That's the heart of the problem. Congress is authorized only to secure copyrights to creators ("Authors and Inventors") - not to employers, assignees, or heirs.
Yes, so what? The Constitution only requires that copyrights be initially vested in authors; it doesn't prohibit later transfers. Indeed, copyright law prior to 1787, as well as the first US copyright law both permit copyrights to be transfered from the author in whom it is initially vested to someone else. It seems unlikely that the Constitution means what you think it means in light of the practice of the day.
The work made for hire doctrine is interesting, in that it defines the employer as the author, because the employee was essentially a mere scribe (cf. an author who dictates, rather than writes), but I don't know if it's the worst thing either. Certainly I can think of a slew of higher priorities for reform.
I'm just saying that the terms should be the same for every work.
I would agree within classes, but I think that terms could be different for different classes of work. For example, a novel should probably have a longer term than a piece of computer software. The latter ages much more rapidly than the former.
I strongly disagree with your first point. Nothing should be copyrighted unless the author specifically requests a copyright. If he doesn't care, why should we? A registration formality is the single greatest way to enlarge the public domain, and is traditional practice in the US.
Additionally, I think that your term lengths are too long, and that your deposit formality is a bit narrow.
Your fourth point is basically moot; without amending the Constitution, there's no way to accomplish it other than to continually watchdog Congress.
Finally, your sixth point is how we already do this, so I don't really see the point in bringing it up.
All that would mean would be that the work would be unprotected until you decided to pursue publication and actively did so while preparing the work. You might want to be circumspect about sharing the work too much prior to then. I don't really see a problem, even for your style. Protecting works at _that_ early of a stage is more of a CYA issue; it's not an endemic problem. Even most prepublication infringement comes along later than that.
The old-style US model which basically meant that only work for hire (and indeed, work produced in the US itself) received copyright protection was the broken one.
I have no idea where you're getting the former bit. However, I do support unilateral national treatment. I'm just opposed to minimum standards.
An artist could control his work for a space of 60 years, after which a work would either have no commercial value left, or would have rewarded the artist beyond any reasonable measure.
The thing is, though, that there's usually no commercial value to begin with. Where there is any at all, it's almost entirely exhausted within a year or so of publication in a given medium; often sooner (e.g. newspapers lose their value within hours).
Personally, I'd prefer to see terms of somewhere between 1-5 years, with renewals to an overall term of 20-25 years, tops. Some classes of works might do better with fewer, or no renewals.
I'd also want to see a registration formality, to exclude works where the author doesn't care about copyright from the get-go.
I think it's silly to make plagiarism and identity theft legal. Works not intended for publication, or for which a determination has not been made, deserve more protection than commercial ventures, not less.
Plagiarism is legal; it isn't synonymous with copyright infringement. Nor would copying a work created by another constitute what is normally thought of identity theft. But that is neither here nor there.
Copyright is intended to cause works to be created and published which otherwise would not be, and to cause the most works to enter the public domain immediately, or at least as soon as possible. It is not meant to slavishly obey the whims of an author or to confer every advantage upon him.
It is absolutely contrary to the policy goals of copyright to protect an unpublished work which is not even intended to be published. If you are worried about someone's privacy being invaded, then you should look to the realm of privacy law for a solution. Otherwise, you're really screwing things up badly, I've got to say.
The facades of many if not almost all buildings have some creative content. The copyright protection should be based on how much content is creative vs. functional, not whether it is a building or a non-building. In this sense buildings are like computer programs: They are a mix of creative works and functional products.
So are you saying that architectural works should be subject to the utility doctrine as is the case for other pictorial, graphic, and sculptural works? Insofar as it would bring us back to the pre-AWCPA era, I can live with it, but really, copyright is not an incentive to architects, and shouldn't be available at all. It just isn't necessary. They'd've created the same stuff anyway. Merely making something creative isn't a justification for copyright, you know.
1. I'd rather see very short renewable terms up to a relatively short maximum (and with fewer or no renewals for some classes of works). Perhaps something like 2+2+2+2+2+2+2. That way, if a copyright holder stops caring enough about the work to renew after five years, the work falls into the public domain much sooner. The US has traditionally had renewal terms, and usually copyright holders didn't bother to renew. It's a good way of incentivizing authors without incurring too much of a cost.
2. Honestly, I'm not all that fond of statutory royalties. And remember that if you have one, then no one ever bothers to negotiate: the licensee will never pay more, and the licensor certainly won't want to accept less. Shorter terms, and greater protection for noncommercial use by natural persons is, IMO, a better solution.
3. I can accept some forfeiture, but I don't know if mere anticompetitive behavior would be enough. I think that it should be related to the copyright itself, rather than other shenanigans that the copyright holder gets into.
