Therein lies the Copyright Clause:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The key phrase here is "securing for limited Times". Limited.
For all intents and purposes, we have made copyright unlimited. If you disagree, ask yourself... when Mickey Mouse is up for the public domain again in 6 years do you really believe it won't be extended again? As the article states, the original copyright term was 14 years in the Copyright Act of 1790 unless the copyright holder was still alive after 14 years in which case they could renew for another 14 years:
As it stands now, it's until the life of the author + 70 years. Although it's hard to say that with a straight face since anytime Mickey Mouse has been up for public domain it has gotten extended and will likely continue to be extended.
Biggest irony? Many of Disney's biggest works are based on public domain works. Some of them would not have been in the public domain had copyright been as long as Disney has made it to protect their own characters from going into the public domain.
There are several key phrases there.
"To promote the Progress"
"for limited Times"
"to Authors and Inventors"
and of course "the exclusive Right to their respective Writings and Discoveries"
But you omitted the operative language from the enumerated powers clause itself: "The Congress shall have Power to".
That's a grant of power, but not an obligation to act on that power.
Which is to say:
I've heard people claim that Congress must enact copyright and patent laws. No, Congress has at its discretion the ability to do so.
That those laws be to promote science (writing) and arts (technology). Which would seem to render any _retrospective* extension of the acts as unconstitutional, as well as any execution of the powers (say, by overly-broad grants of low-quality patents).
And that the grants be restricted to authors and inventors. Not the employers of authors and inventors, not entities which can buy, for the remainder of the protection period, the rights.
Narrowly read, an Author or Inventor would retain exclusive rights and would only be allowed to grant a temporary and nonexclusive grant of that right to others.
Patent and copyright were an interesting experiment at an interesting time (the US Revolution occurred on the eve of the Industrial Revolution, and ended a period of over 1000 years in which technological and economic change had proceeded at an absolutely glacial pace). The experiment appears to be failing in significant ways.
An excellent argument.
Likewise, when the standard copyright term exceeds the median human lifetime, the 'limited time' effectively becomes 'forever.' One of the few things I like about the patent system is that the term is 20 years, which is a reasonable period of exclusivity for a genuinely patentable idea (vs. the abusive attempt to patent the obvious or prior art for litigation purposes).
The Supreme Court has, unfortunately, ruled otherwise.
Lessig, in his retrospective on the Eldred case (term limits extension suit that went to SCOTUS) feels he should have focused on the promotion rather than limited terms clause.
Coulda shoulda woulda. Thanks for trying anyway, Larry.
Copyrights don't exist for the benefit of the owner, they exist to benefit society. Today's laws are a perverse misinterpretation of copyright's original intent.
When I create something from my own creativity, is it not my discovery and invention? If someone I've never heard of who lives 2,000 miles away has created someone similar, then apparently it's not my idea. Who could have guessed?
"The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying." -- John Carmack
If it was just Mickey, Disney would survive that somehow, but well, Hollywood started to be relevant in about 1920's, and Mickey was created in 1928, so it coincides very well.
"also known as the Sonny Bono Copyright Term Extension Act, Sonny Bono Act, or as the Mickey Mouse Protection Act"
My understanding is that if Steamboat Willie passes out of copyright, people still won't be able to distribute it, or use Mickey in their own films, because it would violate trademark law.
The WaPo chart is for editions, not titles. If you list by decade for titles -- actual original works of creativity -- the 2000s utterly demolish each prior decade within this sample, and the 1990s surpass most, by the study author's own estimate (rather than manually identify duplicate titles, the author seems to havbe looked at some subsample and divided the whole public domain batch by 4).
See Figure 2 in the study.
It makes sense that public domain books have way more editions than titles; it is a market of duplication and redundancy, where you differentiate yourself using packaging and SEO type tactics. A spammy market, in other words. Printing a public domain book mainly involves some scanning, layout work using widely available software, and sending it off to the printer ("These tasks can be performed in less than a day," says the study). Oh, except you don't even need to scan anything for one of the many works already online, and you don't need to print anything if you use a print-on-demand service. So a lot of the "editions" in the WaPo chart are simply crap duplication garbage angling for a few pennies profit.
