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What Could Have Entered the Public Domain on January 1, 2018 (duke.edu)
286 points by aw3c2 on Jan 1, 2018 | hide | past | web | favorite | 133 comments

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.

I make a modest portion of my income on writing. For me, abolishing copyright would suck because I know what would happen: More of the same things that already happen. Organizations that command large audiences would slurp up my work and republish it, selling the space alongside to advertisers. People and groups with axes to grind would edit and redistribute my work to serve their own ends. I would lose income generated when publications want to reprint my work. Spammy websites would fill their pages with my text to look legitimate to search engines. And so on. I would have no legal recourse.

I agree that America's current version of copyright is flawed, and that rights-holders hold the rights for too long. Maybe copyright should require a tax, as some have proposed. Make it a penny for the first year, doubling annually.

On one hand, post-copyright you would certainly have predatory interests taking media and trying to profit from it.

But you would also have the cultural shift into the rationalization that digital information isn't being artificially confined anymore. Anyone looking at something asking for money to see it will learn over time that no, they cannot stop you from finding that information as long as someone valued it enough to make it available.

The mindset of creators would have to change. Instead of making the thing (and risking everything on the ability to sell it) you don't have to go into it as a gamble, and you don't have to execute doublethink by assocating something that is worthless (copying) with profit while something valuable (creation) is done for free. You would have to make something to have credibility, but from that point forward you just need to offer your creativity to make things, say how much money you want to make / release some creative work, and once made create / publish it. And then its free, and all of humanity can enjoy it, and you defeat the predatory middle men much more so than today.

And beyond that, people are a bit wiser to fake news now. I'm using "fake news" as a shorthand for the very real concern the author pointed out:

People and groups with axes to grind would edit and redistribute my work to serve their own ends.

This sounds like the fear is that people will maliciously butcher your work by carving it up, or altering it, or otherwise presenting a piece of your work (or quotes, or thoughts) without the full context. And there's no one that does this better than the news agencies.

It's having less effect now. It's still a real concern, but it's interesting that as people are becoming more aware of the fakes, we're also spotting cases similar to the above concern. And no legal protections were necessary to call them out.

If you repurpose someone's work, at no point in history has it been easier to make noise: twitter, reddit, HN, medium, anywhere. If your story is true, people are thirsty for drama. Which is rather upsetting and repugnant, but you can also take advantage of it when you need to.

It seems true to say that we could axe copyright without authors being negatively affected. People still pay for content, and for those who can generate it. But it would require testing it out to see how it plays out in practice, and that's not so easy.

> people are a bit wiser to fake news now.

I think folks are more familiar with the term, but not necessarily any more inclined towards 'detecting' it. Rhetoric still rules the US, at least.

Why would I pay someone to produce something, when as you said, I would not be able to stop people from finding it online for free?

For example, why would I pay to have a new Star Wars movie produced, when cable companies, NetFlix, and YouTube would all copy the film and have it available for free on the day of release? If I operate a cinema, I would need to charge $15 a ticket to recover the costs of producing the film, while John Doe can start a cinema, and show my film for $3 a ticket. So, why would I pay to have the movie produced? What would be my advantage over the competition, and how would I recover a few hundred million dollars?

At least personally I know I would give Disney (or any third party creative wanting to make a Star Wars movie I found reputable) money to make them, because I like watching them.

Independently, no, I would not be able to single handedly fund the millions of dollars required to create such a film. The good news is there are a lot of people in the world who like Star Wars, and I imagine in the absence of artificial scarcity soaking up spending money those fans would put their money towards seeing the films they want made... made.

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.

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

A good question, though we're currently living in a world that is the author's death plus 95 years in the US, so this is already standard practice. Works not covered this way get a ridiculous 120 years copyright coverage. I would say a flat 35 years from publication or 50 years for unpublished works would be reasonable.

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

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

or group works. would nirvana songs be public domain?

20 year is ok, but "author's death plus 10 years" is bad because it short enough to create some dreadful incentive for would-be publishers: if author is not willing to deal with you just kill him and wait a decade

That doesn't make sense. It's not like the person who killed them would get a copyright monopoly on the work. Literally anyone could publish it. Do you see anyone getting rich publishing works in the public domain? If that's the case, I need to get myself some of that red-hot Project Gutenberg money.

