Copyright Question

Great Debates
41

Shortening copyright benefits publishers and hurts creators.

The shorter the monetization tail, the less an IP is worth. If a publisher is considering publishing a work then the amount they’re willing to pay for it is determined by expected earnings over the lifetime of the license. A short license means lower lifetime revenue means less money to the creator.

Publishers can make money even in a world with no copyright. They can always churn out cheap copies of old works, or add value through curation or discovery. (There are publishers right now who do this.) But radically shorter copyrights don’t encourage people to create new works, or allow people to support themselves working full-time as creators.

As for the “intellectual property is unnatural” argument. Well, you could say the same thing about financial instruments like stock options or commodity futures. These exist as property because we define them as such, just as dollar bills exist as money because we define them as such. Strangely I never hear opponents of copyright arguing that we should also do away with financial derivatives, or have their worth evaporate after some arbitrary period of time … .

42

Copyrights, trademarks, and patents are all lumped together, but they serve very different purposes.

Copyright is designed to encourage creators to share their works by providing an economic benefit. This benefit only needs to be large enough that creators think it worth their time to create and share their works. We’ve deciding that limiting the timespan is the best way to implement this, though it’s by no means the only imaginable way.

Trademark only exists to answer the question “How do I know that this product or service is really made by the same organization that I used before, or that other people were talking about?” When I buy a Ford automobile, say, I want to know that it’s the same Ford that I used in the past, or that I read about in Consumer Reports, or whatever. Not some counterfeit Ford produced by some other group.

Continuity is the main principle at work here: that company X today is the same as company X a year ago. This requires an indefinite term, since any break would cause a loss in trust. It only works if it is dependable.

Trademark law is still a bit flawed, IMHO. Sometimes a trusted company will go out of business, and the shell will get bought by some other company, and then the new company will produce inferior products under the same name. Limiting the terms is certainly not the way to fix this, though.

I won’t talk about patent law, except to say that there is a reason the terms are much shorter than with copyrights. The reasons, again, are due to the unique purpose of patents vs. other forms of intellectual property.

In short, all forms of intellectual property exist solely to serve a particular purpose unique to their nature. They are not analogous to the broad (though not unlimited) treatment of physical property. The focus is narrow and that’s why the terms are limited (or not, as the case may be).

43

I think there may be some equivocation going on here with the word "information.

Information in sense #1 is and should be freely disseminated (except where issues of privacy or security are involved), but that’s not the kind of information that copyright is all about. Having access to or distributing a fact is not the same thing as having access to or distributing an artistic creation.
Furthermore, I dispute your claim that the idea of intellectual property goes against human nature. To me, it seems human nature to recognize that if a person puts a lot of time, effort, and skill into something, he thereby has a measure of ownership in it and deserves to profit from it.

If I, or any of my remote ancestors, had found a log lying in the woods, that didn’t belong to anyone, and took it home and spent a lot of work turning that log into a sculpture or a piece of furniture, I think most human beings would agree that that sculpture or piece of furniture belonged to the person who made it, to be used, sold, or given away as that person chose—not by virtue of the ownership of the material it was made out of but by virtue of the time, effort, and skill that were put into making it.

44

Correct. Without copyright, many IP works would remain under close control, essentially unpublished. Copyright allows economically “safe” publication - thus contributing that work to worldwide intellectual/cultural reserves.

This is so short-sighted and naive I can’t believe you keep making the argument, in the face of several very cogent challenges.

Exactly why, and when, should ownership and control of intellectual property expire?

Your arguments seem to boil down to “everything published loses its value within some short time, now” and “greedy megacorps just use copyright to ensure their profits.” Neither of which is even largely true and neither of which addresses the purpose of copyright as it ensures the “safe publication” you started your post with.

No, you can’t have it for free because it’s [some single-digit number of years] old. No, I don’t think copyright should be nerfed into uselessness because Disney will sue your ass for use of a 90-year-old Mickey image.

Back to the boldfaced question. Answer it cogently and completely or, basically, quit whining that IP isn’t free after the first copy is sold.

45

To get back to the original post, derivative works are justified to avoid eroding the rights of an original author. That is it.

Without derivative work provisions, if someone edits my copyrighted manuscript, how many changes does the editor need to make before there is a new work not subject to my copyright? The answer is to simply tote up the new and the old and assign ownership accordingly. But, because my original works are copyrighted, the owner of the derivative work is not permitted to copy and publish my portion of the derivative work. At the same time, I, as the original copyright owner, may not exert copyright over the new portions of the derivative work.

