wouldn't really care if some other Berne party didn't treat Berne as actual law, but merely as a checklist of requirements which its domestic law had to satisfy. I think it's crazy to have individuals going into court on the basis of a mere treaty as op
You can make a rendition of the _story_ but not copy the actual Disney script of that story. You can't go and buy a Snow White DVD, scrub out Disney's name and duplicate and sell it . You can't copy their presentation.
Yes, that's what I've been saying.
If they copied it from Disney then they copied their presentation ("expression" if you like) of that story.
No, I'm saying that if they copied the Snow White story which was in the public domain, and did not copy anything more than that (e.g. the names of the dwarves, the songs, the dialog, the entire movie), but did so only using Disney's Snow White as a source, rather than referring to an earlier work containing the story, that would be legal. Just because the Snow White movie is overall a copyrighted work that does not mean that the copyright actually extends to every nook and cranny of the work; those unprotected portions are free for the taking.
No, but in general parlance it's not necessary to specify "an infringing copy" and specify disclaimers as to situations in which the copying may not infringe.
Well, I had been thinking of the need to show that the copying was of copyrighted material; since that part of the work isn't copyrighted, Disney would have a tough time.
Could you specify?
Public performance immediately springs to mind. As a US-based copyright lawyer, Berne doesn't grant any rights or remedies here, and is basically useless; only the laws emanating from Congress or the courts matter.
Nope. These ideas existed before. This presentation of these ideas did not.
First, the normal terms of art are ideas and expressions. The famous idea/expression dichotomy is that ideas are not copyrightable, but expressions of those ideas may be. The seminal case on the issue dealt with a book about a system of accounting. The precise language used to describe the system could be copyrightable, but the system itself which was being described was not copyrightable. Anyone was free to learn the system and describe it in full in their own words and not risk infringement. Learning the system from the first book was a perfectly acceptable method of doing so.
Second, we're not just talking about ideas. Ideas are generally treated as being pretty simplistic, e.g. the idea of an archaeologist-adventurer is central to the Indiana Jones stories, but it also works for Tomb Raider, Stargate, etc. It is safe to watch one of these and copy that idea when creating your own work. The dividing line between ideas and expressions is a bit fuzzy, particularly since the courts don't want to require precise copying of an expression, and thus leave authors vulnerable to people who copy everything with only one slight difference. But there's usually numerous ideas in a work (Nazis are bad, ancient artifacts have real powers, ruins are always protected by surprisingly complicated and functional booby traps, etc.), and some very basic plots could be considered ideas (e.g. a race to find some ancient doohickey).
Anyway, though, since we're talking about a derivative work, the realm of what is not protected is actually quite a lot larger than usual. Not only are ideas uncopyrightable as always, but when you create a derivative work, the copyright on the work only applies to the new material added. It does not cover the pre-existing material the derivative work is based upon. Nor does the copyright on the new material add or extend protection to the pre-existing material. This is more the issue in the example of Snow White.
The basic Snow White story is that there's a princess, Snow White, who is beautiful, and there's an evil stepmother who finds out via magic mirror that S.W. is more beautiful than she, arranges S.W.'s death, but S.W. doesn't die and instead shacks up with dwarves, so the stepmother disguises herself, gives S.W. a poison apple, and this causes S.W. to fall asleep until awoken by a prince, happily ever after, the end. Disney did not create this. They have no right to it whatsoever. The fact that they built a whole movie around it, much of which is copyrightable, does not somehow make the underlying story that they copied from somewhere else copyrightable. Since their copyright only applies to material they added, anyone who only knows the Snow White story from the Disney movie can copy the uncopyrightable stuff directly from the movie and use it as will, and be entirely on the right side of the law.
If you read this presentation and derive your work from it then you are "copying".... Their original elements will be assumed to be copied unless you can demonstrate they were not. Their traditional elements will be assumed not to have been copied - but may be shown still to have been copied if you include their typo's and such; it is the copying that is protected. The clue is in the name.
In fact, you're wrong. Copyright only prohibits the copying of copyrighted material. Not copying period. The Snow White story is not copyrighted, thus it may be copied freely, from wheresoever it is found. Only original material based upon that story, such as the visual appearance of the character in the cartoon, is copyrightable, and thus not legal to copy.
Also, as the plaintiff in an infringement suit, Disney would bear the burden of proving that the defendant copied material which Disney had a copyright on; the mere fact of copying isn't sufficient for them to win an infringement case. As for the uncopyrighted material, no one will care where it came from, and the questi
IANAL, but I think you're overestimating how much work one needs to do in order to get copyright on an edited version. I'm pretty sure if you renumber the pages and add an index to a public domain work, your edition qualifies for copyright protection.
Getting a copyright through mere editing is actually pretty tricky, at least in the US. Here's what's required, per 17 USC 101:
A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".
Of course, that protection is pretty limited as well, per 17 USC 103(b):
The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.
So if all you did was renumber the pages and build an index, the numbers probably don't count, since they don't qualify as an original work of authorship, due to a lack of creativity. The index might have very thin protection, but that would be as a compilation of facts, not as a revised work. Even then, you'd have to show creativity in choosing what you indexed, and it would have to be enough to carry the entire index, since the arrangement of the index is uncreative. Of course, that only protects the index itself, not the material the index refers to.
I'd suggest you put more work into it if you want to make a derivative work that qualifies for copyright.
Copyright doesn't protect ideas at all -- you can use ideas extracted from copyrighted works as you like. Copyright merely protects particular expressions of an idea (and even that has some limits). The trick is in identifying what's an idea and what's an expression, since the dividing line is quite fuzzy.
Anyway, though, when you create a derivative work, such as a movie based upon a fairy tale, you can only get a copyright to the copyrightable material you add, not the underlying material. So to take Disney's version of Snow White as an example, the basic story of a wicked stepmother, beautiful princess, magic mirror, etc. are all free for the taking by anyone, even if they are taking these from the Disney version, rather than an older source. But the parts that Disney added, such as the visual appearance of these characters (e.g. Snow White's blue and yellow dress, or the names of the dwarves) are copyrighted.
Since anyone else can make their own version of Snow White and compete with Disney, it's not a big problem. It would be terrible, though, and unconstitutional, to give Disney rights over the underlying Snow White story just because they happened to make a movie based on it.
As for the length of copyright, while I don't mind the idea of varying lengths depending on the type of work (e.g. a book needs a longer term than software, which needs a longer term than a daily newspaper), and I strongly support the idea of short terms with renewals if the author timely requests them, I see little reason to differentiate between original and derivative works. They're both equally desired by the public, and while some might dismiss derivatives as being less artistic, it is not the place of the government to set policy based on what some bureaucrat's taste in art is.
Copyright in the U.S. was not created as a social welfare device, but as an incentive to create.
Well, it was created as a social welfare device. It's just that it is meant to benefit the public, as opposed to authors. It's just like the government giving a grant of public money to an artist so that they'll create a work of art that the public can enjoy. Except instead of issuing cash money, a monopoly is issued instead, the value of which depends more or less on the popularity of the work.
Also, please bear in mind that copyright is not merely an incentive to create. If it were, it wouldn't ever be good enough to tolerate. Copyright is an incentive to create and public new original and derivative creative works, while at the same time protecting them as minimally as possible, for as short a time as possible. Ultimately, it's a system for getting authors to create public domain works, it's just that there's a little bit of a delay in the public domain payoff, and that delay is what makes the system go.
Lately it's gotten corrupt, but the core idea is pretty sound.