Now you can still make a case against lengthy copyright with this data, but it's trickier (because it's more honest). You can point out the population has grown tremendously and also as the study states: "In a world without copyright, one would expect a fairly smoothly downward sloping curve from the decade 2000-2010 to the decade of 1800-1810... Instead, the curve declines sharply and quickly, and then rebounds significantly for books currently in the public domain initially published before 1923."
The WaPo includes a paragraph summarizing this but the chart used is not the more honest Figure 2 but the misleading Figure 1.
Another issue? All the book figures in the study are based on an undisclosed set of subcategories of Amazon's "Literature and Fiction" category, a total of 7000 or so results later whittled down to 2317 based on a cross check with library of congress. What happens when all categories, the full range of textual creative expression, are included? We don't know.
If you want to make a convincing case that copyright terms are too long, use convincing data. "Look, public domain means more heavily duplicated garbage editions on Amazon!" is not particularly convincing.
"Mastering The MFC for Windows 95 using Symantec C++" by Richard Parker published by Thomson Computer Press.
It's long out of print, and I wished to make it available to my customers. I contacted the author, he was all for it, but said he didn't have the rights, I'd have to contact the publisher.
The publisher is out of business. I could find nothing on who owned the rights. Dead ends everywhere I looked.
So everybody loses. The author, the publisher, me, and my customers.
BTW, there is one used copy for sale on amazon for $14,763.21:
As of this moment, the most expensive book on Amazon is going for one billion dollars:
Funnily enough, my book is a good example of this. There's three copies on Amazon, priced within 1 cent of each other: http://www.amazon.com/gp/offer-listing/1898275351/ref=dp_olp... It was one of the elss well-selling ones in the series so it's become 'rare' by virtue of its own obscurity, rather than inherent merit of its own :-)
EDIT: Apparently it can be had for only £15 now. How depressing.
The Atlantic covered this story much better (http://www.theatlantic.com/technology/archive/2013/07/the-ho...) and their coverage included two additional charts. One corresponds to your criticism of adjusting for titles vs versions. In that chart, the drop off in the mid 20th century is still evident but not as extreme. In the second chart, they account for differences in the number of books published per decade using third party sources. In that version, the divergance is actually much worse.
I don't think there were any responses to your criticism of the categories.
On the "adjusted" chart you reference, my thought was the adjustment makes that chart not hugely useful to the copyright debate. In other words, the debate has one side people who say "copyright encourages creative output" and on the other people who say "copyright actually limits the spread of creative output." By showing books available as a percentage of total books published, rather than showing absolute output, the adjusted chart is useless for the question "might strong copyright encourage greater output," instead measuring only the answer to the question "does copyright tend to limit distribution." Both sides in the debate agree the answer to the latter question is "yes." They do disagree on the scope of the problem so I suppose the adjusted chart addresses that point but it seems like a minor and muddled bit of data. You look at it and might think "ah copyright is really holding down the distribution of media" but when you realize it's basically a percentage chart (based on a small and not necessarily representative sample) and then realize book output has hugely grown it's hard to see the differences in the chart as particularly consequential for the debate. At least IMHO.
I would like to see that same chart adjusted for population growth.
This video by CGP Grey summaries the problem pretty well (http://www.youtube.com/watch?v=tk862BbjWx4)
There were not more works created in the 1880s than the 1980s that Amazon can sell -- that would suggest that human productivity per capita was significantly larger than it is today thanks to different copyright laws, especially since the literary population was much smaller than it is today.
In fact, the article is referring to the number of works multiplied by the number of releases. IOW, the same work is being counted multiple (or even hundreds of) times.
