Is there a constitutional limit on copyright terms? (Supreme Court case)

Fourteen years from when? Date of creation? Date of first publication? If so, when was the work created? For indivdual authors, establishing just when they created the work can be difficult since they were the only ones there? And what about earlier drafts of the work? For something like a novel or piece of music that may take years to finish (witness the fifth Harry Potter novel), is the work “created” when it is finished in exactly the form in which it is published, or when all the concepts are there in draft form?

For those who have never gone through the litigation process and therefore have never had to try and prove up these issues, they can be time-consuming and costly. The distinct advantage of a “life plus” regime is that these questions simply don’t arise. Plus, the whole body of an author’s work comes into the public domain at the same time, rather than piecemeal, as would be the case in a fixed term copyright. This can be an advantage (e.g. publication of complete sets of an author’s work). Proving the length of the copyright term is therefore a simple matter of determining when the author died, which in the U.S. is more often than not a recorded event.

A fixed-length short term, moreover, may encourage those who have the resources to develop a work to simply wait until the copyright expires and then use the work for nothing. Example- a young writer sends his manuscript to various publishers, hoping to get published. Publishers decide not to publish, but keep manuscript. Some number of years later, after fixed copyright term has expired, publisher pulls manuscript out of vault, decides to publish it. The writer gets screwed. And there is an incentive, under a fixed term system, to do this, particularly with younger writers. The shorter the term, the greater the potential for screwage.

As far as rights surviving past death, there is an old saw with a degree of truth that death creates a great upsurge in interest in an author’s work. Many times, a work may not generate much return until after the author’s death. I cited in another thread the example of the composer of “Rent”, who died suddenly and unexpectedly before the work had its first performance. He dies. If copyrights don’t survive death for some time, the heirs of an author are not only deprived of the income they would have enjoyed had he lived, but may also have to pay his debts without the benefit of the income from the creative assets he produced in life. Had he just gone into refrigerator repair and put the money in the bank, his family would have done a lot better.

Copyrights exist so that those who generate creative works can make a living and provide for their futures and their descendants futures, just like most everyone else tries to do. Because a work may not generate income (i.e. recover the investment in time and opportunity cost) until some time after its creation, perhaps not even until after the author’s death, copyright survivorship provides some encouragement for those with a creative yen to become an author or painter or sculptor and skip refrigerator repair school.

jeevmon: that is the first EVER rational argument that made me feel like there was a point to lifetime copyrights, and possibly even lifetime+.

Though I think within the context of what you have said, I would be more willing to have a fixed length copyright with a longer term, say 56 years. That way there is no incentive for the publisher to sit upon it. Though I don’t think that incentive is really there with 14+14 either.

I guess given your argument I would limit it to life+10 at most. However with the lifespans these days, and the rate of advancement of ideas, I am loathe to have copyrights extended that length of time.

Erek

copyright was originally date of first publication, which only makes sense since the goverment granted monopoly conferred by copyright is in exchange for sharing the result of your creativity.

Also copyrights had to be registered to be valid, just like patents.

Um, no. This is nonsense unless you assume a publisher (or cabal) with monopoly control of the market. Otherwise, some other publisher will see the value and figure that paying royalties is worth it in order to get to market 14 years ahead of everyone else.

So long as the goverment doesn’t allow media monopolies…
Um…

Ok, you got a point. But only because the goverment has allowed the mega media companies to exert monopoly control of the market.

But then again, you don’t have a point. Because even in a world with lifetime copyright, a media monopoly can dictate terms to authors and keep most of the profits of creativity for themselves. (which, as it turns out, is a good summary of the state of the music industry…)

So no. The case for lifetime copyrights fails to make sense.

Publishing and development of creative works is, by and large, a buyer’s market. If there are equal opportunities for screwage, screwage will happen.

Here’s another tack- in other lines of work, we don’t take away the things that people make while they’re alive. If someone builds a factory, or establishes a store, or earns money at a salaried job, the government can’t come in and take it away when the person is alive. Imagine a system where an industrialist automatically forfeited his or her factory after fourteen years or twenty-eight years, or whatever. There would be a serious disincentive to make those kinds of investments. Similarly, an author or artist has to invest time and effort (and forego other opportunities) in order to create a work. If the author forfeits the results of that investment as a matter of law after fourteen or twenty-eight years, well, then they might just choose to go to law school instead. After all, there you get paid up front. And no one comes to take what you’ve saved after taxes after a certain period of time.