Yes, however there is one minor flaw in your plan. Someone who doesn't know how to program a computer would not be very good at software development; someone who doesn't know engineering would not be very good at building a safe bridge, etc. Lawyers work with laws all the time, and we receive a lot of training in it at school, on the job, and in continuing education programs after we're out of school.
Someone who wasn't familiar with law, and legal concepts, certainly could bring a different attitude to lawmaking, but they would also tend to be fairly inept, since it's harder than you think. In computer software, it is common for a group of users with some problem that needs addressing to provide input into solving that problem (e.g. usability testing, identifying the program's needed functionality, etc.) but the work is actually done by programmers, rather than just handing the hapless user a bunch of software and telling them to fix it themselves. In the legal realm, this is usually done with a democratic system for choosing lawmakers, public transparency, lobbying, etc. It is fine, in fact it's good, for everyone to have a hand in determining what isn't being done right, what ought to be done, what the desired outcome is, etc., but it is probably for the best for specialists to do the actual work, so that it is efficient, functional, but not full of cruft.
Actually, no we don't know this, but, most importantly, it does not matter. This misses the point. The copyrights ought to exist, because the creators of things, that are hard to create but easy to replicate -- like software, literature, music, video, fashion design, what have you -- ought to enjoy to lesser control of their creations, than creators of things tangible.
Didn't you read the last post I made responding to you? Fashion design is not copyrightable, at least in the United States, and never has been, so why do you keep bringing it up, and perhaps pretending that it is? It's very odd. And it's certainly an unusual example to bring up in any case, since most people wouldn't think of it as a creative work, particularly around here.
Anyway, assuming you misspoke when you said that "creators... ought to enjoy lesser control," you're wrong. This has nothing to do with fairness. The world, it is well known, is not fair. And while it might be a good idea to make it more fair, surely we must prioritize our efforts such that we make things more fair for the most people before moving on to increased fairness for smaller groups, all the while not making things less fair for anyone, nor reducing the amount of increased fairness we've already brought about. Well, there are more readers of books than there are authors of books. So not only do the readers have more power in a democratic society, but making things fair for them surely must take precedence, if fairness is truly your goal, as opposed to, say, pandering to special interests while disguising yourself in noble-sounding lies about fairness.
The world seems to be made in such a way that things that are hard to create, but easy to copy are, well, easy to copy. If I come up with a good story which entertains and enlightens people who hear it, then surely it would be most fair to those who have not yet heard it if they could hear it from more than one person. After all, even if I went on the speaking tour from hell, and printed a lot of books, and distributed them all over, I'm sure to miss some people who cannot take the time to see me, cannot afford to buy a book, can't read, don't know the language I work in, etc. Letting others fill in the gaps that I, a mere one person cannot possibly fill myself, is a better method than letting them go unenlightened and unentertained. Copyright would prohibit this.
A lack of copyright, OTOH, certainly wouldn't prohibit me still going on tour and selling books, it would merely mean I'd face more competition. Since copyright didn't exist anywhere until the 18th century, and didn't exist most places until well into the 19th and 20th centuries, yet world literature got along okay, and has likely benefited more from things like improved printing technology, increased literacy, increased leisure time, improved methods of transporting books, etc. than it has from mere copyright, we can be pretty confident that the lack of copyright would not be a big deal.
Of course, it's not fairness, per se, that copyright is interested in. The goal of copyright is to promote the progress of science (i.e. knowledge) by encouraging the creation and publication of more original and derivative creative works, and having those works be as minimally copyrighted in both scope and duration as possible in the process, and fully in the public domain as rapidly as possible, since it is only then that the people of the world can take advantage of the easy-to-copy nature of the world that you have noticed, and help themselves the most. Since there are more of them than there are of authors, this is appropriate. Since it aids authors as well (e.g. Disney making films based upon public domain fairy tales), it's even more appropriate.
This derives not from it being economically beneficial (which it may or may not be), but from simple fairness. A book-writer ought to be no less protected from thieves, than a shoemaker...
An author and a cordwainer are pretty much protected the same. A tangib
Also you might want to rethink your progression of why society is enriched by art (for art please include music/film/plays/etc). To paraphrase: "Picasso could make a living by selling works." In your defense of eradicating copyright: "4) The public not paying for works, access to works."
Ah, a small quibble here. Creative works are intangible and often present in multiple instances. A novel is a work. A copy is a tangible object in which a work is fixed. The paper and cardboard book in which the novel is printed is a copy. And of course, a copyright is a right pertaining to works and copies in various ways.
Picasso could make a living selling copies, such as tangible canvases with paintings on them, or metal sculptures, etc. Even if everyone and their dog was printing up exact replicas of these things, Picasso would still be able to command a higher price by virtue of the fact that his copies were the ones that _he_ made. Thus, when someone steals a poster of Guernica, no one really cares all that much.
So while I'm not in favor of eradicating copyright (unless would yield a greater public benefit than reforming copyright), I don't see a problem here. Society is enriched when anyone can obtain access to published works freely, anyone can make copies of those works freely, etc., but this would not reduce demand for copies made by, or at least touched by (e.g. an autographed book) the hand of the author, as opposed to all the other generic copies.
FYI, 'obscene,' from a legal perspective means that it appeals to the prurient interest, among other things. It's not a synonym for 'offensive.' So when he says "MY FUCKING WORK ASSHOLE!" I rather doubt that he means it in a sexual sense. So no, it really could not be considered obscene. That would be weird.
The Universal Declaration doesn't list inherent rights. It lists rights which are good ideas and which people ought to have. Some of them are inherent, others are not. For example, people ought to have a guaranteed right to medical care (see Art. 25(1)), but we are not endowed by God or nature or whatever with an inherent right to compel others to grant us medical care. And treating oneself only gets you so far.
Frankly, I'd say that Art. 27(2) is outright wrong. Copyright is utilitarian in nature. A particular polity can decide to grant copyrights or not grant copyrights as it sees fit, provided it is generally equitable. It's little different than a town deciding to put up streetlights; if they're useful and cost-effective and realizable, then sure, they might be installed. And people might hold differing opinions as to whether or not they ought to be set up or not. But it's not a matter of human rights. It's a social program meant to help subsidize authors for the public benefit. It isn't necessary or even particularly important. It should not be in the Universal Declaration. Whether an author should be granted a copyright is a question for the society he lives in. It shouldn't be a given.
Plus of course, you still just cannot reconcile Art. 19, 27(1), and 27(2). It cannot be done. They're in conflict if you assign them equal weight. My solution -- that free speech trumps but is partially alienable for the purpose of setting up copyright, if the particular copyright law in question is seen as desirable by those who will be burdened by it -- at least makes sense. This is the same problem the moral rights crowd runs into; it's nonsensical, and even the countries that pretend to practice it are really hypocrites.
parent's diatribe is the most repugnant smelly piece of tripe.
No, I think I've got it right, but I'm happy to discuss it.
"Authors have an inherent right as to whether or not to create a work to begin with" yup and if I want to starve I won't create anything at all or we'll let you have it the minute I produce it and still I'll starve. It's my work, You can buy it, you can use it for your own amusement. You CAN NOT make copies of it and give it away.
No. There are plenty of ways for an author to make money without copyright. For example, Picasso could sell a painting for extravagant amounts; the sorts of people who were prepared to pay him such vast sums wanted an actual copy he made, and would not have just gone out and bought a cheap poster of the same work instead. Architects in the US have traditionally made a living without copyright. The aforementioned fashion designers still don't have copyrights, but do okay. The list goes on and on. In fact, I was a professional artist before I got into law, and I never made a penny that was attributable to copyright, but I nevertheless supported myself and had a comfortable life.
