Debunking The Claim That Bad Things Happen When Works Fall Into The Public Domain

from the public-domain-is-important dept

If you've read James Boyle's book, The Public Domain, then you already should understand the reasons why the public domain is so important, and why it's a shame that, here in the US, we've had absolutely nothing going into the public domain for years, due to retroactive extension of copyright terms. One of the key complaints about such retroactive extension of copyrights is that it was done entirely without evidence that it was needed. Instead, we got purely faith-based arguments on the importance of keeping works out of the public domain. Those arguments tended to fall into three camps: (1) that public domain works get ignored, since a lack of monopoly means no one will do anything with them. (2) Totally contradicting the first claim, that public domain works would become overused in typical "tragedy of the commons" fashion, because there were no limits, and (3) that since the works can be used in a manner not approved by a copyright holder, it will lead to "inappropriate or distasteful" use (i.e., Mickey Mouse porn).

In the US, reason number one -- that public domain works are not used enough since there's no monopoly to make it worthwhile to invest in them and offer them up -- was a key driving force behind the last copyright extension, and likely will be used in a few years when Disney leads the fight for yet another copyright extension (what, you didn't think that was coming?).

Of course, now we actually have some evidence, and the initial reports suggest that all three reasons for hating on the public domain are simply not true. At all. The idea that bad things happen when works fall into the public domain is not supported by the data at all:
Since these arguments for the extension of term protection are based on assumptions that are quantifiable, [Professor] Paul [Heald] followed in the footsteps of Tim Brooks and began a series of papers where he attempted to prove or disprove the argument against the public domain through comparing the fate of works in the public domain to those still under copyright. In a series of three papers, he looked at the continued publication history of best sellers from 1907-1922, which are all in the public domain and those from 1923-1932, which are still under copyright. He looked at a number of measures, including whether the book was still in print, how many editions of the book were available and the price of the edition. His findings indicated that there was no statistical difference between the works in copyright and those outside. In fact, Paul noted that the data indicated that there was little support for the under-use of the public domain works as almost all of them were in print, compared to around 75% of the copyright works. Additionally, there appeared to be no meaningful difference in price between the two types either.

Paul then looked at popular music used in films between 1968-2008 in order to test the over-usage argument. Again he identified songs that were in the public domain and those that were in copyright in roughly the same timeframe as the books. Looking at the 74 songs that appeared in 4 or more films during that timeframe, he found no difference in usage between protected and unprotected works.This was the same for works that appeared in 1, 2 or 3 films. Public domain and copyright works were used roughly the same amount.

With regard to the debasement argument, Paul is currently working on a study of audiobooks and customer perception of their quality. In the study, he is looking at three types of works: amateur recordings of public domain works, professional recordings of public domain works and professional recordings of copyright works. In his first test of customer perceptions, he surveyed around 160 people on the quality of various recordings. While the full study is not complete, the preliminary reports indicate that there is no difference between the public domain recordings and the copyright ones.
Of course, will this evidence actually be used to prevent further copyright extensions and further limits on the public domain? That seems doubtful.


Reader Comments (rss)

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  1.  
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    Mr Big Content, Mar 28th, 2011 @ 2:53am

    Times Have Changed

    All the evidence is based on data about old public-domain works. What would be more convincing would be a study based on newer, more modern works.

     

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    The eejit (profile), Mar 28th, 2011 @ 3:02am

    Re: Times Have Changed

    Well, it wouyld be, if there were genuinely modern public domain works, rather than CC works.

     

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    charliebrown (profile), Mar 28th, 2011 @ 3:11am

    The following comment is a repeat

    "In the US, reason number one -[snip]- was a key driving force behind the last copyright extension, and likely will be used in a few years when Disney leads the fight for yet another copyright extension"

    Who's the reason
    trademark law's
    extended constantly
    M-I-C, K-E-Y, M-O-U-S-E

     

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    yomismo, Mar 28th, 2011 @ 3:33am

    If you want to give your children a legacy, or a reason to kill you. Bet £1 or $1 on Mickey Mouse going on the public domain during your lifetime.

    Surely, the odds must be astronomical.

     

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  5.  
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    Nick Coghlan (profile), Mar 28th, 2011 @ 3:43am

    Predictable response

    "These studies show that letting works fall into the public domain confers no wider benefit, so the state has no business taking these rights away from copyright holders simply due to the inevitable passage of time."

    I *wish* I thought that was being too cynical, but, alas, I doubt it :P

     

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  6.  
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    charliebrown (profile), Mar 28th, 2011 @ 4:16am

    I Say 25 Years

    OK, let's have a serious discussion here and try to look at it from all sides.

    The big content industries, such as the major Hollywood studios, major recording labels (and, let's face it, they are major because they are big and they got big by starting early in the game and eating up the competition) and large publishers such as, but not limited to, Random House or Harper Collins... They see the products they make or sell or publish as investments with never ending returns. The fact that there's a lot that is out of circulation not withstanding, once they spend any money on it, they want money back for it forever. And if they can never spend money on it again (such as royalties) and still get money for it, they would consider that to be even better.

    The actual creators - writers, actors, singers, songwriters, authors, photographers - they want to be able to earn a living doing what they love. The average person works at their job and they get paid for that day's work, or that week's work, and never get paid for the same work again. To continue getting paid, they must keep working. Whilst I am not against a creator earning money from their old works, especially as the content companies are getting money from the creator's works still as well, it should end somewhere.

    The pubic just wants the books, comics, movies, TV shows and music.

    Now, let's take the fact that copyright exists not as a means of a perpetual return on an investment but as a means of encouraging creativity, we should apply the fact that most people get paid for their work once. Now if you extend that to writing, singing, acting, etc, well, they can either get paid once (work for hire) or they can get paid whenever money is made from their work (royalties) but if you only need to make one successful work and then you can retire from it, what good is that? It has destroyed your desire to create more, which is contrary to why copyright exists.

