Google and Orphaned Works
Nominally, copyrights in the United States are for a limited duration. But the corporations that own valuable, decades-old copyrights—think Mickey Mouse and Batman—don’t want to see those copyrights expire. So they’ve gotten good at lobbying congress to retroactively lengthen copyright terms in order to ensure that Mickey and Bruce Wayne will continue to be valuable commodities forever.
This is bad on its own terms, but it also has some really perverse consequences. After all, most decades-old works aren’t valuable. And most aren’t owned by large ongoing business enterprises. But even though this vast back catalog consists of works with little monetary value, they could still each individually be of interest to some people and collectively they’re of enormous use. But right now, if you stumble across something old and forgotten, it’s often not clear how you would even go about getting the rights to it. Oftentimes a person may not even know that he or she is the heir to an obscure copyright owned by a great-uncle or some such.
At any rate, Google is touting the recent settlement agreement around Google Book Search as a solution to this problem. On the one hand, via Google’s arrangements with libraries, copies of copyrighted-but-out-of-print books will be available on Google Book Search. And on the other hand “the settlement creates an independent, not-for-profit Book Rights Registry” to help make it easier for rights-holders to make their claims and would-be users to find rights-holders. What’s more, “As authors and rightsholders claim their books under the settlement, information about what books have been claimed and who claimed them will be made publicly available, allowing others to take advantage of this information.”
This does sound like a real step forward to me. Still, it’s a pretty goofy kludge to solve a problem that really doesn’t need to exist. There’s no public interest rationale for retroactive copyright extensions. They just suit the interests of a relatively small number of copyright-owning firms, and they create a huge set of problems.
64 Responses to “Google and Orphaned Works”
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June 3rd, 2009 at 11:39 am
> At any rate, Google is touting the recent
> settlement agreement around Google Book Searc
That use of the word “around” is one of the most annoying tics of corporo-speak to arise in 3000 years. “Around” – what the heck is that supposed to mean. Does the settlement affect copyright on orphaned works or does not not? There is an answer to that question, which AFFECTS other questions and decisions. We don’t sit on childrens’ carousels going “around” facts, questions, answers, and actions all day.
June 3rd, 2009 at 11:40 am
It creates a property interest in abandoned works that will be perpetual. Who will end up making money out of this? A few rights holders that can establish their claims. The rest will go to an entity that will likely be under Google’s effective control. It would be better to establish a system in which works that are abandoned are put into the public domain.
June 3rd, 2009 at 11:41 am
They just suit the interests of a relatively small number of copyright-owning firms, and they create a huge set of problems.
That’s the American way.
June 3rd, 2009 at 11:44 am
(Goes and looks up release date of Steamboat Willie. Ah. It’s 81 years old!)
Were I in a more confrontative mood, I’d stage a screening of Steamboat Willie and charge a dollar per viewer. I’d send out invitations to Disney and other Hollywood types.
This would all be in order to trigger legal action, which could be used to test what the Constitution REALLY means by “limited time.” Me, I think anything over the threescore-and-ten that we think of as a classic human lifetime counts as “unlimited.”
June 3rd, 2009 at 11:45 am
Odd that you would be worried about getting the rights to things, seeing as how you never ever include a photo credit on your posts.
I stole your book from the library this week though, so consider us even…
June 3rd, 2009 at 11:47 am
Ah, Matt, but you don’t understand–it’s not about public welfare, but about rights! It’s property, and property rights are the foundation of every other right! For Congress to limit the right to profit from property forever [including the right to sell it or pass it on to one's heirs] would be one of those dread “takings” that certain corners of the Right get so exercised about. That all manner of problems arise from claiming an idea as a piece of property [There is no new thing under the sun, all new ideas grow out of earlier ones, etc.] doesn’t matter to the “intellectual property” absolutists. Believe me–living in Nashville, where everybody claims to be a songwriter, I’m surrounded by these people.
June 3rd, 2009 at 11:52 am
(Actually, everybody IS a songwriter. But most of the rest of you have the decency to keep it to yourselves.)
June 3rd, 2009 at 11:56 am
Isn’t there a pretty easy compromise? After some time from original publishing (say 50 years?) a work has to be actively used commercially once a year or the copyright expires. So Disney has to air a Mickey Mouse cartoon on the Disney channel, a book has to be in print and for sale somewhere and the copyright is in effect, but some little known book that hasn’t been in print for years is public domain
June 3rd, 2009 at 11:56 am
There’s no public interest rationale for retroactive copyright extensions.
