
What Could Have Entered the Public Domain on January 1, 2018 - aw3c2
https://law.duke.edu/cspd/publicdomainday/2018/pre-1976/
======
pmoriarty
Copyright should be abolished.

As it stands, copyright serves little positive social purpose. The
overwhelming majority of creators get paid little if anything for their work,
and still there is a glut of content. So there should be no fear of the world
losing lots of great content if there was no copyright.

Most of the benefit of copyright is reaped by the middle men, who profit off
the work when the creatives that made it have long ceased to do so (if they
ever did). Abolishing copyright will thus mostly affect these middle men, and
have little effect on content creation itself.

Those creatives that still want to get paid in a copyright-free era can find
business models that don't rely on copyright, like performances, donations, or
kickstarter-like models when one is paid for future work.

~~~
tarboreus
No copyright isn't the solution. But it probably would be better than the
current situation. Bring back either a 20-year copyright or an "author's death
plus 10 years" version. The latter would be easiest to litigate and would
incentivize relatives pulling together and sharing papers and unfinished
manuscripts.

~~~
rlayton2
Serious question: how would "author's death plus 10 years" work for companies?

~~~
bjoli
Have a fallback. Authors death +10 years or at most 30 years (numbers pulled
out of my posterior. I am not suggesting anything)

~~~
T-hawk
This encourages gaming the system: companies will seek to designate as the
copyright holder the youngest available employee, to make the term last
longer.

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acd
Extending copyright terms into the future is the copyright extension law. Alsa
known as Mickey Mouse Protection act brought to you by Disney.
[https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act](https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act)

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zdw
Why not treat I(ntellectual|maginary) Property like actual physical property,
and levy a property tax on it, or the income earned? Maybe with a 14-28 year
tax free period to encourage creators?

I realize this would create a huge accounting burden... but only in cases
where it's worthwhile to continue charging for the property.

~~~
JoshTriplett
You'd get little to no traction with that if you frame it as a tax, leaving
aside that many potential allies for such an approach would object to
enshrining the characterization of copyright as "property". (Also, income
earned is already taxed.)

Now, on the other hand, if you phrase it as a _renewal fee_ , that would go
over much more smoothly. Patents, for instance, have maintenance fees required
at 4, 8, and 12 years, and they double each time.

I'd love to see, as a step towards limited-duration copyrights again, an
exponentially increasing scale of renewal fees. For instance, after the first
5 years, it could cost $1000 for the next 5, $10k for the next 5, $100k for
the next 5, and so on. (Throw in a grace period where all existing works get 5
years from the date this is passed, so people can adapt, and have time to
evaluate what to renew.)

On that scale, after 5 years, any work producing value would be worth
renewing. Some works will be worth renewing for 20 years. Incredibly high-
value works might be worth renewing for 30 or even 35. But there'd be a
serious tradeoff there; is it worth spending that much to renew the copyright
of an old work, or to create a new one that grabs people's interest?

And as a bonus, abandoned works that no longer have anyone around to care
about renewing would move into the public domain.

~~~
ww520
I like idea of renewal fee, with an exponentially increasing scale as time
passing by. Real properties are already being taxed twice, once on the rent
produced and once on the property itself. Intellectual properties should be
"taxed" the same way.

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yason
I've sometimes wondered why patents and copyright have diverged so greatly.
The latter has been inflated to near-eternity by corporate lobbying whereas
patents still, in practice, have a limited lifetime which itself also hasn't
really grown over the years.

Is it somehow easier to lobby for longer copyrights than longer patents?

Is owning copyrighted works more profitable than patents, yielding more
funding for lobbying?

Is the amount of turnover from copyrighted works so much greater than the
turnover from patents that while both proponents are lobbying for longer
durations the copyright guys beat the patent portfolio owners 10x (or 100x) in
numbers and they cross a threshold for lobbying money where they get at least
something done?