Intellectual property in general causes all manner of harm. It makes things more expensive to repair (monopolies on repair parts/services), limits access to medicine, and keeps significant quality of life improvements in the hands of a privileged minority that can afford to pay the stacked up monopoly fees of all the IP contributors of an “official” product.

Information is not a scarce resource and while there are many business benefits to the current arrangement, IP on balance harms the average person.

For those that say small artists need IP to survive: how much cheaper would an artist’s health care and automobile be if both of those industries had essentially “open licenses” (in our speak) for that content. How much cheaper would a Toyota clone be if it used standard parts and didn’t change every year, where any manufacturer could produce the necessary parts?

Artists could live as well as they do now for cheaper if there were no IP laws in my opinion.

> How much cheaper would a Toyota clone be if it used standard parts and didn’t change every year, where any manufacturer could produce the necessary parts?

There would not be a Toyota to clone since no one would invest in researching original IP that will be exploited be everyone else right away.

There’s a difference between original designers and “cloners” in quality and attention to detail.

The Toyota clone wouldn’t be as good as the real thing and so there would still be a market for first party goods. But that market would be smaller as many people would be satisfied with a clone. And isn’t that more “efficient”? People satisfied with the cheaper good get the cheaper good and people who want the quality go for the original.

In today’s market, when someone who would be satisfied with a clone ends up buying an original, we see that extra money is spent only because Toyota is holding a monopoly on the design information. Except only creating the value should be rewarded, not monopolizing it.

We can see today how Joseph Prusa with Prusa research designed the worlds most popular 3D printer, yet many of the users are using clones. There is a market sufficiently interested in quality to support his 30 person (I believe) business despite his product being totally open source and actively cloned by huge companies.

It is possible to deliver value as an innovator and creator by selling the best stuff. Even at 3x the price of clones Prusa continues to grow.

So I don’t believe that there wouldn’t be car makers - though perhaps there’d be no “Toyota”.

I do believe in a balance between public domain, copyleft and copyright, but playing devil's advocate is helpful here. We are supposed to live in a knowledge economy, and inevitably it's copyright and IP that ends up setting the rules and benefiting from it. Luckily there are people who see the value in copyleft and choose relevant projects that can end up making an impact on a large scale.

Racing would still invest in original designs, and enthusiasts would love to try designing if there were standardized parts.

I would design some crazy 3D printed dashboard modifications if I had the source files to my Honda.

No copyright doesn't mean full access to the source code.

Copyright in some form is clearly beneficial; there are whole classes of creative professional that simply wouldn't exist without it. Not every form of creative activity can be effectively funded through live performance or digital begging.

99% of "content" being churned out by amateurs is absolutely dire. Producing creative works of serious merit requires a major investment of time and resources. Many skilled and talented people really would be put off investing that effort if they knew that an advertising company could use their music for free, or a publisher could churn out paperbacks without paying a royalty.

The primary problem is clearly understood - endless copyright extensions that offer no benefit to artists, but concentrate power in the hands of a few media companies. The duration of a patent is 20 years; I think this would be a reasonable basis for copyright. Failing that, I think that "author's life + 10 years" with an orphan works clause is also reasonable. What certainly isn't reasonable is the current duration of copyright, which is effectively forever.

I think shorter or no IP protection terms would on average harm the wealthiest and benefit the poorest in this world. How many lives would be improved if all the medicine in the world could be freely cloned? How much cheaper would our cars be if the designs could be legally cloned?

But what impetus would drug companies have for researching and developing new drugs, if they're just instantly going to be copied by another company? Why not just sit back and wait for another company to develop them?

Certainly if we abolished IP laws we would need to intentionally fund medical research rather than using the pseudo market based approach (mixed with government subsidy) that we have now. I should say I know little about our current process, but I do believe we could find a way.

It's a weird thought experiment.... if we halted all new drug r&d and instead cheaply distributed all the medicines that we have already invented, how much more people would benefit, and at whose cost? And how long would that "honeymoon phase" last?

Individual creatives and individual technologists should be natural allies, in opposition to corporate middlemen. But this "Why, let them sell t-shirts!" attitude means we'll forever be at odds.