4. I would leave fair use alone. If you want something else, just have a proper statutory exception.
5. All works must exhibit at least a modicum of creativity in order to be copyrightable. This is part of the reason why the white pages isn't copyrightable. The threshold is just really low. I don't understand the animus against photographs.
6. I completely agree. N.b. that this was imposed by Berne.
7. Are you sure you're not thinking of trade dress? In any event, it's tricky to figure out a way to permit, say, pamphlets to be copyrighted, but to deny menus. Probably we just have to suck up the latter, but require registrations to at least weed out low-hanging fruit.
8. Retroactive term reductions are necessary anyway; nothing special about Happy Birthday.
Five years is clearly too short a cutoff for copyright in general, since it can take much longer than that to write a book, and making it impossible to circulate drafts helps nobody.
That depends on when the five years starts. Traditionally, copyright terms have begun upon first publication of the work, so it's really not an issue. To avoid the danger of people pirating manuscripts of works which are actively intended for publication, we might grant some lesser protection until the work is published and a proper copyright can begin. If an author isn't going to publish the work, then we might as well drop it into the public domain immediately; the possibility of copyright clearly wasn't working as an incentive to such an author, and perhaps having the work uncopyrightable will work out better.
I could have sworn that in Ashcroft vs Eldred, the Supremes said that though the Constitution said, "temporary," Congress had such sweeping control that they could in essence define it as "eternity minus 1 day."
Again, the Constitution says 'for limited times,' not 'temporary.' As for how long the term can last, that wasn't the question being discussed in Eldred. The question had been whether or not retroactive extensions (of any length) were constitutional. Indeed, this is made very clear as soon as the second paragraph of the opinion.
But they DID say that Congress could yank works out of the Public Domain and put them back under copyright.
That also wasn't discussed. What you should be looking for, if you're interested in that, are cases related to 17 USC 104A, which does indeed take public domain works and makes them copyrighted. See e.g. Luck's Music Library v. Ashcroft; Alameda Films v. AARC.
Predictably, this is yet another thing that we're being forced to do because we've entered into treaties that mandate this. So once again, let me say Berna delenda est.
Copyright should be the original 7+7 (14 years total w/ renewal)
It was 14+14, actually.
The concept of "works for hire" should go by the wayside.
Well, that is a point of view, but I'm curious as to why you think so.
Example: Disney can continue to own Mickey Mouse, but only if they create new Mickey Mouse cartoons. Steamboat Willie, or anything else not made in the last 14 years would go into public domain. However, Disney could prevent anyone else from creating new Mickey cartoons merely by creating new one's themselves. Their ownership of Mickey would therein rest on them creating new material to continue the copyright. Simple, effective, and fair.
That conflicts with your previous statement. Where you have an original work and a derivative work, whatever portions of the former are used in the latter still expire when the copyright term of the former does. This applies to characters as well.
With a 14+14 term, then Mickey Mouse (as he originally appeared back in 1928) would be in the public domain no later than 1957. Later changes to the character (e.g. the addition of gloves, redesigned for color, etc.) would remain copyrighted until the works in which those attributes also entered the public domain.
Heck, and this point I'd even be happy to go back to the original copyright terms. Was it 14+14 years, or 28+28 years?
It was 14+14.
I suspect it will be quite interesting when they go for the real wording of "perpetuity," because "temporary" is quite explicit in the Constitution.
Of course, 'temporary' is a word that actually only shows up with regards to the appointment of Senators to fill vacancies until the next election, but whatever. What you were probably looking for was 'limited times.'
However the Supremes have said that "eternity minus 1 day" fills the bill for "temporary,"
Great, so if someone sits down to write the Great American Novel, and it takes them a few years due to working a day job to support their family, you think the first chapter should be public domain before they even have a chance to print the book?
No. Tie copyright terms primarily to first publication. Give works minimal protection between creation and publication, provided that the author is continuously and earnestly preparing the work for publication. We may put a cap on this in order to avoid abuses, however. Further, expand the definition of publication -- any publication anywhere counts, and it includes public performances and displays. Copyright proper, however, would only be available for published works.
Remember that copyright is meant to cause works to be created and published which otherwise would not have been so that they can be enjoyed by the public during the term, and meaningfully fall into the public domain. An author who fails to publish is not deserving of copyright.
Sure, your random movie either fails or succeeds within a few months/years of release, but the vast, vast majority of successful, professional musicians and writers and visual artists spend a decade or more building up that "critical mass" of an audience, at which point their whole body of work suddenly achieves its true value and they can finally afford to do it full-time.