Financially looking, is the lack of lobbying an indication that patents aren't
really worth anything because nobody is willing to put money into protecting
theirs by lobbying for longer durations?

Is it somehow legally more difficult to lobby for longer patents as opposed to
longer copyrights?

Patents are especially rotten when it comes to "software patents" but their
founding ideas would be a fresh gust in the copyright land. Limited duration,
requires active renewals, any secrets are put on the open table straight from
the beginning which ensures that the fall to public domain will actually be
possible.

~~~
mikekchar
I think the main thing is that new technology routinely builds on top of old
technology. Sure, it would be nice to still be collecting royalties for your
100 year old patent, but you can't build anything _new_ unless you license all
the technology that came after it. The cross licensing necessary would simply
mean corporations having to shovel vast sums of money to legal firms. It's
simpler, cheaper and better for corporations to have patents expire. As
another poster commented, we are starting to see large software companies
realise the massive downsides to software patents and I suspect that we will
see those restricted even further in the next 10-15 years.

For copyright, on the other hand, certain franchises are worth lots of money
but there is a limit to how much you can build on past works. Disney could
theoretically insert Mickey Mouse into every film they make, but that grows
old _fast_. They have to create completely new stories, characters, etc to
make money.

There is very little incentive to cross license most creative works. Even
where it is done fairly liberally, for example American comic books, I think
you could argue that it isn't necessarily a good idea. Apparently the most
lucrative approach seems to be to exploit something while it is popular, then
sit on it for 20-30 years before you "reboot" it for the next generation. What
the copyright lobby is protecting against is that potential "reboot". They
generally don't want it to be used in the meantime.

I think this is one of the areas where the FSF gets things right. It's really
misleading (and potentially dangerous) to lump "intellectual property" into a
single bin. All of the things commonly referred to as IP are _really_
different in terms of motivations of actors and consequences to society. Would
anybody seriously argue for time limits on trademarks, for instance? It would
be an interesting world if anyone could sell "Kellog's Corn Flakes" just
because the trademark was old ;-).

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jccalhoun
Things will go into the public domain in 2019 unless Disney gets Congress to
extend it again. Even though Mickey Mouse wouldn't go into public domain until
2023, I have read that Disney will want to act before 2019 to keep the dam
from bursting on new public domain works.

~~~
pizza234
Disney has another trick up its sleeve (which will possibly bring the dispute
to a permanent conclusion in their favour).

Excerpts from a detailed Priceonomics article ([https://priceonomics.com/how-
mickey-mouse-evades-the-public-...](https://priceonomics.com/how-mickey-mouse-
evades-the-public-domain/)):

> Even if Mickey’s copyright does expire in 2023, Disney has no less than 19
> trademarks on the words “Mickey Mouse” [...]

> According a precedent set in a 1979 court case, a trademark can protect a
> character in the public domain as long as that character has obtained what
> is called “secondary meaning.” This means that the character and the company
> are virtually inseparable: upon seeing it, one will immediately identify it
> with a brand. [...]

> In other words, Disney has ingrained Mickey Mouse so deeply in its corporate
> identity that the character is essentially afforded legal protection for
> eternity, so long as Disney protects him (trademarks last indefinitely, so
> long as they are renewed).

~~~
diggernet
This is why I've never understood the Mickey Mouse Protection Act. They don't
need it.

I mean, let's say the Steamboat Willie short was public domain. Disney doesn't
make any significant money selling it, so no real direct loss. The character
name is still trademarked, so that's not available for use. What exactly is
the possible harm to Disney?

~~~
lozenge
Remember the bumper sticker of Calvin from Calvin and Hobbes pissing? They
don't want stuff like that polluting their brand. They also don't want to
compete with old cartoons that are good and would be free to broadcast, and
they don't want their old racist cartoons distributed.

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Testudio
I am going to be a contrarian here. The significance of the issue is
overblown.

