Back to the OP, a point was made elsewhere that the Atlantic article shows a pattern and attributes it solely to the copyright law, while there are other factors in publishing that have affected how long something remains in print . For instance it doesn’t differentiate by type of books – as students know, college textbooks go out of print far more rapidly in the past so a five-year-old textbook is unavailable not due to copyright but because the publisher has chosen to replace it.
The factors that cause the trends in the chart are complex and can’t be easily simplified to show that there’s one single cause.
Same thing here. I sold first serial rights only, but the publisher took that to mean all rights, and tried to reprint the material without paying me. I had them dead to rights in the documentation, and they paid up at my first request; it was obvious I would win a suit.
(And, yeah, on the Worst Sellers’ List! Me too! Sigh! Needs more sex, I guess!)
I just don’t see how a long copyright term makes you want to keep writing books more than a shorter one. You can just keep earning on the books you already wrote–maybe release them with a new cover or something. You need a short copyright term so you can’t rest on your laurels, even if your book is a best seller.
As for the argument that we’ve never had a copyright term as short as 25 years–so what? The question is, would you continue writing if it was that short? It’s the same question we ask rich people if they would stop trying to be rich if they have to pay more taxes. The point is to find that equilibrium that maximizes creative output. That is, I remind you, the sole purpose of copyright: to encourage authors to write and creators to create.
Maybe 25 years is too short, but give us something other than “we’ve never done that before” as an argument. Give us some reason why authors would decide to make less content.
That’s not to say I wouldn’t personally be happy with 50 or even 75 years. Anything’s an improvement over 2 freaking lifetimes. I mean, even one lifetime doesn’t make a lot of sense, since what does how long you are alive have to do with maximizing creative output? And why in the world have a system that’s so uncertain? To figure out if you can use a work, you have to track down proof of someone’s death, or prove it hasn’t been renewed. It’s ridiculous the amount of hoops you have to go through.
But that doesn’t mean I don’t want to see an argument. Exapno says we readers are all ignorant of how it really works. So fight our ignorance. Don’t just tell us how it is–show us. Actually try to convince us.
You have an extremely unrealistic idea of what it’s like to be a professional writer.
A very small number of writers are able to “rest on their laurels” and live off of royalties from one book.
The few writers who have written such popular works that they can rest on their laurels deserve to be able to on the very basis that the marketplace has proven that what they’ve written is worth it to the world at large.
We don’t have to theorize about this. We have tangible proof. As copyright protections have gotten stronger and stronger, the amount of creative works being produced has exploded.
Are you sure that’s cause and effect? Couldn’t the explosion in creative writing be the result of some other cause? Or lots of causes?
Thirty years ago, when I first started out, there were more magazines that bought short fiction than there are today. The market was more open, more welcoming. A guy could get published, professionally, while still having a fair deal yet to learn about the craft of writing. Today, it’s a lot harder to make that first sale.
An awful lot of people are giving their stuff away free on internet sites. I wonder if this instant gratification – seeing your name and work on the screen – is part of the explanation for the explosion.
(I very fondly remember the great Black and White Explosion in comic books. Small independent self-owned comics were all over the place. It was great! Yeah, many of them were garbage, but many were just damn wonderful. Now? That entire cycle is over and done with. The comic book stores and the big distributors simply stopped carrying them at all, killing the market.)
This characterization is inconsistent with introductory microeconomics. Intellectual property has public good characteristics, specifically the one of non-rivalry.
Bread is an ordinary good: if I eat it, you cannot. Information is different: my reading a .pdf file doesn’t displace you reading the same information in any meaningful way.
…and I trust you do not believe that the law treats downloading a music file on torrent the same as stealing a CD or jewel case from a record shop.
I endorse Nemo’s sentiments upthread here. And it seems to me that a mandatory licensure system for out of print books would be win-win. Ebay and Amazon have vastly increased the depth of the used book market, but there are still technical publications that remain unavailable. It’s hard to see a compelling downside to legally streamlining print on demand.