I believe that there will be more creative work once copyright is abolished because creativity would be no longer limited. https://m.youtube.com/watch?v=XO9FKQAxWZc

> Abolishing copyright will thus mostly affect these middle men, and have little effect on content creation itself.

You act like that's a good thing... What do you believe these middles mens will do then? They will just steal instead of paying.

Theses copyrights at least force them to pay and try to create unique content instead of stealing the newest idea.

Open your TV and look at Star Wars ads. Notice anything? Where I'm from, in Quebec, but it looks like it's everywhere, Disney allowed many companies to use Star Wars to advertise their products. It's crazy. I don't care much, but do you see anything particular about these ads versus the others? No originality. They are stupid, boring and are essentially: "YOU LIKE STAR WARS, WE DO TOO, BUY OUR PRODUCT".

You know why they do this? Because it's cheap and it works. Original creation is expensive and hard. You just saved so much cash for these middle mens, it's crazy.

Okay, now what's the gain for everyone else? Now you can legally read old stuff without paying the old content creator (do it illegally then, except the moral dilemma, which you doesn't seem to have, I assure you, the legal world probably won't do much to you)? Now you can use Star Wars characters in your stuff? That's it?

The gain is minimal... for god sake, if you want to reuse, then recreate. Possibilities are endless, please, do something new instead! I read that some people aren't too happy that 2017 was essentially a year of remake/sequel in movies.

Really, abolish copyright and the replacement "business models" are: asking for donations, asking for continous investments via crowdfunding (which are really donations with IOUs attached) and live performances? (Which are not applicable to a large part of creative work)

I agree that copyright has taken ridiculous and perverse forms today, but I think the old point still stands that you have to find a solid alternative for creative workers before you can abolish it.

The problem is that the vast majority of creatives today do not use IP as their primary income source. The vast majority of professionals are employed - their income comes from an employer, not through execution of a copyright they hold.

There is a lot of fanticization of IP whenever discussions about getting rid of it come up - about how regular people can utilize courts and the legal system to enforce their copyrights. In practice, the only way to even realistically produce creative works and then try to use copyright as a means to profit is through the cooperation of a corporation promising to act as the middle man distributor and enforcer of said copyright. Even the largest of private creative endeavors don't have the resources to go pursuing violators of their copyright in court.

And the only real victim of copyright abolition becomes those large media corporations who suddenly lose their ability to artificially constrict distribution as a revenue source.

There is certainly an argument that people want Star Wars, but I'm not convinced a post-copyright Disney would die, either. They have a reputation now for quality production. If they came forth seeking investment to create things people want, there would still be billions of dollars flowing in to see things people want made by them, but the logistics would be completely different.

But in practice, you make money today as a creator by having something people want where you can get them to pay you for it - beforehand, after the fact, with tertiary merch sales, whatever the means. You survive off your popularity and the willingness of others to see you funded to keep creating. Without copyright, nothing about that fundamental changes, and its not like the trillions of dollars spent on entertainment today suddenly dries up. If anything, it would be a creative renaissance - the things people want to make being made by the people who want to make them, where everyone gets what they want (a good standing of living and new media) versus today where creativity is shackled by government and for most creative endeavors the individual has little to say about what is being made - because artists expect their livelihoods to come after the fact.

> The vast majority of professionals are employed - their income comes from an employer, not through execution of a copyright they hold.

But... copyright is how the vast majority of those employers are making a profit, and how they're able to pay the creative professionals.

> you have to find a solid alternative for creative workers before you can abolish it.

Why? Being a "creative worker" doesn't mean the market owes one a living. Abolishing copyright would make competition and innovation easier, as well as allow creative people more freedom without fear of legal repercussions. This would benefit consumers in the long run by driving costs down and forcing quality to win in the marketplace, rather than letting a few big companies assert control over valuable IPs.

Many of us believe the right to freely edit and redistribute software is fundamental, why would that right not naturally extend to all forms of media? Especially given that most creative output nowadays exists as software.

Ok, so creative workers should participate in a market but at the same time should not expect any benefit from it. Why should they produce content at all?

