Copyright is quite old. The 'Statue of Anne' in 1710 introduced the idea of the author holding copyright and a term of protection for published works.
Compared to Art, it is just a baby. Human beings have been making art since we were painting the walls of caves, and probably even well before then, but few things have survived for so long. Some of what we still consider our greatest stories and plays and sculptures and paintings were created thousands of years before copyright first came into being.
The consitution set copyright at 7 or 14 years originally
No. The Constitution merely empowers Congress to create copyright laws, if it so chooses, with a couple of restrictions on what it can do. The only Constitutional mention of term lengths is that they must be finite. The first US copyright law was the 1790 Copyright Act, which set term lengths at 14 years, with an optional 14 year renewal, following the example of the Statute of Anne.
Congress is prohibited from granting titles of "nobility"...i.e. "duke of my yard" to the point that you can't even hold an honorary title as a US citizen.
Congress cannot grant them, but nothing prevents US citizens from being ennobled by foreign countries. In fact, it happens all the time. There was a proposed amendment to prohibit even that, but it failed.
This is why life terms are just a stupid idea altogether. Fixed, renewable terms of years are better, preferably where the terms are very short. That way an author knows that his work will be copyrighted for a maximum of, say, 25 years from publication. Doesn't matter whether he lives or dies after that, the term is a known quantity and plans can be made around it. Of course, a single 25 year term would be far too long. Better to have five terms of five years each. If the author decides that maintaining a copyright is a waste of time after ten years, then he can stop renewing and let the work fall into the public domain. (The US had a renewal system from 1790 to 1978, and the vast majority of copyrighted works were never renewed, so we know that long terms are wasteful)
if you haven't made your killing off that book or film in the first 14 years, chances are you're not going to anyway!!
That's true. It is also true if you reduce the timeframe to, say, 2 or 3 years. The copyright-related economic value of a typical creative work is incredibly front loaded. Look at how rapidly movie ticket sales decline after opening weekend. And how rapidly DVD sales decline once it comes out on video.
The works with the shortest profitable times are daily newspapers (a morning edition is fishwrap by late afternoon) and some TV and radio shows with high turnover and virtually no replay value (e.g. late-night comedy shows, news programs, game shows). The works with the longest profitable times appear to be textbooks where the material doesn't change much, and the coverage doesn't need to, such as classical history, or arithmetic.
Of the teeny tiny minority of works that ever make a penny from their copyrights, the vast majority of those will make the vast majority of the money up front, very rapidly. And even creating a work like that is no small triumph. There have been zillions of Slashdot posts over the last 10 years, almost all of them copyrighted. How many turned a copyright-related profit for the author?
I agree except for the required explicit registration.
Well, it's absolutely essential.
Every time you make a new blog post, you have to register?
Yes, if you want a copyright on the post. Remember, public policy is to use copyrights as an incentive to get authors to create and publish works that otherwise would not have been created or published. If the work would have been created and published anyway, there's no reason for the public to grant a copyright; we benefit more from having the work in the public domain. Of course, there's no way to know precisely which category any given work falls into. But a registration system lets the authors tell us, more or less.
Basically, if an author thinks that he can exploit a copyright on his work to make money, and the amount of money is more than if the work was in the public domain, and enough to outweigh the cost of getting the copyright (which is cheap), then he will probably take action to get a copyright. This means he is probably in the first category above: authors who are incentivized by copyright as to that work. OTOH, if the author thinks that the cost of the copyright outweighs the benefits that he will accrue as a result, he'll probably not bother to get a copyright. This means he is probably in the second category: authors who aren't incentivized by a copyright as to that work.
It's a little imprecise, but lacking a bunch of psychics working for the Copyright Office, there does not seem to be a better solution that grants copyrights where needed, but does not grant them to excess.
So long as copyright registration is cheap (it already is) and simple (it already is) then we're fine. It just needs to be mandatory for anyone who wants a copyright.
I bet that you would have written your blog posts even if blog posts were utterly uncopyrightable. Copyrights probably are not an incentive to you. So why should you get any? Why should the public pay for the cow, if the milk is free?
Every time a live sports broadcast is on TV they have to register? Before the game happens, when there's no footage to copyright? Or do thy register after it's transmitted, and therefore can't protect it because ti wasn't under copyright when it was broadcast? Or maybe we just wouldn't get live games on TV any longer.
Easy solution, akin to what we do with patents: You get a little while -- one year, perhaps -- to register from the date of first publication (which would be expanded to cover things like broadcasts). So go ahead and transmit the live footage, and just remember to mail in a copy, along with the form, and a small check, before the deadline expires. To encourage swift registrations, though, which is in the public interest, we might tie major protections of the work to the date the application was submitted, and actionability to the date the registration issued.
Besides, the US is a signatory country on the Berne Convention. That requires copyright upon entering into a fixed format.
Well, you know how the most popular criticism of US copyright law is that it lasts too long? Well everyone who wants a term of less than life+50 or 75 years necessarily supports the US withdrawing from the Berne Convention, because otherwise it can't happen. For example, you appear to support abandoning Berne. Berne was, and is, a terrible idea. The sooner we're rid of it, the better. It is total crap.
I adamantly disagree. When you say that most authors do not earn enough to pass on large monetary endowments to their heirs, you seem to conveniently be ignoring the fact that most creative works will not earn money ever, and that of the teeny tiny fraction that ever do, most of them will not earn money more than a year after the work is published.
There are countless authors who wrote books and had heirs, and their heirs will never see a penny from those books because the books are abject failures in the commercial market. The odds of writing a book and making a lot of money from it -- whether immediately or over the course of life+70 -- is on par with winning the lottery.
Do you think that we ought to write public policy with the assumption that everyone who plays the lottery will win? Or that every author, or most authors, or more than an infinitesimal fraction of authors, will be even moderately successful?
It's a stupid idea. Stupid, stupid, stupid.
If you want to help widows and orphans, long copyright terms is an incredibly irresponsible and pointless thing to do. It is exactly like giving them lottery tickets and telling them their future is assured, so long as the ticket is the one in a million winner. A person who was not totally insane would not waste time with that crap. Instead he'd work to set up means for the author to invest his money while alive, so that he has something to leave behind that is of actual monetary value (instead of being totally worthless), and a social welfare system to help catch and assist people who still fell on hard times. Further, that person would have these available to everyone, rather than just authors and authors' families, since there's nothing special about them that entitles them to additional government aid.
