From Wired:
Almost exactly 20 years ago, Congress passed the Sonny Bono Copyright Term Extension Act, which extended the term of existing copyrights by 20 years. The Act was the 11th extension in the prior 40 years, timed perfectly to assure that certain famous works, including Mickey Mouse, would not pass into the public domain.
Immediately after the law came into force, a digital publisher of public domain works, Eric Eldred, filed a lawsuit challenging the act. The Constitution gives Congress the power to secure copyrights “for limited times,” for the express purpose of “promot[ing] Progress.” Extending the copyright of an existing work, Eldred argued, could not promote anything — the work already exists. And repeated extensions of existing terms cannot be what the framers meant by “limited times.”
The Supreme Court agreed to hear the challenge. I was lead counsel for the plaintiff. And in addition to our brief, a scad of creators who build upon the public domain, along with librarians, archivists, and economists, filed briefs in support of Eldred; Nobel Prize winner Milton Friedman agreed to sign the economists’ brief only if the words “no brainer” were included.
Yet the court rejected our challenge to the law. Justice Ruth Bader Ginsburg was not convinced that Congress was addicted to term extensions. The most recent extension, the Court remarked, simply harmonized the term internationally. After the 1998 extension, there was no reason, the Court believed, to think that Congress would need to extend terms anymore. After all, with a term of 95 years for work created before 1976, and life of the author plus 70 years for work beginning in 1976, how much more time could possibly be needed?
Twenty years later, the fight for term extension has begun anew. Buried in an otherwise harmless act, passed by the House and now being considered in the Senate, this new bill purports to create a new digital performance right—basically the right to control copies of recordings on any digital platform (ever hear of the internet?)—for musical recordings made before 1972. These recordings would now have a new right, protected until 2067, which, for some, means a total term of protection of 144 years. The beneficiaries of this monopoly need do nothing to get the benefit of this gift. They don’t have to make the work available. Nor do they have to register their claims in advance.
. . . .
The “Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act” (or CLASSICS) is as blatant a gift without any public return as is conceivable. And it’s not just a gift through cash; it’s a gift through a monopoly regulation of speech. Archives with recordings of music from the 1930s or 1940s would now have to clear permission before streaming their musical content even if the underlying work was in the public domain.
Yet there is no registry of these owners anywhere.
Link to the rest at Wired
Has anyone considered tracking down the heirs of the original Jewish authors of the Bible, seems like they’re missing out on a lot of money!
I suppose Pauls descendants will also need to have their cut!
How about the descendants of the original creators of snowwhite, Cinderella and The three little pigs.
They’re all dead.
Their universal right to life was overturned by guys on horseback with swords. No descendants.
Their modern day equivalents are still at it.
All laws are transitory and only last as long as the society/state that proclaimed it. That is why security is the primary and defining trait of a state. Any state, whether princely, territorial, ethnic, or imperial, or market-state only endures as long as it can secure itself and its people, and enforce its mandates. Always was, still is, and doesn’t look to change anytime soon.
Without force or at least the credible threat of its use all laws are worthless. Paper will accept whatever words anybody chooses to put on it but if those words can’t be enforced they will be meaningless. Just saying something needs to be is not sufficient to make it so.
Too many of todays laws are only observed in the breaking.
Passing laws that will not be obeyed only reveals the actual impotence of the state behind it. A truly nekkid emperor.
Prohibition wasn’t that long ago.
It’s ok to say that all “sides” are wrong here. I think it almost mandatory.
(1) That last quoted line betrays one of the real problems: WIRED (and its ownership) have been on the “owners must assume and internalize all administrative costs so that anything accessible electronically is free to the end-user” bandwagon for so long that they’re sponsoring one for the next Rose Bowl parade. It’s not that such “registries” are a bad idea — it’s that WIRED and its allies never accept that users should contribute anything for its establishment, operation, maintenance, or anything else.
Meanwhile, any historical look at the reasons for “copyright registration” cannot ignore Congress’s explicit intent to build the Library of Congress for free.
(2) The requested term is too long. That said, it’s being imposed as a “makeup” for NOT doing things right the first time around — in particular, for the insufficient terms offered under the 1909 Act, which in turn were predicated (indirectly) on SEVENTEENTH CENTURY lifespans. (Really.) These things should never be predicated upon a lifespan, but on a flat term… which is what is actually being done here (importing the 95-year default for works made for hire, 1972 to 2067), and the argument is then a balancing/policy question in which a one-size-fits-all solution clearly doesn’t fit anyone.
(3) The distinctions among recording, songwriting, producing, and collection societies mean that the actual songwriters and performers will get only minimal benefit from this legislation. My back-of-the-envelope calculations in 2014 (the last time I actually looked at verifiable data, and that only for a subset) showed that over 70% of any increased revenue stream from this sort of change would flow to the middlecreatures, with the songwriters and performers probably splitting the remaining 30% pretty evenly. It is probably NOT a coincidence that “15%” is the default accorded the most-successful authors at full escalator: That kind of split is endemic throughout the entertainment industry. (“But it’s better in music because TWO entities each get 15%!” Yeah, but that’s because one of those two entities — the performer — is assuming most of the costs of producing copies, too.)