Of course, copyright is no guarantee of success either. Even if you do have a copyright, you can still starve because your work is unpopular. There are plenty of flop movies, plays, books, etc.
The work you create is indeed yours, in the sense that you created it. Other than that, you have no particularly special rights in it inherently. Certainly you cannot control whether or not other people make copies of it and give them away merely because you are the author. Whatever ability you have to control what other people do and do not do can only possibly be based on whether or not those other people consent to your control. Why would they ever do so, unless they felt that it would somehow benefit them more to submit to it than not to?
That's not free speech. You certainly have a right to say the same thing I said in your own words you can even quote me on specific points THAT IS FREE SPEECH.
Yes. And copying your work verbatim is free speech too. But I might be willing to temporarily not do that, at least in some circumstances, if you made it worth my while. But you don't just start out dictating to me what I may and may not say, merely because you said it first.
After my ability to make money from it runs out it can become public domain but not until it has run the course of being MY FUCKING WORK ASSHOLE!
That's simply never how the law has worked. Even in this awful era of copyright law we now find ourselves in, the copyright term runs out after a particular period of time, regardless of whether or not you've completely exhausted the copyright-related revenues to be had.
You are supposed to be enriched by what I write for you and teach you or make you think about. It is for you to repeat what I say or disagree with it vocally if you wish. But taking my work and copying it and giving it away at your whim is not free speech. I don't understand how anyone can support this obvious garbage. That this "public domain first" crap exists I just don't see how in any society you could think that!
Society is enriched by: 1) Authors creating new original works; 2) Authors creating new derivative works; 3) The public being free to use works in any manner they see fit (copying, distributing, preparing derivative works based upon, etc.); 4) The public not having to pay for works, access to works, copies, etc.
An ideal world would be one in which every creative work that could be created, was, and where there was no copyright at all, so that everyone had cost-free access to the entire body of human creative output. For practical reasons, we can't manage that at this time, but we should at least strive to get as close to that as possible.
The algebra of copyright is essentially that without copyright, some number of works x will be created and published because there are non-copyright-related
No, we don't. We are talking about, whether creators -- of movies, music, literature, software, fashion designs -- have the inherent rights to control their creations, or whether whoever happens to be able to copy their work has the same rights to it as the creator.
No, the earlier poster is correct. Everyone has an inherent right to make, distribute, etc. copies of works, whether they created those works or not. This is a matter of freedom of speech. It's the reason why, for example, you have the right to recite Shakespeare in public, even though you are probably not Shakespeare. During the term of copyright, the public willingly surrenders a portion of their right to make use of the work of the author as part of a scheme to derive a greater public benefit than the public harm caused by suffering such restrictions. When the copyright expires, the author loses his right to prohibit other people from making use of the work, though he retains his natural right to use the work himself. This is why we talk about copyright as an exclusive right -- i.e. a right granted to the author to exclude others from doing certain things with the work -- and why when copyright expires, no rights in the work are, or need to be, granted to the public. The public has always been possessed of rights in the work, and upon the expiration of the copyright, the public is once again free to exercise those inherent rights.
What's not an inherent right is copyright. Authors have an inherent right as to whether or not to create a work to begin with, and they have an inherent right as to whether or not to reveal that work to anyone else, or to hide or destroy it. No one is suggesting that authors be compelled to create or compelled to publish. However, copyright is the right to prohibit the public from making, distributing copies, etc. with regard to works that members of the public have managed to obtain copies of, most often by publishing. The right to prohibit other people from, e.g. reciting Shakespeare, is certainly not anyone's inherent right! And as it is impossible to reconcile the idea with the much more reasonable idea that people do have an inherent (but not inalienable) right to recite Shakespeare, or whatever else, it's clear that this nonsense about inherent rights of authors to censor the rest of the public is absolute tripe.
I'm also rather surprised by the specific language you used. Movies, music, literature, software -- these are not unusual. But in the US at least, there is no copyright for fashion designs. Copyright in pictorial, graphic or sculptural works (such as clothing) can only subsist where the work is separable from any parts which have utility. (The idea, basically, is to avoid having people use copyright when they ought to be using patents) This just isn't the case for clothing, and it's long settled that this is so. Nor is there any need for copyright in the field of clothing design; copyright exists for utilitarian purposes, i.e. to encourage authors to create and publish new original and derivative works, while minimally protecting those works in both scope and duration of protection. That is, copyright exists to get the most stuff in the public domain fastest, with as little copyright as possible along the way. The field of clothing is terribly healthy without copyright. Many new works of fashion design are made all the time. There is no reason whatsoever to believe that there would be a substantial increase in the number of works if copyright were granted. In fact, there is an excellent reason to believe that there would be far fewer, as unauthorized derivatives would not be as common. Further, rent-seeking behavior amongst monopolists being what it is, the public would likely lose access to cheap copies of the designs. There is simply no public benefit _at all_ for copyrighted fashion design. So I'm wondering, why did you mention it?
Long story short, you seem to be quite backwards on this matter. You might want to read up on the utilitarian basis of copyright law, and the actual laws on the books.
There is no special treatment for movies under first sale, regardless of medium. For sound recordings and computer (not console) software, you can't rent them to others, but nonprofit libraries still can. It might help to think of the law as a Venn diagram with a lot of sets nested within one another; you can do anything not prohibited, then there's a prohibition that applies to a particular thing, then there's an exception allowing the conduct under certain circumstances, then an exception to the exception, and so on. 17 USC 109 is fairly readable, as copyright law goes; you may want to take a look at it.
Of course, that's a fairly recent change in the law (1990, IIRC), and not a good one.
Why shouldn't it be legal to rent those things? It was asserted that it was because people would rent them, then unlawfully make a copy to avoid buying one. However, events have shown that 1) That's not a serious problem, given that movies are rented and are thus susceptible to this sort of piracy, yet rental-related piracy hasn't noticeably harmed the movie industry; 2) With the advent of the Internet, it's unlikely that anyone would go through the inconvenience of renting music or games to pirate them, making the restriction on rental ineffective and thus in need of being eliminated.
First sale should not distinguish amongst types of works, nor should it be limited. That is just yet another example of the corrupt practices of the copyright industry, having the law twisted so that it no longer serves the public interest.
I'd have to check, but as I recall, there is no criminal libel statute in Massachusetts. There may have been a common law crime, but it would stand a good chance of being unconstitutional after the Ashton decision in the 60's. Generally, libel is merely a civil offense.
Ok, so now you're changing things further. Before it was, if there were a copyright law that was blatantly unconstitutional (say, for equal protection reasons -- it only granted copyrights to white authors), what other grounds might it be unconstitutional under? Now you're trying to manufacture reasons for it to be unconstitutional (though I'm unconvinced, partially as I don't recall that it is settled that deception necessarily requires probable cause (do you have a S.Ct. cite?), and partially since these matters could be handled by means of private bills, and the disclosure that would have to come along with that, and separation of powers issues) by additionally creating a policy of examination which is, unbeknownst to the applicant, rigged in favor of uncopyrightability in an arbitrary and capricious manner.
Is this even productive anymore? Is anyone out there suggesting that the government pursue such a policy? Is there indication that the government might choose to do this sua sponte?
