Rethinking Handing Copyright On To Heirs Beyond Death
from the doesn't-make-sense dept
As you’re well aware, we’ve seen copyright extended over and over again, in ways that seem to go wholly against the purpose of copyright. After all, copyright is designed to encourage the creation of new content. Extending it after that content has been created makes no sense. The content was already created. However, not only has it been extended over and over again, but people are still pushing for it to be extended, even to the point that some claim that copyright should last forever (or, when pushed about the Constitution’s demand that copyright be for limited times, they’ll say “forever minus a day.”) One of the common arguments in favor of copyright extension is that copyright should be passed down to “heirs,” so that just as you can inherit a house, you should be able to inherit copyright. However, there’s some new research challenging (or, rather, demolishing) that thinking. Reader (and frequent Techdirt critic) Wilton points us to this paper that questions the very premise of “descendible copyright” by Deven Desai.
Desai points out that the needs of “heirs” are quite often used to defend copyright extension because it creates an emotional image (you don’t want the poor kids of an artist to go starving, do you?), but it’s entirely misleading and unfair:
Yet, once one probes the heirs assumption, one finds it lacks any historical or theoretical basis. Instead, the assumption hides rent-seeking behavior, clashes between authors and publishers regarding who can extract that rent, and political maneuvering by the copyright industry; all of which are behaviors that copyright policy ought to avoid and/or prevent. In addition, the image of stealing food from heirs permits the debates to marginalize society’s interest in a robust creative system with lower costs regarding the access to and use of knowledge and information.
In fact, Desai can find no support for the idea that heirs deserve the copyright of others. He does find it acceptable that copyright should last throughout an author’s life, but should end upon death. I have trouble supporting the idea that copyright should even be that long, but the total dismantling of any support for the idea that heirs deserve copyrights is well worth reading. He points out that the whole point of copyright law is to encourage the production of new works — and once someone is dead, they’re not going to produce any new works, so it’s silly to continue to “encourage” them.
For me, though, the most troubling part in reading the quotes Desai highlights of politicians and heirs fighting for copyright extension is this impression that somehow the public domain is bad. Just read this, from Senator Orin Hatch, to defend copyright extension a decade ago:
I would like to draw particular attention to the career of Walter Donaldson…. If the present copyright law had been in effect in the 1920’s, all of Walter Donaldson’s compositions would fall into the public domain within the next 2 years.
The implication,there, is that somehow this is a bad thing. Of course, reality is exactly the opposite. The deal with the public is that creators are given a monopoly for a limited time, so that it eventually goes into the public domain where everyone can benefit from it. Yet Hatch is implying that it’s somehow a problem that the public would benefit from Donaldson’s works.
Another stunning quote is from Samuel Clemens’ (better known as Mark Twain) argument in favor of copyright extension, invoking his daughters as being too clueless and helpless to earn any money on their own:
My copyrights produce to me annually a good deal more money than I have any use for. But those children of mine have use for that. I can take care of myself as long as I live. I know half a dozen trades, and I can invent a half a dozen more. I can get along. But I like the fifty years’ extension, because that benefits my two daughters, who are not as competent to earn a living as I am, because I have carefully raised them as young ladies, who don’t know anything and can’t do anything. So I hope Congress will extend to them that charity which they have failed to get from me.
This reinforces the totally unsubstantiated claim that copyright is designed as a welfare system to “protect” those who have no other means of earning a living. Of course, copyright wasn’t designed for that purpose at all. Why the government should support it as a system of welfare for the children of copyright creators is never clearly explained at all. Desai contrasts Clemens’ assertions with those of Victor Hugo, who while a big supporter of copyright and authors’ rights, also spoke eloquently of how important the public domain is, and how it needs to be supported. He does suggest a royalty system for heirs — but not a copyright system, saying that the ideas belong to the public.
So, the next time you see someone arguing that copyright should be extended in perpetuity for the sake of “their children,” perhaps note that there’s nothing in copyright law that has ever supported such an assertion.
Filed Under: copyright, descendability, deven desai, heirs
Comments on “Rethinking Handing Copyright On To Heirs Beyond Death”
In all fairness to Mark Twain, I propose that he was speaking ironically. Lord knows the man was known for his sharp and satirical wit.