There are, however, corporations who’ll argue that “for a limited time” means “twenty years from today”, or even “till the end of time, minus one day” and will get the SCOTUS to agree.
Don’t discount the idea of a registry, though: one of the nagging issues with orphan works is that it often costs more to find out who the relevant rights-holders might be than to secure the right to redistribute those works.
But you’re quite right that one of the consequences of extended copyright terms is that there are now many unwitting rights-holders to works that went out of print before their parents were born. Which creates a hypothetical paradox whereby a grandchild might learn about about a grandparent’s book, but can’t actually read it because that grandchild holds the copyright.
June 3rd, 2009 at 11:57 am
I see what you mean about “canned” content, but it is a really interesting and important matter of public policy. For more in depth I would recommend Lessig’s books, they’re downloadable for free. Also Eben Moglen’s lectures, and Yochai Benkler’s opus.
June 3rd, 2009 at 11:59 am
Oh, by the way, I believe all the above mentioned books can be purchased through Amazon.
June 3rd, 2009 at 12:06 pm
Well, the same sort of reasoning used to conclude that all human behavior falls under the heading of “commerce…among the states”, is used to conclude that the term “limited time” means any period of time which is not explicitly described as “an infinite period of time”.
It’s pretty silly to generally support a powerful, expansive, national government without strictly defined powers, and then complain that the national government abuses power when protecting intellectual property.
June 3rd, 2009 at 12:10 pm
Lessig proposed a short copyright term – 10 or 20 years, I forget – after which the copyright owner could renew the copyright for $1. This would satisfy our corporate masters, and still put most copyrighted works into the public domain fairly quickly.
June 3rd, 2009 at 12:12 pm
Of course, if the use of that government power is to murder people for sitting on Will Allen’s oil, then that’s a perfectly legitimate use of national government power.
You are a fucking psychopath Will.
June 3rd, 2009 at 12:20 pm
The only reason Google is doing this is to keep–and keep profiting from–their otherwise illegal copies of books for which they have not paid the rights holders. And they can’t pay the rights holders because…it would be too cumbersome to find and pay the copyright owners of millions of orphaned works.
Don’t get me wrong–I love being able to search copyrighted material (which in order to read I then have to buy or find in a library), and I think it’s a good thing to be able to do so. But I hate the heavy-handed, unilateral way Google decided they could set federal policy.
June 3rd, 2009 at 12:24 pm
The easy compromise is to trademark the characters rather than extend the copyright. It’s already do-able and, in fact, done for characters like Mickey Mouse and Batman. The whole POINT of extending copyright is to protect stuff that may be of use, but isn’t now, rather than stuff that is actively used. Which of course flies strait in the face of the entire reason for copyright protection in the first place.
June 3rd, 2009 at 12:30 pm
@just john: “This would all be in order to trigger legal action, which could be used to test what the Constitution REALLY means by “limited time.” Me, I think anything over the threescore-and-ten that we think of as a classic human lifetime counts as “unlimited.””
See Eldred v. Ashcroft (2003):
http://en.wikipedia.org/wiki/Eldred_v_Ashcroft
In which the court basically held that as long as Congress doesn’t write the copyright laws to specifically designate them as being for “unlimited time,” they can keep extending them every 20 years, as long as they have the votes.
Of course, I think this decision is complete nonsense, except as a deferral of power to the Legislative branch, but I think it’s interesting that people who argue about intellectual “property” rights ignore the plain wording of Art 1, Sec 8 which reads:
“The Congress shall have power 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”
Note it doesn’t say “the property rights of authors and inventors are inviolate,” rather it says that those rights should exist TO PROMOTE the progress of science and the arts. Which is to say that if our IP laws DON’T do that, we need to change them.
June 3rd, 2009 at 12:39 pm
I generally agree that copyright terms should be shortened, but I think the U.S. government is missing out on an a nice money making opportunity if they only charge $1/year. I think the fee should increase over time – something relatively young could be relatively cheap to renew. I don’t know what the fee should be, but something on the order of hundreds or maybe a couple K would be fine by me. The fee should then increase rapidly every couple of years. By the time you get into Mickey Mouse/Bruce Wayne territory, the fee should be a billion or two.
June 3rd, 2009 at 12:39 pm
But I hate the heavy-handed, unilateral way Google decided they could set federal policy.
The book search dispute doesn’t overlap cleanly with the lobbying might of Disney or the MPAA/RIAA, and in that regard, it was something of an unfair fight. But the policy had already been set in a heavy-handed, unilateral way by the mighty Mouse. Or the MPAA. Or RIAA.