    Let's take TechDirt. Mike writes an article. People read the article, for "free" - with ads popping up on the page down the right hand side (seriously, sometimes the home page of TD takes ages to load because of this, thus annoying me, thus I am spending my time waiting to read the "free" content) and that is where Mike earns money. I can comment. I comment for free: Nobody pays me for my comment. Mike makes no money from my comment other than the money he would make from the ads on the side of the page, which would be there anyway even if I didn't comment. Is it fair that Mike makes money from my comment? I don't know but I don't care, I am still making my comment which I did not get paid money for and am spending my time posting and you are spending your time reading.

    I think I've side-tracked here (I usually do, maybe I should hire an editor!) my point of the above paragraph being that I am getting no financial payment or any other kind of payment for posting this comment and yet I am still posting this comment, thus creativity, in the form of my thought processes and ideas, are flowing.

    Now, public domain. I am of the opinion that copyright should be for around 25 years. Why 25 years? Easy: That is a lot longer than most people have to earn money from their work. If, for example, The Beatles got an hourly wage, they would not have made much money. But with the number of copies and subsequent royalties made over 25 years from 1967 to 1992, they would have made a lot, and a lot more than on an hourly wage. However, after 25 years, the majority of people who bought the album would still be around to enjoy any derivative works made from it. Assuming the price drops slightly one the copyright expires (from royalties no longer having to be paid) more people could afford to buy a copy of the album and hear it. This in turn would generate more interest, not just in The Beatles, but also in the four members, two of which are still alive and, on occasion, actively recording.

    Using TV shows as an example now, there would still be a call for new TV shows to be produced. However, with less money needing to be paid, reruns of old shows could take the place of the endless parade of cheaply produced shock documentaries and reality shows. DVD's of these shows could be released, with the big companies applying restoration to make the "official" edition worth paying a bit extra for. There'd be no need to replace the music in shows like "Happy Days" and there'd be no need to cut out any scenes just because some two-bit actor, who's only leading role was in some late-night telemovie made in 1972, objects to them being seen in a bit part.

    There is a huge stack of money able to be made from public domain works for those who are willing to invest. Just ask any publisher who prints Jane Austin or Charles Dickens or Shakespeare. Movies could be available for cheap but only those companies who invest the time, money and effort to keep the print quality good will earn money. TV shows, likewise. Music could be remastered by people who don't believe that all music should be made at full blast. And in many cases, there is now no need for physical media, meaning a startup company could invest in the restoration (if needed) of their selected item... let's say one company wants to release the movie "Psycho 2" from 1982 and another wishes to release "Tubular Bells" by Mike Oldfield. They could invest the money, time and effort to restore, digitize and master these works to make them look and sound as if they were recorded yesterday, then distribute them at almost zero cost. A low retail price would ensure higher sales so it should not take long, even at only $2 to $3 per copy, to recoup the costs of restoration and have the profits start to roll in.

    But where is the benefit for the creators? Well they've had 25 years to reap the benefits, which is a lot longer than most people get. They could, also, take their own work once the copyright has expired and release it themselves. A long established musician, for example, such as Jon Bon Jovi, who is still touring, could sell CD's at his concerts and not have to worry about forking over 95% of the profits back to the record company who is supposed to pay him and doesn't (by the 25 year standard I am suggesting, the first three Bon Jovi albums are public domain, with two more due in the next three years)

    The cultural benefits of all of this, even if nobody ever bothered with derivative works, are enormous. Things you saw or heard or read as a kid would be a lot more readily available to show to your kids. You could write a sequel to your favourite book and nobody could say you shouldn't.

    There IS money to be made and creativity to be had with public domain material. You just need to invest the time and effort in the first place to get it out there for people to consume it.

     

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    charliebrown (profile), Mar 28th, 2011 @ 4:18am

    Re: I Say 25 Years

    Serious discussion: I've had my say and now it's your turn :)
    (I meant to add that to the end of my comment but forgot to!)

     

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    The eejit (profile), Mar 28th, 2011 @ 4:41am

    Re: I Say 25 Years

    tl;dr l2scam in 5, 4, 3....

     

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    jordanhatcher (profile), Mar 28th, 2011 @ 5:10am

    Public Domain Calculators

    You might be interested in the Open Knowledge Foundation's project on Public Domain Calculators (PD Calculators), which is a project to build software to help calculate copyright term in each country.

    http://wiki.okfn.org/PublicDomainCalculators

    and video at:
    http://www.vimeo.com/15678944

    All of this so that we can see the value of the public domain and help people use the PD work that is out there.

     

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  10.  
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    Anonymous Coward, Mar 28th, 2011 @ 5:35am

    Did he also conclude that GOOD things happen when works fall into the public domain? If not, then what's the point of the public domain?

     

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    PaulT (profile), Mar 28th, 2011 @ 5:39am

    Re: Times Have Changed

    If newer works were actually allowed to enter the public domain before their original creators' grandchildren were worm food, maybe he would. Thank Disney and Sonny Bono for that.

     

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    ChurchHatesTucker (profile), Mar 28th, 2011 @ 5:51am

    Re: Re: Times Have Changed

    You might be able to do a comparison b/t the use of NASA (PD) photos and other (copyrighted) astronomy photos.

     

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  13.  
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    Anonymous Coward, Mar 28th, 2011 @ 5:53am

    Re: I Say 25 Years

    Even with a 25 year term, the copyright owner is still making almost as much total money as they would for a 100 yr term. Most of the research shows that almost all of the revenue is generated for the first few years after the item is released.

    How often do you buy a 50 year old piece of music, or a 50 year old book? Other than a few very famous works, odds are very few.

    Movies are similar, within about 6 months you're box office revenue has dried up completely. Within 5 years, your DVDs are in the "please buy me for $4 b/c they're eating shelf space" rack at Walmart. After that time, your TV runs are pretty much limited to off times or odd channels, so any revenue is rather small. There are a few exceptions obviously, but the vast majority of works fall into this framework.

