Home » Copyright/Intellectual Property, Non-US » From Hemingway to ACTA – We won’t escape revisiting the question of rights

From Hemingway to ACTA – We won’t escape revisiting the question of rights

19 February 2012

From Libre Accèss (translated into English):

The writer François Bon, the publisher publie.net, and its distributors received today a letter from Gallimard Editions, demanding the takedown of a new French translation of “The Old Man and the Sea” just issued by François Bon on Publie.net (see François Bon’s post on his site). Gallimard’s letter reminded the recipients that it owns the publishing rights (digital ones included) for any French edition of the work (not only the 1954 translation by Jean Dutourd sold by the former Sebastien Bottin Street publishing house) : this unauthorized translation is therefore counterfeit.

Acknowledging its error, Publie.net immediately removed the book from its site, and so did the distributors.
Such a mistake is obviously due to the intricacy of copyright(en), which differs in duration according to the birth country of the authors and the countries it applies to. For instance, while the work of Ernest Hemingway is totally free of copyright starting this year in Canada, where the 50 years after death rule applies (Hemingway committed suicide in 1961).

. . . .

Therefore, it’s not the case in France. Gallimard owns the rights to all French translations until these enter the public domain in the US, because, as Numerama mentioned, article L123-12 of the (French) intellectual property code mandates a protection period equivalent to the one from the country of origin of the work, i.e. 2047.

. . . .

Only Gallimard can authorize a translation of “The Old Man and the Sea” in France, in particular to update it and render it more faithful to the original – which is clearly not true of the antiquated and approximate translation by the French academic. Gallimard is the only one who may authorize it because it obtained a grant from the original publisher, not limited to the translation itself but to the specified country and language. More or less as in good old colonial times… These rules create serious problems in other French-speaking countries, as they impose a market almost always unadapted to the economic constraints of these countries.

All this is just to say that François Bon’s translation could well be published in Canada. But not in France.

. . . .

This is just another story, yet emblematic of the ever increasing disconnection between creation and law, sharing and property. It’s been quite a while now that copyright is no longer the heir to that created during the Enlightenment, but has become an instrument in the hands of cultural industries to impose their law. Copyright has become a but an – ever higher – barrier to block creation and sharing. What this story shows once again is that time has come to lay out in detail the fundamentals of creation that have been gradually appropriated by the cultural industries who have imposed a lengthening of right for their own profit and to the detriment of sharing and creativity.

. . . .

Truly, as Rémi Mathis, chairman of the board of Wikimédia France, said on Twitter : “after 50 years, can Le vieil homme et la mer (“The Old Man and the Sea”) still lawfully belong to a rights holder when it belongs to the imagination of the whole world ? The term of a patent, that is to say an industrial title deed, is on average only 20 years. How can it be longer for art or creation ? In my lifetime, will I ever have the right to read a translation of Hemingway’s work other than Jean Dutourd’s ?

Link to the rest at Libre Accèss and thanks to Antoine for the tip.

Passive Guy is a believer in strong copyright protections, but feels the current standard in the US – the life of the author plus 70 years – and similar standards around the world provide protection for much too long.

Article I, Section 8, Clause 8 of the United States Constitution provides the rationale for copyright protection:

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 the purpose of these protections is to “promote the progress of science and the useful arts”, not to protect the rights of heirs of authors to royalties for the remainder of the heirs’ lives. The protection is to be for “limited times” and PG believes the life of the author plus 70 years is not a limited time in the sense used in the cited clause.

The first US copyright law, passed in 1790, provided protection for 14 years after registration of the copyright with the right to renew the copyright for another 14 years.

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Copyright/Intellectual Property, Non-US

14 Comments to “From Hemingway to ACTA – We won’t escape revisiting the question of rights”

  1. Now, everyone is told that they don’t have to ‘officially’ file copyright because they own it the moment their creation is put into a fixed format.