Furthermore, if an author knows they have only fourteen or twenty-eight years to commercially exploit a work, there is an incentive to only create works that are banal and generally pleasing because those, after all, will sell, and sell quickly (the author hopes) thus allowing the author to recoup his investment in time and foregone opportunities. Creation of experimental or avant garde works, therefore, may be discouraged because those works may not become appealing until some time after the author’s death. Our culture may suffer as a result.

Now, how long a copyright should last after death is a legitimate subject for debate. I personally think life plus 70 is excessive (though Constitutional), and I do not want an unelected, unaccountable court engaging in gross second-guessing of the legislature. Which is why I think the Supreme Court made the right call. But allowing lifetime copyrights with some limited survivorship will help put authors and artists on somewhat equal footing with those who work other types of jobs.

It’s the same in this line of work. The physical thing that you create (original manuscript, painting, etc). is yours to keep for ever. Loosing the copyright doesn’t take that away from, nor does it take away the right to use that work in any way you see fit.

What you can’t have forever is government enforced control over everyone elses behavior, which is what copyright really is.

You can’t draw meaningful analogies between copyright and physical work products. The mere fact that you try proves that you don’t really understand what copyright is.

At the risk of getting into Pit territory, you could not be more wrong. I’m an intellectual property lawyer, and therefore probably know more about what copyright is and what it’s for than most of the people posting here.

Copyright exists to provide exclusive rights. The reason those exclusive rights exist is because without them, authors and artists would have no real incentive to create original works because of the fact that there is no way to realistically prevent others from taking and profiting from them. Why buy from the author when you can just copy it and not pay them for anything? Your analogy to the original manuscript is glib and superficially appealing, but deeply flawed because it is the work itself that is the economically valuable part, not the original manuscript. The bottom line is we don’t force those who own productive or valuable assets to surrender them to the public before they die.

Being an artist or author or musician is risky business at the best of times. You’re working on your craft with uncertain reward at the best of times. You’re probably also foregoing other opportunities that could earn more immediate rewards. To then tell someone who invested five, ten, twenty years to create a novel or play or sculpture or painting or whatever that “oh, too bad, you forfeit that investment of time because it took too long for your work to be popular” is incredibly unfair if the author is still alive, and will push those who might be debating whether to be a novelist or an insurance salesman to the side of insurance salesman because, hey, at least the insurance salesman gets paid up front.

jeevmon – you’ve got to be kidding. What author writes a book with the idea that it will be unpopular when published, but will somehow be a bestseller thirty or so years hence? I daresay such an author might be better off pursuing insurance sales, as he will need to feed himself during the thirty years of famine.

I utterly fail to see why we treat artistic types better than inventors. Patent holders experience the same uncertainty about the saleability of their invention in the marketplace and have the same issues regarding “drafts” and interim inventions. And yet we give them a flat (IIRC) 17 years max to profit from their work. After that, too bad. You say your kurfloofer valve didn’t find a profitable use until after that time expired? Too freakin’ bad.

No, unless the author is JK Rowling, the author writes with no knowledge of how well his or her work will be received. Becoming an artist or author is to choose a career with a great deal of uncertainty. If, in addition to the short-term sacrifice, a putative author also faces the possibility that their investment of time, effort and foregone opportunity might be taken away from them by operation of law while they’re still living, well, that puts authors and artists on unequal footing with other careers.

As far as why patents are treated differently, the nature of what patents protect and what copyrights protect are very different. And scientific and technological advances build on each other in a more concrete and observable way than advances in culture and arts. Unlike a copyright, a patent does protect an idea, and the patent holder therefore gets far broader rights of exclusion than those of a copyright owner, but for a more limited time. As an example, independent development is a defense in copyright cases, but NOT in patent cases. Fair use is a defense in copyright cases, but NOT in patent cases. Giving lifetime rights in patents would have a more clearly retarding effect on scientific and technological advancement than giving lifetime rights in creative works has on the culture. And the potential social benefit for a patent expiring are more concrete and measurable than a copyright expiring. The value of a patented invention is also potentially easier to determine because it is dependent on actual utility as opposed to consumer taste. Call me crazy, but I rate generic drugs as more important than Star Trek fanfiction.