     

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  14.  
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    Dave, Mar 28th, 2011 @ 5:54am

    Semantics.

    There's a basic problem with having things 'fall' into the public domain. The problem is that 'falling' is bad. It has a negative connotation to it. I recommend we all start saying it differently. From now on, works are 'elevated to' the public domain. Now everyone will want their works there!

     

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    charliebrown (profile), Mar 28th, 2011 @ 5:56am

    Re: Re: I Say 25 Years

    EXACTLY! So why don't they let the copyright lapse instead of demanding ever increasing lengths?

     

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    Anonymous Coward, Mar 28th, 2011 @ 5:57am

    Counter-study

    I've done a study on my own dealing with this exact same issue using the Disney methodology. I've found that every time a work enters the public domain several thousand kittens are brutally murdered by coke addicts and hundreds of babies are impaled on stakes.

     

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    charliebrown (profile), Mar 28th, 2011 @ 5:58am

    Re: Re: I Say 25 Years

    I don't get it...

     

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  18.  
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    Kaden (profile), Mar 28th, 2011 @ 6:05am

    Re:

    Does 'free access to culture' count as Good, or is Good only good when money changes hands?

     

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  19.  
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    Richard (profile), Mar 28th, 2011 @ 6:09am

    Re: Times Have Changed

    All the evidence is based on data about old public-domain works. What would be more convincing would be a study based on newer, more modern works.

    Such a study exists in Boldrin and Levine's book - it concern the 911 report (which as a US government work went straight into the public domain).

     

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  20.  
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    Greevar (profile), Mar 28th, 2011 @ 6:17am

    Re:

    Is it mandatory that he do so? It doesn't make his point any less valid. I thought the advantages to the public domain were obvious. Free works are free to share and adapt into new works. The cycle of life goes on...

     

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  21.  
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    Greevar (profile), Mar 28th, 2011 @ 6:18am

    Re: Semantics.

    I think "returned" is more apt.

     

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  22. This comment has been flagged by the community. Click here to show it
     
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    Anonymous Coward, Mar 28th, 2011 @ 6:21am

    Re: I Say 25 Years

    The cultural benefits of all of this, even if nobody ever bothered with derivative works, are enormous.

    Your mom is enormous. That's what I think of your silly tripe.

     

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  23.  
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    Anonymous Coward, Mar 28th, 2011 @ 6:36am

    Re: Re:

    "Obvious" doesn't cut it. Did the DATA show that works falling into the public domain was a GOOD thing?

     

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  24.  
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    Richard (profile), Mar 28th, 2011 @ 6:43am

    Re: I Say 25 Years

    The actual creators - writers, actors, singers, songwriters, authors, photographers - they want to be able to earn a living doing what they love.

    People often forget that the strongest arguments made by authors during the earliest days of printing - when copyright only really existed as part of a general printing monopoly - was to maintain the integrity of their work. An author would do a deal with a publisher and get his work printed. In the process a lot of secondary work would be done proofreading and checking to ensure that the printed version was correct. What authors really disliked about pirate editions was that they were notoriously innaccurate - mostly because the pirates didn't bother to do a proper proofreading job. If you read the early documents on Copyright History.org this theme recurs frequently.

    It would be interesting to see the reactions of those early authors (without the accumulated predjudices of 300 years of copyright) to the current situation where digital copies remove this problem totally.

     

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    PaulT (profile), Mar 28th, 2011 @ 6:45am

    Re: Re: I Say 25 Years

    "Within 5 years, your DVDs are in the "please buy me for $4 b/c they're eating shelf space" rack at Walmart. After that time, your TV runs are pretty much limited to off times or odd channels, so any revenue is rather small."

    Now, here we come to a rather tricky area. For a specific *release* of a movie, I'd agree with you. For the work itself? Things are a little more complicated.

    I personally think that 20 years is more than enough for copyright protection. If you have created something, and cannot make a profit in 2 decades, there's obviously something wrong either with the work itself or the way you're doing business. That's sad, but culture ultimately belongs to the public. Not only that, but public domain does not mean you can't make money, it simply means you no longer have the monopoly. So, I have no problem with a shorter copyright.

    Having said that, I also despair over people who think that works over 20 years old somehow have no value. While they may not sell in such great quantities when they get older, they sure as hell have value. Metropolis didn't stop being relevant just because its filmmaking style went out of fashion.

    I'm a little biased here in the sense that I'm a cult and horror fan. 3 out of the last 4 movies I've bought are Blu Rays on the Arrow Films label of ex-"Video Nasties", all 30 or more years old and looking better than they ever had the right to look on those discs, with insanely good packaging and extras. But, that's exactly why I bought them...

    "There are a few exceptions obviously, but the vast majority of works fall into this framework."

    Of course, that kind of the argument for them being in the public domain. If you're not making money from your work, and its presence enriches the artistic pool available to the public, why not let the public have it?

     

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  26.  
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    PRMan, Mar 28th, 2011 @ 6:46am

    Simple

    1st 5 years copyright - automatic and free
    Year 5 - $1 and registration for 5 more years
    Year 10- $10
    Year 15- $100
    Year 20- $1000
    Year 25- $10,000
    Year 30- $100,000
    Year 35- $1,000,000
    Year 40- $10,000,000

    etc.

    Not too many works are going to make it beyond year 30. But if it's that important to the creators, so be it.

    Almost all videogames from 1990 would be public domain now, as it should be. Why should Nintendo be cracking down on arcade ROMs for Donkey Kong? That doesn't affect their current Wii/DS business almost at all. Even though I like an occasional game of Donkey Kong, we buy all their new stuff (Super Mario, Donkey Kong Country, Mario Kart, etc.) because it's really great stuff.

     

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    PaulT (profile), Mar 28th, 2011 @ 6:48am

    Re: Counter-study

    Wait... Are you saying I shouldn't be doing that? Maybe I should cut down on the coke...