Copyright does not meaningfully harm creativity. Sure, you can't publish your
Harry Potter fanfiction. But you can borrow all the themes you want from it.
Magic schools, mysterious back-stories, dark lords and flying brooms can't be
copyrighted.

Moreover, Disney cannot prevent you from using Pinocchio, Little Mermaid and
the rest of the public domain stuff they have used.

~~~
MereInterest
[https://www.theatlantic.com/technology/archive/2013/07/the-h...](https://www.theatlantic.com/technology/archive/2013/07/the-
hole-in-our-collective-memory-how-copyright-made-mid-century-books-
vanish/278209/)

Effectively unlimited copyright leaves a hole in the availability of older
books, making it impossible for there to be any growth on top of them.

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toyg
One of the drawbacks of our increasingly globalised market is how one
significant subset can hold back everyone else - because what's the point of
investing significant money in this or that production (tv, movies etc) if I
cannot sell it everywhere?

And so, nobody can do what Disney did to bootstrap themselves.

~~~
rambojazz
What did Disney do to bootstrap themselves?

~~~
DiThi
[https://www.forbes.com/sites/derekkhanna/2014/02/03/50-disne...](https://www.forbes.com/sites/derekkhanna/2014/02/03/50-disney-
movies-based-on-the-public-domain/)

Specially interesting those from works made in the 1800s: Most of those would
have been copyrighted under the current law if it applied at the time they
made the movies!

~~~
toyg
And these are only the _direct_ adaptations. Disney's very first work,
"Alice's Wonderland" (not the movie, just a dreamlike short), was a riff on
Carroll's work. It was published less than 30 years from Carroll's death and
about 50 years from publication.

------
tobiasSoftware
There needs to be a push for a nominal fee (even if it's one dollar every ten
years). This would allow the big companies to have their copyrights as long as
they want (which isn't okay but good luck with that), while putting 99% of
copyrights in the public domain.

~~~
dragonwriter
Instead of a nominal fee, there needs to be _ad valorem_ taxation (at say a
1-2% rate per annum) on a declared value which also serves as a binding offer
to sell the work into the public domain at the stated price. That way,
_anyone_ can keep their long copyright, but only as long as they are willing
to pay a fair price for keeping the work out of the public domain.

There should be an initial period of several years (somewhere in the 7-13
range) where copyright remains free.

~~~
clairity
yes, and make the tax monotonically increasing, so that the majority of works
are released as soon as the value of the work wanes.

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Jaruzel
Offline for me, here's a cached (& text-only) link:

[http://webcache.googleusercontent.com/search?q=cache:76sSM40...](http://webcache.googleusercontent.com/search?q=cache:76sSM401lqAJ:https://law.duke.edu/cspd/publicdomainday/2018/pre-1976/&num=1&hl=en&gl=uk&strip=1&vwsrc=0)

------
Jaruzel
The original texts of these books may now be in the Public Domain, but in
order for the lay-person to get a copy (assuming the current publishers don't
upload a copyright-free version to say, Gutenberg), you have to scan/OCR an
existing copy.

This is where the problem begins, the text of a novel maybe in the public
domain but the typesetting, binding and printing of most editions is not.

As such you'll be in breach of copyright if you try to OCR a copy and
distribute it.

I'm sure someone will try to call me out on this, but my partner is a
qualified librarian, with a specialism in copyright law.

~~~
cpach
I must say I doubt this. I’ve never heard before that typesetting could be
copyrighted.

~~~
Doctor_Fegg
Certainly can be in the UK: "Typographical arrangements - this is the layout
of a page. The right protects the effort involved in, for instance, creating
the combination of columns, headlines, typefaces, images and advertisements on
a newspaper page."

[http://www.nationalarchives.gov.uk/documents/information-
man...](http://www.nationalarchives.gov.uk/documents/information-
management/copyright-related-rights.pdf)

~~~
Jaruzel
Thank you. Now can I be voted back up please? I don't make a point of posting
bollocks.