So? We have to craft our policy around individual works, not their creators. The commercial value of a given work -- if it has any at all -- starts upon first publication in a given medium and doesn't last long or enjoy revivals later. If an author eventually becomes popular and there is renewed interest in his early work, then that's good for him, but it's still not meaningful from a policy perspective. We want the author to create and publish the works, for the least cost to the public. You're effectively giving him retroactive rewards, just like the CTEA did. That's bad policy. The better policy is for the newly-popular author to create new works, even if it means he has to compete against public domain reprints of his early material.
1. It really couldn't happen because it would violate more than a few international agreements.
Sure it can. We need only withdraw from the relevant treaties. It's far from impossible. Indeed, every single person who thinks that copyright terms should be anything less than life+50 necessarily supports withdrawal from Berne and TRIPS.
I know the article quotes them as saying scary and insane stuff about it not being legal to even make copies of your own CDs, but didn't the Audio Home Recording Act take care of making copies for your own use a while back?
Only under certain circumstances that virtually never come up. AHRA doesn't apply to all CDs that you might copy from. It only applies when you're copying via certain devices (computers are not included) or to certain media (computer hard drives are not included). Remember, the recording industry didn't want to make the tradeoff of legitimizing any copying when trying to mandate statutory royalties and DRM, and managed to sabotage the concessions that they did make so that they're effectively worthless.
You don't need a working version of the product for a patent to be granted, putting many technological "inventions" squarely in the "idea" category, IMO.
Well, I would agree that a working implementation of the invention should be required, save in cases where the inventor can demonstrate a good reason for not having one. E.g. if you invent a doomsday device, and can convince me that it could be built, and would work, I'd prefer not to have a demonstration. Also, provided they paid their fees in advance, I would allow inventors to have the working model stage of the application process come last, to allow them more time to gather funding to build one, if necessary.
Obviously *something* needs to be done to fix the current system
Disallow patents on business methods and for software. Not because they're not inventions, but because those fields would see huge amounts of inventive activity anyway, regardless of whether we offer patents or not. Retain first-to-invent. Be patient with regard to the reform of terms dating from the filing date. Mandate rapid publication for everything. Don't require a higher standard of proof for litigation involving granted patents. Take patents out of the Federal Circuit and let the other federal courts have a go. Allow litigants to bring up prior art that has already been considered by the PTO.
I'm not a patent lawyer, but I think that this would cure a lot of ills. There might be a few other things; this is just off of the top of my head.
Accept all submissions that pass a basic sanity check
I'm not sure what this means.
Keep all submissions secret for X [days|weeks|months]
Oh, I disagree. I think that the PTO should publish all submissions immediately, regardless of whether or not they ultimately are patented. First, because government business should always be done in the open if at all possible. Second, because if an inventor tries to submit an invention and only later withdraws it (perhaps after he decides he'd rather not publish at all) then I don't see why we should honor his wishes to such an extent that he can avoid publication. Third, because rival inventors should be able to be informed about what the PTO is actually doing on a day-to-day basis.
If two submissions are received for the same "invention" within this timeframe, then disallow it as obvious
Well, that would be grossly different from what obviousness has meant in the past. Traditionally, an invention is obvious if any person having ordinary skill in the art (e.g. a generic electrical engineer) and a comprehensive knowledge of prior art and absolutely no imagination whatsoever, could reasonably have made the invention at that time.
That two people have a brilliant idea at the same time isn't obviousness, it's just coincidence.
To help facilitate a baseline for obvious, allow the general public to submit their obvious ideas at no charge (no need to check this overwhelming amount of info - but keep it handy for posterity).
Why? And who cares? Ideas are not patentable; only inventions are. An invention might have originated from an idea, but it is far more mature. Basically, an idea is pie-in-the-sky wishing, while an invention can actually work. People dreamt of flying via machines since classical Greece, at least, but that doesn't mean that that should have meant anything when we finally figured it out.
Require patent applicants to outline the level of investment necessary to realize a given patent - the system was designed to protect the investments of entrepreneurs so, if little to no investment is required, then there is no need for a patent on a given idea. Also, patent suit awards could be derived from this information accordingly.
I disagree. The application process fulfills this role already. It's time-consuming to file for a patent, and often somewhat costly. This means that if an inventor doesn't himself think that the invention is economically worth the trouble, he won't bother, and the invention will just be in the public domain rapidly, if anything happens. Since you're only increasing the applicant's burden, this won't change anyway. If he feels that he can recoup the costs of getting the patent, plus make enough of a profit that it outweighs his best alternative, then he'll pursue one. You don't need to do anything here, and for God's sake, you don't want to weed out the starry-eyed inventors who have no grasp on finances. We want their inventions to be publicized, regardless of whether they're really viable.