    There’s many, many writers who don’t rush to file official copyright on every article, flash fiction, etc. that they write due to that.

    If copyright law were changed, do you think that would also change the number of people willing to share their work online, and thus give the internet a major facelift?

    • I doubt it, Scath, because piracy would still be a factor regardless of what the copyright laws said.

      • I wasn’t really thinking ‘piracy’ so much as people just not sharing their creations as freely.

        There are a lot of web fiction authors and web sites where writers can share their work, not to mention all the art sites like DeviantArt, Redbubble, and ArtWanted. I wonder how many would discontinue doing so if owning their copyright was dependent on paying to officially file and control it?

  2. I am one that does register copyright before I put my work online for the internet world to see. Personally, I like the 75 year rule, but could be convinced to a change that allowed me to retain the copyright for as long as I lived (but nothing less) with a condition of my heirs being able to renew the copyright for another 20 years after my death. As I’m in my mid-fifties now – we’re talking less than 75 years.

    Bottom line is that the creator should be able to control their own works during their lifetimes. No one else should be able to profit freely from something they have no rights granted from the creator. (I know that sounds rather pompous, but if I’m the one who worked years (or even months) on a work – it should belong to no one but me, at least until I’m dead.) 🙂

    • Hi, Kat. I’ve posted excerpts and shorts on my blog, as well as first drafts on writing sites to get feedback when I first began writing.

      Right now, I’ve not had much trouble with content scraping or piracy.

      If copyright law changed, those would be things I personally never did again, because I can’t afford to pay to file on every little drabble I might want to share.

      Seems to me that if the current law was too majorly changed, it would disrupt the whole sharing freely of ideas and learning from them that’s such a major part of the internet.

      Not to mention, really disrupt the ability to gain readers’ interest and do the whole ‘platform’ building bit, if nothing is shared prior to a new title being finished and officially copyrighted (for example, no pre-release buzz being built with excerpts).

      I’d be good with life of the artist plus 20 years (especially in cases of premature death). Actually, I’ve considered putting it into writing that all my work enters the public domain immediately after my death, assuming I manage to make it to 70 or older. 😉

  3. Scath,
    I could live with that.

  4. I profoundly disagree with your position, PG, as do many other writers.

    Let us posit that Person A is skilled in writing novels and Person B is skilled in constructing rental apartment buildings. When Person B pours his time and energy in building apartments, he can leave a legacy to his children and future generations, in perpetuity. How does it serve the interests of society to punish Person A for writing novels instead, by preventing him from leaving a similar legacy to his descendants?

    But let’s leave children out of it and examine the situation. During his lifetime, Person B can build an apartment building and sell it to another person, receiving in exchange a price calculated upon that other person being able to enjoy and derive revenue from the apartment building in perpetuity. But if Person A sells an exclusive license to his copyrighted novel to another person, such as a film producer, the purchase price is calculated upon the other party enjoying and deriving revenue from the copyrighted property for some finite period rather than in perpetuity. How does it benefit society to punish Person A for writing novels rather than constructing apartment buildings, by forcing him to sell it a price based upon finite rather than perpetual use?

    Or to put it another way, if there is some benefit to society to force copyrighted works into the public domain after some period, why isn’t there a similar benefit to forcing other forms of property, such as apartment buildings, into the public domain after a similar finite period? I never see the anti-copyright jihadists arguing that their own personal property should devolve to the state after a certain period.

    • K.W. – I understand your argument, but would simply point to the constitutional language “for limited times.”

      Copyrights and patents both fall under this constitutional clause. A couple of hypothetical cases may shed some light on the downside of permanent rights to intellectual property.

      There are thousands of expired patents that cover very common and ordinary components of devices like automobiles. If each of the patents required a license, automobiles would either be incredibly expensive or impossible to produce. Ditto for trains and planes and bicycles. Ditto for computers, pharmaceutical drugs, medical devices, equipment necessary to grow and process food and on and on.