~~~
Doctor_Fegg
To repeat myself from above, it isn't certain that the copyright in a
typographical arrangement is infringed by purely copying the textual content
without reproducing the typographical arrangement, so your original assertion
may not be true.

(I didn't downvote you, FWIW.)

~~~
Jaruzel
Without being drawn into a long protracted argument about this (this is my
last post on this topic), the simple act of scanning the formatted page pre-
OCR infringes the copyright of the publisher, if the publishers rights have
not yet expired.

You can't OCR from nothing, at some point you need a direct copy, be it in
memory or on disk, of thing being copied.

~~~
cosarara97
IANAL, but I think you can't infringe copyright if you are not distributing
anything. OCR is not distribution.

~~~
zerocrates
You might think so, but merely copying is infringement, at least in the United
States.

There's even good solid precedent that copying computer software from disk to
memory for the purpose of running it is a copy covered by copyright. A
manufacturer sued a third-party computer maintenance company alleging
copyright infringement by the technician in simply turning the machine on, and
_won_.

There's even a specific carveout for software, section 117(a)(1), but the same
decision held that since that section applies only to the "owner" of a copy,
it doesn't apply to licensed software.

It's a pretty bonkers case. Congress explicitly overruled it by adding
_another_ carveout in the same section, 117(c), which basically specifically
says computer repair people don't infringe copyright in the OS by turning the
computer on.

Regardless, mere copying with nothing else can be infringement.

------
CM30
Something I've wondered is why we don't have other companies lobby against
extending copyright, and have them make it as hard as possible for Disney to
get a sympathetic ear from government. I mean, in theory the likes of Google
and Facebook (who could potentially benefit a lot from less restrictive IP
laws) would be rich enough to outspend Disney on lobbying here.

Or is there a reason the government would listen to one multinational
corporation or billionaire while simultaneously ignoring another?

~~~
touristtam
Interesting thoughts, but I doubt Google and Facebook are considering
themselves as original creative content provider, as opposed to the like of
Netflix and Amazon, that don't seems to fight against these positions.

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hugh4life
I kind of wonder if a forced licensing scheme would be a solution. Anyone
would be able to create derivative works but 10-20 percent of any profits
would have to go to the original copyright owner. A shorter "copright" with an
extended "profitright".

~~~
JoshTriplett
Why should we settle for that, rather than demanding public domain? What makes
that tradeoff worthwhile?

The critically important question: how many works would be created with a
perpetual copyright (under whatever terms) that would not _also_ have been
created with a 14-year or 28-year copyright? The answer seems likely to be
"not many", and certainly not enough to be worth trading away the the
opportunities created by the public domain to get it. The public domain _also_
tends to inspire the creation of many works.

In talking about copyright, we're talking about trading off between two things
people want: a useful and vibrant public domain with plenty of works in it,
and the authorship of more works (that will eventually end up in that public
domain). Trading off the former _completely_ to get an extremely marginal
increase in the number of works does not seem like a trade we should make.

Now, that said, I would be in favor of the concept of having a shorter period
of exclusivity, and a somewhat longer period of exclusive _commercial_ use,
such that non-commercial derived works become permitted after that shorter
period. But even the latter shouldn't be perpetual, and both should be far
shorter.

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pimmen
I don't hate copyright and patent laws, I really don't.

But, are you telling me that the choice is between "no patent or copyright,
everyone has the right to copy whatever you do and make all the money in the
world from it" and "even if the creator is long dead, you will have to wait
the better part of a century"? If that's my choice, then it's no copyright.

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nfoz
Copyright is such a strong measure by which we let government limit individual
freedoms for the sake of upholding a particular kind of business model. It's
just so draconian and bizarre.

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jackfoxy
Return to the pre-1978 copyright law. Done.

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kpU8efre7r
Look at all that cool stuff stolen from us by greed.

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jcg8802
Thanks Disney.