There's a number of things that can improve the system, but not these, IMO.
1) you buy a radio, you can play it for free. BUT if you play it at your office or coffee shop then you owe the RIAA money.... 2) you buy a TV, you can watch it for free -- even NFL games (which are widely broadcast). BUT if you watch it at your office or bar then you better have "express written consent" to do so.
No, not necessarily. There is the 17 USC 110(5) "homestyle" exception. The main thing is to use ordinary consumer gear to play publicly broadcast transmissions, and you're ok. Of course, the devil's in the details, so look through the statute to make sure you comply before going ahead and doing it.
BUT if you go to a restaurant the people working there can't sing "happy birthday" to anyone w/o paying extortion money to the RIAA.
Well... the money is due for the use of the lyrics, and it is collected by ASCAP. It goes to the lyricist or whomever he assigned the copyright to; it's just a coincidence that the current owner is Warner Music, one of the 'big four' labels.
No, Berne is insane already. We need much shorter, fixed terms of years with renewals (where the maximum possible term is still shorter than Berne). We need to narrow the scope of copyright (e.g. architectural copyright needs to go). We need strict formalities, including registration, publication, deposit, and notice. We need to broaden exceptions to copyright in order to bring it in line with the public norms that exist as to works, unless there's some case where the public norm is so odious that it cannot be left to stand (not that I'm aware of any such). We need to get rid of sections 104A and 106A.
There is, in fact, a whole laundry list of things to do. Shorter terms is just one of them, and IMO, not even the absolute most important of them.
But all those people who want anything less than life+50 -- such as the people who (for whatever reason) want to return to the original 14+14 term -- necessarily support withdrawal from Berne. So there really does seem to be some support for it.
I'd have to go look up exactly when copyright was conceptually founded
The first modern copyright law (as opposed to the stationers' copyright, which was a different animal) was the Statute of Anne, enacted in England in 1710. The very basic underlying principles are related to (though quite distinct from) patent law, which dates back to the Venetian Patent Ordinance of 1473. However, we do know that the very fundamental concept of patent law dates back to at least circa 215 BCE -- sort of. There was this joke about the Sybarites, who were Greek colonists who had, some centuries earlier, lived on the Italian peninsula, and who were infamous for their luxurious lifestyle. The joke was that if a chef in Sybaris invented a new recipe of merit, he could have the exclusive right to make that food for one year. This was intended to encourage chefs to create new recipes which would then ultimately be enjoyed by everyone once the period of exclusivity ended.
but [copyright] is explicitly mentioned in the U.S. Constitution
Well, not explicitly. The word copyright never appears; it's just an "exclusive right" granted to authors for their writings. The term 'copy right' was already known, though; in fact, Congress had used it prior to the drafting of the Constitution. But this is neither here nor there.
The U.S. Patent Office has been around since around the time of the founding of the United States. For instance, Abraham Lincoln was proud of the fact that he was a patent holder.
Well, no. The United States was founded in 1776, but the United States did not grant patents or have any power or means for doing so, until 1789, and even then the first US patent law wasn't enacted until 1790, effectively creating the Patent Office. Lincoln wasn't around until quite some time later.
but I think trademarks pre-date the early 1890's, I'm just too lazy to go find out when
Trademarks are ancient, probably dating back to before recorded history. Federal trademarks are of more recent vintage.
We have the works of Shakespeare and Newton, because they eventually fell into the public domain.
Actually, copyright didn't exist in Shakespeare's time, and as far as I know, Newton never sought any. More importantly, we have their works because they published them or because noble pirates pirated them, thus happening to preserve them for us.
Now, if you want to argue that current U.S. copyright law is just stupid, I'll back you wholeheartedly. Unfortunately, as a citizen of the U.S. and the U.S. being a signer of the Berne Convention, means that Copyright Law can't be made to be sane.
All we have to do is withdraw from Berne. The political branches can do this fairly easily if they choose. It's far from impossible, and since the one most called-for copyright reform is for terms shorter than Berne permits, I think we can anticipate withdrawal for sure. I look forward to it, as Berne is worthless.
It'd be far easier for libraries and other archivest to preserve if they didn't have to worry about copyright being an issue.
Again, something that is far easier if we dump Berne.
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That's the heart of the problem. Congress is authorized only to secure copyrights to creators ("Authors and Inventors") - not to employers, assignees, or heirs.
Yes, so what? The Constitution only requires that copyrights be initially vested in authors; it doesn't prohibit later transfers. Indeed, copyright law prior to 1787, as well as the first US copyright law both permit copyrights to be transfered from the author in whom it is initially vested to someone else. It seems unlikely that the Constitution means what you think it means in light of the practice of the day.