Now, the one in a million family that did win the lottery is naturally going to want to preserve the former system, and will not want their taxes to help pay for everyone to have help, if it's needed. The Tolkien family is one of those success stories. There are countless of failure stories, but since they never got to be even a little famous, you just haven't heard of them, and seem to assume they don't exist. I say fuck the Tolkien family, and fuck successful authors. Good for them for having been successful, but I am not ever going to support the idea of crafting our copyright or social welfare systems on the idea that everyone is as wildly successful as they have been. Tolkien's hobbits and dragons and such are more realistic than _that_ fantasy.
What is it that prevents this also helping out small media companies, and even individuals who create copyrighted works?
Popularity, chiefly. Popular works are pirated more than unpopular works. While small authors and publishers can certainly produce popular works, in the main, most popular works, and thus the works that are the most pirated, and which would benefit the most from these laws, originate from the big players.
if you are an average-wage magazine column writer, copyright law helps protect you from being ripped off. If you are an author, musician or other content creator, the copyright law also helps protect you.
True, but if you're in that cadre, there's very little to be protected from. Frankly, you probably will want someone to pirate your work, as at least they'd be paying attention to it. If you can't even attract pirates, you're certainly not going to attract paying customers. Really, the main group you would want protection from are not individual-scale pirates, like the ordinary Bit Torrent user, but industrial-scale pirates, such as the major players in the copyright industry.
That being the case, I think it would be a lot smarter to have a law that was permissive of individual-scale piracy, but which was harsher on industrial-scale piracy; a law that didn't raise a fuss if John Doe downloaded an mp3, but was set firmly against Sony using the same song in the soundtrack of a movie, without having gotten permission.
There's no reason we can't have such a law... except that the laws are being created by and to favor the big players in the industry. Small authors are really just used as a beard.
Copyright law needs to be clarified and reformed. But it also needs to be enforced.
Perfect enforcement would be far, far worse than what we have now. Part of the calculus that goes into society's toleration for restrictive laws and harsh penalties is the laxity of enforcement. Jaywalking might be illegal, but absolutely everyone does it where I live. Were the police to enforce the law on the books it would cause a huge amount of public unrest. It would quite likely result in the repeal of the law altogether, or demands for the firing of the Police Chief, since people are unwilling to change their ways, and on all but the most essential issues (e.g. desegregation, not copyright or prohibition) will manage not to.
The to-do over DRM is a good example of this. It tries to be a perfect enforcer, and thus garners huge amounts of attention, anger, and efforts (generally successful) to circumvent it. A less strict enforcement mechanism would probably be more tolerated and more successful in the long run. Indeed, the whole anti-copyright and copyright reform movements really didn't exist until very recently, following unprecedented expansion in the law. Had the laws been left alone, I bet that the counter-movement would not have come into being.
The copyright owner has the exclusive right - the constitutional right - to profit from his own creation.
That's not a very accurate statement.
First, copyright holders are not necessarily the authors of the works to which they hold a copyright; often the work is not their creation.
Second, copyright does not include an exclusive right to profit from a work.
Third, copyright is not a constitutional right. That Congress has a copyright power which it can exercise, or not, as it sees fit is not the same thing; if it were, I'd have a constitutional right to social security and freeways, since Congress exercised its powers to create those as well.
The problem is that in some jurisdictions, the Public Domain isn't forever. What that means is that you can take a work in the Public Domain, make a tiny change (which might be as subtle as changing the author's name to yours) and copyright the derivative work. But there's more: you can then go after anyone using the original PD work, claiming they violated your copyright.
That is interesting, if true. In the US, it is not true. First, only the new material in a derivative work is copyrightable, and then only if it is sufficiently original, creative, etc.; the pre-existing material used in the derivative work is not covered under the new copyright, but of the copyright of wherever it is originally from. So, for example, if you "take a work in the public domain" and "make a tiny change" then only that change could possibly be copyrightable. And if the change isn't copyrightable on its own merits, then neither is it. This also means that even if it was, you could still copy the derived portions of that second work, since they're in the public domain no matter where you find them. Second, it would be impossible for someone to succeed on a claim of infringement for use of a public domain work, of which you made a derivative (which, remember, isn't copyrightable in its derived portions), since they could not prove that there was a copyright at issue or that they were the copyright holder, both of which are necessary to win. Baseless claims could be made, I suppose, but that's always a risk for everyone and not worth worrying too much about.
Here's my cynical answer: my understanding is that the whole issue of damages for non-commercial infringement had its genesis in the NET act back in the Clinton era, when software vendors were freaking out because suddenly their entire product lines were available on pirate FTP sites. Correct?
No. The NET act provided that non-commercial copyright infringement that exceeded a certain threshold was criminal infringement. Non-commercial infringement was already a civil offense with statutory damages available.
But today, the US is looking at its economic prospects for the next 50 or 100 years. Japan's the #1 maker of cars, South America grows a lot of produce, and the IP output of US citizens and corporations is suddenly looking like one of the few major revenue streams that the US can claim as its own.
Well... the US had a lot of light and heavy manufacturing, which we shipped overseas in order to take advantage of cheaper labor. The idea was that we could replace its position in our economy with industries including the copyright and patent fields. But that relies on foreign countries stringently respecting them; that largely doesn't seem to be panning out. Lip service is paid, but not much more.
It's difficult for pirates in foreign countries to reproduce a car; and trivial to reproduce music. We probably would have been better off preserving the strength of the rust belt. Just propping up a failed copyright system that is devoid of respect domestically and abroad isn't going to work, IMO.
I personally don't think the adoption of a culture of free media would be the utopia that many think it would.
I agree. First, I at least am not calling for that. I have no qualms with copyright, provided it's reasonable. I'm pretty confident that part of that is making non-commercial acts by natural persons non-infringing, whatever they happen to consist of. Copyrights would remain vital where commercial acts or non-natural persons were involved (e.g. selling and renting copies, commercial performance venues, etc.). And of course, plenty of people would continue to purchase works. It's very easy to copy music, video, etc. online, but there's still plenty of sales of these things. The amounts will fall, but they've largely fallen already. Would legitimizing it make a big difference?