The reason many authors don’t ever want to see slash fiction based on their works is that this may preempt their own work.

46

Hemingway and Fitzgerald are lottery winners. Most works under copyright are out of publication within a few years. The publishers don’t think they’re worth publishing, and nobody cares enough to keep track of the copyright holders, if they exist in a meaningful way. These works are essentially gone. We have vastly more works available to us from the 19th century than we do from the modern copyright era. If the purpose of copyright is as stated in the Constitution, “to promote the progress of science and the useful arts”, modern copyright term lengths have failed to accomplish that.

So, in short, yes, society is worse off.

47

Dr. Strangelove, you can’t back up what you’re saying. Property is a human construct. Period. There is no possible thing as natural property. The concept of owning property other than by sheer physical presence is purely a notion of law, and there’s nothing less natural than law. There is no difference between physical property and intellectual property.

Not are copyrights, patents, and trademarks lumped together. To the contrary. Trademarks are a wholly different thing. They are not in the Constitution. They are permanent. They are the ones lobbied for by “rich individuals and corporations.” Copyrights are just the opposite. They are defended by ordinary individual writers and other creators. AB and I are not rich. We are writers. I agree that we see copyrights as no different than we do the deeds on our houses. You have no right whatsoever to take it from me without the full weight of the law. (I wish you hadn’t served up that nonsense about Disney, though, AB. As I’ve said on numerous occasions, copyright would have been extended if Disney didn’t exist.) Why do we have to give them up for the benefit of all? All are benefiting right now, just for a fee, as with every other single item of property on the planet. Saying that “The alternative is not unlimited copyright, but no copyright at all,” is jaw-droppingly wrong. Nothing in commerce works that way. Everybody doing everything charges a fee for use of what they own. Getting a salary is a fee for your time and effort. It’s works very well. Imagine being told that after x years you’d have to start working for free to benefit everyone and the alternative is to never work at all. You’d be laughed off the Internet. Yet Dr. Strangelove actually said that about copyright. Why does anyone think that is a legitimate argument? DrCube notes that the Constitution talks only of promotion of the “progress of science and the useful arts.” Fine. Then exempt all fiction from losing copyright. But that’s not what you want, is it?

How to implement systems that would allow works to easily available is a different argument from whether copyright should exist and the protections it should offer. Voyager’s idea about paid renewals is a superficially good one but runs into enormous implementation problems. Making so-called “orphan works” (those whose copyright holders cannot be found) available is desired by almost everyone but nobody figured out a good way to make it work. Those details are unimportant to the larger argument.

48

This argument would be stronger if you’d provide a couple of examples of works that are in copyright but unavailable to the general public, whose availability would “promote the progress of science and the useful arts,” and for which it is pure chance that they are less widely available than Hemingway and Fitzgerald.

49

To clarify: I consider all artistic works to be information. A sequence of words, or notes, or an array of pixels that make up a painting are all information. Information in the abstract sense is what copyright covers (physical manifestations are covered by normal property law).

Those things are now a part of the log, though. If you sell or give your log to someone, those things come along for the ride. So maybe you don’t like to think of the physical object as really being the core of the artwork but nevertheless it’s physical control that defines ownership of the piece.

Suppose I really like your sculpture and wish to make my own copy. I get my own log and carve it myself, mostly copying your sculpture but adding a few flourishes of my own. Now, it might be a bid rude if I failed to acknowledge my influences. But that’s far short of saying that you own my work.

Humans are imitative beings. We wouldn’t even have language if it weren’t for copying the creations of others.

50

How can I possibly do that? “These works no longer exist, except for rare copies rotting in attic trunks: ???”

The very fact that I can’t do that IS the problem! Are you under the impression that there is nothing of value to be found in non-bestselling literature?

51

Funny you mention salary. I earn a salary for the work I do today. If I want to continue to get paid, I have to continue to work. I don’t have the luxury of sitting on my ass and collecting checks in perpetuity for work I did decades ago. “Nothing in commerce works that way.” Exactly. Nothing else except copyrights.

52

If it’s valuable, then why should the creator’s heirs benefit from its value?

If it’s valuable now, then why won’t it still be valuable when it does legitimately go into the public domain?