There’s a pragmatic, if morally problematic argument that it takes an 8,000lb mutant gorilla to challenge an 800lb mutant rodent. The line “seek forgiveness, not permission” also comes to mind. If YouTube, for instance, had sought out explicit permission for copyrighted clips, it wouldn’t exist.
Having one corporate behemoth shape copyright policy as opposed to another is clearly not ideal, but I’m not sure there’s ever been a time when it hasn’t been influenced in that regard. Policy reflects the balance of production and consumption: during the nineteenth century, the US basically had a copyright policy that encouraged book piracy of foreign authors, which is why Dickens needed to do reading tours to recoup any income from his American readers.
June 3rd, 2009 at 12:42 pm
For the Court to have ruled the other way in Eldred v. Ashcroft would have been a profound act of judicial activism. The Court would have been substituting its own judgment for Congress’ on an issue squarely within the scope of Congress’ enumerated powers. One can certainly argue that Congress made the wrong call on enacting the term extension in the first place, but not everything that Congress gets wrong could or should be the subject of a Supreme Court reversal.
As unappetizing as it might be, the Court reached the right decision in Eldred v. Ashcroft. To rule the other way would have set a bad precedent going well beyond copyright law.
June 3rd, 2009 at 12:56 pm
Isn’t there a pretty easy compromise? After some time from original publishing (say 50 years?) a work has to be actively used commercially once a year or the copyright expires. So Disney has to air a Mickey Mouse cartoon on the Disney channel, a book has to be in print and for sale somewhere and the copyright is in effect, but some little known book that hasn’t been in print for years is public domain.
Isn’t this the status quo? I know that both DC and Marvel comics keep on publishing titles starring characters named “Captain Marvel,” even though neither character is particularly distinctive these days, because they each have the right to use the name in certain ways and if either company goes for too long without using that character then the rights are up for grabs.
June 3rd, 2009 at 1:08 pm
Why not just charge an exponentially increasing fee for maintaining copyrights after some reasonable time (for which it would be ~free). I’m fine with Disney keeping Mickey Mouse and DC keeping Batman indefinitely, but they should be coughing up a few tens (hundreds?) of million a year to do it. Obviously, most works would fall out of copyright after the “free” period.
June 3rd, 2009 at 1:09 pm
Copyright should be 5 years. To extend the intellectual monopoly on a character like Mickey Mouse, Disney should have to make a new MM cartoon before the old one expires. And it should be a legitimate effort, comparable to the older works, not just a 5 second loophole cartoon.
June 3rd, 2009 at 1:15 pm
I agree with you that copywrite has gotten way out of hand. However, I think that your example of Batman is wrong. It’s been 50+ years since Disney has put out a new Mickey Mouse cartoon, but Batman is an on-going concern. DC still publishes at least two titles every month, plus the cartoons, plus the movies that show up every three years or so. Is there some middle-ground?
Marvel guy,
Chas
June 3rd, 2009 at 1:26 pm
What gets in my craw about Disney specifically is how much money they’ve made by appropriating other characters, like Robin Hood, Sleeping Beauty, the little mermaid, Snow White …
June 3rd, 2009 at 1:32 pm
I’ve never understood how a retroactive extension of copyright can be constitutional.
The power of Congress, under Article I, Section 8, is “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.”
How does an extension of the copyright term “promote the progress of science and useful arts” when the works have already been created?
June 3rd, 2009 at 1:33 pm
The thing to remember is that copyright law is originally created in part as a pushback against perpetual control of rights, especially print rights. Until 1710, the first printer who published a book held onto the rights forever, or sold them to another publisher. Imagine only one publisher having a monopoly on Shakespeare today. What possible public benefit would there be to that?
In 1710, the British Parliament passed the first copyright law with a limited term: fourteen years, like patents, with a chance for one renewal. The big publishers held onto their rights by various stratagems for the next 60+ years, and it was only in 1774 that case law (those activist judges!) really started enforcing limited copyright terms.
When the Founders gave Congress power to grant patents and copyrights “for a limited time,” they were influenced by this relatively recent state of the law. They viewed ideas, inventions and artworks as deserving protection for their inventor for an initial period, but did not expect or want them to become the property of large business concerns for perpetuity.
June 3rd, 2009 at 1:35 pm
For the Court to have ruled the other way in Eldred v. Ashcroft would have been a profound act of judicial activism.
The current copyright length is lifetime of the author + 70 years. And every 20 years or so they keep extending it another 20 years. How is that not a de facto unlimited copyright?
June 3rd, 2009 at 1:36 pm
> on an issue squarely within the scope of
> Congress’ enumerated powers.