I suspect that a good many of the artists I enjoy would not have done what they did if there weren't the prospect of being paid per copy.
It depends on the field, of course, but this seems likely. But so what? Copyright isn't meant to merely encourage the creation and publication of more works, but to do that for the least burden on the public. Nor does it scale evenly; most of the incentivizing effect of copyright comes from the first few years of the term, not from the majority of the years. If we can get, say, 90% of the number of works, for 50% of the cost, then it becomes difficult to understand why we should pay another 50% for a paltry 10% of additional works.
Where the name "bar" comes from is something an actual lawyer will have to chime in and tell you.
In England, all barristers traditionally are members of one of the inns of court. The name is fairly literal: they're the inns in London where lawyers tended to congregate, live, have their offices, etc. Nowadays, as I understand it, they're big enough to be akin to a college campus. Anyway, so they would have a hall in which students were on one side, and the barristers and judges who ran it were on the other side, and there was a railing dividing the hall in two. When a student graduated and was allowed to practice, he symbolically crossed to the other side of the railing.
At least, this is what I've heard; we don't really have anything like this in the US, and it seems pretty odd to me. Perhaps there are some British lawyers who could go into more detail. As for non-common-law countries, I have no idea.
The $750 minimum is out-of-date; a remnant of the days before it was so easy to share so much music. It was written in a time when it took a lot of work to distribute 1,000 unique pirated songs.
The $750 figure was introduced in 1999. While that was a couple of years before Napster was at its zenith, I don't think it was really all that hard to infringe that much.
Ask 100 people and you'll get 100 answers, but I think that a more fitting statutory minimum should be in the neighborhood of $50 per work. Yes, I know, information wants to be fweeeeeeeeeeeeee, but for as long as copyright law is still around, the courts should be able to issue judgements that are an effective deterrent. If I were nailed for sharing 100 songs and the RIAA could only collect a statutory minimum of $5K from me rather than $75K (as under current law), I'd still get the point that perhaps I shouldn't have helped make other people's information so free after all.
Personally, I'd rather have actual damages and profits. But more importantly, why should non-commercial infringement by a natural person be infringing to begin with? Let copyright be something for commercial pirates and businesses to deal with for the most part.
I had no idea that the Copyright Act was made in 1976. Such a recent law, yet I thought the copyright law was from antiquity.
The current Copyright Act is the 1976 Act (with a number of amendments since then). However, it was preceded by the 1909 Act, and so on, with the first US copyright law being the 1790 Copyright Act. The US didn't previously have the power to enact copyright laws, but many states did during the 1780's. And of course, we were British colonies, and Britain had the Statute of Anne, which was the first modern copyright law, and it dates back to 1710.
Copyright isn't from antiquity (and neither are patents, which date back to the 1474 Venetian Patent Act) but they're not all that new either. Trademarks and trade secrets, OTOH, pretty much are from antiquity. The specific laws have changed a lot, but the basic idea has been around for a long, long time.
The lawmakers and the lawyers, by and large, tend to be one and the same.
And? People who design computers tend to be computer specialists. Would you prefer that we had leatherworkers design computers, and computer scientists working as farmers?
It's a specialized field. There's no conspiracy at work, and given that lawmakers are democratically elected, it would appear that people are generally okay with this. It's not as though they have to elect lawyers, but for whatever reason, they often choose to.
Indeed, it is amazing to contemplate how far we have fallen, as a people, from our founding principles and the heady days of the American Revolution
Yeah, it's good that lawyers such as Thomas Jefferson, John Adams, Alexander Hamilton, etc. were not involved in that.
Well, you can basically have just laws, simple laws, and laws with generally predictable and consistent effects. But experience shows that you can only really get two of those three. Of them, I'd say that simplicity is probably the least important.
I really wish we could get back to having a few simple rules you could print on a postcard, but that's probably just a pipe dream at this point.
So you're an 'eye for an eye' sort of person? I don't know about other people here, but I'm glad to have progressed beyond that.
Nonprofit libraries can unauthorizedly rent copies they own of software for nonprofit purposes, and not infringe. Pretty much everyone else is not so lucky. There's a similar thing for phonorecords, which is why you don't see Blockbuster renting music CDs (although the practice is certainly known elsewhere in the world; Japan, for example).
Console games, however, are not covered under this.
We've got everything from international treaty created super-trademarks
Well, Title 17 deals with copyrights. Trademarks are a totally different sort of thing, and are found in Title 15, which is the main body of laws regulating commerce. However, the specially treated marks (there's somewhere around 75 IIRC) tend to be scattered around. The Olympics gets special treatment at 36 USC 220506; the Red Cross at 18 USC 708. I'd agree that in many cases, such special treatment is totally unnecessary, or at least is overkill in the way that it is done.
Granted, IANAL, but I think that the average person would be surprised by just how many rules there are. And those are just the statutes!
FYI a 'rule' is a term of art, and it's not the same thing as a statute. There actually aren't very many copyright rules. OTOH, there are a lot of trademark and patent rules.
God help you when you find out that, while "facts" aren't copyrighted, facts about a fictional work aren't really "facts" according to at least one court! That's right, the fact that Harry Potter attends Hogwarts may not be a "fact" per the law.
No one ever said that facts aren't copyrightable merely because they're facts. They're not copyrightable because no one is the author of the facts, and only authors can copyright their own writings. Facts aren't authored, they're just discovered. This is the same reason why, if you found a manuscript which you did not write, just lying on the ground, you could not copyright it; you aren't the author. In the Harry Potter case, though, Rowling originated Harry Potter, and Hogwarts, and that the former attends the latter. It doesn't matter whether it would be a fact in the fictional world she created, it's not something that is without authorship. I suggest you read over Feist v. Rural, which is the leading case on this sort of thing in the US.
Or to sum up this entire post, isn't it bad if we each need our own personal lawyer just to be able to *OBEY* the law?
Sounds good to me.;)
Seriously, though, this is why I support copyright reform which brings the law back into lines with society's norms as to what is acceptable and what isn't, where it is all to the ultimate greater benefit of society. The problem is not so much that the law is complex (which is generally pretty unavoidable) but rather that it doesn't correspond to ordinary, socially unobjectionable behavior. If it did, people would generally adhere to the law even if they didn't happen to know the details of it, because the law would match up to what they'd likely do anyway.