The work made for hire doctrine is interesting, in that it defines the employer as the author, because the employee was essentially a mere scribe (cf. an author who dictates, rather than writes), but I don't know if it's the worst thing either. Certainly I can think of a slew of higher priorities for reform.
I'm just saying that the terms should be the same for every work.
I would agree within classes, but I think that terms could be different for different classes of work. For example, a novel should probably have a longer term than a piece of computer software. The latter ages much more rapidly than the former.
I strongly disagree with your first point. Nothing should be copyrighted unless the author specifically requests a copyright. If he doesn't care, why should we? A registration formality is the single greatest way to enlarge the public domain, and is traditional practice in the US.
Additionally, I think that your term lengths are too long, and that your deposit formality is a bit narrow.
Your fourth point is basically moot; without amending the Constitution, there's no way to accomplish it other than to continually watchdog Congress.
Finally, your sixth point is how we already do this, so I don't really see the point in bringing it up.
All that would mean would be that the work would be unprotected until you decided to pursue publication and actively did so while preparing the work. You might want to be circumspect about sharing the work too much prior to then. I don't really see a problem, even for your style. Protecting works at _that_ early of a stage is more of a CYA issue; it's not an endemic problem. Even most prepublication infringement comes along later than that.
The old-style US model which basically meant that only work for hire (and indeed, work produced in the US itself) received copyright protection was the broken one.
I have no idea where you're getting the former bit. However, I do support unilateral national treatment. I'm just opposed to minimum standards.
An artist could control his work for a space of 60 years, after which a work would either have no commercial value left, or would have rewarded the artist beyond any reasonable measure.
The thing is, though, that there's usually no commercial value to begin with. Where there is any at all, it's almost entirely exhausted within a year or so of publication in a given medium; often sooner (e.g. newspapers lose their value within hours).
Personally, I'd prefer to see terms of somewhere between 1-5 years, with renewals to an overall term of 20-25 years, tops. Some classes of works might do better with fewer, or no renewals.
I'd also want to see a registration formality, to exclude works where the author doesn't care about copyright from the get-go.
US copyright terms were 14+14 from 1790 to 1831; 28+14 from 1831 to 1909; 28+28 from 1909 to 1978.
Things get more complicated after 1978. But you're probably not far off.
I think it's silly to make plagiarism and identity theft legal. Works not intended for publication, or for which a determination has not been made, deserve more protection than commercial ventures, not less.
Plagiarism is legal; it isn't synonymous with copyright infringement. Nor would copying a work created by another constitute what is normally thought of identity theft. But that is neither here nor there.
Copyright is intended to cause works to be created and published which otherwise would not be, and to cause the most works to enter the public domain immediately, or at least as soon as possible. It is not meant to slavishly obey the whims of an author or to confer every advantage upon him.
It is absolutely contrary to the policy goals of copyright to protect an unpublished work which is not even intended to be published. If you are worried about someone's privacy being invaded, then you should look to the realm of privacy law for a solution. Otherwise, you're really screwing things up badly, I've got to say.
The facades of many if not almost all buildings have some creative content. The copyright protection should be based on how much content is creative vs. functional, not whether it is a building or a non-building. In this sense buildings are like computer programs: They are a mix of creative works and functional products.
So are you saying that architectural works should be subject to the utility doctrine as is the case for other pictorial, graphic, and sculptural works? Insofar as it would bring us back to the pre-AWCPA era, I can live with it, but really, copyright is not an incentive to architects, and shouldn't be available at all. It just isn't necessary. They'd've created the same stuff anyway. Merely making something creative isn't a justification for copyright, you know.
Replying to your points:
1. I'd rather see very short renewable terms up to a relatively short maximum (and with fewer or no renewals for some classes of works). Perhaps something like 2+2+2+2+2+2+2. That way, if a copyright holder stops caring enough about the work to renew after five years, the work falls into the public domain much sooner. The US has traditionally had renewal terms, and usually copyright holders didn't bother to renew. It's a good way of incentivizing authors without incurring too much of a cost.
2. Honestly, I'm not all that fond of statutory royalties. And remember that if you have one, then no one ever bothers to negotiate: the licensee will never pay more, and the licensor certainly won't want to accept less. Shorter terms, and greater protection for noncommercial use by natural persons is, IMO, a better solution.
3. I can accept some forfeiture, but I don't know if mere anticompetitive behavior would be enough. I think that it should be related to the copyright itself, rather than other shenanigans that the copyright holder gets into.
4. I would leave fair use alone. If you want something else, just have a proper statutory exception.
5. All works must exhibit at least a modicum of creativity in order to be copyrightable. This is part of the reason why the white pages isn't copyrightable. The threshold is just really low. I don't understand the animus against photographs.