That was actually the fundamental issue before the Court. Copyright (and similarly patents {there is no such things as “intellectual property”}) serves two purposes: (1) creation of a property right in creative work, enforced by society/government, so creative-work-creators don’t get ripped off (2) ensuring an orderly flow of once-proprietary creative work into the public domain so that future creators aren’t hamstrung by the inability to use, e.g. common guitar riffs. Copyright was a _balancing act_ between those two needs. Extending copyright 20 years at a time forever is the same thing as making copyright infinite and destroys purpose (2).
June 3rd, 2009 at 1:42 pm
Chas: not really sure what you’re talking about. IMDB lists new Mickey Mouse videos from as recently as 2007. And of course Disney uses Mickey all the time to promote and brand their businesses.
June 3rd, 2009 at 1:48 pm
[...] Filed under: Uncategorized — David Schaengold @ 1:48 pm Yglesias and Megan McArdle offer a pair of interesting posts on copyright law. Perhaps because most Americans don’t think copyright [...]
June 3rd, 2009 at 2:00 pm
I believe that hoary chestnut “If” still languishes in copyright. Quick, someone copyright Mother Goose.
June 3rd, 2009 at 2:07 pm
Not Really: It’s easier to prove that a 20-year extension is “limited” than that the extension harms the public domain, because it’s harder to quantify potential. It’s bullshit, but them’s the rubs. Like I said upthread, the real motivating factor here is the balance between consumption and production, and the potential arbitrage across copyright regimes. If it becomes expedient for the US to encourage wholesale copyright violation, then the law will change.
June 3rd, 2009 at 2:10 pm
Matt confuses copyrights and trademarks. It’s true that Disney and Warners lobby Congress every 20 years to extend the term of copyright for Mickey and Batman. But if they fail next time, which I think they will (and we’re halfway there already), it won’t allow anybody to create new material with Mickey or Batman. It’ll just allow you to download and copy their oldest material for free.
As Cyrus notes, the compromise eric k suggests is in fact the state of the law today, except I think it’s 20 years (10 even?), not 50.
Also, the old regime did allow for copyrights that weren’t worthwhile to lapse early. They changed it in 1976 so that you get your whole term even if you don’t care anymore. I don’t know why, but it’s not like this scheme arose by accident.
June 3rd, 2009 at 2:12 pm
The current copyright length is lifetime of the author + 70 years.
To illustrate this, let’s imagine I wrote a book at age 20, and will live to about 85 years old as my grandfathers both did (I’m 40 now). The copyright won’t run out until 2124, or 135 years after the work was created. What useful purpose is served by such an effectively unlimited copyright term?
June 3rd, 2009 at 2:19 pm
Stefan, the problem with your extreme example is that most people don’t write books at 20, and many authors are dead of liver failure well before 85. My understanding is that at the time of passage of the Bono Act, the life + 70 formulation was actuarially equivalent to the straight 90-year term for works not authored by an individual.
And, of course, you’re perfectly free to release that work into the public domain any time you want.
June 3rd, 2009 at 2:21 pm
DHN, to answer your question “How does an extension of the copyright term ‘promote the progress of science and useful arts’ when the works have already been created,” if copyright is extended then the copyright holder can create and exploit more derivative works during the extended term. The right to create derivative works is one of the rights granted by copyright.
The interesting issue raised by Matt’s post, I think, is that this seems to be something that the Copyright Office or its administrative sibling the Library of Congress should be doing. Echoing Halfdan, this really looks like a federal policy initiative more than a simple legal settlement of a copyright infringement claim. I mean, who’s better situated to facilitate locating copyright holders in old works than the entity that has all the registration and transfer information on file already?
As for everybody else opining on how long the term of copyright should be, I think once we’ve brought ourselves roughly equal to the European copyright regime we should call it a day. Lessig’s proposal sounds interesting but it’s really just a revival of a formality of the sort that existed under the 1909 Act and was better done away with. I also bristle at the idea of some copyright owners buying extended periods of protection, at least beyond a hard limit along the lines of what currently exists. The fact is that Sarcasto’s right — the really valuable works, or at least those that are characters or icons of some sort, will live extended lives as trademarks. Trademark more appropriately rewards the “sweat of the brow” or investment in a brand anyway.