It's rather like how most people don't know the details of the laws regarding homicide, but somehow manage to not run around killing people left and right.
Also, do you have any evidence for this claim that there is a "great benefit" to eliminating copyright laws (however you wish to quantify it)?
Well, I assume that you mean other than that it is a fundamental part of copyright law, e.g. the "limited times" requirement in the US Constitution, or the limited terms from the Statute of Anne? Does the public benefit from monopolists who control the source of commodity goods (i.e. copies of any given work) or from competition? Does the public benefit when only one person controls the direction that a story can take, or when anyone can participate? If an author chooses to withdraw his work from the public sphere and destroy it, does that benefit the public more than preserving the work against his wishes? It is self-evident that a work is more valuable to the public in the public domain than in the realm of copyright, and that if it is copyrighted, then it is more valuable to the public the weaker the copyright is.
So you're saying that the economic impact has to be felt in one year?
I'm saying that other factors are more important. IIRC, the year that had the most people go to the movies in theaters was 1947. Copyright law didn't change that much between 1909 and 1978. Television had a much more significant impact. Likewise, growth in literature had more to do with the printing press than the development of copyright. The fine arts have been around since time immemorial, but copyright didn't result in more activity there; in fact, photography has had negative effects on it.
In the computer field, it's not copyrights, that have been responsible for the growth in that field. It's just technical improvements. A 4KB computer the size of a fridge isn't going to sell as well as a 16KB computer that easily fits on a desk. Patents are a factor for hardware, but don't seem to be for software (as we can see by the thriving software development in jurisdictions without software patents, and in the US prior to our having them). I suggest using Occam's razor.
The question is not whether innovation is possible without copyright. The question is whether copyright enables more innovation than is possible without it.
Actually, that is half of the question. Remember, copyright is meant to serve the public interest. There are two aspects to this: First, encouraging the creation and publication of original and derivative works (which you call 'innovation'); Second, having the least restrictions on the public, which means having no or as little copyright as possible, in both length and breadth.
An ideal world would be one in which all works that could be created and published would be, but where everyone could have a copy of everything, without having to pay, and where anyone could change it at will and publish that (creating and publishing another work in the process, which we want, as seen above).
Well, we don't seem to be able to manage that. If we don't have copyright at all, we know from historical example that some creation and publication will still occur (producing a modest benefit), and the public will be totally unrestricted (producing a great benefit). This is our baseline against which to measure the success of any copyright law: it has to provide a greater net public benefit than we have here. If we add a small amount of copyright, we know that it spurs a large quantity of creation and publication (since copyrights provide more of a benefit to authors initially than as they age, if they produce any benefit at all, which itself is exceedingly rare), but reduces the benefit to the public in terms of their freedom as to the work. This can produce a greater net public benefit than the baseline, however. But, let copyright drag on too long, and it winds up not producing much more of a benefit in terms of creation and publication than a short copyright does (again, since the earlier years of copyright are worth far more than the later years), but at a much greater cost to the public. Go too far, and you can wind up with so much copyright for so long that it is worse than having none at all!
I'm afraid that were we to only look at half of the issue, as you have done, we'd rapidly have unbalanced copyright laws which failed to serve the public interest. And that's what we have now.
There was not a huge increase in creation and publication between 1977, when we had the 1909 Act which only protected works where the author sought protection, and for a far shorter period of time, and 1978, when the current Copyright Act took effect. You don't really have the data points you think you do.
Copyright is a legislative issue. The chance of a Presidential veto of copyright legislation is quite small. The opinions of the candidates are pretty well irrelevant.
Well... it ought to be a legislative issue, certainly. However, copyright maximalists have been known to skirt around Congress if it suits them. An increasingly common tactic is to place strong minimum standards into international treaties (e.g. TRIPS) which are then agreed to by the executive branch, and ratified by the Senate. Then Congress as a whole is pressured into legislating stronger copyright laws, regardless of whether they're a good idea or not, because otherwise the US would be in violation of treaty obligations.
Likewise, the US executive branch is infamous for pressuring other countries to adopt similar laws via, e.g. the USTR.
It is a fact that JK Rowling published a book called "Harry Potter" and that it contained characters named "Harry Potter" Ronald Weasley" and "Hermione Granger." It is also a fact that in the story, they went to school at a place called "Hogwarts School of Witchcraft and Wizardry," which was headed by a wizard called "Albus Dumbledore," who assisted them in saving the world from the evil wizard "Voldemort." Any encyclopedic compilation of knowledge about the Harry Potter world is merely a collection of factual information about what Rowling has created.
And it's a fact that the first word of the text in the first book is "Mr." And it's a fact that the second word is "and." And it's a fact that the third word is "Mrs." And it's a fact that the fourth word is "Dursley."
And it's a fact that that doesn't matter.
You are totally misunderstanding the policy regarding copyrights and factual information. The reason why we say that facts are uncopyrightable isn't because they are facts, per se. You cannot just try to disguise creative information in the clothes of a fact and say that it's uncopyrightable as a result. This is because the true underlying policy is that only original works are copyrightable. That is to say, if you create a work, then it is copyrightable; if you merely discover something that does not owe its origin to you, then it is not copyrightable.
Thus, today's temperature is a fact; it exists whether I write it down or not, and it is not my creation. Historical events such as the way particular battles played out exist whether I write them down or not. The totally fictional adventures of Harry Potter and the quest for more money do not exist unless someone creates them.
So while you might want to pretend that the events of the books are uncopyrightable, because you think you're clever enough to dress fiction up as a fact, you are dead wrong. In fact, hah, the only way that something akin to fiction can be treated in that manner is if its author earnestly claims that it is a fact even though objectively it isn't: someone who writes a book about how JFK was killed by moon-snipers and claims that it is all true is going to have copyright problems due to the courts having a policy of allowing people to take them at their word (especially since, if they're right, they're unprotectable historical events). Rowling, attached as she may be to her creations, doesn't seem to be going that far.
But don't take my word for all this. Here's what the Supreme Court has to say on facts, from the famous Feist case:
The key to resolving the tension lies in understanding why facts are not copyrightable. The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, "no matter how crude, humble or obvious" it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. To illustrate, ssume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable....