As for software: You can choose to put your code under an open source license, you're not obligated to it. Many have the financial means to do so but many who make a living from that software don't.

Why should they depend on copyright to force the market to value their content over that of potential competition?

People could still prefer J.K. Rowlings' Harry Potter even if it wasn't illegal for other people to write Harry Potter fiction, the books and movies could still make money on name recognition alone. But if someone did come along and write a better version of Harry Potter that became more popular, wouldn't they deserve to profit as well?

Why should Disney be able to do that with a thousand years' of fairy tale mythology, but no one else be able to with modern mythology like Star Wars? Having cultural expression so inextricably locked up by corporations is not healthy. And yes, it might devalue the individual in the marketplace, but everyone suffers that fate now, regardless of their field.

Why go through the trouble of writing a better Harry Potter? You could simply take the existing story and sell it yourself - or put it on the internet so that no one needs to buy it at all.

I agree that it might be beneficial for society if all media were available for free and I agree copyright is probably not the right tool, but that's why said more thoughts effort needs to be spent to find better alternatives.

In the 19th century, America didn't respect British copyright. And Charles Dickens was the most popular writer in the US and was printed there without paying Dickens a cent. So how did Dickens handle this? By going on tour in the US. People paid money to see him recite his works much like music concerts. In fact, this is how most professional musicians make money today in the post physical album world. They don't make much money off their music directly but rather the music serves as advertisements for their live shows.

> the books and movies could still make money on name recognition alone.

Books, maybe. But without copyright, what keeps movie studios from just turning J.K. Rowling's Harry Potter books into movies without paying her anything?

Nothing, but there is a business advantage to having an author and their fans support your work rather than turn them against it, so if J.K. Rowling refused to do that without getting paid, she still has leverage regardless of copyright.

My argument here is that part of the intrinsic value of a creative work is in the author or team behind it, and that doesn't necessarily need the force of law to back it up.

Look at doujin culture in Japan. People create derivative (mostly pornographic) works using established properties and characters, but the originals still retain their value. It's technically illegal, but it's still permitted as authors consider doujins free advertising and a way for new talent to showcase their work.

>> Being a "creative worker" doesn't mean the market owes one a living.

Of course it doesn't. The starving artist trope is very much real.

Creative workers are mainly entrepreneurs, and they take massive risks for little reward. They work 15 hour days just like any startup owner.

>> Abolishing copyright would make competition and innovation easier, as well as allow creative people more freedom without fear of legal repercussions.

No it wouldn't. The flip side of copyright is that it prevents someone from going in a ripping up or destroying artwork without legal repercussions. This is why many street artists can become famous, which would be impossible if their work was simply painted over by the next artist. In many cities, the next building owner cannot even paint over it legally.

>> This would benefit consumers in the long run by driving costs down and forcing quality to win in the marketplace, rather than letting a few big companies assert control over valuable IPs.

You read the same internet as I do. Low quality work has won the content war through the shear force of quantity.

>> Many of us believe the right to freely edit and redistribute software is fundamental, why would that right not naturally extend to all forms of media?

Some creative workers believe the same, and there works of art of all forms that follow the open source philosophy.

However, there is a big difference between modifying (which is allowed under copyright laws) and outright theft. If someone clones your repo on github and takes full credit for your work, you wouldn't be happy about it. If they put ASCII dicks all through the source and said it was your work, this would probably offend you.

>>> Especially given that most creative output nowadays exists as software.

eyeroll -- most programmers aren't creative professionals or engineers.

How about temporarily halting copy rights for, say, 5 or 10 years? Then evaluate whether it's been good or bad for the production of cultural artifacts?

A lot of creative professionals would instantly become destitute. There are thousands of artists, authors, composers, developers and designers who lead hand-to-mouth lifestyles that revolve around their royalty payments.

It's not necessarily untenable, but it would have some very painful consequences.

Compromise ideas like this are worth brainstorming. But the open commons movements need a better legal strategy than "do an experiment and see if there's harm".

What is wrong with that (empirical) approach?

There is nothing logically wrong with an experiment like that. But there is no economic / political path where this happens. Even, say, there were a massive political turnaround in the next election cycle that could push something like that, just the international treaties would make this difficult enough.