     

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  28.  
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    PaulT (profile), Mar 28th, 2011 @ 6:54am

    Re: Re: Re:

    I don't know, but I'm sure that data shows that bad things happen when ACs troll this site...

    As for data on good things happening with the public domain, there's a huge level of data. Try Moby's Play or anything on archive.org for a start...

     

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  29.  
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    Greevar (profile), Mar 28th, 2011 @ 7:03am

    Re: Re: Re:

    He doesn't have to prove that the public domain is good. The public domain is the default, the natural state of ideas, where copyright is the exception to that. Would you say that one has to prove that freedom is good to counter the argument that supports restricting it? Oh, I forgot whom I'm talking to. Copyright trumps all other rights because the artists have to be "protected" so they can make a living. Newsflash: Artists are making a living despite copyright. The proof is in the pudding.

    Your demand for "proof" of the "good" of public domain is just a reach for something to argue against. So I don't know why I waste my time with your ilk, because no matter what factual arguments we make nor how much proof we offer, it will not be good enough to satisfy you because it doesn't agree with your opinion. How about this? You prove that entertainment as a business will disappear without copyright. I'm sick of working my ass off to convince you of the truth.

     

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  30.  
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    Anonymous Coward, Mar 28th, 2011 @ 7:03am

    What is funny here is that Mike is trying to debunk something that has no bunk to start with. Starting out be setting a fairly false premise, and then trying to prove it is sort of classic.

    Mike, can you please show where this "bunk" is coming from? I don't see it.

     

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  31.  
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    Anonymous Coward, Mar 28th, 2011 @ 7:11am

    Re: Re: Re: I Say 25 Years

    because old works will then better compete with newer works as a form of entertainment, and they can't have that.

     

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    charliebrown (profile), Mar 28th, 2011 @ 7:14am

    Re: Re: I Say 25 Years

    Ummm... If that's meant to be an insult, you're doing it wrong because my mom just happens to be enormous (and she's said so herself too!)

     

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  33.  
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    Anonymous Coward, Mar 28th, 2011 @ 7:15am

    Re:

    So then what are the arguments for continual copy protection extensions?

     

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  34.  
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    Anonymous Coward, Mar 28th, 2011 @ 7:17am

    Re: Re: Re: Re:

    You make no sense. You would think that while he was quantitatively analyzing whether works falling into the public domain was not bad, he would have mentioned something about it perhaps actually being good. I'm simply asking what his data showed, if anything.

    You don't have to convince me of anything. I was simply asking a question about his data. I don't care one iota about what your opinion is. That wasn't what I was asking.

     

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    Cowardly Anon, Mar 28th, 2011 @ 7:19am

    (3) that since the works can be used in a manner not approved by a copyright holder, it will lead to "inappropriate or distasteful" use (i.e., Mickey Mouse porn).

    Apparently some people need to be introduced to the internet. Specifically Rule 34. Just b/c something isn't in the public domain doesn't mean that someone hasn't used it in a "inappropriate or distasteful" way.

     

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  36.  
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    Anonymous Coward, Mar 28th, 2011 @ 7:19am

    Re: Re: Re: Re:

    That's not quantitative data. My question is simple. Did his data show that works falling into the public domain is a good thing? I'm not asking for people's opinions. Sheesh. You guys are dumb.

     

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  37.  
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    NullOp, Mar 28th, 2011 @ 7:33am

    The U.S.

    If you haven't noticed the United States is about nothing other than greed. In absolutely every way, U.S. law is about people making money and them keeping there "entitlement" to make money. Remember, entitlement is only bad when you have it and I don't! Public domain is, simply put, for the enjoyment and enrichment of all. A company has a fair chance to make the bucks it can before PD takes over. Admittedly however, thats a way-too-fair idea for America the Greedy!

     

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  38.  
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    Anonymous Coward, Mar 28th, 2011 @ 7:35am

    Re: Re:

    continual copy protection extensions

    Since there hasn't been "contrinual" copy(right) protection extensions, there isn't much to argue, is there? I think 4 major changes in a law in 200 years isn't exactly continual.

    What is the argument for continual ineffective whining about copyright?

     

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  39.  
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    Anonymous Coward, Mar 28th, 2011 @ 7:37am

    Re: Re: Re: Re: Re:

    The public domain is evil. It clearly must be nuked from orbit.

     

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    cconsaul (profile), Mar 28th, 2011 @ 7:39am

    Let Me Go One Step Further

    When Jib Jab created their funny little parody of "This Land Is Your Land" they were sued by the Guthrie Estate. Now the last thing the Guthrie Estate needed was more money. Arlo does quite well on his own and Woodie's songs are chunking up revenue like popsickles in the Amazon, thanks to Wilco and all of the Guthrie revivals going on. I guess it was the principal of the thing, right? Jib Jab won their case however, and they didn't do it by proving that the parody fell under the fair use clause. They simply found a songbook with Woodie's song published on a date that was older than the copyright date that it was grandfathered under. At that moment, educators like myself could use this song in our classrooms without all of the usual gobbletygook we always go through when we want to use anything that isn't already in the outdated or nonexistent textbooks we keep cobbled together from year to year. (I buy my own, but that is another story) I will go so far to say that extending the copyright out further than the artist's own lifetime, or that of the immediate spouse, is actually detrimental to the well being of the next generations that benefit (along with the publishing and distribution companies and which is why this was really enacted in the first place)

    Education is under an unfair yoke when it comes to copyright and considering the fact that we are grooming the next generation of consumers, the publishers and distributors are really shooting themselves in the foot by holding us to this onerous standard. Literary content, and especially songs should be considered fair use for educational purposes; period! I know that this would mean a revision of the whole textbook industry, but the textbook industry is doomed anyway, unless they get up off of their bloated carcasses and produce affordable content for schools. Universities and Colleges across the country are adapting digital textbooks, and in many cases are writing their own because the existing product is too expensive, has a hidden ideological, political, or cultural agenda, and has to be replaced entirely too often to keep up with current trends.