It is this bedrock principle of copyright that mandates the law's seemingly disparate treatment of facts and factual compilations. "No one may claim originality as to facts." This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence. To borrow
Slashdot Mirror
Copyright is quite old.
The 'Statue of Anne' in 1710 introduced the idea of the author holding copyright and a term of protection for published works.
Compared to Art, it is just a baby. Human beings have been making art since we were painting the walls of caves, and probably even well before then, but few things have survived for so long. Some of what we still consider our greatest stories and plays and sculptures and paintings were created thousands of years before copyright first came into being.
So no, copyright is actually pretty new.
Wikipedia covers the fair use analysis here: http://en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_States_law
You can see the factors listed as 1-4. Then the next bold headings further down in the section about US fair use cover the factors, each in turn.
The consitution set copyright at 7 or 14 years originally
...i.e. "duke of my yard" to the point that you can't even hold an honorary title as a US citizen.
No. The Constitution merely empowers Congress to create copyright laws, if it so chooses, with a couple of restrictions on what it can do. The only Constitutional mention of term lengths is that they must be finite. The first US copyright law was the 1790 Copyright Act, which set term lengths at 14 years, with an optional 14 year renewal, following the example of the Statute of Anne.
Congress is prohibited from granting titles of "nobility"
Congress cannot grant them, but nothing prevents US citizens from being ennobled by foreign countries. In fact, it happens all the time. There was a proposed amendment to prohibit even that, but it failed.
This is why life terms are just a stupid idea altogether. Fixed, renewable terms of years are better, preferably where the terms are very short. That way an author knows that his work will be copyrighted for a maximum of, say, 25 years from publication. Doesn't matter whether he lives or dies after that, the term is a known quantity and plans can be made around it. Of course, a single 25 year term would be far too long. Better to have five terms of five years each. If the author decides that maintaining a copyright is a waste of time after ten years, then he can stop renewing and let the work fall into the public domain. (The US had a renewal system from 1790 to 1978, and the vast majority of copyrighted works were never renewed, so we know that long terms are wasteful)
if you haven't made your killing off that book or film in the first 14 years, chances are you're not going to anyway!!
That's true. It is also true if you reduce the timeframe to, say, 2 or 3 years. The copyright-related economic value of a typical creative work is incredibly front loaded. Look at how rapidly movie ticket sales decline after opening weekend. And how rapidly DVD sales decline once it comes out on video.
The works with the shortest profitable times are daily newspapers (a morning edition is fishwrap by late afternoon) and some TV and radio shows with high turnover and virtually no replay value (e.g. late-night comedy shows, news programs, game shows). The works with the longest profitable times appear to be textbooks where the material doesn't change much, and the coverage doesn't need to, such as classical history, or arithmetic.
Of the teeny tiny minority of works that ever make a penny from their copyrights, the vast majority of those will make the vast majority of the money up front, very rapidly. And even creating a work like that is no small triumph. There have been zillions of Slashdot posts over the last 10 years, almost all of them copyrighted. How many turned a copyright-related profit for the author?
I agree except for the required explicit registration.
Well, it's absolutely essential.
Every time you make a new blog post, you have to register?
Yes, if you want a copyright on the post. Remember, public policy is to use copyrights as an incentive to get authors to create and publish works that otherwise would not have been created or published. If the work would have been created and published anyway, there's no reason for the public to grant a copyright; we benefit more from having the work in the public domain. Of course, there's no way to know precisely which category any given work falls into. But a registration system lets the authors tell us, more or less.
Basically, if an author thinks that he can exploit a copyright on his work to make money, and the amount of money is more than if the work was in the public domain, and enough to outweigh the cost of getting the copyright (which is cheap), then he will probably take action to get a copyright. This means he is probably in the first category above: authors who are incentivized by copyright as to that work. OTOH, if the author thinks that the cost of the copyright outweighs the benefits that he will accrue as a result, he'll probably not bother to get a copyright. This means he is probably in the second category: authors who aren't incentivized by a copyright as to that work.
It's a little imprecise, but lacking a bunch of psychics working for the Copyright Office, there does not seem to be a better solution that grants copyrights where needed, but does not grant them to excess.
So long as copyright registration is cheap (it already is) and simple (it already is) then we're fine. It just needs to be mandatory for anyone who wants a copyright.
I bet that you would have written your blog posts even if blog posts were utterly uncopyrightable. Copyrights probably are not an incentive to you. So why should you get any? Why should the public pay for the cow, if the milk is free?
Every time a live sports broadcast is on TV they have to register? Before the game happens, when there's no footage to copyright? Or do thy register after it's transmitted, and therefore can't protect it because ti wasn't under copyright when it was broadcast? Or maybe we just wouldn't get live games on TV any longer.
Easy solution, akin to what we do with patents: You get a little while -- one year, perhaps -- to register from the date of first publication (which would be expanded to cover things like broadcasts). So go ahead and transmit the live footage, and just remember to mail in a copy, along with the form, and a small check, before the deadline expires. To encourage swift registrations, though, which is in the public interest, we might tie major protections of the work to the date the application was submitted, and actionability to the date the registration issued.
Besides, the US is a signatory country on the Berne Convention. That requires copyright upon entering into a fixed format.
Well, you know how the most popular criticism of US copyright law is that it lasts too long? Well everyone who wants a term of less than life+50 or 75 years necessarily supports the US withdrawing from the Berne Convention, because otherwise it can't happen. For example, you appear to support abandoning Berne. Berne was, and is, a terrible idea. The sooner we're rid of it, the better. It is total crap.
I adamantly disagree. When you say that most authors do not earn enough to pass on large monetary endowments to their heirs, you seem to conveniently be ignoring the fact that most creative works will not earn money ever, and that of the teeny tiny fraction that ever do, most of them will not earn money more than a year after the work is published.
There are countless authors who wrote books and had heirs, and their heirs will never see a penny from those books because the books are abject failures in the commercial market. The odds of writing a book and making a lot of money from it -- whether immediately or over the course of life+70 -- is on par with winning the lottery.
Do you think that we ought to write public policy with the assumption that everyone who plays the lottery will win? Or that every author, or most authors, or more than an infinitesimal fraction of authors, will be even moderately successful?
It's a stupid idea. Stupid, stupid, stupid.