I thought about this more, and I noticed something else wrong with that version of the experiment. The compromise has to be at the other end of copyright term. It's crazy to remove all authorial rights from anyone actively working today.

Something more like: For the next 5 years, all copyrights before 1970 become subject to the "author's lifetime" standard, and nothing else changes. If the experiment fails, then those rights are automatically restored to any corporations/estates that owned them. (With some mechanism to shield copies made in that interim from future litigation.)

That sounds like a more balanced version of the experiment, and I still think it has very little chance of coming to pass. I'm not good with Bayesian formalism, but my priors are something like: status quo most likely, permanent (but small) concessions to get a little bit more old stuff into the public domain next most likely, all other options highly improbable.

Finally: maybe it's sensible to try to shift the Overton window by calling for the abolition of copyright. But I don't know how one does that kind of thing ethically if you don't really want to go that extreme.

Kickstarter is probably the most predatory business model we came up with yet.

There are changes that can be made to copyright without abolishing it; mainly restricting corporate ownership and reducing the periods to prevent rent seeking, other alterations can also be made to provide additional freedom for derivative works.

But abolishing copyright outright sorry won’t work and anyone who suggested it never has likely never worked in a creative field.

If you are an artist drew something for work while employed by Zynga, they will not pay you any royalties. I say good riddance.

If you are employed then in most cases not; if you are a contractor it depends on the case by case basis.

But I don’t see a problem with this anyone who’s employed exchanges the ownership of their production in exchange for a reliable stream of income.

Let’s forget artists for a second if you develop an app should I be allowed to copy it and sell it as my own?

> Let’s forget artists for a second if you develop an app should I be allowed to copy it and sell it as my own?

I'd say yes and yes with one condition. You may not modify the app and sell it as unmodified. You may not claim that I authorized you to make changes when I have done no such thing. This is just my opinion and not how the law works today. I anal.

Are you offering a license for other people to profit of you work without any exchange? If so please put it in writing and attach it to all your work.

I think your proposed solution goes way too far in the opposite direction. For some content (e.g. rock or folk music) it might work, but it would make things a lot harder for e.g. novelists or even some software developers.

The problem with copyright is that it's often owned or assigned to companies, which are potentially immortal and are constantly lobbying politicians to extend its duration.

Why not distinguish between author-owned copyright, which could either be for a fixed duration or for life, and company-owned copyright, which would always be for a shorter period?

I want to add to what you're saying: a lot of resources for artists, from music hardware to video cameras to painting software, have massively inflated prices because paid creatives are paying for them. If you take a lot of the money out of the system, you deflate those prices and make those resources more available to everyone.

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

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.

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.

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.

I have thought about a model where if you want your IP protected by government, you can register your IP and pay an ever increasing annual fee for the protection. Say, first year the fee is 100 dollars and doubles every year, so that around 25 years you would be paying more than a billion dollars.

At any time you have the option to quit paying and give your IP to public domain. Also, any IP not in the registry would automatically be in the public domain. This would solve the issue about orphan works and give some benefit from the IP to the society that enforces the IP.

This would put many of the most vulnerable artists at a huge disadvantage. A $100 registration fee per work is practically a rounding error to a major media corporation, but it's prohibitive to a struggling band or a fine art student.

Well, then let's have first year or two free. I think artist IP revenue is typically heavily weighted in the first year or two.

Copyrighted material is not a property so it doesn't make sense to act like it is. The goverment should give a short period of exclusive rights for their creation but it should be as short as possible.

The material may not be a property (an intellectual concept can not be property), but the copyright itself is a property. You can own it. You can buy it. You can sell it. I very much dislike the term "intellectual property" because it conflates a lot of very different issues. Rights like rights of monopoly, mineral rights, rights of way, etc, etc, etc, though, are legal properties even though they do not represent physical things. It is ineffective (and I would also say incorrect) to argue otherwise. You're not going to get much traction trying to backtrack 800 years of legal framework. The concept of legal ownership of certain rights is an important part of how freedom is structured in modern society and I don't think you intend to try to dismantle that.