There are copyright abolitionists. There are strident copyright reformers who want to revive formalities, and who might even want fairly applied examination procedures vaguely similar to what we see in the patent and trademark fields. But I think you're getting further into bizzaro world with each successive post.
It is IP as soon as it is created. If it wasn't, there would be nothing to protect. When you get a copyright/patent, you are protecting what already exists, not creating what doesn't exist.
Well, no.
There are three different things we're looking at here: Copies, works, and copyrights. (Patents are basically the same, but we'll leave them aside for now)
A copy, i.e. a tangible object in which a work is fixed, such as a vinyl phonograph record, or a paper and ink book, is property, but it's ordinary personal property, like a brick, or a fish. Nothing special there, no new bodies of law needed.
A creative work, such as a musical composition, lyrics, sound recording, or a written story, is not property. It's intangible (for instance, one story can simultaneously exist in many copies) but that isn't why it's not property. It is mainly because it's not rivalrous. Property is that which the owner can use and enjoy; can lend to others and have returned to him and; can dispose of, by means of selling, abandoning, or destroying. If you sing me a song, which isn't actually an act of lending, since you have it at the same time that I also have it, it is simply impossible to make me return my memory of it to you once I've listened to it. And it's quite difficult to dispose of it, since you can't control your own memories all that precisely either.
And of course a copyright is a right pertaining to a creative work and copies in which that work is fixed, but all of these things are distinct from one another. A copyright could, perhaps, be thought of as property. Again, intangibility doesn't matter. If there's one thing a copyright is really similar to, it is a negative easement. It's not a right to affirmatively do things with works or copies, but a right to prohibit other people from doing certain things. It doesn't apply to all things, though, or in all circumstances. And it expires, even if the work (and therefore copies in which the work is fixed) still survive. Technically it would exist even if the work (and all its copies) were somehow utterly destroyed, but it would be pretty moot.
"Intellectual property" is a fairly new term (IIRC it dates back to the 1950's or 60's -- cf. copyright from the early 18th century, or patents from the late 15th century) and is extremely confusing, perhaps deliberately so. It tries to cover a wide range of unrelated and quite different bodies of law, such as copyrights, patents, trademarks, trade secrets, publicity rights, etc. Some of these are in no way "intellectual," and none really deal with property. It's more likely a bit of propaganda meant to get people to apply norms of personal property to things that are utterly different. Personally, as someone who works in this general area, I avoid the term, and encourage others to avoid it as well. I am a copyright and trademark specialist. If I want to talk about, say, patents, I use the correct term. Since there's really very little reason to talk about all of them at once (they're so different, it would be like trying to come up with a single umbrella term for rocks, beetles, electric hair dryers, melancholy, and itchiness, and then having a discussion about all of them simultaneously using that term) there's no reason to invoke such an inapt general term.
Still, if it refers to anything in the sphere of copyright, it cannot refer to copies; they're ordinary personal property, and no new term is needed. It cannot refer to creative works, as they're not property at all, and never could be. All that's left are copyrights themselves, which while not intellectual themselves, at least could arguably be construed as property.
Thus, the term you're claiming as the object of protection is, if anything at all, the protection itself, and not what it protects.
It's sort of as if you're confusing a suit of armor, a shield, and a sword, for the meat-and-bone knight that uses them for protection.
Slashdot Mirror
I completely disagree. Copyright holders should bear the burden of placing a proper copyright notice on their works, and registering their works so that in case of doubt the copyright status can easily be determined. This is fair, since the copyright holder faces little burden in doing so, has an incentive to do so, and is in the best position to know this information already.
A minor nit: It's just science. The useful arts is patents.
And since it is to the public benefit for works to be in the public domain, and for copyrights to yield the greatest incentive to authors while being minimally restrictive on the public, it would likely be a net improvement to allow natural persons to engage in otherwise infringing non-commercial activity.
... and it was taken as a given that patents and copyright would exist, so the answer to let the Federal government have exclusive control was obvious.
Well, more that they could. Some states had copyright laws, but not all. I've never looked into state patent laws, so I couldn't say anything about them. And anyway, the Constitution doesn't give the federal government exclusive control, it just lets the federal government participate. It's the supremacy clause that lets the federal government assert exclusive control if it wants. As it happens it wasn't until recently that the federal government got serious about that with regard to copyright law, and there are still a few remnants of state copyright law that are relevant at times.
Pff. The difference between an "idea" and an "invention" is mere semantics, because an "invention", as currently defined by patent law, does not require any sort of tangible aspect. If you say there's something different, something not enshrined in 35 USC 102 or 103 that distinguishes an "idea" from an "invention", beyond the fact that it must be novel and nonobvious, I'd like to hear it.
Utility. Reduction to practice. Patentable subject matter.
Yes - copyright requires a creative work fixed in a tangible medium. Ideas aren't fixed in a tangible medium, so no, you can't copyright an idea.
That's not the reason why. You could express an idea completely in a work fixed in a copy, but still have no rights to the underlying idea. Between Baker v. Selden and the merger doctrine it's really got more to do with what compromises copyrightable subject matter, rather than a mere issue of fixation.
On the other hand, there has never been a requirement that patents protect an invention that is fixed in a tangible medium.
I know. I'm just saying that you can't patent a mere idea floating in the air; it has to have been refined into a proper invention.
I agree regarding different lengths for different fields, which can be handled nicely by a system of very short terms which must be renewed periodically (say, every year or two), but with varying numbers of renewals available depending on the field of the work or invention.
However, for software, I think that no patents are necessary at all. A patent is meant to encourage the invention, publication, and bringing to market of useful inventions and their entry into the public domain as fully and quickly as possible. With software, unlike most inventive fields, the inventors seem to be inventing like mad and publishing much if not all of the information necessary for a person having ordinary skill in the art whenever they bring their invention to market. For example, once Amazon started permitting people to buy via one click, pretty much all the information that anyone who cared was out there. Since Amazon quite certainly would have researched, developed, and implemented one click shopping even if it wasn't patentable, it shouldn't be patentable. The incentive was wasted on them, and the public should not have to suffer such waste. Usually it's impractical to make that determination, but AFAICT it seems to apply to the whole software industry. I'm happy to revisit the issue if the pace of inventiveness in the software field ramps down in the future, but for now, patents are doing more harm than good in that particular field. Business methods too.
I'm not sure if you're talking about Canada or have gone on to the US, but in the US, the history and composition of the federal Constitution basically is as it is due to the failures of the states to ever work together under the previous government established by the Articles of Confederation. So it's not really that patents and copyrights were particularly important, it's just that letting each state handle them independently was turning out to cause problems.
Oh and no, you can't patent an idea. An invention may be patented, but that's significantly more refined and developed than a mere idea. Ideas cannot be copyrighted either, although expressions of that idea may be copyrightable.
If you force copyright holders to allow derived works, market will be flooded with so many crap Batman comics and movies, nobody will associate Batman with good shows.
That's not really correct. All that might happen would be that people wouldn't assume that merely because it was a work about Batman that it was good. Instead, they would look to the author of the particular work. You can see an example of this with classic fairy tales. They're in the public domain, and anyone can publish copies of them or make derivative works based on them. A version of Cinderella by Disney might be good, while a version by Jerry Lewis might be pretty crappy. Rather than just go to anything about the character, the audience will have to check to see which version it is. This is not a tremendous burden.
When you demand free stuff, this is the quality you get.
