Perspective on public domain
January 17, 2006 4:33 PM   Subscribe

Its been discussed many times before on MeFi, and I'd like to get a clearer picture of this issue: copyright and public domain.

I understand many of the objections to Congress repeatedly extending the life of a copyright (currently at 70 years from death of author I believe), specifically in making sure there's a bit of a check on Congress' power in regards to Article I, Section 8, clause 8 of the Constitution. What I want to know is, what do you feel are the effects of extending copyrights in terms of society, culture, media, (any or all of these), and the value of having works in the public domain within a shorter time frame? I'd like real world examples if possible, although opinions as to the stagnation of culture and similar ideas are welcome.

And in case anyone is wondering, this question is the result of a school topic, however, this isn't for use towards an assignment or graded material of any kind. Its mostly just to try to make sense of my own thoughts on the issue by gathering different perspectives. Thanks.
posted by tetsuo to Society & Culture (19 answers total) 1 user marked this as a favorite
This is a big topic, but be sure to include discussions of the Creative Commons copyright in your paper.
posted by frogan at 4:40 PM on January 17, 2006

One of the biggest problems is that of orphaned works. When copyright lasts longer than the commercial life of a typical work, many works simply disappear, sometimes permanently. When a copyright holder disappears or no longer has a commercial interest in a work, then copyright only serves to prevent the preservation and future enjoyment of that work.

For example, many out-of-print films are literally disintegrating in studio warehouses, and may be lost forever. Cory Doctorow described this as “the slow motion burning of the library of Alexandria.”
posted by mbrubeck at 4:56 PM on January 17, 2006

Not only are orphaned works a huge of my pet peeves is the silly hoops that people like documentary filmakers have to go through to secure copyright for things that might show up on a few frames of film for a few seconds.

See this and this story for some idea how this effects documentaries.
posted by griffey at 5:07 PM on January 17, 2006

One thing is certain - the effects of retroactively extending copyright cannot be incitement to create those works, since every last work that the law affects has already been created decades ago.

A argument could be made for extending copyright from this point on, (a lousy argument, given the already enormous length, but an argument nonetheless), however since the stated purpose of copyright in the USA is only to provide incentive to create, while ensuring works still reach the public domain, then retroactive extensive has no legitimate purpose, and creates net damage to the legitimate purpose, since not only does it not create incentive, it prevents material entering the public domain. Thus political corruption is the only purpose behind retroactive extension (ie altering the law as a favour to campaign finance contributors, even though doing so works directly to harm the principles that copyright was built to protect).

Furthermore, I would argue that in addition to damaging the public domain, it damages innovation itself by not merely failing to affect the incentive to create, but by actually reducing incentive to create - those whose works were successful have no incentive to use their talents to create more, since their previous work will never enter the public domain.
posted by -harlequin- at 5:13 PM on January 17, 2006

Response by poster: This is a big topic, but be sure to include discussions of the Creative Commons copyright in your paper.

In case you missed the last paragraph, no paper, no deliverable at all on this, really just trying to get different views on the topic.
posted by tetsuo at 5:14 PM on January 17, 2006

The general argument in favor of copyright is that artists should be compensated for their work. If there was no legal mechanism for artists to be paid for their creations, then they would have no incentive to create, and people would stop making music, movies and books.

This argument is shaky enough as it is, but even if we grant it as our premise, the death + 70 years extension is indefensible on these grounds. It is simply inconceivable that any person would decide not to make a work of art because someone who isn't born yet might not be able to make money off of it three generations after his death.

It is impossible for such a long copyright to benefit the creators of content (who are long dead by the time it matters). It can only serve third- and fourth-parties who want to profit off of other people's work.
posted by designbot at 5:28 PM on January 17, 2006

The way I think about it is that a few years ago there was a popular Shakespearean stage show called The Māori Merchant of Venice. They couldn't do The Māori Breakfast Club, Māori Wing Commander or Māori Girls Go Wild without paying out the ear.

The massive extension of copyright takes all these potential works away. The problem is defending potential works, and getting people to appreciate that there could be so much more.
posted by holloway at 5:34 PM on January 17, 2006

Response by poster: Let me clarify a point here, copyright I understand, and I don't think anyone would begrudge an artist the fruits of his labor. I'm interested in opinion on the duration and how keeping things out of public domain damages society as a whole. Thanks for your responses so far, they are much appreciated and have given me some good points to consider.
posted by tetsuo at 5:37 PM on January 17, 2006

For example, many out-of-print films are literally disintegrating in studio warehouses, and may be lost forever.