If you want to help widows and orphans, long copyright terms is an incredibly irresponsible and pointless thing to do. It is exactly like giving them lottery tickets and telling them their future is assured, so long as the ticket is the one in a million winner. A person who was not totally insane would not waste time with that crap. Instead he'd work to set up means for the author to invest his money while alive, so that he has something to leave behind that is of actual monetary value (instead of being totally worthless), and a social welfare system to help catch and assist people who still fell on hard times. Further, that person would have these available to everyone, rather than just authors and authors' families, since there's nothing special about them that entitles them to additional government aid.
Now, the one in a million family that did win the lottery is naturally going to want to preserve the former system, and will not want their taxes to help pay for everyone to have help, if it's needed. The Tolkien family is one of those success stories. There are countless of failure stories, but since they never got to be even a little famous, you just haven't heard of them, and seem to assume they don't exist. I say fuck the Tolkien family, and fuck successful authors. Good for them for having been successful, but I am not ever going to support the idea of crafting our copyright or social welfare systems on the idea that everyone is as wildly successful as they have been. Tolkien's hobbits and dragons and such are more realistic than _that_ fantasy.
What is it that prevents this also helping out small media companies, and even individuals who create copyrighted works?
Popularity, chiefly. Popular works are pirated more than unpopular works. While small authors and publishers can certainly produce popular works, in the main, most popular works, and thus the works that are the most pirated, and which would benefit the most from these laws, originate from the big players.
if you are an average-wage magazine column writer, copyright law helps protect you from being ripped off. If you are an author, musician or other content creator, the copyright law also helps protect you.
True, but if you're in that cadre, there's very little to be protected from. Frankly, you probably will want someone to pirate your work, as at least they'd be paying attention to it. If you can't even attract pirates, you're certainly not going to attract paying customers. Really, the main group you would want protection from are not individual-scale pirates, like the ordinary Bit Torrent user, but industrial-scale pirates, such as the major players in the copyright industry.
That being the case, I think it would be a lot smarter to have a law that was permissive of individual-scale piracy, but which was harsher on industrial-scale piracy; a law that didn't raise a fuss if John Doe downloaded an mp3, but was set firmly against Sony using the same song in the soundtrack of a movie, without having gotten permission.
There's no reason we can't have such a law... except that the laws are being created by and to favor the big players in the industry. Small authors are really just used as a beard.
Copyright law needs to be clarified and reformed. But it also needs to be enforced.
Perfect enforcement would be far, far worse than what we have now. Part of the calculus that goes into society's toleration for restrictive laws and harsh penalties is the laxity of enforcement. Jaywalking might be illegal, but absolutely everyone does it where I live. Were the police to enforce the law on the books it would cause a huge amount of public unrest. It would quite likely result in the repeal of the law altogether, or demands for the firing of the Police Chief, since people are unwilling to change their ways, and on all but the most essential issues (e.g. desegregation, not copyright or prohibition) will manage not to.
The to-do over DRM is a good example of this. It tries to be a perfect enforcer, and thus garners huge amounts of attention, anger, and efforts (generally successful) to circumvent it. A less strict enforcement mechanism would probably be more tolerated and more successful in the long run. Indeed, the whole anti-copyright and copyright reform movements really didn't exist until very recently, following unprecedented expansion in the law. Had the laws been left alone, I bet that the counter-movement would not have come into being.
How many pennies to the pound? 100 or 240?
The copyright owner has the exclusive right - the constitutional right - to profit from his own creation.
That's not a very accurate statement.
First, copyright holders are not necessarily the authors of the works to which they hold a copyright; often the work is not their creation.
Second, copyright does not include an exclusive right to profit from a work.
Third, copyright is not a constitutional right. That Congress has a copyright power which it can exercise, or not, as it sees fit is not the same thing; if it were, I'd have a constitutional right to social security and freeways, since Congress exercised its powers to create those as well.
Would you have fully complied with 17 USC 512? It isn't difficult, but it does require some effort.
The problem is that in some jurisdictions, the Public Domain isn't forever. What that means is that you can take a work in the Public Domain, make a tiny change (which might be as subtle as changing the author's name to yours) and copyright the derivative work. But there's more: you can then go after anyone using the original PD work, claiming they violated your copyright.
That is interesting, if true. In the US, it is not true. First, only the new material in a derivative work is copyrightable, and then only if it is sufficiently original, creative, etc.; the pre-existing material used in the derivative work is not covered under the new copyright, but of the copyright of wherever it is originally from. So, for example, if you "take a work in the public domain" and "make a tiny change" then only that change could possibly be copyrightable. And if the change isn't copyrightable on its own merits, then neither is it. This also means that even if it was, you could still copy the derived portions of that second work, since they're in the public domain no matter where you find them. Second, it would be impossible for someone to succeed on a claim of infringement for use of a public domain work, of which you made a derivative (which, remember, isn't copyrightable in its derived portions), since they could not prove that there was a copyright at issue or that they were the copyright holder, both of which are necessary to win. Baseless claims could be made, I suppose, but that's always a risk for everyone and not worth worrying too much about.
TRIPS was written in 1994, so it would fall under Clinton's watch.
Here's my cynical answer: my understanding is that the whole issue of damages for non-commercial infringement had its genesis in the NET act back in the Clinton era, when software vendors were freaking out because suddenly their entire product lines were available on pirate FTP sites. Correct?
No. The NET act provided that non-commercial copyright infringement that exceeded a certain threshold was criminal infringement. Non-commercial infringement was already a civil offense with statutory damages available.
But today, the US is looking at its economic prospects for the next 50 or 100 years. Japan's the #1 maker of cars, South America grows a lot of produce, and the IP output of US citizens and corporations is suddenly looking like one of the few major revenue streams that the US can claim as its own.
Well... the US had a lot of light and heavy manufacturing, which we shipped overseas in order to take advantage of cheaper labor. The idea was that we could replace its position in our economy with industries including the copyright and patent fields. But that relies on foreign countries stringently respecting them; that largely doesn't seem to be panning out. Lip service is paid, but not much more.
It's difficult for pirates in foreign countries to reproduce a car; and trivial to reproduce music. We probably would have been better off preserving the strength of the rust belt. Just propping up a failed copyright system that is devoid of respect domestically and abroad isn't going to work, IMO.