It is inappropriate for copyright law or policy to care about quality. The government shouldn't be the arbiters of taste for everyone. Copyright should look to quantity instead, by encouraging the creation of as many original and derivative works as possible. Given that 90% of everything is crap, more of everything is the only sure way to get more of the good stuff. Since no one is forcing you, or anyone else, to watch bad things, it's easy to ignore it.
The author used his own time and skill to create a work for your enjoyment. He does not owe you any work unless he is your slave.
I agree completely.
Therefore, he has the right to charge a reasonable price for his work for his own personal benefit.
Provided that you mean he has a right in transactions in which he is a participant, and given that markets tend to dictate prices (would you pay as much for a DVD of Gigli as you would of Citizen Kane?), I'd agree with that too.
But copyright isn't about either of those things. Even without copyright, both of those would still hold true.
What copyright does is it prohibits third parties from making copies of the work, distributing them, etc., instead allowing the copyright holder to monopolize the market for the work, so that he can charge above-market prices, since for some reason copyright proponents don't ever think that the market price is ever "reasonable." There's certainly no natural right to a monopoly. It might be sensible to give such a right to a copyright holder, but given that it means a loss of freedom for everyone else, and having to suffer monopoly pricing, there really ought to be a good reason. The mere fact that the author created the work is not a good reason.
So you're saying that if all the other countries are jumping off of a cliff, our country ought to be allowed to do that as well? That's never been a good argument.
How is public performance not a copy?
A copy is a tangible object in which a work is fixed; If an infringer, say, recites copyrighted poetry aloud in public, he isn't fixing the work into a new copy, but he's still infringing.
As for Berne I'm not that familiar with the methods used to ratify international treaties in the US (except one is via congress and one not, I think?)
Well, I'm no expert in international law, but as I recall, in the US, we only regard a treaty as being in force if the President has ratified it and the Senate has consented to it by a supermajority vote. It's also possible for the President to make agreements other than treaties with foreign countries on his own, provided that the agreement only concerns matters that are within his power anyway, and both houses of Congress together with the President can do likewise, again if it's in the scope of their normal authority. The difference mainly is that a treaty can concern itself with matters that go beyond the possible scope of constitutional federal legislation. Of course, for an actual treaty, as opposed to a mere agreement, mere ratification by the President means nothing without Senate consent. Other states may disagree, but that's how we view it.
In any event, aside from separation of powers issues, any sort of international agreement would only have the force of federal legislation at most, and since we have a last-in-time rule, Congress can always pass a new law that overrides the force of the treaty within the US. (Naturally, the other treaty parties and the language of the treaty itself might disagree, but that has no effect on US law) Likewise, a treaty that violates the federal constitution would be considered unconstitutional here. The President can also break a treaty unilaterally, at least in practice, since the courts won't intervene, considering it to be outside their jurisdiction.
Further, while a treaty might be binding on the US as a state, it has no actual domestic legal effect unless it is a self-executing treaty, which basically requires that the treaty indicate that it is. Non-self-executing treaties require enabling laws to bring our domestic laws into compliance with whatever the relevant treaty obligations are.
The Berne Treaty is not self-executing, and we know this because Congress passed a law saying so. Of course, Berne also supports this interpretation, as it requires parties to undertake measures to comply with Berne's minimum standards; if it were self-executing, no such action would be required.
but as a signatory to Berne - on ratification - the US agrees to bind its citizens with that law.
No, we'd regard this as the US agreeing that it has an obligation to modify its laws to bring them into compliance with Berne. Whether or not the US actually lives up to this obligation is another question entirely. And if the US decides to enact some laws in response to a treaty, it is easy to imagine the US and other treaty parties disagreeing as to whether or not we had done a good enough job.
Indeed the BCIA 1988 appears to be solely purposed in saying the regulations as set out in Berne apply but not because Berne applies but instead because they're set out in this act. That sounds crazy to me.
The Berne Convention Implementation Act is the enabling legislation that Congress passed to amend the Copyright Act up to Berne standards, as we believe them to be. If BCIA hadn't been passed, the US wouldn't be in compliance with Berne at all since the latter has no legal weight here.
The US is saying its citizens are not bound by Berne, despite having signed and ratified, but expect Berne to protect its citizens?
Well, I can't set US foreign policy, but I would imagine that we wouldn't really care if some other Berne party didn't treat Berne as actual law, but merely as a checklist of requirements which its domestic law had to satisfy. I think it's crazy to have individuals going into court on the basis of a mere treaty as op
You can make a rendition of the _story_ but not copy the actual Disney script of that story. You can't go and buy a Snow White DVD, scrub out Disney's name and duplicate and sell it . You can't copy their presentation.
Yes, that's what I've been saying.
If they copied it from Disney then they copied their presentation ("expression" if you like) of that story.
No, I'm saying that if they copied the Snow White story which was in the public domain, and did not copy anything more than that (e.g. the names of the dwarves, the songs, the dialog, the entire movie), but did so only using Disney's Snow White as a source, rather than referring to an earlier work containing the story, that would be legal. Just because the Snow White movie is overall a copyrighted work that does not mean that the copyright actually extends to every nook and cranny of the work; those unprotected portions are free for the taking.
No, but in general parlance it's not necessary to specify "an infringing copy" and specify disclaimers as to situations in which the copying may not infringe.
Well, I had been thinking of the need to show that the copying was of copyrighted material; since that part of the work isn't copyrighted, Disney would have a tough time.
Could you specify?
Public performance immediately springs to mind. As a US-based copyright lawyer, Berne doesn't grant any rights or remedies here, and is basically useless; only the laws emanating from Congress or the courts matter.
Nope. These ideas existed before. This presentation of these ideas did not.
First, the normal terms of art are ideas and expressions. The famous idea/expression dichotomy is that ideas are not copyrightable, but expressions of those ideas may be. The seminal case on the issue dealt with a book about a system of accounting. The precise language used to describe the system could be copyrightable, but the system itself which was being described was not copyrightable. Anyone was free to learn the system and describe it in full in their own words and not risk infringement. Learning the system from the first book was a perfectly acceptable method of doing so.
Second, we're not just talking about ideas. Ideas are generally treated as being pretty simplistic, e.g. the idea of an archaeologist-adventurer is central to the Indiana Jones stories, but it also works for Tomb Raider, Stargate, etc. It is safe to watch one of these and copy that idea when creating your own work. The dividing line between ideas and expressions is a bit fuzzy, particularly since the courts don't want to require precise copying of an expression, and thus leave authors vulnerable to people who copy everything with only one slight difference. But there's usually numerous ideas in a work (Nazis are bad, ancient artifacts have real powers, ruins are always protected by surprisingly complicated and functional booby traps, etc.), and some very basic plots could be considered ideas (e.g. a race to find some ancient doohickey).
Anyway, though, since we're talking about a derivative work, the realm of what is not protected is actually quite a lot larger than usual. Not only are ideas uncopyrightable as always, but when you create a derivative work, the copyright on the work only applies to the new material added. It does not cover the pre-existing material the derivative work is based upon. Nor does the copyright on the new material add or extend protection to the pre-existing material. This is more the issue in the example of Snow White.
The basic Snow White story is that there's a princess, Snow White, who is beautiful, and there's an evil stepmother who finds out via magic mirror that S.W. is more beautiful than she, arranges S.W.'s death, but S.W. doesn't die and instead shacks up with dwarves, so the stepmother disguises herself, gives S.W. a poison apple, and this causes S.W. to fall asleep until awoken by a prince, happily ever after, the end. Disney did not create this. They have no right to it whatsoever. The fact that they built a whole movie around it, much of which is copyrightable, does not somehow make the underlying story that they copied from somewhere else copyrightable. Since their copyright only applies to material they added, anyone who only knows the Snow White story from the Disney movie can copy the uncopyrightable stuff directly from the movie and use it as will, and be entirely on the right side of the law.