Just to play devil's advocate, many older films are getting extensive restoration for DVD release. If anyone could simply copy the restored DVD's and give them away for free, studios would have no incentive to invest the time & money in preserving them.
posted by designbot at 6:00 PM on January 17, 2006

Try Vaidhyanathan or Lessig. Read up on the Eldred case - the arguments they made are what you are looking for. Here's one piece.

Nutshell: huge amount of today's content is based on old stuff. Look at Disney movies - they're all retreads of old stories that are out of copyright. Disney makes billions every year "stealing" from dead authors. Look at all the neat mashups you've seen on the internet, like Ascii Star Wars or Doom played with Hotel California as the background music or... all of those are copyright violations. If copyright wasn't standing in the way, there would be a huge amount of derivative content available. Copyright extensions benefit, basically, Disney. Every time Mickey Mouse is about to go out of copyright, Disney mounts a full-court lobbying press and copyright gets extended another 20 years.
posted by jellicle at 6:08 PM on January 17, 2006

Best answer: A copyright is typically most valuable and marketable shortly after its publication. Books, movies, video games, etc. generate a supermajority of its revenue in its first "run" - for example, a hardcover printing or theater ticket sales. Other times, a work will accumulate value with a "cult following" in its second run (typically paperback or video.) Think "Clerks" or "Office Space."

By vesting ownership as soon as pen hits paper, our copyright law clearly protects authors from unauthorized appropriation during this initial period of exploitation. After a famous work has ingrained itself into the national consciousness, however, the author's entitlement to an absolute grip on exploitation becomes less defensible. Suppose I am a devoted Harry Potter fanboy; I own all the merchandise and commune with other followers on the internet. As a matter of fact (though not as a matter of law,) do I not "own" a share of the work as a result of my investment in it? That is to say, wouldn't Harry Potter be slightly less famous, and J.K. Rowling slightly less wealthy (above and beyond her royalties from my purchases), if I had not participated in and contributed to Harry Potter's fame and notoriety?

At a broader level, once a copyrighted work becomes so famous and so ingrained in a national or universal consciouness, the public itself can be said to have entitled itself to a chunk of the work. As fame perpetuates, the amount of value contributed by the work's author dwindles in contrast to the amount of value generated and regenerated by the public. The statutory cutoff of 70 years can be said to be an arbitrary point at which the author's contribution has dried up completely and all value is generated by the public.

If you accept this argument, then you must also acknowledge the gross inefficiency that follows from it: The day after the copyright expires, the author owns 0% of the rights to it. But the day before the copyright expires, the author owns 100% of the rights. Owners of enormously famous copyrights - think Disney, Gershwin, Cole Porter, etc. - receive windfalls as their copyrights age. Not only that, but the fruits of the public investment can be ordered turned over to the author in a court of law. Surely, in a free market system, this is unjust enrichment? The system cries out for making intellectual property more and more of a public good as soon as the value derived from the author's original contribution dissipates into the value gained from publicity and notoriety.

For a case which confronts these issues head-on, see Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001) (the "Wind Done Gone" case).

On preview: The problem identified by designbot above with regard to out-of-print films could be solved with a use-in-commerce requirement, similar to trademarks, in which abandonment of a copyrighted work constitutes relinquishment of rights by the author.
posted by Saucy Intruder at 6:11 PM on January 17, 2006

what do you feel are the effects of extending copyrights in terms of society, culture, media, (any or all of these), and the value of having works in the public domain within a shorter time frame?

Interesting way to phrase the question, because it already assumes the bulwark of the "Intellectual Property" laws.

Sit back and think about this for a moment.

I can think a thought.

So can you.

However, I thought it first.

Therefore, you MAY NOT read about it, or listen to music based on it, or build a rocket ship based on it, or use it to save an innocent human life.

Unless you pay me a fee.

Oh, never mind - this is clearly the most sensible of all possible worlds. How could things ever be different?
posted by ikkyu2 at 6:11 PM on January 17, 2006

Have you ever seen the (super old) movies and cartoons that have started being sold for a dollar? My copy of Seven Samurai cost somewhere around forty dollars. I don't even think there's any special features, it's pretty much a straight copy of the movie. If copyrights expired sooner, every cornerstore in the world could sell it just like those cheap movies. Kurosawa and Kubrick for everyone!
posted by JackarypQQ at 7:32 PM on January 17, 2006

Response by poster: ikkyu2, when I ask that, I'm not intentionally assuming the bulwark of the "Intellectual Property" laws or attempting to defend them, but I have to approach them as real since they are, after all, the law. And I'm not positing my question in the argumentative sense, but sincerely out of intellectual curiousity.

Also, I'm not sure where you're going with your example since if I'm understanding correctly, thoughts/ideas aren't really the realm of copyright, copyrights are granted to a specific work. If we were to have the same thought, take the rocket ship example, and then follow through and both build it, I believe the first one to have the patent approved would then have the rights to the product of that thought.

Oh, never mind - this is clearly the most sensible of all possible worlds. How could things ever be different?
I don't really understand this comment, but people could create those works out of a drive to create and then distribute them freely (or perhaps a nominal fee to cover production)..that would be a best of all possible worlds.

On preview: Kurosawa and Kubrick for everyone indeed!
posted by tetsuo at 7:33 PM on January 17, 2006

however since the stated purpose of copyright in the USA is only to provide incentive to create, while ensuring works still reach the public domain, then retroactive extensive has no legitimate purpose

There actually is potentially one small, depressing counterargument to this: every time Congress extends the copyrights of existing, they create the expectation that future Congresses will also extend the copyrights of existing works, and thus creates an incentive for people to create new works. Cynical, but probably reasonable.
posted by gsteff at 7:33 PM on January 17, 2006

Prof. Lawrence Lessig has raised a suggestion to address the problem of orphaned works. After an initial period of time, a copyright holder would have to officially register his copyright in order to keep it in effect. Any item for which the registration is not made becomes a part of the public domain and may be used by anyone.

This would accomplish two things: it would define which items need permission and it would provide a registered address where the owner may be contacted for permission to use it.
posted by yclipse at 8:03 PM on January 17, 2006

Everyone so far has really focused on coming at this from the copyright angle, which is certainly interesting and well-trod ground.

Something that's more difficult to do but just as important and just as interesting - and in particular, perhaps, difficult for Americans - is to come at this from the culture angle.

How are "cultures" created? What is this thing, "Culture"?

Well, in the US the argument is very solidly dominated by one discourse, the idea of culture as product, as a catchall term covering several important industries that produce goods for sale domestically and for export.

From that framework, even understanding that many individuals in the society don't agree with it, people inside those cultural industries will suggest that if you suddenly allow ANYone to sell what WE made, that takes away value from my property. There's a constitutional argument there (one that I don't think has ever been tested, though the eminent domain stuff might be interesting in this regard), as well as a simple industrial equation - you make something, you sell it, and you decide when to quit selling it, and you have the right to sell it again later on, period.

The problem is that culture is not just about industrial processes, it's not just about economic benefit. It's about nation-building, identity, social cohesion, engaging processes of tradition in innovative ways to literally glue a society together in a coherent manner. Most other countries in the world have documented this dual character of "culture" as official policy and in fact 148 of them voted (4 abstained and just the US and Israel voted against) to approve a UNESCO treaty to this effect just last October.

So for most of the world, copyright is directly tied to two competing but equally important goals - the "soft" goals of nation-building, increasing societal benefits and all that good (but relatively intangible) stuff AND economic development (incl. export markets). Those competing goals are difficult to reconcile, but they do so in interesting ways.

In Canada it is currently absolutely legal to do certain things with, say, music files that it is illegal to do in the US. It is currently - though this is under threat - perfectly legal to download any song of the Internet provided you own a legal copy in any format. The music industry would and is trying to prevent such things, but nevertheless the courts have upheld these rights.

BUT - there is a surcharge, a sort of tax, on blank media that is paid to industry associations. Generally it's small enough that people don't ever notice it, but it's there. The policy goal is to say (this is the idealistic version, the reality is much less shiny): "OK some improper activity is going to occur, but we think it's important enough for people to spread cultural items and in the process create a wider Canadian culture that society as a whole is going to bear some of that cost and make sure producers still get some compensation for presumed lost sales."

And that spins around to the US because it's exactly - by my reading - what Lessig and many, many more propose is wrong with US policy on this - that it doesn't take into account that cultural items are about industries and creators at the center of those, sure, but they're also more important than that, bigger. And further, they argue (correctly, to me) that the US Constitution said exactly that and guaranteed it for ever.

Whew. Long. Hope it's helpful. I write on this stuff quite a bit.
posted by mikel at 8:30 PM on January 17, 2006

>And further, they argue (correctly, to me) that the US Constitution said exactly that and guaranteed it for ever.

Huh? You must be reading a different Constitution. The one I know says only, in Article II, section 8, that among the defined powers of Congress is:

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. "

The controversy arises from the fact that this section does not define what the "limited times" shall be, and thus by design that decision is left to Congress, to define as a matter of public policy. There is nothing in the Constitution that prohibits Congress from modifying the times, and it has done so a few times over the years.
posted by yclipse at 5:09 AM on January 18, 2006

That's the point yclipse - your quote is exactly what I had in mind and effectively demonstrates the point.

Whether or not the language is effective at communicating it is one thing, but the fact is they did specify limiting time which suggests that they understood that there should be a balance in policy between protection and freedom in this area.
posted by mikel at 5:55 AM on January 18, 2006

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