June 3rd, 2009 at 2:33 pm
The whole POINT of extending copyright is to protect stuff that may be of use, but isn’t now
Not really. Among the beneficiaries of this perpetual extension are the heirs to authors whose books continue to sell, like “Gone with the Wind”, which is still protected by copyright even though its author died sixty years ago. I think the real constitutional issue isn’t Congress’s authority to extend the “limited” term, which seems pretty well incontrovertible. The Article I clause in question is quite explicit: securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. It says “securing to authors”, not securing to authors and their heirs and assigns. Copyright should not be transferable, and under the plain language of the Constitution it isn’t.
June 3rd, 2009 at 2:36 pm
P.G. Wodehouse first published a novel in America in 1915 at the age of 34. (This is all from memory, btw.) He died in 19farkin75. (Still hale. He died, I believe, correcting proofs on a 3/4 finished work.) So, somewhere around the time we’re either drowning under the advancing sea or flying to Mars in our personal rocket ships, that novel of silly Edwardian dunces will pass into the public domain.
June 3rd, 2009 at 2:38 pm
are Mickey Mouse and Batman copyrights or are they trademarks?
I’d think the latter.
The oldest works featuring those characters should be public domain and we should be able to openly distribute them (though we’d have to attribute the trademark properly somehow, I think?)
While “unlimited” copyright for those older DC and Disney products are a concern, I think the bigger copyright concern is in regards to music. There’s a bonanza of works that should become public domain over the next couple of decades that the big music publishers are trying to protect from the public domain. And that inflicts much more harm upon the public than not allowing me to freely access the earliest issues of Action Comics and Detective Comics.
I would be inclined to think that Disney and DC and the like are so keen to protect those earliest copyright works not because of their intrinsic value at this point (except for a few weirdos Disney-obsessives, does Steamboat Willie have much market value? Does a reprinted copy of the earliest Batman works have much market value? No – if they did, you’d see more reprints)?
I think it’s about protecting the trademarks of Mickey Mouse and Batman from dilution. Making it easy to reproduce those early works weakens the trademark, inching the trademark closer to the public domain.
Of course, infinite trademarks on characters like Batman and Mickey Mouse are also bad things, especially in cases like Batman and other comics.
It discourages DC from creating good new characters. It also creates all the ugly continuity problems that always creep up in comic book world, and force goofy resets and varied other stupidity. I’m not big on comic books these days, though I will pick up an occasional thing at Borders, but I remember Crisis on Infinite Earths and I got bored of comics just before the follow up crisis event like 10 years ago. Both seemed pretty stupid.
OTOH, the best way to deal with aging superheroes and continuity problems would be to totally nuke everything every 15 to 20 years or so. Just hit reset, make all the key players 22 years old again. No goofy Infinite Crisis on Infinite Earths or anything.
Just start over.
Sorry for the rambling rant.
June 3rd, 2009 at 2:47 pm
Mike T, the answer is that each extension is a separate legislative act, with (one presumes) a separate legislative determination as to where the interests lie. Of course, the entertainment companies are going to want the term to be extended, just like companies that pollute are going to want laws on that to be lax, or farmers or agribusiness are going to want farm subsidies to be expanded. If you want to say “well, they’ll just give the copyright owners another few years, therefore making copyrights effectively perpetual”, you might as well give up on trying to influence government action altogether.
The Eldred court could have done one of three things: 1) defer to Congress’ determination of what term adequately promotes the advancement of science and the useful arts; 2) 2) say that Congress’ determination was wrong and therefore the statute is unconstitutional; or 3) say that Congress got it wrong because the maximally permissible length of copyright is some period X. #3 would have the Court make up words in the Constitution that are clearly not there, based on the Court’s subjective determination of where the balance of interest lies. Where in the Constitution does it say 14 years, 20 years, life plus 5 or anything else? It doesn’t. #2 would be irresponsible – if the statute whose topic is clearly within Congress’ enumerated powers is deemed to be unconstitutional, the Court is obligated to explain why so that Congress knows how to craft a constitutionally acceptable statute. Otherwise, the Court is acting as kind of a super-legislature (of the unelected variety), striking down laws that it just doesn’t like. That leaves #1, which is what the Court actually did. This is why Judge Posner said Eldred was an unwinnable case for the plaintiffs.
It would have been the textbook definition of activism for the Court to have overridden Congress on this point.
June 3rd, 2009 at 2:47 pm
Ok I just got to throw this out. Much of what is going on for Mickey Mouse as has come up earlier in the thread is trademark. Trademark and copyright are not the same things and the laws that govern them are different. GoogleBook impacts copyright not trademark.
Copyright is run by the Library of Congress but copyright law is written by Congress. I know I sound snarky here and I know it can be confusing but LC can only enforce with the strictures of the law as written it can’t go just making stuff up on it’s own.