Re: Twain
I was thinking the same thing. It really does seem to fit his style of ironic wit.
Re: Re:
That’s also how I took it – complete satire.
“Because I’m such a rotten parent that I’ve raised up two apparently idiot offspring, I expect the government to make special snowflake allowances for me as a creator of original works and henceforth support my idiots with work they did not do.
Screw the public, won’t someone think of my idiots?!”
Re: Re:
I can’t see Mark Twain as saying something like that ether, but I didn’t see that it was satire right of the bat.
If Mike, a blogger that sees sarcasm on a daily bases, missed that, chances are no one on the other side will ever (or, hopefully, until someone smacks them in the face with it.)
As for the matter at hand, copyright should be something that exists for whatever the set amount of time is regardless of the lifespan of the creator (or creating company, which is another issue altogether).
A 99 year old man that creates the greatest song even in his last year should see his work protected in the same manner that a 12 year old would get. There should be no difference in the length of the grant because of age, that would be discriminatory, no?
Plus of course, the copyright owned by corporations and not individuals brings a whole other issue. When does a corporation die? Would a company that exists for 300 years have a long copyright protection than an individual?
Re: Re:
WoW! Weird Harold actually makes a good argument for copyright at times.
However, I would say that copyright should be NO longer than 50 years, and actually should be reverted back to the original time period when it was established by the founding fathers.
Re: Re:
Protected from what? Someone else singing it? Copyright infringement. The guy’s dead, what does it matter?
Re: Re:
Wow, that’s… actually a reasonable argument. Good job for once, WH.
We may disagree on how *long* that ‘fixed term’ should be, but as long as we can agree that it *should* be fixed, I’m honestly fucking happy.
Re: Re:
Excellent points, WH.
I’d like to add some of my own. With regards to the argument that passing copyright on to heirs isn’t an incentive, I’d like to put forward a counter argument. The artist would be knowing full well that this arrangement is in place upon the creation of the work; one might argue that knowing that their work (and livelihood) would be passed on to their children might a good incentive to create that work.
With regards to the quote from Mark Twain: do you think that quote was in earnest? Perhaps was he being ironic? I don’t know either way, but it hit me that that could be a possibility.
Re: Re: Re:
The artist would be knowing full well that this arrangement is in place upon the creation of the work; one might argue that knowing that their work (and livelihood) would be passed on to their children might a good incentive to create that work.
I was thinking the same thing. If by extending copyright, you increase the present value of a work of art, then obviously there is more incentive to create new works of art.
“[C]opyright is designed to encourage the creation of new content. Extending it after that content has been created makes no sense. The content was already created.”
I actually agree with Techdirt’s opinion that copyright terms are too long already, but the above argument used commonly by TD misses what I consider to be an obvious argument from the perspective of copyrights holders. If I’m an author, I’m going to be able to get more money for my book from a company if that company knows that they’ll have the sole right to sell that book for a longer period of time. Sure, this comes at the expense of the interests of the public, but if you’re looking at just the point about incentivizing the creation of new works of art, extending copyright makes perfect economic sense.
Re: Re: Re: Re:
Hulser:
Yes, you are right that you will get increased money from a publisher with longer rights, but for whom does that really work? Most “best-sellers” are on the shelf and off the shelf in months, at most one or two years. How does that relate to life plus 95 years? Huge numbers of books, movies and recordings are so contemporaneous that after one or two decades it begins to get difficult to understand some cultural references. I sometimes have to explain movies made prior to the 1960’s to my children because of the cultural references.
In reality, books, movies and recordings either pay for themselves in a few years, or they will almost never pay for themselves. Yes, there are exceptions, such as “It’s a Wonderful Life” and “A Christmas Story,” which became hugely successful well after failure at the box office, but do the exceptions justify keeping all the hundreds of thousands of works that have run their course from being made available to the public?
If you really want an exception, do what the patent system does. Issue a copyright for a reasonable period of time, perhaps 10 years. At 10 years, permit a first extension for a modest sum, perhaps $1000 dollars. At 20 years, the extension goes up to $20,000. At 30 years, the extension goes up to $100,000. At 40 years, the extension cost goes to $1,000,000. At 50 years, the extension cost goes to $10,000,000. You will quickly find out which works are truly valuable and which are not, and probably 98% or 99% of all works will quickly revert to the public domain.