6. I completely agree. N.b. that this was imposed by Berne.
7. Are you sure you're not thinking of trade dress? In any event, it's tricky to figure out a way to permit, say, pamphlets to be copyrighted, but to deny menus. Probably we just have to suck up the latter, but require registrations to at least weed out low-hanging fruit.
8. Retroactive term reductions are necessary anyway; nothing special about Happy Birthday.
Five years is clearly too short a cutoff for copyright in general, since it can take much longer than that to write a book, and making it impossible to circulate drafts helps nobody.
That depends on when the five years starts. Traditionally, copyright terms have begun upon first publication of the work, so it's really not an issue. To avoid the danger of people pirating manuscripts of works which are actively intended for publication, we might grant some lesser protection until the work is published and a proper copyright can begin. If an author isn't going to publish the work, then we might as well drop it into the public domain immediately; the possibility of copyright clearly wasn't working as an incentive to such an author, and perhaps having the work uncopyrightable will work out better.
I could have sworn that in Ashcroft vs Eldred, the Supremes said that though the Constitution said, "temporary," Congress had such sweeping control that they could in essence define it as "eternity minus 1 day."
Again, the Constitution says 'for limited times,' not 'temporary.' As for how long the term can last, that wasn't the question being discussed in Eldred. The question had been whether or not retroactive extensions (of any length) were constitutional. Indeed, this is made very clear as soon as the second paragraph of the opinion.
But they DID say that Congress could yank works out of the Public Domain and put them back under copyright.
That also wasn't discussed. What you should be looking for, if you're interested in that, are cases related to 17 USC 104A, which does indeed take public domain works and makes them copyrighted. See e.g. Luck's Music Library v. Ashcroft; Alameda Films v. AARC.
Predictably, this is yet another thing that we're being forced to do because we've entered into treaties that mandate this. So once again, let me say Berna delenda est.
Copyright should be the original 7+7 (14 years total w/ renewal)
It was 14+14, actually.
The concept of "works for hire" should go by the wayside.
Well, that is a point of view, but I'm curious as to why you think so.
Example: Disney can continue to own Mickey Mouse, but only if they create new Mickey Mouse cartoons. Steamboat Willie, or anything else not made in the last 14 years would go into public domain. However, Disney could prevent anyone else from creating new Mickey cartoons merely by creating new one's themselves. Their ownership of Mickey would therein rest on them creating new material to continue the copyright. Simple, effective, and fair.
That conflicts with your previous statement. Where you have an original work and a derivative work, whatever portions of the former are used in the latter still expire when the copyright term of the former does. This applies to characters as well.
With a 14+14 term, then Mickey Mouse (as he originally appeared back in 1928) would be in the public domain no later than 1957. Later changes to the character (e.g. the addition of gloves, redesigned for color, etc.) would remain copyrighted until the works in which those attributes also entered the public domain.
Heck, and this point I'd even be happy to go back to the original copyright terms. Was it 14+14 years, or 28+28 years?
It was 14+14.
I suspect it will be quite interesting when they go for the real wording of "perpetuity," because "temporary" is quite explicit in the Constitution.
Of course, 'temporary' is a word that actually only shows up with regards to the appointment of Senators to fill vacancies until the next election, but whatever. What you were probably looking for was 'limited times.'
However the Supremes have said that "eternity minus 1 day" fills the bill for "temporary,"
No they didn't.
Great, so if someone sits down to write the Great American Novel, and it takes them a few years due to working a day job to support their family, you think the first chapter should be public domain before they even have a chance to print the book?
No. Tie copyright terms primarily to first publication. Give works minimal protection between creation and publication, provided that the author is continuously and earnestly preparing the work for publication. We may put a cap on this in order to avoid abuses, however. Further, expand the definition of publication -- any publication anywhere counts, and it includes public performances and displays. Copyright proper, however, would only be available for published works.
Remember that copyright is meant to cause works to be created and published which otherwise would not have been so that they can be enjoyed by the public during the term, and meaningfully fall into the public domain. An author who fails to publish is not deserving of copyright.
Sure, your random movie either fails or succeeds within a few months/years of release, but the vast, vast majority of successful, professional musicians and writers and visual artists spend a decade or more building up that "critical mass" of an audience, at which point their whole body of work suddenly achieves its true value and they can finally afford to do it full-time.
So? We have to craft our policy around individual works, not their creators. The commercial value of a given work -- if it has any at all -- starts upon first publication in a given medium and doesn't last long or enjoy revivals later. If an author eventually becomes popular and there is renewed interest in his early work, then that's good for him, but it's still not meaningful from a policy perspective. We want the author to create and publish the works, for the least cost to the public. You're effectively giving him retroactive rewards, just like the CTEA did. That's bad policy. The better policy is for the newly-popular author to create new works, even if it means he has to compete against public domain reprints of his early material.