June 3rd, 2009 at 2:49 pm
It says “securing to authors”, not securing to authors and their heirs and assigns. Copyright should not be transferable, and under the plain language of the Constitution it isn’t
In practice, this would destroy copyright, and to be originalist for a moment, the Framers would have understood the selling or licensing of those rights as part of those rights. It was standard practice. (And Franklin, who held both copyrights and patents, knew this well.)
If copyright holders could not assign the rights, a lot of art couldn’t or wouldn’t get made. Authors have always worked with publishers. Screenwriters have always worked with movie studios.
Logically, by your rule either:
1) no scripted movies could be made, because the screenplay writer couldn’t sell the rights to the producers, or
2) any movie could immediately be ripped off by someone else using the same script (to which the original film makers would have no more right than the next seven film makers).
June 3rd, 2009 at 2:56 pm
If transferability wasn’t contemplated by the framers I’d be surprised. But legal work-arounds would be developed; I understand that in some European countries copyright isn’t assignable as a formal matter but commerce still finds a way, presumably by simply using alternative nomenclature.
ET, I wasn’t suggesting that the Library of Congress could enact a law. I was suggesting that the LOC would seem to be well situated to perform the function that Google seeks to perform. Just throwing out a policy idea. I don’t care how such a program is authorized or enacted.
June 3rd, 2009 at 3:15 pm
Hey Matt! Sorry my first post here is going to be about word choice, but it can’t be helped. Will you please help stop the newly fashionable use of “around” to replace “concerning.” Seriously, I hate it. Also, thesaurus.com doesn’t like it either:
Main Entry: concerning
Part of Speech: preposition
Definition: having to do with
Synonyms: about, anent, apropos of, as regards, germane to, in regard to, in the matter of, pertaining to, re, regarding, relating to, relevant to, respecting, touching, with reference to, with regard to
June 3rd, 2009 at 3:16 pm
Otherwise, great blog, wonderful post.
June 3rd, 2009 at 3:18 pm
Your example of derivitive works isn’t a good argument. The benefit of having the sole ability to make derivitive works is a reason for an artist to make the material in the first place, however, once material is made, the copyright decreases the likelihood of derivitive work.
Assume a copyright is about to expire on an old, popular, comic. If it is extended, one author controls the rights to derivitive work. If it is not extended, anyone can write a derivitive work. The former case supresses art, the latter promotes it.
Extending existing copyrights always detracts from “the promotion of useful arts and sciences” and should be deemed unconstitutional.
The court must defer to congressional discretion on the length of copyright laws. Congress can make copyrights 50,000 years if they want to, but congress should not have the power to extend existing copyrights retroactively. Doing so suppresses rather than promotes “the useful arts and sciences”.
June 3rd, 2009 at 3:19 pm
if copyright is extended then the copyright holder can create and exploit more derivative works during the extended term. The right to create derivative works is one of the rights granted by copyright.
Steve V, lets say the copyright for Batman expired tomorrow. Couldn’t DC continue to create derivative works? There certainly wouldn’t be any law against it.
My (admittedly limited) understanding is that others might be able to create derivative works based on Batman’s first appearance, but there could be no reference to anything that happened afterwards, until those works went into the public domain. Of course, DC would argue trademark issues, and the derivative works issue would end up in court, which is fine, because that’s what we have courts for. But at least copies of the early comics themselves would more freely available.
June 3rd, 2009 at 3:29 pm
#2 would be irresponsible – if the statute whose topic is clearly within Congress’ enumerated powers is deemed to be unconstitutional, the Court is obligated to explain why so that Congress knows how to craft a constitutionally acceptable statute.
What’s so irresponsible about finding that retroactively extending copyrights for works that are about to enter the public domain amounts to a de facto unlimited copyright, especially since many of the same works were about to enter the public domain in 1976 when the previous extension was passed. Should the court be blind to a pattern of behavior? If, in 2015, Congress passes another law extending copyright an additional 20 years, will the Court still be, in your opinion, obligated to find that constitutional? How about another 20 year extension after that in 2035? Or another in 2055?
June 3rd, 2009 at 3:38 pm
The easy compromise is to trademark the characters rather than extend the copyright.
The problem here is that copyright extends to derivatives of works as well as the published work itself. And that’s why we can’t all run out and write our own prequels to the Hobbit.
@pseudonymous in nc: What I’m objecting to is that Google Books could have–from the start–recognized that they were blatantly and purposely breaking copyright law, and in the process screwing over the little guy. I haven’t read the entire agreement, but it appears that if the copyright owner is unknown, Google takes its cut regardless. Considering all the millions of orphaned works, that’s a hell of a lot of labor being exploited.