If you read this presentation and derive your work from it then you are "copying". ... Their original elements will be assumed to be copied unless you can demonstrate they were not. Their traditional elements will be assumed not to have been copied - but may be shown still to have been copied if you include their typo's and such; it is the copying that is protected. The clue is in the name.
In fact, you're wrong. Copyright only prohibits the copying of copyrighted material. Not copying period. The Snow White story is not copyrighted, thus it may be copied freely, from wheresoever it is found. Only original material based upon that story, such as the visual appearance of the character in the cartoon, is copyrightable, and thus not legal to copy.
Also, as the plaintiff in an infringement suit, Disney would bear the burden of proving that the defendant copied material which Disney had a copyright on; the mere fact of copying isn't sufficient for them to win an infringement case. As for the uncopyrighted material, no one will care where it came from, and the questi
IANAL, but I think you're overestimating how much work one needs to do in order to get copyright on an edited version. I'm pretty sure if you renumber the pages and add an index to a public domain work, your edition qualifies for copyright protection.
Getting a copyright through mere editing is actually pretty tricky, at least in the US. Here's what's required, per 17 USC 101:
Of course, that protection is pretty limited as well, per 17 USC 103(b):
So if all you did was renumber the pages and build an index, the numbers probably don't count, since they don't qualify as an original work of authorship, due to a lack of creativity. The index might have very thin protection, but that would be as a compilation of facts, not as a revised work. Even then, you'd have to show creativity in choosing what you indexed, and it would have to be enough to carry the entire index, since the arrangement of the index is uncreative. Of course, that only protects the index itself, not the material the index refers to.
I'd suggest you put more work into it if you want to make a derivative work that qualifies for copyright.
Copyright doesn't protect ideas at all -- you can use ideas extracted from copyrighted works as you like. Copyright merely protects particular expressions of an idea (and even that has some limits). The trick is in identifying what's an idea and what's an expression, since the dividing line is quite fuzzy.
Anyway, though, when you create a derivative work, such as a movie based upon a fairy tale, you can only get a copyright to the copyrightable material you add, not the underlying material. So to take Disney's version of Snow White as an example, the basic story of a wicked stepmother, beautiful princess, magic mirror, etc. are all free for the taking by anyone, even if they are taking these from the Disney version, rather than an older source. But the parts that Disney added, such as the visual appearance of these characters (e.g. Snow White's blue and yellow dress, or the names of the dwarves) are copyrighted.
Since anyone else can make their own version of Snow White and compete with Disney, it's not a big problem. It would be terrible, though, and unconstitutional, to give Disney rights over the underlying Snow White story just because they happened to make a movie based on it.
As for the length of copyright, while I don't mind the idea of varying lengths depending on the type of work (e.g. a book needs a longer term than software, which needs a longer term than a daily newspaper), and I strongly support the idea of short terms with renewals if the author timely requests them, I see little reason to differentiate between original and derivative works. They're both equally desired by the public, and while some might dismiss derivatives as being less artistic, it is not the place of the government to set policy based on what some bureaucrat's taste in art is.
Copyright in the U.S. was not created as a social welfare device, but as an incentive to create.
Well, it was created as a social welfare device. It's just that it is meant to benefit the public, as opposed to authors. It's just like the government giving a grant of public money to an artist so that they'll create a work of art that the public can enjoy. Except instead of issuing cash money, a monopoly is issued instead, the value of which depends more or less on the popularity of the work.
Also, please bear in mind that copyright is not merely an incentive to create. If it were, it wouldn't ever be good enough to tolerate. Copyright is an incentive to create and public new original and derivative creative works, while at the same time protecting them as minimally as possible, for as short a time as possible. Ultimately, it's a system for getting authors to create public domain works, it's just that there's a little bit of a delay in the public domain payoff, and that delay is what makes the system go.
Lately it's gotten corrupt, but the core idea is pretty sound.
Yes, however there is one minor flaw in your plan. Someone who doesn't know how to program a computer would not be very good at software development; someone who doesn't know engineering would not be very good at building a safe bridge, etc. Lawyers work with laws all the time, and we receive a lot of training in it at school, on the job, and in continuing education programs after we're out of school.
Someone who wasn't familiar with law, and legal concepts, certainly could bring a different attitude to lawmaking, but they would also tend to be fairly inept, since it's harder than you think. In computer software, it is common for a group of users with some problem that needs addressing to provide input into solving that problem (e.g. usability testing, identifying the program's needed functionality, etc.) but the work is actually done by programmers, rather than just handing the hapless user a bunch of software and telling them to fix it themselves. In the legal realm, this is usually done with a democratic system for choosing lawmakers, public transparency, lobbying, etc. It is fine, in fact it's good, for everyone to have a hand in determining what isn't being done right, what ought to be done, what the desired outcome is, etc., but it is probably for the best for specialists to do the actual work, so that it is efficient, functional, but not full of cruft.
Actually, no we don't know this, but, most importantly, it does not matter. This misses the point. The copyrights ought to exist, because the creators of things, that are hard to create but easy to replicate -- like software, literature, music, video, fashion design, what have you -- ought to enjoy to lesser control of their creations, than creators of things tangible.
Didn't you read the last post I made responding to you? Fashion design is not copyrightable, at least in the United States, and never has been, so why do you keep bringing it up, and perhaps pretending that it is? It's very odd. And it's certainly an unusual example to bring up in any case, since most people wouldn't think of it as a creative work, particularly around here.
Anyway, assuming you misspoke when you said that "creators ... ought to enjoy lesser control," you're wrong. This has nothing to do with fairness. The world, it is well known, is not fair. And while it might be a good idea to make it more fair, surely we must prioritize our efforts such that we make things more fair for the most people before moving on to increased fairness for smaller groups, all the while not making things less fair for anyone, nor reducing the amount of increased fairness we've already brought about. Well, there are more readers of books than there are authors of books. So not only do the readers have more power in a democratic society, but making things fair for them surely must take precedence, if fairness is truly your goal, as opposed to, say, pandering to special interests while disguising yourself in noble-sounding lies about fairness.
The world seems to be made in such a way that things that are hard to create, but easy to copy are, well, easy to copy. If I come up with a good story which entertains and enlightens people who hear it, then surely it would be most fair to those who have not yet heard it if they could hear it from more than one person. After all, even if I went on the speaking tour from hell, and printed a lot of books, and distributed them all over, I'm sure to miss some people who cannot take the time to see me, cannot afford to buy a book, can't read, don't know the language I work in, etc. Letting others fill in the gaps that I, a mere one person cannot possibly fill myself, is a better method than letting them go unenlightened and unentertained. Copyright would prohibit this.
A lack of copyright, OTOH, certainly wouldn't prohibit me still going on tour and selling books, it would merely mean I'd face more competition. Since copyright didn't exist anywhere until the 18th century, and didn't exist most places until well into the 19th and 20th centuries, yet world literature got along okay, and has likely benefited more from things like improved printing technology, increased literacy, increased leisure time, improved methods of transporting books, etc. than it has from mere copyright, we can be pretty confident that the lack of copyright would not be a big deal.