    Anyone should have a right to be paid for their labor if they want that pay, I wholeheartedly agree. How about the small fish in this very large ocean who are content to share our content with other teachers. I was actually removed from a site because the RIAA determined that I had to be protected against myself whether I wanted to be or not. I currently share over four hundred piece of sheet music on http://www.sheetmusicdigital.com/charlesconsaul.asp and over a hundred original MP3 files (and one parody) on Songclick.com (just look under Charles Consaul) and no one charges anyone a cent for any of this content because I could not sell it to save my life! It is also more important for me to get this material out where it can be used, just as I look for every scrap of material I can get to supplement my student's supply of useful material to use in my classroom. I spend two hundred dollars a month to get published content and that is not enough. By extending copyright, we are extending the amount of time a publishing and distribution company has to use the same content over and over again with a minimal to zero amount of innovation. We are also stifling the genes of creativity for the poor sons and daughters of the composers, lyricists, and authors who created this content in the first place. So, how does that help us to be more creative and keep up with the rest of the world?

     

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    Greevar (profile), Mar 28th, 2011 @ 8:07am

    Re: Re: Re: Re: Re:

    I don't know if he quantified the "good" or not. Read the damn book if you want to know. We're not responsible to answer something you can find out with your own two eyes. The information is freely available, go answer your own damn question.

     

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    The eejit (profile), Mar 28th, 2011 @ 8:30am

    Re: Re: Re: Re: Re:

    He didn't have to prove that a good thing happens when works enter the domain. He had to prove that that wasn't a bad thing. Just because it isn't bad does not automatically mean it is good.

     

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    Michael, Mar 28th, 2011 @ 8:33am

    Disney Extensions

    I, for one, am anxiously awaiting the landslide of Mickey Mouse porn when he is finally in the public domain.

    I am not sure why anyone would think this is inappropriate.

     

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    The eejit (profile), Mar 28th, 2011 @ 8:35am

    Re: Re: Re:

    Because we think the length is bullshit. Because, if 90% of the profitability is within the first ten years, then why can't copyright be for 10 years?

     

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  45.  
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    The eejit (profile), Mar 28th, 2011 @ 8:41am

    Re: Disney Extensions

    Hate to break it to you, but there's porn of the Steamboat out there. Mickey's got no chance.

     

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    Anonymous Coward, Mar 28th, 2011 @ 9:08am

    Re: Re: Re:

    "I think 4 major changes in a law in 200 years isn't exactly continual."

    But those changes have effectively made it so that nothing ever enters the public domain, so they're continual enough to prevent anything from ever entering the public domain, any more continuity doesn't affect anything. So the effect is the same.

     

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  47.  
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    Anonymous Coward, Mar 28th, 2011 @ 9:09am

    Re: Re: Re: Re:

    So, again, what were the arguments for those extensions? You still haven't answered the question. What were the arguments for inordinate copyprotection lengths?

     

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    magecat (profile), Mar 28th, 2011 @ 9:18am

    Re: Re: Re:

    "In fact, Paul noted that the data indicated that there was little support for the under-use of the public domain works as almost all of them were in print, compared to around 75% of the copyright works."

    Sounds like a good thing for the public domain books to me.

     

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    Anonymous Coward, Mar 28th, 2011 @ 9:19am

    Re: Re: Re: Re: Re:

    What were the arguments for inordinate copyprotection lengths

    the lengths are not "inordinate". The 700 or so intelligent members of the congress, elected by the people, felt that this is the correct level, the correct setting, and matches up with treaty agreements that the US has made with other countries.

    The question is to show why it is "inordinate" as you say, and why so many countries have pretty much the same rules but they somehow all got it wrong.

     

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    Rekrul, Mar 28th, 2011 @ 9:19am

    Re: Disney Extensions

    I, for one, am anxiously awaiting the landslide of Mickey Mouse porn when he is finally in the public domain.

    Never going to happen. Even if some of Disney's films do eventually end up in the public domain (which is doubtful, I fully expect the next push for copyright extension to be for perpetual copyright), the character of Mickey Mouse is trademarked, which will never expire as long as Disney continues to make use of him.

     

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    Rekrul, Mar 28th, 2011 @ 9:21am

    In the US, reason number one -- that public domain works are not used enough since there's no monopoly to make it worthwhile to invest in them and offer them up -- was a key driving force behind the last copyright extension, and likely will be used in a few years when Disney leads the fight for yet another copyright extension (what, you didn't think that was coming?).

    Which is ironic considering how many hit Disney movies have been based on public domain works.

     

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    MrWilson, Mar 28th, 2011 @ 9:30am

    Re: Re: Re: Re:

    Because content companies are afraid that if the copyright runs out, someone else will innovate using the original work in ways they were unable to do so and thus someone else will make money where they should have...

    It is a cardinal sin in the religion of greed to make money where a rich person thinks they should have made money, regardless of whether or not they would have made that money by suing you for innovating with their damn property.

     

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    btr1701 (profile), Mar 28th, 2011 @ 9:38am

    Re: Times Have Changed

    > What would be more convincing would be a
    > study based on newer, more modern works.

    Kinda hard to do with nothing entering the public domain anymore thanks to the Mouse.

     

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    btr1701 (profile), Mar 28th, 2011 @ 9:48am

    Re: Re: Disney Extensions

    > > I, for one, am anxiously awaiting the
    > > landslide of Mickey Mouse porn

    > Never going to happen.

    Hate to break it to you, but it already has. You can find porn parodies of just about any animated character you can imagine. Copyright or lack thereof won't change that a bit.

     

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    MrWilson, Mar 28th, 2011 @ 9:49am

    Re: Re: Re: Re: Re: Re:

    The 700 or so intelligent members of the congress

    "You don't need to pass an IQ test to be in the senate." - US Senator Mark Pryor

    elected by the people

    "You don't need to pass an IQ test to elect a corrupt politician" - me

    felt that this is the correct level, the correct setting

    [citation needed] How can you prove feelings? Also, prove that they actually thought that. Prove that the decision wasn't affected by corruption, bribery, or "lobbying."