Again, I like Google Book Search. I can’t wait for the agreement to be finalized so I can read all those books for free. But I would prefer that they only profit when the revenue can be fairly shared with the legal rights holder.
June 3rd, 2009 at 3:55 pm
Mickey Mouse is covered under both copyright and trademark law. Even if “Steamboat Willie” went into the public domain, you still couldn’t make a new Mickey Mouse cartoon. The Disney copyright issue is that they sell millions upon millions of copies of cartoons such as Snow White and Pinocchio and Cinderella, many of which are already older than 75 years. If these works went out of copyright, they would lose an enormous stream of existing revenue.
June 3rd, 2009 at 4:03 pm
Njorl, Mac, maybe you’re right. I was just pointing out that a work isn’t dead to the owner once it’s created or published. The copyright owner can also proceed to create a family of other works, all during (and with the benefit of) the protection of the copyright monopoly. So in that sense the arts can be said to be promoted as well. But obviously once a work goes PD it’s also available to be used by everybody in derivatives.
As far as the Batman example, it raises the interesting issue of copyrightability of characters per se. Once the initial Batman works go PD, then the “character” of Batman goes PD as well and can only have any continued value as a trademark. Once that happens, then specific later-created comics will retain copyright protection (which will expire in due course), with the Batman character itself being a part of them that’s PD. Lots of fun litigation will ensue over what “artistic” uses of trademarked characters are allowed under the first amendment, especially where the underlying copyrights in the characters have expired.
June 3rd, 2009 at 4:16 pm
What’s so irresponsible about finding that retroactively extending copyrights for works that are about to enter the public domain amounts to a de facto unlimited copyright, especially since many of the same works were about to enter the public domain in 1976 when the previous extension was passed. Should the court be blind to a pattern of behavior? If, in 2015, Congress passes another law extending copyright an additional 20 years, will the Court still be, in your opinion, obligated to find that constitutional? How about another 20 year extension after that in 2035? Or another in 2055?
Where is the Court supposed to draw the line, other than just manufacturing something in the Constitution that isn’t there? The Constitution doesn’t say anything about how long a copyright term should be, or how to promote the progress of science and the useful arts. (Or the public domain, either.)
The term “retroactive” is a huge misnomer here, since all that is being done is extending a benefit already in place. Happens all the time in a lot of areas. The word “retroactive” was a buzzword adopted to try and make this extension sound like “ex post facto.”
You may not agree that extending the life of copyrights in force has any benefit on the progress of science and the useful arts. Some have offered possible benefits here, and numerous others can be thought of. You may not agree with those, or think that those benefits aren’t outweighed by the harm, and that’s fine. I’m not here to debate that. It’s a policy decision on which people can have different opinions, and it’s ultimately the legislature’s job to decide what the policy will be.
As far as whether the Court should recognize a “pattern,” no, it should not. There’s no such thing as unconstitutionality by degrees. Congress should always be free to re-evaluate the balance of interests and reassess the policy. A number of things could affect Congress’ decision-making including, perhaps unfortunately, the influence of content companies. If you want a different policy, work to influence the policymakers. Judges shouldn’t strike down laws just because they feel the interest balancing should have come out a different way.
June 3rd, 2009 at 4:51 pm
The word “retroactive” was a buzzword adopted to try and make this extension sound like “ex post facto.”
Why would you think such a thing, Mr Corporate IP Lawyer?
If you want a different policy, work to influence the policymakers.
Or, alternatively, wait long enough and see the developing world treat US intellectual property with the respect that Americans showed to European IP in the 1800s.
June 3rd, 2009 at 5:02 pm
Hafidan,
Wasn’t Fantasia 1940 with the rest of the feature length cartoons coming after that? so they are getting to 75 years, but not yet.
June 3rd, 2009 at 6:06 pm
For a brief moment, I thought by “characters”, you were referring to letters of the alphabet. A funny idea; until someone decides to run with it.
June 3rd, 2009 at 7:00 pm
Sanjiv, actually, an originalist could have quite easily picked a term of years. The framers thought that a limited time meant 14 years with one renewal, after all. We know this because the first congress passed a copyright law.
So any time period that was similar to 14 years and one renewal gets a presumption that it is a limited time. Perpetual extensions in 20 year bites are not similar to 14 years and one renewal; therefore the current statute is unconstitutional.
The reason the Supreme Court didn’t do this is that they were afraid of putting us in violation of copyright treaties. But that’s actually what “limited times” means. It means a term similar to 14 years and one renewal.