Of course, it's not fairness, per se, that copyright is interested in. The goal of copyright is to promote the progress of science (i.e. knowledge) by encouraging the creation and publication of more original and derivative creative works, and having those works be as minimally copyrighted in both scope and duration as possible in the process, and fully in the public domain as rapidly as possible, since it is only then that the people of the world can take advantage of the easy-to-copy nature of the world that you have noticed, and help themselves the most. Since there are more of them than there are of authors, this is appropriate. Since it aids authors as well (e.g. Disney making films based upon public domain fairy tales), it's even more appropriate.
This derives not from it being economically beneficial (which it may or may not be), but from simple fairness. A book-writer ought to be no less protected from thieves, than a shoemaker...
An author and a cordwainer are pretty much protected the same. A tangib
Also you might want to rethink your progression of why society is enriched by art (for art please include music/film/plays/etc). To paraphrase: "Picasso could make a living by selling works." In your defense of eradicating copyright: "4) The public not paying for works, access to works."
Ah, a small quibble here. Creative works are intangible and often present in multiple instances. A novel is a work. A copy is a tangible object in which a work is fixed. The paper and cardboard book in which the novel is printed is a copy. And of course, a copyright is a right pertaining to works and copies in various ways.
Picasso could make a living selling copies, such as tangible canvases with paintings on them, or metal sculptures, etc. Even if everyone and their dog was printing up exact replicas of these things, Picasso would still be able to command a higher price by virtue of the fact that his copies were the ones that _he_ made. Thus, when someone steals a poster of Guernica, no one really cares all that much.
So while I'm not in favor of eradicating copyright (unless would yield a greater public benefit than reforming copyright), I don't see a problem here. Society is enriched when anyone can obtain access to published works freely, anyone can make copies of those works freely, etc., but this would not reduce demand for copies made by, or at least touched by (e.g. an autographed book) the hand of the author, as opposed to all the other generic copies.
FYI, 'obscene,' from a legal perspective means that it appeals to the prurient interest, among other things. It's not a synonym for 'offensive.' So when he says "MY FUCKING WORK ASSHOLE!" I rather doubt that he means it in a sexual sense. So no, it really could not be considered obscene. That would be weird.
The Universal Declaration doesn't list inherent rights. It lists rights which are good ideas and which people ought to have. Some of them are inherent, others are not. For example, people ought to have a guaranteed right to medical care (see Art. 25(1)), but we are not endowed by God or nature or whatever with an inherent right to compel others to grant us medical care. And treating oneself only gets you so far.
Frankly, I'd say that Art. 27(2) is outright wrong. Copyright is utilitarian in nature. A particular polity can decide to grant copyrights or not grant copyrights as it sees fit, provided it is generally equitable. It's little different than a town deciding to put up streetlights; if they're useful and cost-effective and realizable, then sure, they might be installed. And people might hold differing opinions as to whether or not they ought to be set up or not. But it's not a matter of human rights. It's a social program meant to help subsidize authors for the public benefit. It isn't necessary or even particularly important. It should not be in the Universal Declaration. Whether an author should be granted a copyright is a question for the society he lives in. It shouldn't be a given.
Plus of course, you still just cannot reconcile Art. 19, 27(1), and 27(2). It cannot be done. They're in conflict if you assign them equal weight. My solution -- that free speech trumps but is partially alienable for the purpose of setting up copyright, if the particular copyright law in question is seen as desirable by those who will be burdened by it -- at least makes sense. This is the same problem the moral rights crowd runs into; it's nonsensical, and even the countries that pretend to practice it are really hypocrites.
parent's diatribe is the most repugnant smelly piece of tripe.
No, I think I've got it right, but I'm happy to discuss it.
"Authors have an inherent right as to whether or not to create a work to begin with" yup and if I want to starve I won't create anything at all or we'll let you have it the minute I produce it and still I'll starve.
It's my work, You can buy it, you can use it for your own amusement. You CAN NOT make copies of it and give it away.
No. There are plenty of ways for an author to make money without copyright. For example, Picasso could sell a painting for extravagant amounts; the sorts of people who were prepared to pay him such vast sums wanted an actual copy he made, and would not have just gone out and bought a cheap poster of the same work instead. Architects in the US have traditionally made a living without copyright. The aforementioned fashion designers still don't have copyrights, but do okay. The list goes on and on. In fact, I was a professional artist before I got into law, and I never made a penny that was attributable to copyright, but I nevertheless supported myself and had a comfortable life.
Of course, copyright is no guarantee of success either. Even if you do have a copyright, you can still starve because your work is unpopular. There are plenty of flop movies, plays, books, etc.
The work you create is indeed yours, in the sense that you created it. Other than that, you have no particularly special rights in it inherently. Certainly you cannot control whether or not other people make copies of it and give them away merely because you are the author. Whatever ability you have to control what other people do and do not do can only possibly be based on whether or not those other people consent to your control. Why would they ever do so, unless they felt that it would somehow benefit them more to submit to it than not to?
That's not free speech. You certainly have a right to say the same thing I said in your own words you can even quote me on specific points THAT IS FREE SPEECH.
Yes. And copying your work verbatim is free speech too. But I might be willing to temporarily not do that, at least in some circumstances, if you made it worth my while. But you don't just start out dictating to me what I may and may not say, merely because you said it first.
After my ability to make money from it runs out it can become public domain but not until it has run the course of being MY FUCKING WORK ASSHOLE!
That's simply never how the law has worked. Even in this awful era of copyright law we now find ourselves in, the copyright term runs out after a particular period of time, regardless of whether or not you've completely exhausted the copyright-related revenues to be had.
You are supposed to be enriched by what I write for you and teach you or make you think about. It is for you to repeat what I say or disagree with it vocally if you wish. But taking my work and copying it and giving it away at your whim is not free speech.
I don't understand how anyone can support this obvious garbage. That this "public domain first" crap exists I just don't see how in any society you could think that!
Society is enriched by: 1) Authors creating new original works; 2) Authors creating new derivative works; 3) The public being free to use works in any manner they see fit (copying, distributing, preparing derivative works based upon, etc.); 4) The public not having to pay for works, access to works, copies, etc.
An ideal world would be one in which every creative work that could be created, was, and where there was no copyright at all, so that everyone had cost-free access to the entire body of human creative output. For practical reasons, we can't manage that at this time, but we should at least strive to get as close to that as possible.
The algebra of copyright is essentially that without copyright, some number of works x will be created and published because there are non-copyright-related
We're talking about restrictions on free speech.
No, we don't. We are talking about, whether creators -- of movies, music, literature, software, fashion designs -- have the inherent rights to control their creations, or whether whoever happens to be able to copy their work has the same rights to it as the creator.
No, the earlier poster is correct. Everyone has an inherent right to make, distribute, etc. copies of works, whether they created those works or not. This is a matter of freedom of speech. It's the reason why, for example, you have the right to recite Shakespeare in public, even though you are probably not Shakespeare. During the term of copyright, the public willingly surrenders a portion of their right to make use of the work of the author as part of a scheme to derive a greater public benefit than the public harm caused by suffering such restrictions. When the copyright expires, the author loses his right to prohibit other people from making use of the work, though he retains his natural right to use the work himself. This is why we talk about copyright as an exclusive right -- i.e. a right granted to the author to exclude others from doing certain things with the work -- and why when copyright expires, no rights in the work are, or need to be, granted to the public. The public has always been possessed of rights in the work, and upon the expiration of the copyright, the public is once again free to exercise those inherent rights.