Incidentally, I still prefer a simpler system with shorter copyright. Yes, there are concerns about the taking clause of the fifth amendment, but if all states agree, that issue can be resolved.
Re: Re: Re:2 Re:
In reality, books, movies and recordings either pay for themselves in a few years, or they will almost never pay for themselves. Yes, there are exceptions, such as “It’s a Wonderful Life” and “A Christmas Story,” which became hugely successful well after failure at the box office, but do the exceptions justify keeping all the hundreds of thousands of works that have run their course from being made available to the public?
In my opinion, no. I agree with your point. But the point that I was making is TD appears to be ignoring the premise that extending copyright can act as an incentive to create new works of art (by adding value to the work in the present). Techdirt may not agree with the premise, but to ignore it altogether opens a gaping whole in its argument against copyright extension.
Re: Re:
A 99 year old man that creates the greatest song even in his last year should see his work protected in the same manner that a 12 year old would get. There should be no difference in the length of the grant because of age, that would be discriminatory, no?
Indeed, which is why a copyright terms should not be tied to the life of an author. It should be for a set term of years, and the pre-1972 28-year term (56 years w/ renewal) was just fine. (If I have my numbers off, please correct me.)
Re: Re:
A 99 year old man that creates the greatest song even in his last year should see his work protected in the same manner that a 12 year old would get. There should be no difference in the length of the grant because of age, that would be discriminatory, no?
The difference in term would not be because of age but because of death. If copyright expired at death, it would expire whether the author were 21 or 99. I think it’s OK to discriminate against someone on the basis of them being dead.
To the other point, is it necessary to extend copyright to heirs in order to encourage new works? It seems to like we’ll have lots of stuff being created even if there were no copyright at all, so what is the justification for extending it? Does anyone have any evidence for how much more content would be created if that were the case? I doubt it.
“WoW! Weird Harold actually makes a good argument for copyright at times.”
SRSLY, OMG. Amazing. Hey a broken clock is right twice a day.
I agree with a set time limit, period. It it were to be the life of the content creator, does that mean all somebody has to do is kill him? Is that a good idea?
I have to disagree with copyright ending at death.
many authors sold almost nothing while they were alive. Many great books were only “discovered” after the artists death.
I agree that copyright should last for a limited time, but it should be that time for everyone, no matter the date of their death.
“It it were to be the life of the content creator, does that mean all somebody has to do is kill him? Is that a good idea?”
Why would they kill him? What’s the incentive? If the author is dead, NOBODY gets to make the sort of profit off the work that a copyright monopoly allows.
But with copyright continuing beyond the creator’s death there IS an incentive. If his heirs kill him, they inherit the copyright. And nobody seems to consider that any sort of problem.
Re: Re:
Why would they kill him? What’s the incentive? If the author is dead, NOBODY gets to make the sort of profit off the work that a copyright monopoly allows.
Suppose I’m a publishing company, and I want to re-print an out-of-print book. I go to visit the author to get permission and find that he’s is sitting in a nursing home on life support. If I trip over the cord on the way out I can proceed with my original business plan AND not have to pay any royalties.
But seriously, more important from a legal standpoint, everyone should be able to know what the law is. If the limit is 50 years, and I pick up a book that says “(c) 1958” then I know it’s in the public domain. I shouldn’t have to check the obituaries.
I mean if somebody wants to end the creator’s copyright for some reason. I don’t know, maybe they want to use Mickey Mouse drawing in their book too? Yes bad example I know, but you get the idea.
“Why would they kill him? What’s the incentive? If the author is dead, NOBODY gets to make the sort of profit off the work that a copyright monopoly allows.”
If the author’s dead, publishers won’t have to pay him to make money off his work. Nor will movie studios. Or any industry that wants to use his work. So, yes…technically there is an incentive to kill an author if copyright would die with him.
calling you out mike on mis-understanding one of the great satirists mr. clemens:
So I hope Congress will extend to them that charity which they have failed to get from me.
and as to
many authors sold almost nothing while they were alive. Many great books were only “discovered” after the artists death.
even the creation of art entails a certain business risk, and copyright is not supposed to be an insurance policy against failure.