    "why so many countries have pretty much the same rules"

    Daniel Chirot and Thomas Hallís World Systems Theory explains this pretty easily.

     

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    MrWilson, Mar 28th, 2011 @ 9:52am

    Re: Re: Re: Re: Re: Re:

    Also, define what you consider "inordinate."

    To me, inordinate would be an apt description of a copyright duration that means that my children may well be dead before a work that was written before I was born will finally move into the public domain.

     

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    BearGriz72 (profile), Mar 28th, 2011 @ 10:18am

    Re: (Mickey Mouse porn)

    You beat me to it! I was going to bring up Internet Rule 34.
    "Rule 34: If it exists, there is porn of it. No exceptions."

    Case in point http://lmgtfy.com/?q=Mickey+Mouse+Porn

     

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    Mike Masnick (profile), Mar 28th, 2011 @ 10:23am

    Re:

    Did he also conclude that GOOD things happen when works fall into the public domain? If not, then what's the point of the public domain?

    Are you really arguing that there's not enough evidence that good things happen via the public domain?

    This particular study was focused on a single hypothesis (like most research). Arguing that it's meaningless without also answering some other question is an attempt to ignore the results of the study. Now why would you want to do that, other than that the results are inconvenient for your established and rigid worldview?

     

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    Ron Rezendes (profile), Mar 28th, 2011 @ 10:25am

    Re: Re: Re: Re: Re: Re:

    See - now you've confused the troll! You offered him freely available information which goes against the very fiber of his being! I would not be surprised to hear a news report of the trolls demise due to implosion.

    Nice one Greevar, you may have solved the perplexing question of "How to rid Techdirt of the myopic troll?" - offer them FREE information to prove a point! BRILLIANT!!

     

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    Mike Masnick (profile), Mar 28th, 2011 @ 10:26am

    Re:

    What is funny here is that Mike is trying to debunk something that has no bunk to start with. Starting out be setting a fairly false premise, and then trying to prove it is sort of classic.

    The only false premise is yours. The idea that works falling into the public domain would cause harm was the primary impetus behind the CTEA.

    I'm not sure why you are lying.

     

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    Anonymous Coward, Mar 28th, 2011 @ 11:09am

    Re: Re: Re: Re: Re: Re:

    "the lengths are not "inordinate"."

    So you agree with 95+ year copy protection lengths? Yet, we're supposed to take you seriously?

     

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    Anonymous Coward, Mar 28th, 2011 @ 11:09am

    Re: Re:

    IP maximists are pathological liars. They habitually do it without even thinking twice. It's why our laws are so screwed up.

     

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    Anonymous Coward, Mar 28th, 2011 @ 11:14am

    Re: Re: Re: Re: Re: Re: Re:

    (or at least you don't consider 95+ year copy protections inordinate? It is inordinate, it's outrageously unacceptable. Notice how you still never answered the question, what was the reasoning behind why copy'right' should so long).

     

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    Matt (profile), Mar 28th, 2011 @ 11:50am

    Re: Re: Re: Re: Re:

    That is not what he was studying. But other authors have done so, and uniformly concluded that allowing a healthy and vibrant public domain to develop leads to increased opportunities for creation. For instance, in Europe the data within databases can be subject to copyright. In the US it cannot. The purpose of this innovation in European law was to create incentives for European database creators to develop more competitive commercial databases. The experiment has failed - Europe now lags the US by an even greater margin in commercial database production. Moreover, because different European countries implemented the database directive at different times, you can see the effect of the directive itself as a natural experiment, while controlling for things like social values, educational attainment, dollars spent on research, etc. The data strongly suggests that copyrighting data has led to a significant decrease in the competitiveness of European database development.

    To the degree the end goal is to encourage progress in the useful arts and sciences, copyright has not proven itself up to the task and mounting evidence suggests that it is counterproductive.

     

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    Onnala (profile), Mar 28th, 2011 @ 11:52am

    Re: Re: I Say 25 Years

    While I agree that for a single work 25 years might seem to be enough I would like to point to one part where this would break down.

    Think about book series like Harry Potter, Diskworld, Snoopy, Calvin and Hobbs, Over the Hedge, and BONE. BONE is a very good example where one artist decided to tell the story... more then 12 years later... after serial publication for twelve years, he finally finished the full story.

    Under a 25 year plan the concept of his characters would exit copyright only 13 years after he finished his first epic using those characters. Yet the characters wouldn't be worth what they are not without all his continued work.

    For myself, as an author, I have always been a fan of a lifetime copyright. Mostly cause I want to retain creative control not just of a single book, but of a character, world, series. What I am a fan of is limiting the length of time that something remains in copyright after an authors death.

    Lets say 20 years after the authors death. Meaning that even works made late in life support a family after death... but only for the 'useful' part that copyright gives you.

     

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    MrWilson, Mar 28th, 2011 @ 11:54am

    Re: Re: Re:

    They speak the language of money and worship at the altar of greed.

    To them, money is truth. If they perceive there is money to be made, anything that supports such an endeavor is true.

    Anything against the profit-motive is patently false, ethics be damned.

     

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    Rikuo (profile), Mar 28th, 2011 @ 12:07pm

    Re: Re: (Mickey Mouse porn)

    Actually...I may have found the one exception to your rule. The Playstation One video game, Final Fantasy VIII, featured a somewhat minor character named Kiros. Its never actually explicitly stated whether its a man or a woman, but basically, I just did a Google Image search for "Kiros Hentai Final Fantasy VIII", and nothing even remotely pornographic turned up.
    And Japanese Role Playing Games are infamous for having practically every character they have ending up in a pornographic drawing eventually.