Exclusive right to copy something (or make derived works) is not an intrinsic right. It's a right given to you by society. As above, it's great that once it is given to you, that you own it. It would suck if society could just arbitrarily take it away from you. What I think you are trying to argue is related more to the fact that copyright is not an intrinsic right. As a society, we do not have to grant a copyright at all if it is not beneficial to us. We need to do a better job of balancing the interests of all parties.

Copyright exists from the moment an expression is created. When you write a letter it is copyrighted. You don’t have to register it. There is no way to tax it.

The proper way to solve the problem with excess copyright is by properly limiting the duration as written in the constitution.

Every comment you make here is copyrighted. You'd be bankrupt if you had to pay tax on your accumulated collection of comments.

That's actually a really good idea. Of course it is probably (unfortunately) politically impossible.

Not sure why, since the average voter won't be affected by this tax. Only the media companies. In fact, most voters would benefit greatly by having unlimited legal, free access to a vast library of content that is still relevant to them.

And, it can be morally justified -- if someone is sitting on the rights for a work, and isn't using it, then it makes sense to levy a tax against it as they are utilizing the expensive resources of the world governments in order to defend the copyright.

It doesn't matter whether it actually affects voters. The media companies with lots of money will "donate" millions to politicians willing to defeat such a bill, and maybe even run ads/frame the discussion as if it's against voters' best interests.

There is no large concentration of wealth on the other side of the issue to support it, therefore it will never happen.

Sorry folks but that's how politics in the USA works.

That’s extremely cynical.

It's not cynical, it's just how oligarchies work.

> Only the media companies.

Who will swiftly pass the additional cost on to their customers. Voters who see it that way won't vote voluntarily to pay more just so content creators can keep their copyright.

Easy framing to get around that: "Only the less creative ones, who prefer to sit on their old works rather than making new ones."

And what stops them from adding those costs to the price of whatever they're currently selling?

Making them large enough to make that impossible and uneconomical compared to making new works. See https://news.ycombinator.com/item?id=16046563

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.

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 ;-).

Patents protect one business against other businesses. Copyright protects one business against the public.

> 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.

It's because there is no incentive for large corporations to stop the former while there is plenty for companies to stop the latter.

Large tech companies have been fighting against patent trolling and they have the money and power to enact change.

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.

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-...):

> 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).

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?

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.

AIUI, the copyright extensions give Disney more control over the Mickey Mouse trademark. Without it, it could be used in defamatory ways by their competitors.

Good. I don't really care about Mickey, rather everything else.

It's much better if Disney uses the already perpetual nature of trademark rather than continuing to push for distorting copyright.

I don't know that they really would be satisfied with that though, since they have so much under copyright that wouldn't get this kind of trademark treatment.

I don't know. If someone wanted to upload a 100-year-old Steam Boat Willie video to YouTube, they shouldn't be sued for describing the video accurately. That is, describing the contents of the video as "Mickey Mouse" is accurate, not unfairly leveraging trademarks to confuse consumers. We shouldn't have to relabel the video Whistle Mouse Drives A Boat.

Trademark doesn't restrict description. It restricts, well, trade. This thread contains numerous references to Disney, an even more valuable trademark than Mickey Mouse, and there's nary a problem.

I think this is a great compromise for something like Mickey, which clearly remains in commercial use.

It’d be nice if we could find a way to handle Mickey while also releasing Catch-22 etc into public domain.

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.


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.

>Sure, you can't publish your Harry Potter fanfiction

There is an enormous amount of Harry Potter fanfiction. You're restricted from selling it though. But, as an author of twilight fanfiction proved, when you're ready to sell you can just find and replace some names and be good to go.

Copyright has distorted our culture since its inception. Artists subconsciously self-censor their work because in todays culture remixing, adapting and reusing other art is classified as theft. Whole industries which heavily depend on copyright would not be the same as they are today. Maybe copying and sharing would be seen as something natural, as something good.

Many TV shows in the 1990's and 2000's were iconic, here in the U.S. They didn't purchase the rights to include the music -- which had its own selection, err "casting" and was central to the shows -- in retail copies (VHS tapes, DVD's, etc.). And the eventual owners of the shows didn't want to pay to acquire those rights for those formats. Or for the streaming versions; I can think of at least one prime example on Netflix (yeah, a pun).