Copyright, like patents, is an economic policy. By guaranteeing a limited-term exclusivity you encourage the creation of new works. This cuts both ways: if the term is too short creators are disincentivized, as anything they create will shortly be copied before they can make substantial money from it; if the term is too long you can just coast forever without creating more work.
There's a balancing point here. I don't think there's anything intrinsically justifying that you should be able to make a living off a work you wrote 30+ years ago.
Throwing away the whole publishing model for a second, why not? If someone's willing to buy X and X came out in the 80's, shouldn't the creator of X get a share?
Otherwise, I'd imagine we end up with the same planned obsolescence that plagues the textbook industry: swap chapters six and eight, add a few new problems, call it a new edition and charge another $20.
Maybe? For what reason?
I get where you're coming from - but the whole notion that the "creator should get a share" comes only because of our current understanding of IP ownership. It hasn't always been this way, and odds are it won't always be this way. It may be the norm now, but is there an objectively good reason why it ought to remain the norm?
If I wrote a smash hit song when I was 20, should I get "a share" every time someone plays it 30 years from now? 50? Should my children get a share? There certainly isn't any notion of morality, in our society and most others, that this should be the case.
Which leaves copyright as economic policy. At that point the notion of whether or not we "should" do something is entirely based on the economic benefits it generates for society. Would I create more work for the public to enjoy if the copyright term was 10 years? 20? 30?
To take this example in a different direction - should the artist of a painting get a cut when you sell the painting to someone else? They did create it after all. People are still deriving value off of it, and even willing to pay for it, so why should the creator not get a share? The notion of whether or not someone should get a cut of anything is incredibly subjective, and is more related to the mores and standards of the time rather than any objective (or even subjective) notions of fairness/justice.
The notion of whether or not someone should get a cut of anything is incredibly subjective, and is more related to the mores and standards of the time rather than any objective (or even subjective) notions of fairness/justice.
I agree. I probably should have phrased my question better than using a vague word like should, since I meant it in more of a economic sense of incentivizing valuable work than a moral sense.
But that isn't IP. That's the creation of physical objects - and our understanding of it fairly nuanced and not very controversial. IP by definition cannot be "lost" by the creator, since it's about ideas and knowledge rather than their physical manifestations of said ideas.
A painter may "lose" a painting when they sell it, that's not the point under contention. The contention is, for example, if the painter should be compensated if the new owner replicates it and beings selling copies.
IP ownership cannot go by a "you no longer own it, it's fair game" state, because IP by definition cannot be meaningfully removed from one person and given to another.
See: music. I give you CD with my music on it - should I be compensated if you distribute copies of this music? Should I be compensated if you perform this composition on your own (i.e. a cover)? Who "owns" the music?
Yes, it can. "Property" is the right to control, not the subject of the rights. IP is lost in the same way that physical property rights are lost -- I can sell physical property and retain possession of the physical object that is the subject of property rights, but still have lost the property as such.
Yes, and those people don't understand property.(The problem isn't their understanding of IP -- most of what they say about the nature of IP is correct; the problem is that they don't understand real property, tangible personal property, and intangible personal property other than IP, because if they did, they would understand that the contrasts they attempt to draw are specious.)
Should we reward the creation of the type of music that people will still be listening to in 30 years time more than the type of music people won't be listening to in 30 years time?
I think that'd be a pretty specious claim. Did Jimi Hendrix set out to create multi-decade hits, did he know how to create multi-decade hits? It seems to me the longevity of particular genres of music is fairly arbitrary and hard to predict, in which case no incentives will result in their deliberate creation.
Hell, is there a particular social benefit to why a creative work - a snippet of culture from a particular time and place - needs to remain culturally relevant for decades at a time? Would that not encourage creation of work that appeals only to the lowest common denominator and avoid specific contexts that are only relevant to the creator's contemporary era?
To put into a specific example: would this cause people to create documentaries about war, instead of, say, the Iraq War? Do we not lose out if we elevate "relevant to the mass-market over 50 years" to a virtue?