1. It really couldn't happen because it would violate more than a few international agreements.
Sure it can. We need only withdraw from the relevant treaties. It's far from impossible. Indeed, every single person who thinks that copyright terms should be anything less than life+50 necessarily supports withdrawal from Berne and TRIPS.
I believe that it also has to be copy protection.
No, there are separate provisions for access controls and copy controls. CSS is an access control. Compare 17 USC 1201(a)(1),(a)(2) with 1201(b)(1).
I know the article quotes them as saying scary and insane stuff about it not being legal to even make copies of your own CDs, but didn't the Audio Home Recording Act take care of making copies for your own use a while back?
Only under certain circumstances that virtually never come up. AHRA doesn't apply to all CDs that you might copy from. It only applies when you're copying via certain devices (computers are not included) or to certain media (computer hard drives are not included). Remember, the recording industry didn't want to make the tradeoff of legitimizing any copying when trying to mandate statutory royalties and DRM, and managed to sabotage the concessions that they did make so that they're effectively worthless.
The right of the creator to control their creation is -- correctly -- understood as a human right.
Not around here, it's not. Copyright is optional, artificial, utilitarian, economic -- and nothing else.
You don't need a working version of the product for a patent to be granted, putting many technological "inventions" squarely in the "idea" category, IMO.
Well, I would agree that a working implementation of the invention should be required, save in cases where the inventor can demonstrate a good reason for not having one. E.g. if you invent a doomsday device, and can convince me that it could be built, and would work, I'd prefer not to have a demonstration. Also, provided they paid their fees in advance, I would allow inventors to have the working model stage of the application process come last, to allow them more time to gather funding to build one, if necessary.
Obviously *something* needs to be done to fix the current system
Disallow patents on business methods and for software. Not because they're not inventions, but because those fields would see huge amounts of inventive activity anyway, regardless of whether we offer patents or not. Retain first-to-invent. Be patient with regard to the reform of terms dating from the filing date. Mandate rapid publication for everything. Don't require a higher standard of proof for litigation involving granted patents. Take patents out of the Federal Circuit and let the other federal courts have a go. Allow litigants to bring up prior art that has already been considered by the PTO.
I'm not a patent lawyer, but I think that this would cure a lot of ills. There might be a few other things; this is just off of the top of my head.
Accept all submissions that pass a basic sanity check
I'm not sure what this means.
Keep all submissions secret for X [days|weeks|months]
Oh, I disagree. I think that the PTO should publish all submissions immediately, regardless of whether or not they ultimately are patented. First, because government business should always be done in the open if at all possible. Second, because if an inventor tries to submit an invention and only later withdraws it (perhaps after he decides he'd rather not publish at all) then I don't see why we should honor his wishes to such an extent that he can avoid publication. Third, because rival inventors should be able to be informed about what the PTO is actually doing on a day-to-day basis.
If two submissions are received for the same "invention" within this timeframe, then disallow it as obvious
Well, that would be grossly different from what obviousness has meant in the past. Traditionally, an invention is obvious if any person having ordinary skill in the art (e.g. a generic electrical engineer) and a comprehensive knowledge of prior art and absolutely no imagination whatsoever, could reasonably have made the invention at that time.
That two people have a brilliant idea at the same time isn't obviousness, it's just coincidence.
To help facilitate a baseline for obvious, allow the general public to submit their obvious ideas at no charge (no need to check this overwhelming amount of info - but keep it handy for posterity).
Why? And who cares? Ideas are not patentable; only inventions are. An invention might have originated from an idea, but it is far more mature. Basically, an idea is pie-in-the-sky wishing, while an invention can actually work. People dreamt of flying via machines since classical Greece, at least, but that doesn't mean that that should have meant anything when we finally figured it out.
Require patent applicants to outline the level of investment necessary to realize a given patent - the system was designed to protect the investments of entrepreneurs so, if little to no investment is required, then there is no need for a patent on a given idea. Also, patent suit awards could be derived from this information accordingly.
I disagree. The application process fulfills this role already. It's time-consuming to file for a patent, and often somewhat costly. This means that if an inventor doesn't himself think that the invention is economically worth the trouble, he won't bother, and the invention will just be in the public domain rapidly, if anything happens. Since you're only increasing the applicant's burden, this won't change anyway. If he feels that he can recoup the costs of getting the patent, plus make enough of a profit that it outweighs his best alternative, then he'll pursue one. You don't need to do anything here, and for God's sake, you don't want to weed out the starry-eyed inventors who have no grasp on finances. We want their inventions to be publicized, regardless of whether they're really viable.