      The owner of a copyright has the right to prohibit the use of the copyrighted material. If copyrights lasted forever, Jane Austen’s heirs could prohibit the production of any more books, ebooks, movies, etc., including not only her works, but anything derived from her works. Ditto for William Shakespeare, Aristotle, Charles Dickens, F. Scott Fitzgerald, Mozart, Bach, Billie Holiday, etc., etc., etc.

      The fundamental idea behind intellectual property is that something which traditionally had no protection, an idea or an expression of an idea or a device, will be protected by government power for the benefit of the creator for a period of time, then released for the general use of the public after that period is over. This basic concept is accepted by virtually every country in the world.

      Absent such a limited period, those who advocate for the elimination of all intellectual property rights, contending that anyone has the right to copy anything without permission or compensation, would have a much more persuasive argument.

      It is in the fundamental nature of real property or tangible personal property that only one person or group of people can use or enjoy it at a time. The nature of intellectual property is that many people can enjoy it simultaneously. One or one thousand or one million people can use intellectual property without impairing the rights of others to also use it.

      It is obvious, but nothing prevents an author from taking money generated by his/her work while it is protected by copyright and buying an apartment building if a permanently-ownable type of property is desired.

      • KW–

        There’s another aspect as well, that dovetails nicely with what PG writes. Indefinite (or very-long-term) copyright is the ownership of culture. Throughout all of human history, the fodder for new art (in all of the arts and sciences) is old art mixed with new ideas and expressions. Since the copyright extensions have kicked in, the churn that feeds cultural development has started to change, and not necessarily for the better.

        As someone who works both in tech innovation and in the arts (writer, photographer, occasional filmmaker), I dearly value my intellectual property, but I’m equally conscious of the fact that intellectual property is a tradeoff–protections for it invariably equal incursions into civil liberties and/or cultural and scientific innovation. Copyright law is thus (as spotted in the Constitution) a balancing act–enough protection to promote innovation, not so much that it encourages rent-seeking behavior. Patent trolls, for example, do no useful innovation, cost the economy billions annually in siphoned productivity and capital. Copyright trolls (say, for example, Disney) devote huge swaths of their business to much the same sorts of activity–only they don’t simply distort tech innovation, they exert a powerful pull over culture and (lately) politics due to their trolling activities.

        In my opinion, we’ve currently swung far too far into the rent-seeking domain, and I’m very ready to see us swing back. Life of the author might be a good term, or perhaps three (and only three) 50 year renewable terms. But as lifespans continue to climb with the advance of bioengineering and medicine, “lifetime” or “lifetime plus” is going to become more and more problematic.

        But rent-seeking isn’t the end of it. The real deep problem I see with laws like SOPA and ACTA are the (intentional) side effects of impingement upon political speech. With the removal of due process and the presumption of innocence from alleged infringers, coupled with the institution of liability for intermediaries, the Internet will very quickly cease to be a domain of free speech–which is the reason that the major cosponsors of the current UN treaty that would internationalize copyright, the PPIPA, are repressive governments who want more tools to control the speech of their citizens. What they can’t accomplish through traditional repression, they’re hoping to accomplish through the co-option of copyright law. This sort of thing should be intolerable to anyone who makes their living off their right to free expression, but it’s easy to lose sight of in the shadow of legitimate short-term interests like making a living.

        To circle back around to your initial and strongest point, I think you’re correct that leaving a legacy is a fine thing and should be within reach of writers. However, it does bear saying that the descendants of great figures (be they architects, authors, potentates, etc) are not entitled to an easy life because their ancestors kicked major a**. It’s good to help one’s children get off to a good start, but to create a situation where generations of potentially creative folk have a powerful incentive to manage an estate rather than stretching themselves and making their own mark on the world seems to me wrongheaded in the extreme. Surely, a successful writer with a smart head for business operating in a newly opened marketplace can, like any disciplined craftsman, use the income garnered from his creativity to build investments and other real and personal property and businesses, and these can be passed on for the benefit of his progeny.