That highlights a deeper problem, there is a psychological divide between the IP and the plastic discs or dead tree they are placed upon. The authors wouldn't care if you shared their book if whenever anyone but you (the purchaser of a license to the work) saw blank pages, but you can redistribute their information via traditional economic goods exchange and they don't like that because in modern times copyright lets them lockdown distribution (for most people) all the time.
To answer your first question, here is the opposite perspective:
Throwing away copyright, why not let people freely exchange the information they have? You answer with "the creator needs incentives to create and a means to eat" but you could just switch to the patreon model - have per-work payments by your consumers directly. Then release your work, and let anyone else redistribute as if it were public domain.
Because inherently copyright says you don't have rights to do what you want with the things you possess, if the thing is information, be it encoded in neurons in your brain, etched upon dead tree, engraved in a plastic platter, or stored in a large transistor grid. The codification that some intangible concept that can transcend medium is not yours to do what you want with - for every single copyrighted IP concept or work - is a limiter on the possessor for the benefit of the rights holder.
It is also important to differentiate the rights holder from the creator - since the vast majority of IP created today is not under the license of its creator but under the license of their employer. Which is why the life of author + 70 mess comes in, because huge corporations want never ending money for some work they spent finite time and effort making.
I'm a copyright abolitionist - I think the world would all around be a much better place if content creators pursued their own fans to pay their bills so they can create more. Given a sufficiently good earpiece to get the word out about new creators, and an easy way to discover them, it would be effectively a meritocracy of creative talent.
I'm not advocating theft - and it is important to remember what copyright means - this isn't taking something from a content creator and passing it around nonchalantly. It is that when a content creator voluntarily gives you a copy of their work, that you can do whatever you want with it, including redistribute it yourself. If you break into someones house and steal their work in progress book they never finished, that is robbery. You are stealing their physical property containing their IP, and since that wasn't a voluntary exchange of the initial information that is theft.
So what's your number and your justification for it?
I don't think there's a clean, perfect answer.
Abstract: "The optimal term of copyright has been a matter for extensive debate over the last decade. Based on a novel approach we derive an explicit formula which characterises the optimal term as a function of a few key and, most importantly, empirically-estimable parameters. Using existing data on recordings and books we obtain a point estimate of around 15 years for optimal copyright term with a 99% confidence interval extending up to 38 years. This is substantially shorter than any current copyright term and implies that existing terms are too long."
Additional information: http://rufuspollock.org/2009/09/22/talk-at-atrip-conference-...
The 1980s example is mostly interesting for seeing just how quickly almost everything drops out of print.
If the goal is that the top 1% (or less) of authors that can still live off 30 year old works are to be able to keep feeding their families from those works, then it'd be vastly more beneficial for society to simply pay them a stipend.
As much as I'd like ~50 year copyright on all classes of works, the good news is that those 1880s texts really are very good. (See also the telegraphy love story that just came across HN.)
Dickens, Doyle, and Wells, are the most obvious, but just searching for free netted me people I never heard of.
So yes, while copyright does present issues that can be very troubling, there is such a wealth of stuff available unburdened by it. The difficulty is finding it.
You know the chorus, everybody sing along, ok!
edit: not sure why the downvote. I'll expand a bit.
The Copyright Act of 1870 required two copies of a work to be deposited with the Library of Congress in order to register the copyright -- creative works were not automatically under copyright.
Once that work passed into the public domain, anyone could request a copy of it from the Library of Congress (and then, if they wanted to, copy and distribute themselves). This is pretty important, because it pretty much guaranteed that people would have access to a work even after its copyright expired and was no longer actively being printed by the publisher or author.
The argument made in support of this is false though. I am politically realistic about this, and from a perspective of political realism have no problem with with Disney pushing the 1923 goalposts for its works out to 2039. Or for the publishers of the Great Gatsby to push their copyright from 2021 to 2041. And so on. I realize this is political reality, as do most in this fight.
