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What Could Have Been Entering the Public Domain on January 1, 2011?

law.duke.edu

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Re: What Could Have Been Entering the Public Domain on January 1, 2011?

#91

Post by prodigal_erik »

grav1tas wrote: post #77
jorgem wrote: post #43

Earlier quoted context omitted.

But copyright can prevent you from accessing less-famous works. Some of these works are out-of-print, so you can't get them and the copyright owners are nowhere to be found. These lost copyrighted works are essentially lost.

IANAL. If a copyright holder doesn't effectively exist like in this scenario, how can they charge you with copyright infringement? If a work is out of print and not findable, and the copyright holder is gone, how would you know that the work existed, and how would anybody go about printing said work again? I also think that your statement implies that society is somehow entitled to peoples' copy written works at some…

Just because you can't find the copyright holder doesn't mean they don't exist. If your derived work is a big hit, some corporate lawyer somewhere might realized they acquired the rights two generations ago, and bankrupt you with an infringement suit. This is why projects go through the whole clearance-of-rights licensing nightmare, and whenever clearance fails, society loses because those projects never see the light of day.

Re: What Could Have Been Entering the Public Domain on January 1, 2011?

#92

Post by poet »

tptacek wrote: post #70
ajays wrote: post #66

Earlier quoted context omitted.

"There is a compelling natural rights justification for intellectual property. It typically gets ignored (e.g. by people like Lessig)." No, it most certainly does NOT get ignored. What the proponents of change are saying is that IP rights should not be granted in perpetuity. Even patents expire after 20 years; so why not copyrights? Given the money that Disney is making, I would not be surprised if the copyright law…

It doesn't just benefit one corporation. It profoundly benefits one corporation, and significantly benefits everyone else making a living off intellectual property. The longer the copyright term is, the greater the value of a copyright is.

The value of a copyright isn't really part of the equation though (I know this is orthogonal to your point). From the Constitution (emphasis mine):

"[Congress shall have the power] to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Further, from Fox Film v. Doyal (again, emphasis mine):

"The sole interest of the United States and the primary object in conferring the [copyright] monopoly lie in the general benefits derived by the public from the labors of authors."

Copyright terms come down to a simple metric: if the public would benefit more from a work being in the public domain, the work shouldn't be copyright (insofar that the progress of science and innovation is not stifled). Corporations and anyone making a living off intellectual property have nothing to do with it; copyright exist only for the benefit of the general public. And with some of the most innovative systems software of the last decade being developed for free, you're going to have a hard time arguing that such lengthy copyright terms are needed to ensure that innovation happens. Linux is billion dollar project that happened organically; I just don't buy it that ~100 year copyright terms are necessary.

Re: What Could Have Been Entering the Public Domain on January 1, 2011?

#93

Post by jfager »

uvdiv wrote: post #67
sgift wrote: post #65

Earlier quoted context omitted.

The work is not "forced" into the public domain. It is, unilaterally, hold off from it. Without copyright (which is granted by the government) the work would be in the public domain the moment it is published/given to someone else.

> Without copyright (which is granted by the government) the work would be in the public domain the moment it is published/given to someone else. I think private contracts would be sufficient. The author doesn't yield his work to a publisher without terms; for the publisher to pretend it is in the public domain (e.g. to start distributing copies without royalties to the author) would violate a contract. The same coul…

Is it actually not possible to bypass the copyright system and distribute material under contract instead? I'd imagine such an arrangement would be incredibly expensive to set up and do horribly in the market, but is there actually a legal reason you couldn't do it?

Re: What Could Have Been Entering the Public Domain on January 1, 2011?

#94

Post by Jach »

xenophanes wrote: post #57
gjm11 wrote: post #41

Earlier quoted context omitted.

Book sales themselves already promote the book's ideas as long as readers keep buying it. Why should they also fund further promotion?

It wouldn't exist at all without its creator so why should its creators' rights (including transferable rights) ever end? The idea of rights with a time limit is kind of strange, isn't it?

    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;
I'm not a constitution expert, so my interpretation is probably wrong in several ways, but this line suggests to me that it's not so much a right with a time limit, the works of authors and inventors belong to Society and this passage grants to the creator a temporary exclusive privilege to capitalize on the ideas.