There's a number of things that can improve the system, but not these, IMO.
1) you buy a radio, you can play it for free. BUT if you play it at your office or coffee shop then you owe the RIAA money. ... 2) you buy a TV, you can watch it for free -- even NFL games (which are widely broadcast). BUT if you watch it at your office or bar then you better have "express written consent" to do so.
No, not necessarily. There is the 17 USC 110(5) "homestyle" exception. The main thing is to use ordinary consumer gear to play publicly broadcast transmissions, and you're ok. Of course, the devil's in the details, so look through the statute to make sure you comply before going ahead and doing it.
BUT if you go to a restaurant the people working there can't sing "happy birthday" to anyone w/o paying extortion money to the RIAA.
Well... the money is due for the use of the lyrics, and it is collected by ASCAP. It goes to the lyricist or whomever he assigned the copyright to; it's just a coincidence that the current owner is Warner Music, one of the 'big four' labels.
No, Berne is insane already. We need much shorter, fixed terms of years with renewals (where the maximum possible term is still shorter than Berne). We need to narrow the scope of copyright (e.g. architectural copyright needs to go). We need strict formalities, including registration, publication, deposit, and notice. We need to broaden exceptions to copyright in order to bring it in line with the public norms that exist as to works, unless there's some case where the public norm is so odious that it cannot be left to stand (not that I'm aware of any such). We need to get rid of sections 104A and 106A.
There is, in fact, a whole laundry list of things to do. Shorter terms is just one of them, and IMO, not even the absolute most important of them.
But all those people who want anything less than life+50 -- such as the people who (for whatever reason) want to return to the original 14+14 term -- necessarily support withdrawal from Berne. So there really does seem to be some support for it.
Let's say, when George Gershwin wrote "Rhapsody In Blue" he assumed he would hold the copyright to it for 17 years.
You mean 28+28.
The details won't matter for illustrating my point.
Then why not just say x as compared with x+50, etc.?
Realistically, as Lincoln said, "The more you tighten your grip, Tarkin, the more star systems will slip through your fingers."
Lincoln? I wouldn't've thought that he was Han's type.
I'd have to go look up exactly when copyright was conceptually founded
The first modern copyright law (as opposed to the stationers' copyright, which was a different animal) was the Statute of Anne, enacted in England in 1710. The very basic underlying principles are related to (though quite distinct from) patent law, which dates back to the Venetian Patent Ordinance of 1473. However, we do know that the very fundamental concept of patent law dates back to at least circa 215 BCE -- sort of. There was this joke about the Sybarites, who were Greek colonists who had, some centuries earlier, lived on the Italian peninsula, and who were infamous for their luxurious lifestyle. The joke was that if a chef in Sybaris invented a new recipe of merit, he could have the exclusive right to make that food for one year. This was intended to encourage chefs to create new recipes which would then ultimately be enjoyed by everyone once the period of exclusivity ended.
but [copyright] is explicitly mentioned in the U.S. Constitution
Well, not explicitly. The word copyright never appears; it's just an "exclusive right" granted to authors for their writings. The term 'copy right' was already known, though; in fact, Congress had used it prior to the drafting of the Constitution. But this is neither here nor there.
The U.S. Patent Office has been around since around the time of the founding of the United States. For instance, Abraham Lincoln was proud of the fact that he was a patent holder.
Well, no. The United States was founded in 1776, but the United States did not grant patents or have any power or means for doing so, until 1789, and even then the first US patent law wasn't enacted until 1790, effectively creating the Patent Office. Lincoln wasn't around until quite some time later.
but I think trademarks pre-date the early 1890's, I'm just too lazy to go find out when
Trademarks are ancient, probably dating back to before recorded history. Federal trademarks are of more recent vintage.
We have the works of Shakespeare and Newton, because they eventually fell into the public domain.
Actually, copyright didn't exist in Shakespeare's time, and as far as I know, Newton never sought any. More importantly, we have their works because they published them or because noble pirates pirated them, thus happening to preserve them for us.
Now, if you want to argue that current U.S. copyright law is just stupid, I'll back you wholeheartedly. Unfortunately, as a citizen of the U.S. and the U.S. being a signer of the Berne Convention, means that Copyright Law can't be made to be sane.
All we have to do is withdraw from Berne. The political branches can do this fairly easily if they choose. It's far from impossible, and since the one most called-for copyright reform is for terms shorter than Berne permits, I think we can anticipate withdrawal for sure. I look forward to it, as Berne is worthless.
It'd be far easier for libraries and other archivest to preserve if they didn't have to worry about copyright being an issue.
Again, something that is far easier if we dump Berne.