However, there are many works from 1923 sitting on library shelves where absolutely no one would re-register its copyright. They are orphaned, gathering dust, the paper deteriorating. It would be nice if orphaned, forgotten works no one will ever bother to re-register would enter the public domain as the laws currently allows. Project Gutenberg can digitize them, private publishers could even start reprinting them.
This is what the Public Domain Enhancement Act would have allowed for. Hollywood and the MPAA fought it and killed it.
History tells us that many works of Archimedes, Aristotle, Euclid, Pythagoras etc. have been lost. The same thing is happening now. Old books are sitting on library shelves, deteriorating. These orphaned works will no one will ever re-register will not be scanned, OCR'd and proofread by Project Gutenberg, will not be distributed by print or electronically by independent publishers.
This is where the argument lies. Some proponents of the extension here are talking about Disney and author compensation and so forth (although the youngest author I can conceive of would be an 18-year-old publishing in the last year, 1923 - and thus would be 114 when copyright goes out in 2019 - and that would be the absolute youngest author. I should note only four people currently living are verified to be 114 or over).
All of us know with 100% certainty that Congress will pass a law by 2019 keeping Disney works, The Great Gatsby etc. in copyright. This is political reality, and is impossible to stop. What we want is for orphaned works which no one would ever re-register to become public domain - as they are currently supposed to. At this point all talk of author compensation etc. disappears. Hollywood will keep making money on licensing The Great Gatsby, we will prevent orphaned works from becoming the lost Aristotle works, the lost Euclid works of the future.
Hollywood is fighting this, and will probably win, although if there was a mass movement against it, we could win orphaned works. Because at the end of the day Hollywood is not making licensing orphaned works.
But it shows how many of the arguments made here in support of extension are bogus. Because the fight is over orphaned works. We know the Mickey Mouse and Great Gatsby works will be kept by Hollywood. We just want abandoned, orphaned works. And if we organize and fight to get those, we just might get them into the public domain and preserve them.
Their general position, as I understand it, is that a lot of the proposed orphaned works legislation would make it too easy for works to accidentally fall out of copyright and too burdensome for individuals to make sure their works stay registered.
Four people in the world are currently verified to be 114 years old are older. An eighteen-year-old taking a photograph in 1923 would be 114 in 2019 when their 1923 photograph might accidentally go out of copyright if they don't re-register it.
You use the language and arguments I am talking about. You say "individuals" re-registering "their" 1923 photos might have the position that it is "too burdensome for individuals to make sure their works stay registered." The reality is that no individuals are making sure their works stay registered. These people will all be dead - no one is going to see their works become public domain in the moments before they die at the age of 114. You're presenting a scenario which will not happen. No individuals protecting their own works are involved.
What exists are Getty Images and other corporations which can re-register their 1923 works if they had to. These companies will certainly re-register their most valuable works.
"Too easy for works to accidentally fall out of copyright" - does anyone really think Disney is going to let Mickey Mouse fall out of copyright? Anything of value is going to be re-registered. Only things which have so little value that corporations don't bother to re-register them will become public domain. Particularly orphaned works.
But it raises a question about preservation. Why don't the libraries and collections just lend their books and movies to a Canadian version of Project Gutenberg to be digitized and preserved? Canada has life plus fifty copyright.
As a matter of fact, I can't tell for sure but it looks like Mickey Mouse might be fair game in Canada well before 2019.
That might seem like a good thing for new authors, but old work is predictable, whereas modern authors are -supposed- to be innovative ... a very important part of the idea of copyright.
I'm afraid that Sonny Bono was not a good person to decide the future of US copyright law or creative people. The limits on copyright tenure need to be restored.
This is about the weakest hand waving excuse for an argument relating to why copyright is bad that I've seen in a while.
Copyright was never intended to be perpetual or to enable large companies to lock down culture so that only they are allowed to create and distribute it.
The answer is "basically none", as referenced elsewhere in the discussion: http://rufuspollock.org/papers/optimal_copyright_term.pdf
So I can easily see how similar uncertainty and the associated costs could cause certain public domain works to remain unexploited.