

The TPP's Attack on Artists' Termination Rights - antiterra
https://www.eff.org/deeplinks/2013/12/tpps-attack-artists-termination-rights

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antiterra
This portion of existing US copyright law is a bit curious. On the one hand,
letting artists 'have a second bite of the apple' if their work turns out to
be so lucrative that the original terms are inappropriate sounds good. On the
other hand, not letting someone sell all of their rights seems a limitation on
personal freedom and we should recognize that publishers often risk paying an
artist for a work that is a commercial dud.

Further, this means that code that was once GPL or public domain could be
reverted back to private ownership by the author or his heirs after 35 years.
This would likely be a mess, would subsequent revisions be considered
derivative infringement?

~~~
Cushman
It's important to note that it wasn't always like this. The basic concept of
termination rights -- recognizing the wild power imbalance between artist and
publisher, and therefore giving the artist a second crack at selling their
rights -- is quite old, but in practice it hasn't mattered; the upshot was
that the standard publishing deal included an automatic renewal, so the right
may as well not have existed. So in 1976 Congress chose to double down on
termination, making it explicitly an inalienable right that cannot be sold by
any type of contract.

It strikes me as a rather tortured reading of this that makes it a limitation
of the artists' rights, rather than the publishers'; like laws which outlaw
contractual slavery, while it technically bans both parties from
participating, the intended impact is much more on the would-be oppressor than
the oppressed.

Now, the impact that this might have on open source is certainly interesting,
but I doubt it would have far-reaching implications since termination wouldn't
retroactively affect licenses that were in force at the time, so derivative
works would be in the clear. On the other hand, who knows how the case law
will shake out on this over the next few years... software will probably not
be the most affected industry.

~~~
antiterra
> It strikes me as a rather tortured reading of this that makes it a
> limitation of the artists' rights, rather than the publishers'

I'm personally not entirely against the law as it stands, and I agree that
publishers have a great deal of power to define the terms of an agreement they
can force on an artist. That said, I don't think it's so tortured to think
someone really might not want her heirs to meddle with her license grants to a
university or museum.

~~~
Cushman
That's a legit criticism, but it sounds to me like it's more a criticism of
the inheritability of copyright than of termination rights per se. (Is it any
more fair that my heirs could sell my work to Disney?)

------
anigbrowl
_The termination right, of course, is a limit on free transfer. As a result,
instead of a narrow attack on the termination rights of musicians by
reclassifying their works as “works-for-hire,” the text here could eliminate
termination rights for everyone._

But is this bad? Yes, there's definitely a power imbalance, but if the
copyright regime is simpler, with no artificial legal limitations on the
lifetime of the contractual assignment, then artists can negotiate either
higher prices or reversion options at time of assignment.

Speaking as an artist (with experience of starving, being ripped off by
publishers, and sundry other disadvantages), simplicity has value. A 35-year
termination rights period is a nice idea for a corrective but actually limits
my negotiating position as the publisher is going to discount the value of the
copyright assignment appropriately. The flip side of the economic imbalance
between creator and publisher is that the publisher is in a much better
position to realize the benefits of long-tail revenue, since publishers have
expertise in marketing, analytics, revenue collection etc. that are difficult
for an individual to acquire, and whose acquisition has a significant
opportunity cost in terms of creative development/output. If the publisher can
lose all contractual rights after 35 years then it has every economic
incentive to a) maximize up-front economic gain and b) minimize long term
commitment.

Also, as regards the TPP specifically, if this deal were to go through as-is
then artists would be able to argue that overseas publication rights were
worth more money due to the harmony of regulation, in stead of having revenue
siphoned off my the bureaucracy of dealing with multiple differing copyright
regimes in the signatory countries. In my view, a single licensing standard
that extended from the EU (via upcoming TTIP negotiations) to much of the
Pacific Rim (via TPP) would be a distinct plus for artists, since that would
cover something like 70% of the global economy and would massively reduce
transaction costs.

~~~
grandinj
It doesn't really change your current negotiating position because the net
future value after 35 years is zero under all normal business assumptions.

~~~
anigbrowl
You're thinking in terms of a one-off, such as an album or book release. But
things like alternative mixes, remasters, unreleased tracks etc. can have
significant value for famous artists.

Think 'lost Beatles track,' for example. Likewise, Fritz Lang's film classic
'Metropolis' is under copyright until 2023; there have been several reissues
of the film with missing footage restored (after being found in museums and
the like). Film contracts in particular often have structural dependencies on
box-office performance.

