Seizing The Public Domain: Europe Trying To Extend Copyright Term Retroactively [Updated]

from the total-failure dept

The last century of copyright law has basically been one story after another about how the "deal" between content creators and the public has been shifted further and further away from benefiting the public in any way. The worst of the worst is the idea of retroactive copyright term extension. This simply makes no sense whatsoever. The point of copyright law is to provide incentives to someone to create new content in exchange for a limited monopoly, after which the work goes to the public. If the term of copyright protection was enough at the time of creation, then the incentive "worked." Changing it retroactively makes no sense, and appears to be a pure violation of the principles of unilateral contract changes. Copyright is a contract with the public, but under retroactive copyright term extension the public gets the terms of its deal changed without any compensation or recourse.

So it's sad to see that it looks like Spain may be the latest country Europe is the latest to take up retroactive copyright term extension (Google translation from the original found via Copycense). Given that Spain has generally been pretty reasonable on copyright laws (though, under pressure from US special interests, some have been trying to change that), it's sad to see them look to seize the public domain right out from under its citizens like this. Update: Sorry for the confusion. The Copycense piece said Spain, but as is noted in the comments, this is actually across the EU and not specific to Spain. Which doesn't make it any better. It actually makes it worse.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Anonymous Coward, Sep 7th, 2011 @ 10:10pm

    Corporate Welfare

    All these legislative changes are corporate welfare. Commercially valuable government-granted monopoly privileges are being extended purely to put more money into the hands of the corporations, who are overwhelmingly the owners of said monopoly privileges. Corporations love being given more money, at the expense of the public. Do not expect them to apologize for their greed, anytime soon.

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

  2. icon
    Tor (profile), Sep 7th, 2011 @ 10:38pm

    Term extension - a couple of analogies

    Copyright is essentially a legislative way of trying to internalize an externality so it's natural to compare it to other similar efforts. Increased availability of different kinds of works is a positive externality. Let's consider a negative externality - pollution. Some societies have tried to internalize the effect by introducing a system of emissions trading.

    If we translate retroactive copyright term extension to that field what would it look like? Well, it would mean that the state could suddenly force a company to pay up the billion dollars it "owes" for its pollution in the 1960s, even though emissions trading had not yet been introduced at that point.

    In most countries it would probably be illegal for the parliament to pass such retroactive laws. So how come there are not more people who question the legitimacy of passing such laws in the field of copyright?

    Let's say that we were talking about a public subsidy and not copyright protection (actually they are quite similar, since actively keeping works away from the public domain is a cost for society just like paying tax money is). If this subsidy is handed out, not in order to promote a future public good, but in order to reward certain people and companies for what they have already done, can it then even be called a subsidy? Would not "present from the taxpayers" be a better name? And what criteria would one use to distribute it? Would a retired celebrity "deserve" it more than a hard working single mother with a low income?

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

  3. identicon
    Old Man in The Sea, Sep 7th, 2011 @ 10:46pm

    More they ignore history, more they will repeat it

    As we can see with a look at history, the more any government ignores its people, the more its people will ignore it, till the government is overthrown.

    What those in government have forgotten is that if you give any group of people everything so that they no longer have to work for it, then the more that group of people will die off. This has been an effective government policy in many areas when it it has been used previously.

    We see this played out with various special groups around the world.

    The more that you try to suppress a people the more that they will resist.

    This is as applicable to business entities as to any social group as business entities are social groups.

    So the demise of the big copyright holders is just around the corner (any time in the next few decades), unless they want to really bite the bullet and start actually being productive again.

    In the meantime, those who are being suppress will find ways to fight and rebel against those who are supposed to be representing them but instead are oppressing them.

    What is happening now is the logical consequence of what was seen 20, 30, 40 or more years ago.

    Remember the old adage, this too shall pass.

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

  4. icon
    The eejit (profile), Sep 7th, 2011 @ 11:15pm

    I have an analogy

    This is like going to a Cash Converter, buying something on their finance, and about a week before you make the final payment, they turn round, take it back and sell it to someone else.

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

  5. icon
    nelsoncruz (profile), Sep 7th, 2011 @ 11:19pm

    It's not Spain, it's the EU Council

    It's not Spain that's behind this, it's the EU Council (formed by the governments of every EU country). A few years ago the EU Commission proposed a directive to extend the rights on sound recordings from 50 to 90 years. The EU Parliament eventually approved it with reduction to 70 years. It stalled in the Council however. There was no majority to pass it there. Now the government of Denmark has reversed its position, and suddenly there are enough votes.

    Christian Ensgröm of the Swedish Pirate Party made a petition to have it voted again in the Parliament, since it was approved before the last elections. It was rejected. Apparently it's against the rules. It should move to EU Council now. I'm not very hopeful any miracles will happen there unfortunately.