Ironic, isn't it....
that one of the biggest supporters of extended copyright (Old Mouse Ears) would not have a lot of the successes they have, had the works they used not been in the public domain.
First, I think all copyright is absurd and shouldn’t exist.
That stated, extending copyright to heirs is an incentive for authors to create more, knowing that the state will take care of their children. The incentive does not need to be immediate monetary gain. Knowing of their children safety is sure to be a great incentive.
Satire
I’m going the agree that the Mark Twain quote was satire, and go one step further and say Mike inclusion of the quote as straight fact was also satire. Mike is a smart guy and is in on the joke.
A reasonable argument on Techdirt?
Holy cow, Batman! A series of reasoned comments on Techdirt. I guess a broken clock IS right twice in a day!
I think copyright has a valuable and valid purpose. However, the continued extensions (and even the current length) do not. The point of copyright was to provide an incentive for authors or producers of creative works of all types to publish those works for public enjoyment, but that all such works would revert to the public after a limited period of time.
It is true that most works of art (books, paintings, movies, recordings)probably do not sell enough to pay for the effort it took to create them. However, how does that give someone like the Disney company the right to hover over 80 year old material that has already earned the company tens of millions? Has Disney been reimbursed for the cost of creation along with more than a reasonable profit long enough?
Indeed, copyright is likely causing an unbalanced creation of more art than our society needs. If copyright were limited to a truly reasonable period of time, perhaps 10 or 20 years, then those works would have proven their worth and then be available to others to transform into valuable works.
Of course, the original artist will STILL be able to profit from those works by doing his own transformation. Adding previously unreleased material, limited edition prints, audio commentaries, etc.
In comparison to patents and trademarks, the length of copyright is like a black hole on the legal landscape.
Thanks for the credit, but...
Thanks for the credit, but...
My name is spelled with two l’s.
A Good Illustration....
…of the ridiculousness of this position is Dr. Martin Luther King Jr.’s “I Have a Dream” speech, the copyright on which has been guarded by his heirs like bulldogs. One of the most historic speeches of the 20th Century, something that should be part of the patrimony of our nation, cannot be published or quoted in it’s entirety without paying his descendants. Yes it’s a tragedy that the man was struck down by an assassin, but that should not entitle his descendants to what amounts to welfare at the expense of the public of this country. It’s a damn good thing that inaugural addresses and all other official public utterances of the President of the United States are in the public domain, having been prepared as a work for hire by an employee of the U.S. Federal government, or people writing history books would be having to pay their heirs–or worse, history books would not quote Presidents.
Weird Harold is right
Copyright should be a set amount of time. Copyright is a financial incentive to create works, and since the money it brings the author is used to pay for his family’s living, then it makes sense to have it be inheritable as that is part of the incentive. I hate to liken copyright to physical things, but if you bought an investment property and then died, it shouldn’t become a public park. It’s still an investment property and the money earned from it would have gone to you and your family, it’s just now your dead so it only goes to your family.
That being said, inherited copyright ought to be taxed like other inheritances. I’d even go so far as to say that the new copyright holders can have a choice:
1) Tax all income from the copyright at the inheritance rate rather than income tax rate, or
2) Tax the time left on the copyright at the inheritance rate. That is, if inheritance tax is 35% and the time left on the copyright is 10 years, then the copyright term is shortened to 6.5 years.
That also being said, copyrights still need to be shortened to something more reasonable like 10-14 years.
Incentives
The idea that copyrights should die with the author is obviously a bad one, because as others have pointed out it creates an incentive for others to take advantage of that by killing the author. I think most people would agree that such incentives would be a bad thing, and it’s actually a disincentive to the author to create new works because with each success their death becomes worth more to those people who would want to exploit it.
A part of an author’s incentives to produce new works may also be to provide for their heirs. An established author who is older or dying would have little or no incentive to create new works if they would be unable to pass on the value of those works to their heirs.
Therefor the idea that copyrights should not be inheritable is obviously wrong from the perspective of the incentives of authors.