(4) Meanwhile, ASCAP and BMI continue to charge cuneiform-tablet-record-keeping overhead in this day of electronic records.
In short, it’s a mess predicated on the messiness of reality. There is NO perfect solution, despite every interest group claiming that its own self-interested perspective is the only one that matters.
I have no opinion on the current bill, as I haven’t studied it or its implications in depth.
I do take issue with the notion that allowing someone to retain their own property–often created without compensation–is some sort of “gift.” From whom, exactly? Those who feel entitled to things they haven’t earned? Those who claim to be champions of “culture” without actually creating any of it?
We don’t take away a house or business you built after a few decades, or even after your death. While the constitution does say “limited terms” for copyrights, any specified term can fulfill that definition, whether it’s 20 years or 70 or life plus 70.
If people take issue with secondary purchasers of rights, such as major studios, I believe that matter should be addressed separately from the right of the creator and his or her descendants/heirs to enjoy what he/she labored to create. A reminder: there is no minimum wage for self-employed artists/writers/composers. No benefits. And, all too often, no respect.
I do take issue with the notion that allowing someone to retain their own property–often created without compensation–is some sort of “gift.” From whom, exactly? Those who feel entitled to things they haven’t earned? Those who claim to be champions of “culture” without actually creating any of it?
Question asked, question answered.
I do think there is a strong argument for having a public domain and putting works into it after a while, because all creatives are inspired and influenced by the popular culture and much of this work is in the public domain.
I also wonder if we would’ve had Romeo and Juliet if Shakespeare had had to pay the original Italian author of the work you shamelessly copied.
Agreed. I think it’s also worth noting that through the history of the world, it’s been normal and expected for property (especially land) to pass from parent to child indefinitely. This is not the case with stories. Stories have, for all of human history, belonged to the culture. Shared stories are part of what *makes* culture. The concept that we as creators should get a measure of control and ability to profit from our creations is a relatively new concept.
Also, land and houses can only be shared with a small number of people. Stories can be shared with everyone without diminishing them.
And, unlike houses and land, storytellers can keep creating more indefinitely. Also, land and property takes effort and work to maintain, so descendants can’t just sit around on their butts, not contributing to society, and rake in the cash from work their parents and grandparents put in.
I think a copyright of 50 years (period, not just for secondary purchasers) is more than sufficient. And yes, I say that as a creator.
The concept that we as creators should get a measure of control and ability to profit from our creations is a relatively new concept.
So is the concept of universal property rights.
Houses and land only passed from parent to child if the parent could protect it. Most of the time they couldn’t and they were lucky if they lived long enough to have a child.
Thomas Hobbes wasn’t making things up.
Felix speaks sanity
The Rule of Law is also not all that old, (and it’s not all that universal even now).
Anon, have you actually thought this through? I mean, really thought about it?
I do think there is a strong argument for having a public domain and putting works into it after a while
The issue is whether the creators should have their right to profit from their own work stripped from them to “feed” the minds of other people — who apparently can’t create absent taking someone else’s work.
because all creatives are inspired and influenced by the popular culture and much of this work is in the public domain.
Not in the way you seem to think. Since Disney is the usual entity to complain about on this issue, I’ll use this example: Gadget from Chip ‘n’ Dale’s Rescue Rangers is a mouse. I learned how to draw mice by studying the “strokes” of her head (I never made my ducks look as good as Huey, Dewey, and Louie, except in profile). And then, I drew my own “comics” about a girl-mouse who solved mysteries with her younger brother — but only after they cleaned up the basement like their mother told them to. Gadget is an orphaned only child. My mouse girl wore a pastel pants and shirt outfit; Gadget wears a boring grey jumpsuit. Gadget invents and fixes things, my detective didn’t. In fact, I don’t think I gave her a hobby; I was all about the mystery. She sometimes teamed up with 2-D incarnations of my stuffed animals; I was “Achewood” before “Achewood” 🙂
Yes, people can be inspired by other creations, but that is not in any way the same as snatching the creation that inspired them and appropriating it for their own use — and at the expense of the creator for good measure.
I do take issue with the notion that allowing someone to retain their own property–often created without compensation–is some sort of “gift.” From whom, exactly?
A scad of creators who build upon the public domain?
good thoughts Jamie. THe imaginal world is so vast in so many… the biggest lie: there’s nothing new under the sun. I believe that was made up by The Blob in order to eat everything in sight, lol. Hman beings are incredibly inventive, original and wildly talented, by my sights.
Author’s death plus seventy was stupid, this goes well past insane.
“The Constitution gives Congress the power to secure copyrights “for limited times,” for the express purpose of “promot[ing] Progress.””
That’s not what these extensions do – stop doing it …
A copyright term of 20-25 years is enough to ensure progress via monetary gains. The fact that big business has taken culture out of the hands of creators and but it squarely in the hands of big business is sickening. Let’s see they gain no further ground at our expense.