Sorry, Chuck, but I’ve run into many contrary examples. A new, minor or unrepresented writer is going to get the most unbalanced contract the publisher has on file.
Very few new or early-career writers have agents, and a lawyer is going to be of little service (e.g., they can advise all to hell but have no leverage in the publishing world). Even though the field has flattened out, first-few-times writers are stuck with the same old options of taking what’s offered, no matter how shitty; trudging to the next house and waiting out the sludge cycle; or just piling the mss in a drawer. Agents typically won’t touch a new client until they paradoxically have a significant list of sales.
All due respect to your long experience, but it appears to be in a narrow genre and you may have been lucky enough to acquire an agent as a relative newcomer. That was still possible 25 years ago or so. It hasn’t been for at least 20, especially outside the two fiction subgenres friendly to newcomers.
Sigh. Please go back and read my post. Since I began by saying
I propose that I was, indeed, wondering how the system currently works, not declaring how it did work or attempting to “fix” anything.
Jesus. Why are you trying to manufacture an argument with me?
Then make that distinction and provide your definitions for those terms. What I’ve been discussing here in this thread has not been commercial work, aka work-for-hire. I am not talking about an employee of a company producing work for that company under the specific legal terms that make it work-for-hire. I’m talking about an independent creator, who created a work on their own non-compensated time, selling license to that work under contract to another entity, like a publishing house.
If you do work-for-hire, you never have copyright on what you create. Copyright is owned by the business entity you are employed by and created the work for, and that’s not what I’m talking about here. If you create your own work, you own your work, you own your copyright, and you can only lose it by signing a piece of paper that gives it away (or sells it). Given that continuing income on your work (royalties) is kinda the POINT of copyright, signing it away is foolish, in the long-term. Especially now, when you don’t NEED one of the Big 5 to put your work on sale. But honestly, it was foolish before too, even when the balance of power was much more heavily tilted in the other direction. You need to be an advocate for yourself when creating a contract. If you want to be fairly compensated for the work you’ve done, it behooves you to be prepared to walk away from a bum deal. If you don’t care about being fairly compensated, accept whatever deal you want. But people not standing up for themselves is what allows these unfair contracts to continue to be offered as “my way or the highway” deals.
For the record, there are plenty of commercial photography shoots that ARE work-for-hire. It’s not that rare.
Also, saying that “art” isn’t or can’t be “commercial” (something saleable/to make money on) is a false distinction. Artists deserve to be compensated for their work just like lawyers, accountants, and mechanics are.
Oh, forgot to add: if the current “take-back” system is at a 35-year grace period for a book to be out of print before the author can terminate the contract, as was suggested above, that’s bleeding ridiculous – even if it doesn’t sell at a rapid pace, over 35 years that’s a shit-ton of lost sales (noting that used-book sales do nothing to provide income for the author). So we can “fix” it by creating a standard of use-it-or-lose it that’s a significantly shorter period of time. A year or two, max.
I wouldn’t mind seeing that written into copyright law, that exclusive licenses terminate if the license holder isn’t using it.
You said “When I create contracts for photography shoots I am VERY clear that 1> the other party is only getting a non-exclusive license, not copyright, and 2> they don’t get that license before I’m paid in full.”
You don’t “contract” for art shoots. You “contract” for WFH. Any client who hires a photographer and contracts for work to be done to spec and then only accepts final-print rights is an idiot. Unfortunately, there’s quite a mass of semi-pro photographers who think owning a camera entitles them to artist-level control of everything that goes through it.
I do quite a bit of commercial photo and video myself; I hire it out when there are special needs. One of my first statements to new prospects is “This is work-for-hire.” The ones who object and want to sell print rights only don’t get called back.
Art/artist: one thing. Commercial/contract/client work: quite another.
I’ve also written millions of words for pay; if it’s under contract, I don’t retain future rights to it. If it’s “art,” I do.
All of which boils down to that I don’t think you’ve proved any point you set out to make, nor does your narrow non-writing experience give you any basis for judgment. Sorry.