     

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    Matt (profile), Mar 28th, 2011 @ 12:18pm

    Re: Re: Disney Extensions

    At least at the moment, this is not the state of the law in the United States. Since Dastar Corp. v. Twentieth Century Fox, 539 U.S. 23 (2003), trademark law has not been able to be used to enforce rights on a copyrighted work once that work passes into the public domain. So Michael can look forward to his Mickey porn, because that porn can be based on and derived from works as they pass out of copyright, and Disney will not be able to use the Lanham Act to stop it.

    But: when the original work introducing a character passes into the public domain, is the _character_ (as it has developed over the years) now in the public domain? Surely not, or nothing would ever be subject to copyright (every work is derivative of at least one earlier work). So you could make Steamboat's Willy or whatever when the copyright term finally ended (if it does,) but that would not imply that you could also make Fantasia (de Menage a Trois) until a few more decades had passed.

     

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  69.  
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    Anonymous Coward, Mar 28th, 2011 @ 1:38pm

    Re: Re:

    Are you really arguing that there's not enough evidence that good things happen via the public domain?

    This particular study was focused on a single hypothesis (like most research). Arguing that it's meaningless without also answering some other question is an attempt to ignore the results of the study. Now why would you want to do that, other than that the results are inconvenient for your established and rigid worldview?


    Sign. I didn't say it was "meaningless without also answering some other question." I merely asked if his research had anything to say on the point. I take it the answer is "no."

     

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    The eejit (profile), Mar 28th, 2011 @ 2:43pm

    Re: Re: Re:

    Again, because that speartip just keeps missing: he did not have to prove that it was good - he only had to prove that it wasn't bad.

     

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    vivaelamor (profile), Mar 28th, 2011 @ 5:20pm

    Re: I Say 25 Years

    "Now, public domain. I am of the opinion that copyright should be for around 25 years. Why 25 years? Easy: That is a lot longer than most people have to earn money from their work."

    I am delighted that you're discussing copyright length. That said, I have to disagree with your reasoning here. You suggest that 25 years is an appropriate length, seemingly based on the fact that it's less than the average life expectancy and provides more money than an hourly wage.

    You explain why you chose 25 years, but not how. Assuming the premise, you could have chosen anywhere from enough time to exceed minimum wage (about 0.something seconds for the Beatles, I'd guess) until somewhere around the average human life expectancy (67ish), if everyone who bought the album did so for a child on day they were born (absurd, but that's the point).

    I only use such a ridiculous example because I've always failed to get a response to this issue if I've stated it simply. Now, that's the issue I have with people giving me numbers without any calculations to back them up, but I also have issues with the premise.

    When you mention hourly wages you neglect to define what they are being paid for. If they are being paid an hourly wage for being in the studio or on stage then it would be unlikely to account for all the hours they actually work. If they are being paid an hourly wage for every hour that they're working then they would seem to be no worse off than any other profession, implying that the issue is in providing extra money as incentive to create, which brings me to the next issue.

    You go into quite a bit of detail explaining that while creators want to make a living, the sole purpose of copyright is supposed to be to encourage creation. Assuming that creation needs to be encouraged then we may apply your principle that this could be achieved by ensuring they get an income comparable to or exceeding a wage earning job. I've already raised the issue of how this might be calculated but I also wonder how the amount of money creators get determines their creative output. It may seem obvious that they need enough to live on, but as it is possible to make a living and create without copyright, how does that help determine anything?

    Aside from my nitpicking, you bring up many good points. I would probably have done better to post my own analysis on the issue of copyright length with a fresh slate rather than nitpicking your post, but I shall see how this thread goes.

     

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    ChurchHatesTucker (profile), Mar 28th, 2011 @ 6:08pm

    Re: Re: Re: Re:

    he did not have to prove that it was good - he only had to prove that it wasn't bad.

    Well, since public domain is the default (yeah, I know, but that's still the idea behind copyright) the burden should be on the advocates to prove that copyright is demonstrably better.

     

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    vivaelamor (profile), Mar 28th, 2011 @ 6:22pm

    Re: Re: Re: Re: Re: Re:

    "The 700 or so intelligent members of the congress, elected by the people, felt that this is the correct level"

    I thought the United States congress only has 540 members, including the five non voting members. Also, didn't the last extension act pass by a vote of 105-298? Not that 700 isn't a nice number too, I'm just unsure how you arrived at it.

     

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    charliebrown (profile), Mar 28th, 2011 @ 9:43pm

    Re: Re: I Say 25 Years

    You, too, raise some very good points :)

    I'll be honest and tell you the "how" from coming up with 25 years was actually trying to think of an amount of years long enough for all concerned to benefit from their work, yet not too long so that all (well, most) people who were around at the time it is released would still be around to be able to enjoy any benefits from the work being in the public domain.

    One of your points raised is, to paraphrase you, to define "work" - and whilst clearly "work" involves somebody such as a singer being either in the studio or onstage, a song writer would be "at work" whenever they are writing. Hence why there is no actual "hourly wage" for creators: There simply could not possibly be - even the creative people in advertising who 'work 9 to 5' could have that billion dollar idea at 2:30 in the morning. This is why although I made the point that a regular worker gets paid once,I didn't say the same should apply to creativity.

    So how to determine how much a creator should be paid? I could honestly never answer that as I am a consumer and not generally a creator. I, personally, as a consumer, would be happy to pay for some things and not others, with the price varying. For example, for a rock concert, I would expect to pay at least $50 for a ticket, depending on who it was and how badly I wanted to see them - and, assuming that $50 per person would also be enough to properly pay all those involved. I paid $150 to see Simon and Garfunkel in 2009. At the time I was hesitant to spend that much, even knowing that they would probably never be in Australia again. I did decide, in the end, that it was worth the "splash out" and, indeed, it was (although I heard them more than saw them as the Acer Arena in Sydney is HUGE!) ~ But from my $150 I hope at least $100 of that went to Simon, Garfunkel, their band, the sound and lighting crew, etc.