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

  6. icon
    Mike Masnick (profile), Sep 7th, 2011 @ 11:38pm

    Re: It's not Spain, it's the EU Council

    It's not Spain that's behind this, it's the EU Council

    Dah! Updated... thanks.

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

  7. icon
    That Anonymous Coward (profile), Sep 8th, 2011 @ 12:03am

    I try to be polite, I said TRY....

    But FFS, if they can't make enough money off of it in 25, 50, 70, 90, 125+ years giving them more time isn't going to help.

    All this does it make them feel better, causes more people to infringe (some unknowingly) so they can complain more about imaginary losses.

    Can any politician explain what the people actually get out of this any more?
    We give up some things and we are supposed to get something in return at some point.
    Moving those times well out of any of our lifetimes seems to be a bad deal for the people.

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

  8. identicon
    FuzzyDuck, Sep 8th, 2011 @ 12:18am

    Another URL in English

    Another URL with this story in English: il-on-wednesday/

    And that's what they call a democracy, what a joke.

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

  9. identicon
    FuzzyDuck, Sep 8th, 2011 @ 12:21am

    Re: Another URL in English

    And may I add, that this shows how the record industry is stealing from the public (by basically buying this law). We the public are now morally entitled to steal it back.

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

  10. icon
    Tor (profile), Sep 8th, 2011 @ 12:29am

    Re: It's not Spain, it's the EU Council

    Christian Engström wrote about it in this blog post.

    It seems that the decision has now been made to extend the term, but that the formalities will be completed on next Monday. Run this Swedish article through google translate for more info.

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

  11. icon
    PaulT (profile), Sep 8th, 2011 @ 12:36am


    "But FFS, if they can't make enough money off of it in 25, 50, 70, 90, 125+ years giving them more time isn't going to help."

    Most people, no. But, there's a small minority of corporations with large portfolios who can stand to make a lot of money if their most perennial products are allowed to make profit for them and them alone. Think Disney - OK for them to raid the public domain for their material, but God help anyone who suggests that the resulting works should be PD.

    "Can any politician explain what the people actually get out of this any more?"

    I'm sorry, they can't hear the people over the sound of the "contributions" they're being given by the corporations.

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

  12. identicon
    Wig, Sep 8th, 2011 @ 1:14am

    Another mindless copyright expansion - another reason to ignore copyright altogether...

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

  13. identicon
    Anonymous Coward, Sep 8th, 2011 @ 1:18am

    That is why no moral person can respect copyrights.

    Time to seed harder people.

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

  14. icon
    That Anonymous Coward (profile), Sep 8th, 2011 @ 1:47am


    Time to leave the comptuer for a while and start voting.
    There are millions of "pirates" imagine what would happen if we stopped telling ourselves our vote won't matter and start voting the idiots out.
    Very small blocks of voters seem to control the world, I think its time we stop pretending we are powerless and get out and vote.
    When we remove one, the others might start to show the right amount of fear.

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

  15. icon
    The eejit (profile), Sep 8th, 2011 @ 2:05am

    Re: Re:

    I'm doing both. It's about time everyone else did too.

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

  16. identicon
    Anonymous Coward, Sep 8th, 2011 @ 2:10am

    Re: Re:

    It won't happen and the reason why is simple.
    The people don't have the infrastructure in place to do that kind of stuff.

    Where is the place where people will discuss and find common ground to what they want?

    You see people mostly just get angry but they don't do nothing about it, they don't do what the other side do and that is to bring the law they want directly to politicians already written.

    Without a clear view of what things need to be there will be no majority and worst taking them out is easy, but finding someone that is not the same as before is just near impossible today

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

  17. identicon
    Anonymous Coward, Sep 8th, 2011 @ 2:25am

    Re: Re:

    Copycrap is just one part of the political spectrum to get other people to join, pirates will need to address others concerns too.

    And that is what is missing for people to organize themselves and actually do something about it.

    A place where people can discuss and find common ground and put a plan forward that everybody agrees must be followed.

    Where is the forum, where is the plan and where is the draft for the laws people want?

    Until that appears I doubt anyone else will go out of their way to do something in sync with others since we have a lot of small groups that are all over the place and have many different views of how things should be.

    But the other side have a unified front, they speak with one voice and they plan what they will do and who to support they also draft the laws and just say to their puppets how it should be voted and that is what the people should do and are unable at the moment of doing it.

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

  18. identicon
    Creative Paralegal, Sep 8th, 2011 @ 2:27am

    We need a bold artist

    Not sure if this would work in the EU but it might work in the US.