For my own bias, I'm with the crowd that feels "Creators gonna create" whether this passage existed or not.

Re: What Could Have Been Entering the Public Domain on January 1, 2011?

#95

Post by follower »

tptacek wrote: post #79
follower wrote: post #78

Earlier quoted context omitted.

> significantly benefits everyone else making a living off intellectual property. Doesn't that presuppose that the incremental gain from adding another N years of copyright coverage after an author's death is greater than the potential gain if it was accessible now to people who are making their living or--even--simply living? It's not unreasonable to assume that an extremely large proportion of creators (who are onl…

The date of an author's death has little to do with the value of her creation at the time of its creation. Copyrights are transferable. This business about death is a red herring.

Excluding work-for-hire, does a copyright transfer affect the copyright term in a way that makes the date of the original author's death no longer relevant? (IANAL and couldn't find a discussion of this when I had a quick look.)

Ignoring the impact of author death still doesn't change my original question of whether a longer term "significantly benefits everyone else making a living off intellectual property" and society in general.

Re: What Could Have Been Entering the Public Domain on January 1, 2011?

#96

Post by prodigal_erik »

jfager wrote: post #93
uvdiv wrote: post #67

Earlier quoted context omitted.

> Without copyright (which is granted by the government) the work would be in the public domain the moment it is published/given to someone else. I think private contracts would be sufficient. The author doesn't yield his work to a publisher without terms; for the publisher to pretend it is in the public domain (e.g. to start distributing copies without royalties to the author) would violate a contract. The same coul…

Is it actually not possible to bypass the copyright system and distribute material under contract instead? I'd imagine such an arrangement would be incredibly expensive to set up and do horribly in the market, but is there actually a legal reason you couldn't do it?

I think you could, it's just not a fail-safe system. If one judgment-proof guy breaks your contract by sharing a single copy, you have no power to stop the recipient from making all the copies they care to. Copyright is imposed on all of us, so you get more than one chance to stop infringement.

Re: What Could Have Been Entering the Public Domain on January 1, 2011?

#97

Post by Jach »

follower wrote: post #81
jleyank wrote: post #55

I might be mis-remembering, but doesn't (L)GPL rely on copyright law for its status? If so, then there's at least one bit of IP that's "properly protected" by copyright law.

Yes, you remember correctly ( http://en.wikipedia.org/wiki/Copyleft ) but GNU would have an issue with the term "IP". :) I don't have a link but my impression is that part of the need for the GPL to exist in the first place is due to restrictions of copyright and the GPL uses copyright to enforce itself as a way of reacting against the system which it would rather not exist.

I have a couple links:

http://www.gnu.org/copyleft/ http://www.gnu.org/philosophy/not-ipr.html (Why IP is a bad term.)

Re: What Could Have Been Entering the Public Domain on January 1, 2011?

#98

Post by tptacek »

follower wrote: post #95
tptacek wrote: post #79

Earlier quoted context omitted.

The date of an author's death has little to do with the value of her creation at the time of its creation. Copyrights are transferable. This business about death is a red herring.

Excluding work-for-hire, does a copyright transfer affect the copyright term in a way that makes the date of the original author's death no longer relevant? (IANAL and couldn't find a discussion of this when I had a quick look.) Ignoring the impact of author death still doesn't change my original question of whether a longer term "significantly benefits everyone else making a living off intellectual property" and soc…

This isn't complicated. A copyright is worth more if it lasts longer. An author can sell her rights to a work for more money if copyright is going to protect that work for a longer period of time. People making a living off intellectual property can be expected to make a better living in a world in which copyrighted works have more economic value.

Re: What Could Have Been Entering the Public Domain on January 1, 2011?

#99

Post by Jach »

griftah wrote: post #63
Helianthus16 wrote: post #54

Earlier quoted context omitted.

>LOTR is being actively commercially exploited and the commercial exploitations are darn good. Darn good, but not perfect. We are now denied the right to re-interpret LOTR, perhaps because we want to include the Scouring of the Shire--not because the movie was necessarily worse without it, but because we _want_ to. And heck, take a better example: the Harry Potter movies are in great need of re-interpretation, but do…

Do we really need more fanfics?

http://www.fanfiction.net/s/5782108/1/Harry_Potter_and_the_M...

Yes, we do.

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