     

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    charliebrown (profile), Mar 28th, 2011 @ 10:17pm

    Re: Re: Re: I Say 25 Years

    Serial works: Now that is a very good point which, I will admit, I had not considered. In fact, by the 25 year standard, I think the first few Discworld books would be in the public domain. Now, bear in mind two things before I start: I am a consumer, not a creator, as well as I don't know your books at all but I am familiar with Terry Pratchett's works.

    Now, creative control is a double-edged sword wehereby I do not want to deprive someone like Terry Pratchett control of what happens on the Discworld but, on the same token, I wouldn't mind it if somebody else wrote a Discworld novel, mainly because I think it would be interesting to see where somebody else could take it. In other words, I'm taking a "sitting on the fence" approach as I can see both sides of the argument.

    On the other hand, if somebody was to take the Wizard Rincewind (the lead character in the first two Discworld novels) and turn him into a violent madman who went on a killing spree, I could certainly see a good reason for Terry Pratchett to be up in arms about it! Mind you, I think 99% of Discworld fans would also be up in arms about it. That might seem like an extreme example but it is not entirely out of the question that somebody could write such a story if they wanted to and could publish it if there were no restrictions on the characters or setting involved.

    Likewise, I can see how somebody such as an author would like lifetime copyright and even "Life+20" ~ which, I'll be honest, I would have no problem with. And artists too. It's the large corporations going for perpetual copyright that I take issue with.

    Please correct me if I am wrong here: Authors generally (but not always) have one thing in their favour as almost every non-PD book I have ever had has been copyrighted to the author. I would guess that, subject to any deals you have with your publisher, you have more control over how your works are used. For example, if I was to make a movie from your first book, would I be dealing with either yourself or your agent? Or would I be able to only deal with your publisher to negotiate movie rights?

    These are things that I don't know but I would like to know and would rather hear it from somebody involved (such as an author) than from someone who might just read it on Wikipedia.

    As I said at the start of this reply, I am a consumer and not a creator. Personally, my main incentive for shorter copyrights is, actually, availability. I have no desire myself to create derivative works from anybody's creations, although, as mentioned, I wouldn't mind the chance to read/view/hear other people's derivative works. I have no desire to make money from other people's works either, although if I could release certain movies and TV shows on DVD and albums on CD where none currently exist, I certainly would. So I have no solution at the moment. But we all have ideas, hence this discussion. So thank you for raising the points you raised. Hopefully one day everybody can work it out so that everybody benefits, if not financially, at least in other ways.

     

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    vivaelamor (profile), Mar 29th, 2011 @ 6:55am

    Re: Re: Re: I Say 25 Years

    "an amount of years long enough for all concerned to benefit from their work, yet not too long so that all (well, most) people who were around at the time it is released would still be around to be able to enjoy any benefits from the work being in the public domain."

    That does seem familiar and I suspect is an idea shared by many. I don't see an obvious reason why it wouldn't be possible to work out a length based on those principles, but I'm still not on board with them myself.

    'Hence why there is no actual "hourly wage" for creators: There simply could not possibly be - even the creative people in advertising who 'work 9 to 5' could have that billion dollar idea at 2:30 in the morning'

    That is a good example of the issue I wanted to raise. I would suggest a good place to go from there is to look at other industries not covered by copyright in which similar scenarios occur.

    One of the issues I've raised in the past as a result of following this line of reasoning is the question of why creativity isn't recognised equally across all industries. Lawyers exhibit creativity in the court room and on paper, they also might come up with the winning idea at 2:30 in the morning. Obviously lawyers don't need help making a living so I end up questioning what factor prevents industries reliant on copyright from coming up with their own business models without copyright.

    "So how to determine how much a creator should be paid? I could honestly never answer that as I am a consumer and not generally a creator."

    That is a good answer. If you are to come up with an actual number, whatever the thinking behind it, then it needs to be insightful towards its purpose. I believe it's possible to argue in general terms about the issue, but have to question when people use specific numbers without apparent insight.

    "I, personally, as a consumer, would be happy to pay for some things and not others, with the price varying."

    While I support Mike's excellent ideas for business models and advice to not rely on charity, I find that my own spending habits are geared towards giving money away to artists I like. That's not me being overly generous, or a rube (as some anonymous cowards would have us believe), but because I view money spent on artists I like as an investment.

    One of the biggest issues I have with buying music through large labels, aside from how much goes to the artist, is where the rest of the money goes. It's an issue of control. When I spend money I am exercising my power of choice, which is mitigated somewhat when the majority of the money goes into the accounts of a record label that probably represents more music I don't like than do like.

     

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    Jay (profile), Mar 29th, 2011 @ 8:12am

    Re: Re: Re: Re: I Say 25 Years

    I would be concerned about derivative works based on copyright which can throw a monkey wrench into all the plans...

     

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    Nick Coghlan (profile), Apr 2nd, 2011 @ 1:20am

    Re: Re: Re: Re: I Say 25 Years

    There's actually a different branch of IP law that is better suited to retaining creative control, and that is trademark law.

    For example, "Discworld" is trademarked by Sir Terry (and his wife, I believe). You can't go out and make commercial Discworld stuff without getting his OK, whether you copy anything from the books or not. I wouldn't be surprised to learn that several of the main characters were trademarked as well.

    But if the early Discworld books came out of copyright, then somebody could quite happily republish them, since the use of Sir Terry's trademarks would be a nominative use.

    The "Creator Endorsed" mark from Question Copyright is another approach to this same problem. CE-marked works would be those that have an amicable arrangement with the original creator, and some customers may choose to favour such works over those that don't bother.

     

    reply to this | link to this | view in thread ]

  79.  
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    Nick Coghlan (profile), Apr 2nd, 2011 @ 1:26am

    Re: Predictable response

    Bloody hell, it was less than 2 hours after I made this post that an AC actually made an argument along these lines :(

     

    reply to this | link to this | view in thread ]


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