As a result, we can't view those shows in their original, and as I described, iconic, format -- or sometimes, at all -- except haphazardly on syndication or through piracy.

I mean, shows that e.g. everybody would sit down at home and watch on Monday evening.

Tell me that doesn't have a cultural impact. As just one example.

Copyright is in serious need of reform. You're granted a limited monopoly, not total, perpetual control -- nor the right to remove what were public, cultural objects from public discourse.

Something similar is at risk with regard to the news and other reporting. Watch copy vanish from the Web. At a minimum, there need to be modern libraries of such content where access is guaranteed. It represents the continuity of our history.

What about other types of work one would like to remix, but aren't written words? I don't think this argument holds.

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.

On a country scale, see 'Top Hacker News Books 2017' #13 - Kicking away the Ladder. [https://hackernewsbooks.com/year/2017]

Part of the synopsis: "... that developed countries are attempting to 'kick away the ladder' with which they have climbed to the top, thereby preventing developing countries from adopting policies and institutions that they themselves have used."

Just a tangential comment since I've read the book and often (very carefully) recommend it: the summary you gave of it could be interpreted in contexts like "if country XYZ polluted the environment this much to get developed so can we!" and such. In Brazil this is a pretty dirty and frequent argument to favor over-industrialist policies, so when I tell people about this book I explain its title/purpose a bit more. Great book anyways, thanks for bringing it up :-)

Otherwise know as: “Fuck you, I got mine!”

What did Disney do to bootstrap themselves?


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!

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.

I don't know if this is what he meant, but Hollywood was basically invented by a bunch of pirates/patent infringers. Without that, there might not be a Hollywood industry today.


take existing cultural icons and stories and create a version for sale.

It's interesting to think about the term "existing cultural icons". On first glance it seems like the term weekens the issue because it makes it sound like these are folk tale like things that somehow magically manifested. What happened though is that someone actually invented a story, it got retold over and over and evolved into what we have now. This would have been prevented by modern copyright. The original author wouldn't have allowed others to reproduce their work. The work wouldn't have evolved and probably even been forgotten.

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.

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.

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

Wouldn't those copyrights effectively end up in the public domain anyhow? The defacto nominal fee is an attorneys retainer.

De facto public domain is pretty different from official public domain. One ends up on, for example, Project Gutenberg and the other does not.

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


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.

Not 100% sure on this. This is sometimes called a "thin copyright": the typesetting is in copyright, but you're free to reproduce the underlying text as long as no part of the copyright in the typesetting itself is infringed. So you could OCR or retype it, but not distribute a scanned image. (But I'm only an enthusiastic amateur so stand to be corrected.)

Libraries and archives are sometimes copyright maximalists in some areas, particularly those that would confer rights upon them: like finding copyright in a scan of a public domain object.

It's far from settled that that's the case, though.

As for typesetting, I'm not sure if it's treatment in the US, but it's not out of the question that it could be protected. For works this recent though, someone finding an original edition (whose copyright would have also lapsed) would not be difficult in most cases even if necessary.

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

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."


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

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.)

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.

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

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.

Temporary, "transient or incidental" copies are expressly permitted under (UK and EU) copyright law. An in-memory scan could qualify as this.

But there are rarely black-and-white issues in copyright law. (Even with black-and-white scans...)

Coulnd't you just OCR >> utf-8. Problem solved.

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?

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.

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".

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.

The problem with profits is that it is very easy to just lie. From https://en.wikipedia.org/wiki/Hollywood_accounting

> Hollywood accounting (also known as Hollywood bookkeeping) refers to the opaque or creative accounting methods used by the film, video, and television industry to budget and record profits for film projects. Expenditures can be inflated to reduce or eliminate the reported profit of the project, thereby reducing the amount which the corporation must pay in taxes and royalties or other profit-sharing agreements, as these are based on the net profit.

There'd still be trademark issues. If anyone can make e.g. a Marvel movie, the franchise will be judged by those movies. It makes perfect sense to defend that.

Sort of like the way the recording industry handles covers. But that works in part because it’s relatively easy to work out a generic rate for a single recording. It would be harder for more general cases.

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.

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.

Return to the pre-1978 copyright law. Done.

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

Thanks Disney.

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