I personally don't think the adoption of a culture of free media would be the utopia that many think it would.
I agree. First, I at least am not calling for that. I have no qualms with copyright, provided it's reasonable. I'm pretty confident that part of that is making non-commercial acts by natural persons non-infringing, whatever they happen to consist of. Copyrights would remain vital where commercial acts or non-natural persons were involved (e.g. selling and renting copies, commercial performance venues, etc.). And of course, plenty of people would continue to purchase works. It's very easy to copy music, video, etc. online, but there's still plenty of sales of these things. The amounts will fall, but they've largely fallen already. Would legitimizing it make a big difference?
I suspect that a good many of the artists I enjoy would not have done what they did if there weren't the prospect of being paid per copy.
It depends on the field, of course, but this seems likely. But so what? Copyright isn't meant to merely encourage the creation and publication of more works, but to do that for the least burden on the public. Nor does it scale evenly; most of the incentivizing effect of copyright comes from the first few years of the term, not from the majority of the years. If we can get, say, 90% of the number of works, for 50% of the cost, then it becomes difficult to understand why we should pay another 50% for a paltry 10% of additional works.
Where the name "bar" comes from is something an actual lawyer will have to chime in and tell you.
In England, all barristers traditionally are members of one of the inns of court. The name is fairly literal: they're the inns in London where lawyers tended to congregate, live, have their offices, etc. Nowadays, as I understand it, they're big enough to be akin to a college campus. Anyway, so they would have a hall in which students were on one side, and the barristers and judges who ran it were on the other side, and there was a railing dividing the hall in two. When a student graduated and was allowed to practice, he symbolically crossed to the other side of the railing.
At least, this is what I've heard; we don't really have anything like this in the US, and it seems pretty odd to me. Perhaps there are some British lawyers who could go into more detail. As for non-common-law countries, I have no idea.
The $750 minimum is out-of-date; a remnant of the days before it was so easy to share so much music. It was written in a time when it took a lot of work to distribute 1,000 unique pirated songs.
The $750 figure was introduced in 1999. While that was a couple of years before Napster was at its zenith, I don't think it was really all that hard to infringe that much.
Ask 100 people and you'll get 100 answers, but I think that a more fitting statutory minimum should be in the neighborhood of $50 per work. Yes, I know, information wants to be fweeeeeeeeeeeeee, but for as long as copyright law is still around, the courts should be able to issue judgements that are an effective deterrent. If I were nailed for sharing 100 songs and the RIAA could only collect a statutory minimum of $5K from me rather than $75K (as under current law), I'd still get the point that perhaps I shouldn't have helped make other people's information so free after all.
Personally, I'd rather have actual damages and profits. But more importantly, why should non-commercial infringement by a natural person be infringing to begin with? Let copyright be something for commercial pirates and businesses to deal with for the most part.
I had no idea that the Copyright Act was made in 1976. Such a recent law, yet I thought the copyright law was from antiquity.
The current Copyright Act is the 1976 Act (with a number of amendments since then). However, it was preceded by the 1909 Act, and so on, with the first US copyright law being the 1790 Copyright Act. The US didn't previously have the power to enact copyright laws, but many states did during the 1780's. And of course, we were British colonies, and Britain had the Statute of Anne, which was the first modern copyright law, and it dates back to 1710.
Copyright isn't from antiquity (and neither are patents, which date back to the 1474 Venetian Patent Act) but they're not all that new either. Trademarks and trade secrets, OTOH, pretty much are from antiquity. The specific laws have changed a lot, but the basic idea has been around for a long, long time.
The lawmakers and the lawyers, by and large, tend to be one and the same.
And? People who design computers tend to be computer specialists. Would you prefer that we had leatherworkers design computers, and computer scientists working as farmers?
It's a specialized field. There's no conspiracy at work, and given that lawmakers are democratically elected, it would appear that people are generally okay with this. It's not as though they have to elect lawyers, but for whatever reason, they often choose to.
Indeed, it is amazing to contemplate how far we have fallen, as a people, from our founding principles and the heady days of the American Revolution
Yeah, it's good that lawyers such as Thomas Jefferson, John Adams, Alexander Hamilton, etc. were not involved in that.
We COULD have simple laws
Well, you can basically have just laws, simple laws, and laws with generally predictable and consistent effects. But experience shows that you can only really get two of those three. Of them, I'd say that simplicity is probably the least important.
I really wish we could get back to having a few simple rules you could print on a postcard, but that's probably just a pipe dream at this point.
So you're an 'eye for an eye' sort of person? I don't know about other people here, but I'm glad to have progressed beyond that.
Nonprofit libraries can unauthorizedly rent copies they own of software for nonprofit purposes, and not infringe. Pretty much everyone else is not so lucky. There's a similar thing for phonorecords, which is why you don't see Blockbuster renting music CDs (although the practice is certainly known elsewhere in the world; Japan, for example).
Console games, however, are not covered under this.
It's all in 17 USC 109.
We've got everything from international treaty created super-trademarks
;)
Well, Title 17 deals with copyrights. Trademarks are a totally different sort of thing, and are found in Title 15, which is the main body of laws regulating commerce. However, the specially treated marks (there's somewhere around 75 IIRC) tend to be scattered around. The Olympics gets special treatment at 36 USC 220506; the Red Cross at 18 USC 708. I'd agree that in many cases, such special treatment is totally unnecessary, or at least is overkill in the way that it is done.
Granted, IANAL, but I think that the average person would be surprised by just how many rules there are. And those are just the statutes!
FYI a 'rule' is a term of art, and it's not the same thing as a statute. There actually aren't very many copyright rules. OTOH, there are a lot of trademark and patent rules.
God help you when you find out that, while "facts" aren't copyrighted, facts about a fictional work aren't really "facts" according to at least one court! That's right, the fact that Harry Potter attends Hogwarts may not be a "fact" per the law.
No one ever said that facts aren't copyrightable merely because they're facts. They're not copyrightable because no one is the author of the facts, and only authors can copyright their own writings. Facts aren't authored, they're just discovered. This is the same reason why, if you found a manuscript which you did not write, just lying on the ground, you could not copyright it; you aren't the author. In the Harry Potter case, though, Rowling originated Harry Potter, and Hogwarts, and that the former attends the latter. It doesn't matter whether it would be a fact in the fictional world she created, it's not something that is without authorship. I suggest you read over Feist v. Rural, which is the leading case on this sort of thing in the US.