You can propose that now, but it’s nowhere in the actual post I was responding to.
Because you’ve demonstrated a consistent lack of knowledge of the industry, of contracts, and of the law while spouting endless opinions on them. If I can’t argue with that, then what’s the point of anything?
While it’s true that copyright infringement can be a crime, as you’ve noted, Exapno, theft is not copyright infringement. Despite what the RIAA would have you believe.
This is not to say that copyright infringement is always O.K, or even some of the time; it’s just that the trite aphorism that ‘copying music = theft’, makes my teeth itch. They are separate crimes, when the act of infringing a copyright even constitutes a crime at all. Conflating the two does provide proponents of strong copyright the ability to free-ride on several thousand years of moral opprobrium against theft though.
No, really, you’re wrong. There are publishers that DO demand ALL rights. And there are suckers who sign on with them. I’ve run across them a couple times, but fortunately I do read the fine print and didn’t sign.
On the same page as my link there are references to The Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, The No Electronic Theft (NET) Act of 1997, and the The Artists’ Rights and Theft Prevention Act of 2005.
To paraphrase, you are free to your own opinions but not your own law.
Titles to Acts of Congress, while often pithy, and, as your NET Act shows, often chosen for their ability to make a snazzy acronym, have nothing to do with how to characterize the legislation within. The text of the legislation within the sections of the act does that. At best, an advocate can use a act’s title to try and discern legislative intent. Here, the intent appears to be that freeriding on society’s hatred for thieves that I mentioned in my previous post.
Part of the problem is that, in theft, there is an intent to convert the rightful owner’s property to their use. Usually, the intent is to deprive the owner permanently. In infringement, the owner still has their property; but the infringer has made an unlawful use of it, intentionally for the criminal infringement statute you cited above…
It’s hard to completely divest someone of non-rivalrous property. When the infringer copies a protected work, the copyright holder still has the original work. They may have lost a sale, though that’s debatable, but they still have their work. Compare infringement from, say, misappropriation of trade secrets. That’s a case of what appears to be non-rivalrous property too: the trade secrets holder still has the information. But what they’ve lost there is the secret of it. The secretive nature of the information is what’s been permanently deprived from the rights holder. It’s still not theft, which is why it’s called misappropriation, usually, but it’s a lot closer to theft than infringement.
I’d agree that theft and criminal infringement are related within the set of one willfully using another’s property without permission. They’re both violations of one or more of a property holder’s rights in that property, but they’re not the same crime or the same act. Again, this isn’t to say that copyright infringement is invalid, or shouldn’t be a crime. I’m just saying that it isn’t theft.
I understand your argument. It’s presented well. I continue not to agree with it. (Or to the contention that The Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 and the The Artists’ Rights and Theft Prevention Act of 2005 are “pithy” titles. :p)
Part of the problem is the difference in ways words are applied in the common language and in legalese. That’s a part of everyday language and appears in almost all legal discussions, in terms like rape, assault, and harassment, along with the common synonyms for theft given in your link.
Both legislative intent and the wording of law show an intention to make treatment of loss of opportunity in intellectual property parallel loss of physical property. I’m not an expert, but my understanding is that this is a long-standing principle in IP law, not something that was suddenly invented when the Internet arrived. (Any IP lawyers reading: I invite you to provide some expertise. If you’re an IP lawyer, Gray Ghost, give some history on this.) I call that loss theft, and I believe not only that it is but that everybody must be made aware that it is. I think we should be shouting INFRINGEMENT IS THEFT at every opportunity. People do not like to be called thieves and the recent history of music downloads shows that when they are revealed to be thieves and an alternative arises, many people, probably the majority, will retreat from thievery.
The even bigger problem is that this whole thread is mostly irrelevant to whether infringement is theft. The problems that need to be fixed will remain whether or not a fine legal distinction is made between the words. I’d rather concentrate on those.
When negotiating with artists/photographers I am negotiating for limited licensing rights, not ownership. I usually ask for print and electronic rights, occasionally with the right to reproduce the art for marketing purpose.