        FWIW
        -Dan

        P.S. Despite the profound disagreements I have expressed above, I must plug your fiction. Anyone reading who hasn’t checked out KW’s stuff, you must. He writes wonderfully edgy poetic and disturbing stories that really stick deep down in your consciousness for years, and his early work was a treasured influence on my decision to pursue a writing career. Thanks KW!

  5. I’m for life+something, but 70 years does seem a tad much. On the other hand, some authors undoubtedly have special-needs kids who will never be as functional in society as their parents would hope. If a book is all the legacy they have…

  6. If the ‘limited time’ is too limited, then copyright is worthless.

    Very few people start their careers with a smash-hit, or even a moderate success, which is why a great many people suggest that self-published authors should aim for inventory.

    Multiple revenue streams, plus plenty of other products to sell if you have a hit. This requires a decent length of copyright protection. I think seventy odd years after death is a bit long, but, like Kat, I think it should at least last until the death of the author.

    The value of a back-list would disappear if copyright is overly weakened. Without a back-list, nobody will make enough to live on from writing alone. I don’t want to see a time where you have to either be rich or have a patron to be an artist.

    If copyright is too short then publishers, movie studios, and so forth will just wait out the copyright period before publishing their own version, or making the film of the book, or the game, or the whatever-new-tech-throws-up. The author, the creator, will receive nothing.

    Copyright and patent are not the same thing. A patent is granted on a process, a mechanism, a method, which has long-reaching economic implications. If patents did not have relatively short lifespans progress would grind to a halt. A copyright is granted on a work of art, or at least on things that do not have any real bearing on industrial progress. Not being able to bring out a new translation of Hemingway, though it may be irritating, does not bring progress to a halt. Not being able to bring out a new form of micro-processor however would cause all sorts of problems for an industrial society.

    As Kat said, copyright should last for the lifetime of the creator, plus a bit more to allow their heirs to gain some benefit from their hard work.

    I’ve seen a lot of stuff on the net recently, mostly in comments where people seem to think copyright should only last a few years. These people seem to think that copyright is only owned by big corporations.

    Creators deserve to have their rights to profit from their hard work protected, else why bother creating in the first place.

    • Your last two paragraphs are on the mark, PK.

      What I would like to see is two things: first, a way to distinguish under the Law between individual, real persons and group entities like Corporations. All protected IP, such as copyrights and patents, would be in the names of real persons, not group entities, and the term of protection would be relatively long so long as the innovators were receiving substantial benefit from the innovation, and short if not. A decent threshold for “substantial benefit” would be ten percent of the revenue, but establishing that in individual cases would be a matter for case law.

      The second would be a Constitutional amendment explicitly declaring that the f*ing mouse and its f*ing associates were f*ing forever. There’s no doubt this would be a bad thing, a specific exemption for a single Corporation, but getting the Disney legal team out of the picture when arguing about the matter would be worth it. Every graph or timeline showing copyright extensions should note when one or more Disney properties would have passed into the public domain absent the extension.

      Regards,
      Ric

  7. For another view of Eternal Copyright you might look at the Telegraph: http://blogs.telegraph.co.uk/technology/adrianhon/100007156/infinite-copyright-a-modest-proposal/

    I know it’s supposed to be a parody, but I think it does show some of the practical problems associated with very long term copyright. Aside from those, it is a difficult philosophical question. I believe that cultural creations arise out of current and past culture – where would Disney Corp be without the folk tales they turned into feature length cartoons – using the music of dead composers? So if we want our culture to grow and adapt to new conditions, we must let new creators make use of today’s (public domain) culture. If the public domain doesn’t grow because corporations lock down today’s culture, then only corporations can create tomorrow’s culture.

    Sorry, I’ll get off my soapbox now.

    All I can recommend is that people read Spider Robinson’s short story “Melancholy Elephants” – which can be found on the web pretty easily.

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