    You need an artist who made a lot of money selling their music to or through a label that should by now be in the public domain under the copyright laws in effect at the time of the sale. Said artist now starts packaging up and selling CD's and downloads of some of that music, vocally and publicly. Record company sues for infringement of copyright under new copyright term extension. Artist raises a defense that the "all rights" sale only included "all rights" that existed at the time of the sale, that the copyright didn't "transfer" to the public but ceased to exist at the end of that period. They could also argue that an obligation to transfer the work to the public at the end of the term went along with the sale.

    Alternatively, the artist could sue the record company for infringement on the same theory unless there were a term in the original contract that anticipates future changes in copyright law, which would probably itself be illegal under basic contract law principles.

    Come on guys. We've all seen extremely creative lawyers. Why can't a few of them get together and get rid of this shit altogether? In the US, you might be able to plausibly argue that extensions of copyright are unconstitutional because of the "limited" term in the Constitution regarding copyrights.

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

  19. identicon
    Anonymous Coward, Sep 8th, 2011 @ 2:49am

    Re: Re:

    Here is an example:

    - Copyright should last 10 years with two 10 years extensions possible, and to get the full protection of the law one should have to pay a fee lets say $100 bucks for the first term, $1000 dollars for the second and $10.000, the fee also should be based on a percentage of the earnings of said work and whichever is higher is the amount that should be paid for a renewal.

    - Copyright fines should have a very low minimum and one base on the income of the person or institution so it would have the same effect if you earn nothing or a billion dollars, it will hurt just the same and it makes the law more future proof since no values need to be adjusted in the future for inflation or anything like that.

    - Copyright should only apply to commercial interests not to private ones.

    Now how do I translate that to laws that can be enacted in Europe, Asia, Australia, America, Africa and so forth?

    Now most importantly what do you believe copyright should look like?

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

  20. identicon
    Anonymous Coward, Sep 8th, 2011 @ 2:59am

    Re: Re:

    Now that is just me, those are the things I would like to see copyright become, but there is a world out there that doesn't care about copyright law, what do they care about and what would it take for them to support what I want?

    Would I have to support health care reform, what the draft law are they proposing?

    Would I have to support anti-gay marriage legislation to get some aboard and what exactly are the laws they want to see enacted?

    Where do we discuss this and how do we gather statistics to show how much support something has?

    With that now you can put anybody in congress that sign a term of agreement that he will vote that legislation to put in place and it will not be just about copyright it will be about IP, finance, health, security, environment and so forth.

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

  21. identicon
    Tim, Sep 8th, 2011 @ 3:30am

    I don;t understand how governments (EU included) can retroactively extend copyright laws without gaining concessions from those currently holding copyright in return. It's a bargain, and the governments are giving away more and more for nothing in return - the money from this extension will not be going to nurturing new artists or creating new works. fit-corporations-and-cliff-richard/

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

  22. icon
    Josh in CharlotteNC (profile), Sep 8th, 2011 @ 3:42am

    Re: Re: Re:

    The people don't have the infrastructure in place to do that kind of stuff.

    Where is the place where people will discuss and find common ground to what they want?

    We have the internet. If that isn't the massive infrastructure needed to discuss and find common ground, then what the hell are you doing posting comments in a tech blog that deals with this every day?

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

  23. icon
    btrussell (profile), Sep 8th, 2011 @ 4:10am

    Re: Re:

    The people get to pay for the restoration/preservation of the copyrighted material.

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

  24. icon (profile), Sep 8th, 2011 @ 4:23am

    Check out this dossier by

    “Term extension for related rights in sound recordings”

    This is the english version:

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

  25. identicon
    Anonymous Coward, Sep 8th, 2011 @ 4:41am

    Re: Re: Re: Re:

    Ok then, now tell us where are the laws that are being proposed to fix those problems, so we can check on them to see if we agree with those and how much support they have at the moment can you do that?

    The internet is just the foundation the actual tools are not in place.

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

  26. identicon
    Anonymous Coward, Sep 8th, 2011 @ 5:06am

    Re: Re: Re: Re:

    Here is an analogy, the internet is the foundation of the building and we have all these wonderful materials(tech) to build the building with. We just didn't actually build it yet and so nobody can live or conduct business inside something that doesn't exist yet.

    Techdirt is wonderful, is light a lighthouse, awareness is not actual law, it is not actual statistical numbers and can't tell anybody how much support there is for an idea, or what proposals are being made can it?

    Where is the place to create the draft for laws? where people can check if those laws are what they want and if they support that and can say why they support or not something so people can see the problem clearly and address the needs that will enable some proposal to move forward and create the unity necessary to put someone in congress to act upon those proposals?

    Do you know of any platform that can do that?
    It also needs to be trusted which is hard.

    Where are the programmers creating the open source tools that will enable little communities to track their proposals and see what others think about them?