What's not an inherent right is copyright. Authors have an inherent right as to whether or not to create a work to begin with, and they have an inherent right as to whether or not to reveal that work to anyone else, or to hide or destroy it. No one is suggesting that authors be compelled to create or compelled to publish. However, copyright is the right to prohibit the public from making, distributing copies, etc. with regard to works that members of the public have managed to obtain copies of, most often by publishing. The right to prohibit other people from, e.g. reciting Shakespeare, is certainly not anyone's inherent right! And as it is impossible to reconcile the idea with the much more reasonable idea that people do have an inherent (but not inalienable) right to recite Shakespeare, or whatever else, it's clear that this nonsense about inherent rights of authors to censor the rest of the public is absolute tripe.
I'm also rather surprised by the specific language you used. Movies, music, literature, software -- these are not unusual. But in the US at least, there is no copyright for fashion designs. Copyright in pictorial, graphic or sculptural works (such as clothing) can only subsist where the work is separable from any parts which have utility. (The idea, basically, is to avoid having people use copyright when they ought to be using patents) This just isn't the case for clothing, and it's long settled that this is so. Nor is there any need for copyright in the field of clothing design; copyright exists for utilitarian purposes, i.e. to encourage authors to create and publish new original and derivative works, while minimally protecting those works in both scope and duration of protection. That is, copyright exists to get the most stuff in the public domain fastest, with as little copyright as possible along the way. The field of clothing is terribly healthy without copyright. Many new works of fashion design are made all the time. There is no reason whatsoever to believe that there would be a substantial increase in the number of works if copyright were granted. In fact, there is an excellent reason to believe that there would be far fewer, as unauthorized derivatives would not be as common. Further, rent-seeking behavior amongst monopolists being what it is, the public would likely lose access to cheap copies of the designs. There is simply no public benefit _at all_ for copyrighted fashion design. So I'm wondering, why did you mention it?
Long story short, you seem to be quite backwards on this matter. You might want to read up on the utilitarian basis of copyright law, and the actual laws on the books.
There is no special treatment for movies under first sale, regardless of medium. For sound recordings and computer (not console) software, you can't rent them to others, but nonprofit libraries still can. It might help to think of the law as a Venn diagram with a lot of sets nested within one another; you can do anything not prohibited, then there's a prohibition that applies to a particular thing, then there's an exception allowing the conduct under certain circumstances, then an exception to the exception, and so on. 17 USC 109 is fairly readable, as copyright law goes; you may want to take a look at it.
Of course, that's a fairly recent change in the law (1990, IIRC), and not a good one.
Why shouldn't it be legal to rent those things? It was asserted that it was because people would rent them, then unlawfully make a copy to avoid buying one. However, events have shown that 1) That's not a serious problem, given that movies are rented and are thus susceptible to this sort of piracy, yet rental-related piracy hasn't noticeably harmed the movie industry; 2) With the advent of the Internet, it's unlikely that anyone would go through the inconvenience of renting music or games to pirate them, making the restriction on rental ineffective and thus in need of being eliminated.
First sale should not distinguish amongst types of works, nor should it be limited. That is just yet another example of the corrupt practices of the copyright industry, having the law twisted so that it no longer serves the public interest.
The concern isn't that he committed libel (crime)
I'd have to check, but as I recall, there is no criminal libel statute in Massachusetts. There may have been a common law crime, but it would stand a good chance of being unconstitutional after the Ashton decision in the 60's. Generally, libel is merely a civil offense.
Ok, so now you're changing things further. Before it was, if there were a copyright law that was blatantly unconstitutional (say, for equal protection reasons -- it only granted copyrights to white authors), what other grounds might it be unconstitutional under? Now you're trying to manufacture reasons for it to be unconstitutional (though I'm unconvinced, partially as I don't recall that it is settled that deception necessarily requires probable cause (do you have a S.Ct. cite?), and partially since these matters could be handled by means of private bills, and the disclosure that would have to come along with that, and separation of powers issues) by additionally creating a policy of examination which is, unbeknownst to the applicant, rigged in favor of uncopyrightability in an arbitrary and capricious manner.
Is this even productive anymore? Is anyone out there suggesting that the government pursue such a policy? Is there indication that the government might choose to do this sua sponte?
There are copyright abolitionists. There are strident copyright reformers who want to revive formalities, and who might even want fairly applied examination procedures vaguely similar to what we see in the patent and trademark fields. But I think you're getting further into bizzaro world with each successive post.
It is IP as soon as it is created. If it wasn't, there would be nothing to protect. When you get a copyright/patent, you are protecting what already exists, not creating what doesn't exist.
Well, no.
There are three different things we're looking at here: Copies, works, and copyrights. (Patents are basically the same, but we'll leave them aside for now)
A copy, i.e. a tangible object in which a work is fixed, such as a vinyl phonograph record, or a paper and ink book, is property, but it's ordinary personal property, like a brick, or a fish. Nothing special there, no new bodies of law needed.
A creative work, such as a musical composition, lyrics, sound recording, or a written story, is not property. It's intangible (for instance, one story can simultaneously exist in many copies) but that isn't why it's not property. It is mainly because it's not rivalrous. Property is that which the owner can use and enjoy; can lend to others and have returned to him and; can dispose of, by means of selling, abandoning, or destroying. If you sing me a song, which isn't actually an act of lending, since you have it at the same time that I also have it, it is simply impossible to make me return my memory of it to you once I've listened to it. And it's quite difficult to dispose of it, since you can't control your own memories all that precisely either.
And of course a copyright is a right pertaining to a creative work and copies in which that work is fixed, but all of these things are distinct from one another. A copyright could, perhaps, be thought of as property. Again, intangibility doesn't matter. If there's one thing a copyright is really similar to, it is a negative easement. It's not a right to affirmatively do things with works or copies, but a right to prohibit other people from doing certain things. It doesn't apply to all things, though, or in all circumstances. And it expires, even if the work (and therefore copies in which the work is fixed) still survive. Technically it would exist even if the work (and all its copies) were somehow utterly destroyed, but it would be pretty moot.
"Intellectual property" is a fairly new term (IIRC it dates back to the 1950's or 60's -- cf. copyright from the early 18th century, or patents from the late 15th century) and is extremely confusing, perhaps deliberately so. It tries to cover a wide range of unrelated and quite different bodies of law, such as copyrights, patents, trademarks, trade secrets, publicity rights, etc. Some of these are in no way "intellectual," and none really deal with property. It's more likely a bit of propaganda meant to get people to apply norms of personal property to things that are utterly different. Personally, as someone who works in this general area, I avoid the term, and encourage others to avoid it as well. I am a copyright and trademark specialist. If I want to talk about, say, patents, I use the correct term. Since there's really very little reason to talk about all of them at once (they're so different, it would be like trying to come up with a single umbrella term for rocks, beetles, electric hair dryers, melancholy, and itchiness, and then having a discussion about all of them simultaneously using that term) there's no reason to invoke such an inapt general term.
Still, if it refers to anything in the sphere of copyright, it cannot refer to copies; they're ordinary personal property, and no new term is needed. It cannot refer to creative works, as they're not property at all, and never could be. All that's left are copyrights themselves, which while not intellectual themselves, at least could arguably be construed as property.
Thus, the term you're claiming as the object of protection is, if anything at all, the protection itself, and not what it protects.
It's sort of as if you're confusing a suit of armor, a shield, and a sword, for the meat-and-bone knight that uses them for protection.