Horse hockey. It puts them on exactly the same footing as other careers that involve speculation. Say I’m an entrepreneur and I start a new business venture that I’m sure will take the world by storm. Unfortunately, I’m ahead of my time and I go out of business in a few years. Ten years later, other entrepreneurs using my exact same idea start making a mint. Do I have reason to bitch about my lost investment of time, effort and foregone opportunity?

Life is fraught with risk. I hardly think a starving author will be dissuaded from writing on the outside chance his work will become popular after the twenty-eight year mark and is thus in the public domain.**

But culture and art do build on prior works. And those connections are “concrete and observable” enough for a substantial amount of scholarship in the field.**

Neither of those defenses is terribly broad, popular opinion to the contrary notwithstanding.**

Really? Consider the myriad things that have been done with Shakespeare’s works or Grimm’s fairy tales. Lengthy copyright terms prevent similar extensions to the work of James Joyce or F. Scott Fitzgerald. **

Depends on what the patented item is. What’s more important, better boob implants or the works of Thomas Pynchon?

Everybody say it again one more time: copyright does not protect ideas. The more appropriate analogy might be if other entrepreneurs not only take the idea, but also all of the advertising materials and start using them. Then they’re not only taking your idea, they’re also taking the exact form in which you expressed it.

But someone who is deciding between a career in the creative arts and a more mundane career might choose to forego the creative arts, especially if he/she has family to support. Authors and artists need to eat and save for the future. If on top of all the risks that are inherent in the field, you add the risk of forfeiture, you tend to discourage creation rather than encourage it.

But how many of those developments require engaging in what would currently be considered copyright infringement? There’s so much creative expression going on right now within the boundaries of the current law that it’s really hard to see any retarding effect from the laws as they stand now.

I’m not denying that the building does occur, but the connections in science and technology are far clearer than in the creative arts. One technological improvement gives rise to another, and another and another and so on. The connections in the creative arts are far more abstract.

And it is possible to build on another work without infringing on the copyright. “The Simpsons” contains homages to other works all the time, but I highly doubt they get permission for everything they do. The existence of the copyright on “Star Trek” has not retarded the development of other science fiction series.

**

Nonsense. The death of fair use has been greatly exaggerated. As recent examples, you can convert songs that you own on CD to MP3 and download them to a player for personal use. And the law protected an author who re-told the story of “Gone With The Wind” from the perspective of a slave. Fair use is very much alive and vibrant. Just because it’s not considered “fair use” to copy music that other people created and offer it free to anyone with a computer doesn’t mean that fair use is dead or dying.

I thought we were discussing the appropriateness of a lifetime term of copyright. The post-mortem right is a different issue. I really don’t see the value that would arisen from making F. Scott Fitzgerald forfeit the right to his work while he was alive. I can more clearly see the value of requiring a pharmaceutical company to forfeit its AIDS vaccine after twenty years.

I’m sorry, but this is bogus, at least in any tangible, real-world kind of way. I’ll grant you the theoretical point in much the same way that I’ll grant you Farmer Filburn has some slight effect on wheat prices when he grows some for his own consumption, but in the real world this just doesn’t hold water. I’d really like to meet the creative type who sits there thinking “dammit, this thing I’m writing probably won’t take off until at least twenty-eight years from now, and then it’ll be public domain! Damn the copyright laws! DAMN THEM TO HELL! I think I’ll go be an insurance salesman instead!”

(That scenario also requires asking: how’s the writer going to eat for the 28 years?)

The overwhelming majority of artists think their works will pay the rent within a few years of completion. The outside chance that they won’t pay off until 28 years later I daresay doesn’t enter their minds when they’re deciding to write (or paint, or whatever). I have a very difficult time believing that the availability of copyright beyond 28 years materially impacts the decision to pursue creative arts.