June 3rd, 2009 at 9:13 pm
For anyone interested in what can be done by obtaining the rights to old cartoon characters, I highly recommend “Harvey Birdman, Attorney at Law.” Hysterical (plus it features Stephen Colbert and Gary Cole). The “Blackwatch Plaid” episode is the best.
June 3rd, 2009 at 9:27 pm
Sanjiv
Where is the Court supposed to draw the line, other than just manufacturing something in the Constitution that isn’t there? The Constitution doesn’t say anything about how long a copyright term should be, or how to promote the progress of science and the useful arts. (Or the public domain, either.)
Where to draw the line? How about saying that the old law’s fine but repeatedly extending the copyrights of works that are about to enter the public domain goes too far? Or saying that if Congress wants to lengthen the amount of time a work can be copyrighted, that it should only apply to new works going forward? Is that not reasonable?
My complaint is with the way old works repeatedly have their copyrights extended decades into the future. You might disagree that it’s unconstitutional, but surely you can at least acknowledge the appearance of a de facto unlimited copyright.
As far as whether the Court should recognize a “pattern,” no, it should not. There’s no such thing as unconstitutionality by degrees. Congress should always be free to re-evaluate the balance of interests and reassess the policy. A number of things could affect Congress’ decision-making including, perhaps unfortunately, the influence of content companies. If you want a different policy, work to influence the policymakers. Judges shouldn’t strike down laws just because they feel the interest balancing should have come out a different way.
“Unconstitutionality by degrees” is a great turn of phrase, but I fail to see why the Court shouldn’t recognize a pattern of behavior. In other areas of the law that factors in, so why should IP law be any different? Don’t judges routinely hand down stiffer sentences for repeat criminal offenders? If Congress has shown a tendency to repeatedly extend copyrights when the valuable copyrights of a handful of copyright owners are about to expire, why shouldn’t judges at least take that into consideration?
As for your calls for people to influence the legislative process, you’ll have to pardon my cynicism. I’d love to live in a world where the benefits of de facto perpetual copyright weren’t concentrated in the hands of a small number of powerful copyright-owners, or the vast majority of people only have more than a diffuse interest in seeing works enter the public domain. I wish I had your faith in the democratic process, but I don’t see how a critical mass of average Joes will rise up and lobby Congress with anywhere near the efficiency of multibillion dollar conglomerates with millions of dollars at stake.
June 3rd, 2009 at 9:39 pm
Dillan – by that logic, the scope of the commerce clause should also be limited by the statutes the first Congress enacted under it. The first Congress’ actions do not determine the limits of the enumerated powers. If a hard limit or presumption of constitutionality for a term of X years were intended, the Constitution would say that. It doesn’t, so reading such a limitation or presumption into the Constitution is simply making things up.
I’m not saying that the Bono Act was necessarily good policy, but whether a policy is good or bad has little or nothing to do with whether it’s constitutional, which was the sole issue before the Court.
June 3rd, 2009 at 11:36 pm
The wee little problem with the deal Google worked out for Google Books is that it’s *just* for Google. Archive.org, the Gutenberg Project, etc are all on their own.
This sets up a scenario where Google is the sole practical repository for older works. As much as I enjoyed buying Google at 80, I think this is a poor idea.
June 4th, 2009 at 1:15 am
Dillan – by that logic, the scope of the commerce clause should also be limited by the statutes the first Congress enacted under it.
No, because the extent and scope of interstate commerce has greatly expanded in 200 years, expanding the scope of the commerce power along with it.
For the same reason, an “excessive fine” under the Eighth Amendment would need to be larger now than it was in 1791.
In contrast, though, time has not expanded. Thus, if the framers considered a 2 year wait to not constitute a “speedy trial” in 1791, it should still not be considered one today.
“Limited times” is like “speedy trial”– it specifies no specific time, but we can look to the actions of the framers to see what time period they had in mind.
Finally, I might add it is perfectly clear that you are just a hack for the copyright content industry. Because you know perfectly well that just because any line that might be drawn might be drawn in an arbitrary place doesn’t mean you can’t draw a line. In fact, it means you must draw one.
June 4th, 2009 at 4:19 am
[...] developing world June 4, 2009, 3:19 pm Filed under: Development, Law, United States, Vietnam Matthew Yglesias and Megan McArdle find a rare point of agreement in opposing the extension of copyright law to [...]
June 4th, 2009 at 7:44 am
The Constitution doesn’t say anything about how long a copyright term should be…
Yes it does; it says the terms should be for a limited time.