Then please explain what pensions are. And then try to make that argument for your paid-off house.

53

Yes, exactly. And virtually all property which typical people own is defined by sheer physical control. In some cases we have outsourced the physical enforcement to other parties. More esoteric forms of property is subject to the vagaries of the law and inevitably has greater limitations in its scope.

Then why did you lump them together? Specifically, you asked how we justify unlimited trademarks but not copyright. I answered by saying they have different justifications because they serve different purposes.

Of course you wish that because it invalidates what you’ve said. Disney extensively lobbied for the Copyright Term Extension Act of 1998.

You’re probably right that it would have happened eventually anyway. There is too much money at stake.

You seem deeply confused about what copyright accomplishes.

Performers have always been able to charge a fee for their services. They never needed copyright for that. Performing for a fee was around for thousands of years before anything resembling copyright existed.

The interesting part is that traditionally, when I stop working, I stop getting paid. That’s how it works in every other job. But with copyright, I work for X hours and then I’m paid for the rest of my life, and then my children get paid too.

So why should creators get special treatment? The answer is clear: creative works are highly front-loaded compared to other jobs. You don’t get paid anything until the work is finished, and once that happens the work is trivially duplicated by anyone.

Plenty of people, historically, managed to make a living this way in spite of the disadvantages. But we decided as a society that we want more creators, and so we give them special treatment. That special treatment is government-enforced monopoly rights on their information output.

It should never be forgotten that this is special, though. It’s utterly exclusive to the unique situation of creative works compared to others. And it’s utterly conditional on it being a benefit to the rest of society. If it weren’t, we simply wouldn’t bother, and creators could make money they did in the past: by doing public performances and so on.

How do you know what I want? But for the record, I think a good compromise would be that copyright lasts until death or 25 years after creation, whichever comes last. This is a giant step back from the current situation but I think would achieve better results while not impacting outright creators.

54

Pensions are a voluntary agreement between employer and employee, enforced by ordinary contract law.

The only way for me to make money on a paid off house is to rent it out or sell it. Both are transactions enforced by ordinary contract law.

Copyrights are special and contracts are insufficient for them to function. They apply to everyone in society whether they’ve agreed to a contract or not.

55

It isn’t valuable enough to the copyright holders to keep in circulation, but it’s valuable to society as evidenced by the demand on Amazon.

Pensions are just deferred salary, and irrelevant. My house is a scarce physical object. Information in almost all cases is paid for once, when scarce, and then used forever. My solution to the problem of inventorying our company’s tools quickly, for instance. Or the plans to my house, for that matter. Copyrights are the exception.

56

I doubt if many - or any - publication decisions consider sales of a book 25 years out, let alone life of the author + 70 years. I don’t think many people choose to write a book because the royalties will be streaming in 50 years from now. Yes you want some time under copyright, but the time available now is absurd.

57

Not to mention retroactive copyright extensions. You can’t encourage more works from the 1920s by changing the law in the 1990s. The only ones to benefit from that are a few rich companies that want to squeeze a few more dollars from successful old franchises. It promotes nothing and encourages no one. It’s just pork, essentially.

58

Actually pensions aren’t deferred salary, they are savings plans with deposits by the employer and the employee. A pension has a cash value at any given time, the value of which is set by the government.
Pensions are no different from earnings an author gets from investing his advance or royalties. And they are irrelevant.

59

Obviously not true. Writing a book is no different from building a house. Nobody creates a contract with the public when a house is built. It just is, and functions under law.

And that’s what you’re getting wrong. Copyrights do function like every other type of property in law. Except they are unique (along with patents) in having an expiration date. You haven’t justified that except by appeals to selfishness.

We do treat creators specially - by giving them a special handicap that nobody else has to suffer under. You somehow have turned that around to claim that they get special privilege. They don’t. That conceptual error lies behind everything you say and it’s why you’ve gotten every statement you’ve made wrong.

60

I can see extending the copyright past the death of an author to cover cases where a writer who just hit it big dies. Without this protection his legacy to his children would be worth much less.
But 70 years? My father-in-law is a composer, and almost 99. In 70 years my wife and I will be dead and our kids will probably be dead. In the unlikely event one his his pieces makes it big 65 years from now, I’m okay with his theoretical great-grandchildren (who he is unlikely to ever know) not cashing in.