However, extending copyright terms is completely pointless as far as incentives go if the new terms apply retroactively to works that already exist at the time the law is enacted. Doing so would merely be giving the value of the future public domain lost over to the current owners for no public gain. Any newly enacted terms would apply to any new works and thus provide the increased incentives to create, but the retroactive provision is a pure negative for the public.
I agree with many that the existing copyright terms are too long, but that’s not really the topic here.
Re: Incentives
I agree with many that the existing copyright terms are too long, but that’s not really the topic here.
I disagree, they’re closely related. If a copyright term were only 10 years, there’s not so much incentive to kill a copyright owner if copyright dies with them. Only if copyright terms are ridiculously long (as they are now) could I imagine somebody maybe thinking it’s worth the risk to commit murder to get something into the public domain.
Copyright is Subsidized by the Schools.
Language changes over time, as the world changes. Once a book is fairly old, it takes a certain mental effort to read it, which at a certain point becomes a matter of reading in a foreign language. I was dipping into the Icelandic Sagas, the other night (in translation), and one of the things one gets used to is that every time a character enters, the author gives his genealogy. That is what Iceland was like in the tenth or twelfth century– people kept track of who was whose fifth or sixth cousin and acted accordingly. To read Sagas with full understanding, you have to develop the skill of keeping genealogies in your head. This sort of thing applies even at a fairly short distance, of fifty years or so. Practically no one reads Hemingway, Scott Fitzgerald, or Steinbeck outside of a school classroom, because the burden of translation is too great. Of course, these kinds of books are taught in the schools for precisely that reason, to teach students to read books which are written in a language rather different from that which they themselves speak. The students read these books under coercion, but they do not acquire the taste for reading them. When the Steinbeck heirs get into a dispute with a publisher, it is a dispute about who gets government money.
Suppose a law were passed, forbidding the public schools to require students to read books which were copyrighted and not under Creative Commons or some other form of open-source license. This would not impinge on copyright– it would simply say that copyright could not be “leveraged” with government power to create compulsory markets. This would not create many difficulties for the schools, once they got used to it. There are plenty of open-source math and science textbooks, and probably a sufficiency of foreign-language textbooks (*). There is an unlimited supply of pre-1923 literary works (think Project Gutenberg). However, such a law would be quite ruinous to the Hemingway, Scott Fitzgerald, and Steinbeck estates. It would also be ruinous for the publishers. Those with teaching experience will of course be aware that very few students will read _anything_ they are not compelled to read.
(*) Parenthetically, the major European countries all have diplomatic-educational organizations to promote their culture in foreign countries, and they provide all kinds of services for foreign-language teachers. More recently, China has set up a similar organization. and I am tolerably sure, for example, that the French Republic will do whatever it has to do, in order to make open-source French textbooks available.
Re: Copyright is Subsidized by the Schools.
The Hemingway and Fitzgerald novels I have read were not that hard to understand. If you had said Shakespeare, I could agree with you…but these two?
> But I like the fifty years’ extension, because that
> benefits my two daughters, who are not as competent
> to earn a living as I am
Don’t you think it’s time for your daughters to GET competent at earning their own living, you @-hole?
Re: Re:
Yeah! Just because Mark Twain’s daughters are over a 130 years old, we’re supposed to let them ride on the coat tails of their father? I say make them get a job!
To : Jesse, #31
It’s a matter of degree. For example, in _The Great Gatsby_, Scott Fitzgerald never quite comes out and says that Jay Gatsby is a large scale gangster, who has banks robbed, and orders contract killings from time to time, in short, basically the same kind of person as Buggsy Siegel or Meyer Lansky. Fitzgerald just drops enough hints that the reader gets the point, even while the narrator, Nick Caraway, does not. Those hints depend on the reader knowing something about how banks worked before computers. Nick Caraway’s invincible naivety is an important part of the story. In 1925, four years before the Wall Street crash, Fitzgerald was not ready to cross the line, and say, outright, “big businessmen are gangsters.” He had to fudge the point, to say something he was not allowed to say. That meant skating a fine line of language.