Most of the time I only ask for limited (5-year) ebook/paperback exclusivity.
Maybe *you *don’t, but I can assure you that the artists I know here in Chicago do. Not just me. I’ve hired them (and therefore read and signed their contracts), I’ve discussed business and copyright with them.
Using the common definitions of the words, a “contract” is not an employer-employee relationship, and therefore work-for-hire does not apply, short of you actually writing it into the contract. The client doesn’t withhold income tax, either, and they would be required to if they were your employer.
Not really. A contract, as noted above, is not the same as a w2 employer-employee relationship. You can obviously write whatever you want into a contract, but that doesn’t mean others are wrong for writing their contracts differently. Other people may actually have different goals and priorities than you do. Shocking, I know.
You’ve made it quite clear that you don’t think so. That doesn’t make you correct, nor does it invalidate my experience. Please keep in mind that copyright is NOT the exclusive purview of writers. So my non-writing experience is just as valid in a discussion of copyright as my writing experience. So is my experience working as an independent contractor.
It was the first sentence of my post. :rolleyes:
It wouldn’t kill you to have a courteous discussion without being condescending. There’s no need to argue when we fucking agree with each other. I seriously don’t get your need to put words in my mouth and then lord it over me as if you’ve proved something. It doesn’t make you look knowledgeable, if that’s your goal. Quite the opposite.
I read your link. Roughly speaking, three criminal acts involve a) commercial gain, b) reproducing work in volume ($1000) and c) uploading material. None of that covers downloading a file or two. And it’s a very different section of the law than shoplifting, both in theory and in practice.
Right, and common language is in flux in our age. Nobody will stop you from saying that property is theft either, but most will suspect that a simile is involved.
I’ll also repeat that in economic terms, intellectual property is a different beast than other forms of property be they land, stock or personal item.
Fair enough, but if we’re discussing policy an understanding of the underlying economic issues is highly relevant. For example, there’s a reason almost all corporate bonds have a maturity under 30 years: cash flows that are further out simply have little value in a present value sense. You could slash copyright horizons from 90 years to 30 years and it would have de minimus effect on a corporation’s decision to invest in a product. Now I like cutting individual artists slack as well. But Steamboat Willy should have entered the public domain long ago: there’s no rational basis for keeping it ensconced.
I actually don’t understand what you mean by “keep earning on the books you already wrote” in this context. If, as you propose, your books are kicked out into the public domain after a relatively short period of time, no, you can’t keep earning on those public domain books. Best case scenario is that you have a few loyal fans who will buy your public domain books out of a sense of obligation to support you, instead of getting it for free, which would be perfectly legal and likely easier at that point. You’d certainly not keep earning on a public domain book anywhere near like you would if you still retained copyright.
But since you asked the question: Imagine you were considering starting a business. Like with any business, getting it to the point of earning you some income will require an outlay of expense (computer, writing software, or say manufacturing facilities). And it will require an outlay of time (writing, accounting, designing and making widgets).
Now suppose you’re doing your research on starting this business (widget manufacturing, whatever), and your lawyer points out that in 25 years, you will have to relinquish ownership of any product design older than that, and you will no longer earn money from it, even if it’s still selling well.
Would that seem worth it to you? That rather than continuous growth of business income over the years you put into it, after 25 years some of it simply gets taken from you, that income just goes away. You’ve put in a lot of time and effort developing an extensive product catalog, but then business growth just stops because you no longer have the right to own those widgets you’ve already made – and therefore any attempt to sell them will be met with loss of custom as those who might have been customers go find it for free. Do you want to start that business? Is it worth it? Knowing that the limit on potential income is not correlated to your efforts?
Sure, there’d be people who did it anyway, because that’s what they love doing. But I can tell you MY motivation would be dampened, knowing that I’ll lose income on the things I made through no choice of my own. I’d probably invest more time in an income that won’t get gutted simply because time has passed – and would therefore have less time to devote to it, even if I could somehow keep my resentment down and motivation up. Either way, my production rate goes down, not up.