Or to sum up this entire post, isn't it bad if we each need our own personal lawyer just to be able to *OBEY* the law?
Sounds good to me.
Seriously, though, this is why I support copyright reform which brings the law back into lines with society's norms as to what is acceptable and what isn't, where it is all to the ultimate greater benefit of society. The problem is not so much that the law is complex (which is generally pretty unavoidable) but rather that it doesn't correspond to ordinary, socially unobjectionable behavior. If it did, people would generally adhere to the law even if they didn't happen to know the details of it, because the law would match up to what they'd likely do anyway.
It's rather like how most people don't know the details of the laws regarding homicide, but somehow manage to not run around killing people left and right.
Also, do you have any evidence for this claim that there is a "great benefit" to eliminating copyright laws (however you wish to quantify it)?
Well, I assume that you mean other than that it is a fundamental part of copyright law, e.g. the "limited times" requirement in the US Constitution, or the limited terms from the Statute of Anne? Does the public benefit from monopolists who control the source of commodity goods (i.e. copies of any given work) or from competition? Does the public benefit when only one person controls the direction that a story can take, or when anyone can participate? If an author chooses to withdraw his work from the public sphere and destroy it, does that benefit the public more than preserving the work against his wishes? It is self-evident that a work is more valuable to the public in the public domain than in the realm of copyright, and that if it is copyrighted, then it is more valuable to the public the weaker the copyright is.
So you're saying that the economic impact has to be felt in one year?
I'm saying that other factors are more important. IIRC, the year that had the most people go to the movies in theaters was 1947. Copyright law didn't change that much between 1909 and 1978. Television had a much more significant impact. Likewise, growth in literature had more to do with the printing press than the development of copyright. The fine arts have been around since time immemorial, but copyright didn't result in more activity there; in fact, photography has had negative effects on it.
In the computer field, it's not copyrights, that have been responsible for the growth in that field. It's just technical improvements. A 4KB computer the size of a fridge isn't going to sell as well as a 16KB computer that easily fits on a desk. Patents are a factor for hardware, but don't seem to be for software (as we can see by the thriving software development in jurisdictions without software patents, and in the US prior to our having them). I suggest using Occam's razor.
The question is not whether innovation is possible without copyright. The question is whether copyright enables more innovation than is possible without it.
Actually, that is half of the question. Remember, copyright is meant to serve the public interest. There are two aspects to this: First, encouraging the creation and publication of original and derivative works (which you call 'innovation'); Second, having the least restrictions on the public, which means having no or as little copyright as possible, in both length and breadth.
An ideal world would be one in which all works that could be created and published would be, but where everyone could have a copy of everything, without having to pay, and where anyone could change it at will and publish that (creating and publishing another work in the process, which we want, as seen above).
Well, we don't seem to be able to manage that. If we don't have copyright at all, we know from historical example that some creation and publication will still occur (producing a modest benefit), and the public will be totally unrestricted (producing a great benefit). This is our baseline against which to measure the success of any copyright law: it has to provide a greater net public benefit than we have here. If we add a small amount of copyright, we know that it spurs a large quantity of creation and publication (since copyrights provide more of a benefit to authors initially than as they age, if they produce any benefit at all, which itself is exceedingly rare), but reduces the benefit to the public in terms of their freedom as to the work. This can produce a greater net public benefit than the baseline, however. But, let copyright drag on too long, and it winds up not producing much more of a benefit in terms of creation and publication than a short copyright does (again, since the earlier years of copyright are worth far more than the later years), but at a much greater cost to the public. Go too far, and you can wind up with so much copyright for so long that it is worse than having none at all!
I'm afraid that were we to only look at half of the issue, as you have done, we'd rapidly have unbalanced copyright laws which failed to serve the public interest. And that's what we have now.
There was not a huge increase in creation and publication between 1977, when we had the 1909 Act which only protected works where the author sought protection, and for a far shorter period of time, and 1978, when the current Copyright Act took effect. You don't really have the data points you think you do.
Copyright is a legislative issue. The chance of a Presidential veto of copyright legislation is quite small. The opinions of the candidates are pretty well irrelevant.
Well... it ought to be a legislative issue, certainly. However, copyright maximalists have been known to skirt around Congress if it suits them. An increasingly common tactic is to place strong minimum standards into international treaties (e.g. TRIPS) which are then agreed to by the executive branch, and ratified by the Senate. Then Congress as a whole is pressured into legislating stronger copyright laws, regardless of whether they're a good idea or not, because otherwise the US would be in violation of treaty obligations.
Likewise, the US executive branch is infamous for pressuring other countries to adopt similar laws via, e.g. the USTR.
So it's important.
And it's a fact that the first word of the text in the first book is "Mr." And it's a fact that the second word is "and." And it's a fact that the third word is "Mrs." And it's a fact that the fourth word is "Dursley."
And it's a fact that that doesn't matter.
You are totally misunderstanding the policy regarding copyrights and factual information. The reason why we say that facts are uncopyrightable isn't because they are facts, per se. You cannot just try to disguise creative information in the clothes of a fact and say that it's uncopyrightable as a result. This is because the true underlying policy is that only original works are copyrightable. That is to say, if you create a work, then it is copyrightable; if you merely discover something that does not owe its origin to you, then it is not copyrightable.
Thus, today's temperature is a fact; it exists whether I write it down or not, and it is not my creation. Historical events such as the way particular battles played out exist whether I write them down or not. The totally fictional adventures of Harry Potter and the quest for more money do not exist unless someone creates them.
So while you might want to pretend that the events of the books are uncopyrightable, because you think you're clever enough to dress fiction up as a fact, you are dead wrong. In fact, hah, the only way that something akin to fiction can be treated in that manner is if its author earnestly claims that it is a fact even though objectively it isn't: someone who writes a book about how JFK was killed by moon-snipers and claims that it is all true is going to have copyright problems due to the courts having a policy of allowing people to take them at their word (especially since, if they're right, they're unprotectable historical events). Rowling, attached as she may be to her creations, doesn't seem to be going that far.
But don't take my word for all this. Here's what the Supreme Court has to say on facts, from the famous Feist case: