Well, if *I* were writing the copyright laws...

[haydenmuhl]

I had an interesting discussion with my roommate the other day regarding copyright law. We both agree that there are issues in current copyright law that need addressing, but I was surprised at his solution. In his opinion, the largest problem with copyright law is orphan works (not being able to establish copyright status, determine copyright owner, find copyright owner, etc.). He also says that the only purpose of copyright laws should be to encourage the production of new works and protections should be as minimal as possible to achieve that goal.

Here's his solution in bullet point form.

• Copyright lasts no more than thirty years from fixation of a work.
• You must register a work with the copyright office in order to secure your copyright. You have five years from fixation of a work to register it.
• Registration fees will be approximately $20 per work. (We're in the US, so USD, I guess)
• You must provide a digital copy of your work to the copyright office for archival purposes. Works in this database become generally accessible to the public as they fall out of copyright.
• There will be mandatory licensing guidelines, meaning you must grant use of your work for some standard fee.
• If you cannot be contacted regarding licensing of your works (i.e. if your contact information on file with the copyright office is out of date), you lose your copyright.

What are your thoughts on a system like this? What problems do you think this solves? What problems do you think this creates?

If you could redesign the copyright system from the ground up, how would you do it?

[pjones235]

I wouldn't have a copyright system...

[Carolus]

That's really interesting. Your roommate is essentially advocating a return the the system that was in place in the 19th century, with a few modifications that were added with the 1909 law in the USA. A century ago, a work published with the required notice was entitled to 28 years of copyright protection. Another 28-year term was available upon application of a renewal registration - for a maximum term of 56 years from publication. Congress started changing this in 1962, so works first published in 1907 and after and renewed after 28 years were automatically extended each year until the revisions were complete (1977) - which resulted in a renewal term of 47 years. The 1907 works thus entered US public domain on January 1, 1983 - a total of 75 years from the date of first publication.

[KGill]

I think it would be fair if copyright ended completely after the death of the last surviving author. Orphan works should not be subject to copyright protection as there is no established author to protect, and I'm afraid that by the same logic purposefully anonymous works would have to go without protection as well. If the copyright is by an organization and not an individual, then it would be appropriate for (a) the work to get by default a certain number of years of protection, say 25 or 30; and (b) if the organization ceases to exist, all extant copyrights would terminate immediately, just like they would with the death of a person. I think that no registration should be required, and certainly no registration fee should be in place, as that seems unfair (shouldn't taxes pay for the copyright office already? maybe not, I haven't looked up their budget). Not sure how I would handle urtext editions.

[haydenmuhl]

@Carolus, Yes, I had just watched a video talking about how Star Wars would now be public domain under the original US copyright laws, which is what prompted me to ask his opinion.

I guess what I'm wondering is, why did we move away from that system? Was it just a push by those with profit motives to keep extending copyright, or were there legitimate logistical problems with that system?

IMO, the system I laid out in the first provides insufficient protection for lesser known or struggling artists. I don't think his ideas are necessarily without merit, just in need of refinement.

[Carolus]

I personally think the German government came up with a fairly reasonable treatment of urtext editions. 25 years from publication is probably a reasonable time period for an organization who invested the funds to create such an edition to recover their expenses and (hopefully) make some money for the next project(s). This policy seems to have encouraged the production of such editions in Germany as well. Such editions are not the same as a new opera by composers like John Adams but - taken as a whole - are works which consist of various combinations of "sweat-of-the-brow" research labor plus (sometimes) a modicum of original creative work in the form of continuo realizations, prefaces, and critical notes. Like you, I am generally opposed to extending copyright terms beyond the lifetimes of authors. If the main benefit of the legal monopoly is the encouragement of the creation of new works (as it is often argued), it clearly ends once an author is no longer here to create new works.

[Carolus]

@haydenmuhl: One of the more common reasons offered by those in favor of extension was to harmonize US copyright with European laws and enable full participation in the Berne Treaty. This rationalization really collapses with the "Sonny Bono Copryright Extension Act" - where the extension of pre-1978 copyrights actually created less harmonization of terms than was present before. This whole line of argumentation strikes me as a fig-leaf. The main beneficiaries of all the term extensions appear have been the relatively small number of very wealthy media companies who own lots of existing copyrights.

[haydenmuhl]

One of the more common reasons offered by those in favor of extension was to harmonize US copyright with European laws and enable full participation in the Berne Treaty.

For the purposes of this thread, I don't know that I would consider that a valid argument period. It begs the question of why the European countries adopted a life-of-artist system over a since-publication system. Also, I had intended this to be more of an academic discussion about custom designing your own copyright system from the ground up. Kind of like the physics problems you did in school where everything was frictionless and perfectly spherical. I think it's a useful discussion, even if real life application would be much more complicated.

I was wondering if there were logistical problems caused by counting copyright from date of creation. For example, I have seen lots of threads where it's difficult to tell if something is copyrighted or PD due to insufficient information around when something was first published/created/whatever. It seems to me that copyright terms based on life of author simplify this problem. My roommate argues that the shorter term of copyright (~30 years after creation) requires an artist to continue to be productive, since his copyrights run out during his lifetime, and allows more people to produce derivative works much sooner.

[steltz]

I'm not sure it's useful to stop copyright while a composer is alive -- after all, we are more and more responsible for our own retirements these days, and some people live quite a long time after retirement without necessarily being able to work productively. A person should be able to reap the benefits of his work for his entire life.

[haydenmuhl]

I think it would be fair if copyright ended completely after the death of the last surviving author.

I disagree with this. Let me give you two contrasting scenarios.

Scenario A: Bob spends a year working as a staff writer working on a television show.

Scenario B: Bob spends a year writing a book he plans to publish and sell.

The difference I see between scenario A and scenario B is that in scenario A Bob is being paid for his work up front in the form of his salary. In scenario B, Bob's time writing the book is an investment in the profit he will make in the future by selling his book. What happens if Bob is hit by a train? If Bob the staff writer is hit by a train, that is no different than if anyone else with a day job dies. If Bob the freelance writer is hit by a train as he finishes his book, I don't think that should make his investment null and void. Sure, Bob is not here to collect, but perhaps he has dependents that are. There may have been other people who invested in Bob's book in the form of an advance from a publisher. I don't think Bob's unfortunate accident should invalidate the printing rights the publisher secured in return for that advance.

Given that justification, I think that the current state of 50 or 70 years post mortem is excessive. If Bob were to have a child just before his untimely demise, that child could possibly have grandchildren of his or her own by the time the copyright expires under current law. The point is to avoid cutting a family off at the knees, not to bank roll several generations. At the other end of the spectrum, with no copyright after death, I feel it could be unfair to the middling and/or moderately successful artists.

[Melodia]

I tried to wright a post last night but the forum derped...

But yeah, I agree with the above. I was saying perhaps death + 20 /or/ the death of the last surviving children or (current) spouse, whichever is first. Certainly a creator shouldn't be penalized in their gains just because they happened to created a hit at age 25 vs. age 65.

[haydenmuhl]

I actually would have no problem setting the term of copyright since publication, even for individual works. I don't know if I would set it as short as 30 years like my roommate suggests, but I do think it's rather ridiculous that works from the 1940s and 1950s are still under copyright. I think if you set it based on length of retirement you could let the early works fall out of copyright, and let the artist continue to capitalize on later works through retirement.

If people retire at 65 and we take the upper bound of life expectancy as 100, we could set the copyright term to 50 years. In the most extreme case, this would allow the artist to capitalize on the last 15 years worth of work through his or her death. We could add an additional clause of death + 20 and have copyright end at whichever happens first.

[LadyIslay]

There will always be new works created: we simply cannot contain our creative spirit. With the Internet and self-publishing options available, I think we have access to more new works now than we ever have. Has there been any measurable reduction in artistic output? I suppose that the argument could be made that huge corporations may have a reduced desire to publish and distribute new works, but I don't think that stops people from creating. If anything, it makes copyright protection so much more important because it is protecting artists that self-publish instead of corporations that just do distribution and marketing.

1) Life + 50 years, or in the case of a corporation, 50 from the date of publication, is fair. It's well established and was pretty much standard until recently.

2) There should never, ever be a fee involved to have your intellectual property - writing, art work, composition, images - protected. That protection should extend to all works as they are created. Should a child that writes a song have to pay $20 to have that protected from being commercially exploited? Could you imagine how crazy it would be for a photographer to have to pay $20 to guarantee their rights for every photo they take?

3) An artist should never, ever be forced to have to license your work, at any cost. There are so many reasonable grounds for refusing a license. What if you object to the ethical practices of the person or corporation that wants to license it? What if a political party wants to use a photograph of your children in their propaganda? What if a competitor wants to license your work for profit, putting your own business at risk? What if you’re a vegan animal rights activist, and the beef industry decides they want to use a song you composed for their latest media campaign?

4) Requiring up-to-date contact information to be on file is a good idea, but it puts the burden on the artist rather than the party that wants to use what properly belongs to the artist. What if they just don’t want to license their work to anyone? I have been very, very frustrated by publishers that don’t respond to my requests for reprinting out of print sheet music. A fairer solution to this problem is that if the copyright holder complains, but the user can demonstrate that they practiced due diligence and attempted to contact the copyright holder, then they should be exempt from exaggerated penalties. For example, if a church choir gets caught with 20 unpaid photocopies of an out-of-print anthem, but they can demonstrate that they did try to contact the publisher through the publisher’s advertised email or web-form to pay for the works but the publisher never responded, then the choir should be exempt from any legal fees or fines, though they should still have to pay the standard “print-on-demand” fee or the cover price of the work when it had been in print.

[haydenmuhl]

What if a political party wants to use a photograph of your children in their propaganda?

From what I understand, there are reasons unrelated to copyright to block this. The subject of the photo (or legal guardian, in this case) would have to sign a release to allow use of the photo. It wouldn't matter who owned the copyright. For example, in man-on-the-street interviews, like this, the TV program recording the footage would own the copyright, but the person they're taping had to sign a release to allow them to use it.

An artist should never, ever be forced to have to license your work, at any cost. There are so many reasonable grounds for refusing a license. What if you object to the ethical practices of the person or corporation that wants to license it? What if a competitor wants to license your work for profit, putting your own business at risk? What if you’re a vegan animal rights activist, and the beef industry decides they want to use a song you composed for their latest media campaign?

You raise an interesting question here. On one hand, while you may find someone's use of your work offensive, I don't think people have a right to not be offended. On the other hand, what about the right to decide who you do and don't do business with?

4) Requiring up-to-date contact information to be on file is a good idea, but it puts the burden on the artist rather than the party that wants to use what properly belongs to the artist. What if they just don’t want to license their work to anyone? I have been very, very frustrated by publishers that don’t respond to my requests for reprinting out of print sheet music. A fairer solution to this problem is that if the copyright holder complains, but the user can demonstrate that they practiced due diligence and attempted to contact the copyright holder, then they should be exempt from exaggerated penalties. For example, if a church choir gets caught with 20 unpaid photocopies of an out-of-print anthem, but they can demonstrate that they did try to contact the publisher through the publisher’s advertised email or web-form to pay for the works but the publisher never responded, then the choir should be exempt from any legal fees or fines, though they should still have to pay the standard “print-on-demand” fee or the cover price of the work when it had been in print.

Wouldn't this be in conflict with point number 3? What if the publisher or composer didn't want that church using that anthem?

[Carolus]

An artist should never, ever be forced to have to license your work, at any cost. There are so many reasonable grounds for refusing a license. What if you object to the ethical practices of the person or corporation that wants to license it? What if a political party wants to use a photograph of your children in their propaganda? What if a competitor wants to license your work for profit, putting your own business at risk? What if you’re a vegan animal rights activist, and the beef industry decides they want to use a song you composed for their latest media campaign?

An interesting point. As it stands right now under US law, a vegan animal rights activist who wrote a song would have no choice at all about the beef industry's use of his song if the song in question had been previously recorded and made available commercially. It's called the "compulsory license" provision. Even the royalty rate is determined in advance, though it changes from time to time with rulings from the Copyright Royalty Tribunal - a special Federal court in Washington, DC. For example, if Aaron Copland had been a vegan animal rights activist, he would have not been able to stop the beef industry from using the "Hoedown" from the ballet Rodeo in its TV commercials (Beef - it's what's for dinner).