So, when high school students are reading _The Great Gatsby_, bringing out all these hidden meanings becomes a first exercise in literary criticism. The first level of literary criticism involves working out what the world looked like when the book was written, and what the words meant to the understanding of the time, so as to discover the true meaning of the book.
Look at the thing TSO wrote after you (#32). TSO is the kind of person who doesn’t get the point, who hasn’t got the capacity for imagining what life was like a hundred years ago, and who cannot even grasp what a revolutionary suggestion Mark Twain was making about the position of women.
Author's privilege..
As an author myself, I have a simple view on copyright: it should last until I die… that’s it. As an author, the most gratifying thing I find in copyright is knowing that my HARD work won’t be appropriated by others for profit (without my permission). Right or wrong, copyright is the only way to guarantee this. Second, I do believe that people must make a living, and writing a book or composing a song can be as much hard work as working 9 to 5 every day. So, one should get a revenue for the sales of his work, as simple as that.
As for the “copyright” extension to the author’s children… it’s plain idiotic. In Latin countries, copyright exists with a different name, a better one: “author’s rights”. Probably due to language discrepancies, Anglo-Saxon countries ended up calling these rights copyrights, but the Latin name really says it all: the rights of the author. Preferably alive. Period.
Re: Author's privilege..
“As an author, the most gratifying thing I find in copyright is knowing that my HARD work won’t be appropriated by others for profit (without my permission)”
Apply the principle of universality to that statement and tell me why authors shouldn’t face the same challenges as everyone else.
“I do believe that people must make a living, and writing a book or composing a song can be as much hard work as working 9 to 5 every day”
Presumably it was your choice to write rather than work 9 to 5 every day. I don’t see how this justifies the luxury you are afforded of getting to do what you want and having a monopoly on the product of your work.
“So, one should get a revenue for the sales of his work, as simple as that.”
Is this an assertion that there are no viable alternatives? Or are you just supremely confident of your entitlement?
“As for the “copyright” extension to the author’s children… it’s plain idiotic. In Latin countries, copyright exists with a different name, a better one: “author’s rights”. Probably due to language discrepancies, Anglo-Saxon countries ended up calling these rights copyrights, but the Latin name really says it all: the rights of the author. Preferably alive. Period.”
While I wouldn’t contest that copyright shouldn’t extend past an authors death, I have to point out that you have just said ‘it had a different name somewhere else’, added your own qualifier and declared the discussion over. Who’s not to say that ‘authors rights’ (were those words to mean anything concrete) couldn’t include a right to provide for their family after death.
Re: Re: Author's privilege..
Whoops, hadn’t realised this was an old story I had open. Hah.
corporation
the problem i’ve heard with copyrights ending at death is that corporations don’t die. I’ll concede that point. so the question then is why should a corporation be able to hold a copyright. let’s remove the ability of a corporation to hold copyrights then make copyrights end automatically upon the death of the author(s) and last for at most 10 years. copyright is supposed to be for a limited time during the life of the author so there is no reasoning that should allow it to extend beyond the author’s death even if he were to die a moment after a work was written. in order to prevent abuses by corporations trying to skirt these rules copyrights should be non-transferable. who is with me?
Handing copyright on to heirs
If I create a business and it becomes hugely successful?so successful I can eventually pay others to run it and sit back and enjoy the profits?I can bequeath that business (and all its profits) to my heirs, and they in turn can do the same, ad infinitum. So why can’t it be the same for copyright to my books? It just DOES NOT make sense.
Enhancements to a Work Protected by Copyright
Some time ago I developed as web site called: "Marshall McLuhan’s Understanding Media: A Hypertext Field Guide."
The site was divided into chapters of McLuhan’s book in one column and extensive notes and commentary in another, with instructions on how the user could insert his own commentary, and how to create popup windows anchored to McLuhan’s text, etc. A short time after publishing the work to the Internet, I got threatening emails from the a McLuhan son-in-law (who ran the McLuhan Foundation) requiring removal of McLuhan’s text. (McLuhan died 50 year ago). I put an enormous amount of work into this site which was free to the public.
I feel this enhancement to the work of Marshall McLuhan is a valuable contribution to his legacy. Do I have any recourse?
corporation
I am certainly with you, whether it’s a corporation or a foundation. Please seem my comment below.