    One could call such project maybe Democracy 2.0, but it does not exist today does it?

    The tech is all here, we can do databases, we can do websites, we can distribute those things to people, but nobody actually build it and so we can't move forward.

    People get angry but can't do nothing because they although more connected then ever before can't actually communicate or exchange ideas in one place where everybody goes and so we get all these small little groups of people who agree in general terms but don't work together on the issues because they don't have real data to work with just opinions and that is sad.

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

  27. identicon
    Anonymous Coward, Sep 8th, 2011 @ 5:18am

    Re: Re: Re: Re:

    The only people I see proposing laws are the people who represent the MAFIAA and it will always be bad for the people.

    When will people start to organize and lump together in groups and start making their own proposals?

    Just discussing them and getting angry about it won't change things, unless people do something about it, either go to the streets and fuck the other side up or we put our own proposals using existing mechanisms to change things which I prefer as a first choice if you ask me.

    This brings me to one thing Techdirt could do and that is to create a database of suggestions for laws where authenticate users could go and express their support, critics and suggestions to those proposals, create that here and others may fallow and then maybe just maybe all those groups from different parts start to come together to form bigger groups representing bigger and bigger portions of the population.

    As it stands now is like "give an opinion and pray" there is no planing involved, there is no proposals involved there is nothing just a general idea of where things should go and that is not good enough.

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

  28. identicon
    Anonymous Coward, Sep 8th, 2011 @ 5:43am

    Re: Re: Re: Re:


    § 102. Subject matter of copyright: In general

    [strike](8) architectural works.[/strike]

    § 103. Subject matter of copyright: Compilations and [strike]derivative[/strike] works

    (a) The subject matter of copyright as specified by section 102 includes compilations [strike]and derivative[/strike] works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

    (b) The copyright in a compilation or [strike]derivative[/strike] work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

    Where I can look up the law and propose changes to it like I just made above and receive feedback?

    The first thing I noticed is that I would have to have some sort of mechanism to find all the instances of the relevant law to be able to conduct a search&replace operation on it.

    Where are the European laws so I can take a look at the relevant laws that govern that? or the Canadian laws?

    In the case of this post from Mike, could we reach out to other groups to inform them of the proposals from the otherside and encourage others to send in their own proposals to the problems faced?

    To do that we would need a copy of the proposed laws so we could look at it and decide if it was to be throw out or if it could just be changed is there anywhere on the internet that people can do that?

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

  29. identicon
    Anonymous Coward, Sep 8th, 2011 @ 5:49am

    Re: Re: Re: Re: Re:

    I can't write the Law 2.0 app.
    But others can.

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

  30. identicon
    Anonymous Coward, Sep 8th, 2011 @ 5:56am

    Re: Re: Re: Re: Re:

    After editing the law something like diff could generate an automatic law proposal in the same way diff can create patches.

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

  31. identicon
    Anonymous Coward, Sep 8th, 2011 @ 6:05am

    I remember the good old days back when retroactively extending something like this was illegal. Now the government isn't just retroactively extending copyrights, but even prison sentences for people who have already served the time they were sentenced to by a judge.

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

  32. identicon
    Anonymous Coward, Sep 8th, 2011 @ 6:09am

    Re: Re: Re: Re:

    Where is the Techdirt button, Change the law linking to the laws that govern the issue being discussed so people can send in their proposals to Mike on how to do something about it so he can plaster them all over the internet?

    Where are the numbers for acceptance of such proposals here?
    If people support the changes why do they do so and if not why?

    Those are data points that I don't see anywhere else, there is not a single place in the world where people can do that right now and that is why I believe we all fail to change things.

    ps: The law patching thing could actually bring Techdirt to congress since it is something they(politicians) can use and probably many politicos would do so without acknowledging where they got their ideas from.

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

  33. identicon
    NullOp, Sep 8th, 2011 @ 6:15am


    This is why absolute term limits are necessary for political office. The old boys get together and contrive a sweet deal for themselves and business and call it governance.

    DON'T vote for a single incumbent!
    DON'T vote Obama in 2012!

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

  34. identicon
    Anonymous Coward, Sep 8th, 2011 @ 6:52am

    Ironically, this could screw Disney on at least one of their big moneymakers!
    They waited until the copyright expired on Kipling's The Jungle Book.
    Now the book will be back in copyright for at least some of the period since it initially expired, Disney will owe royalties on it!
    Hee Hee Hee!

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

  35. identicon
    Anonymous Coward, Sep 8th, 2011 @ 6:53am

    Re: Terms...

    Good idea!
    Put corporate-friendly Republicans who want even more Draconian copyright laws in power!

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

  36. identicon
    Anonymous Coward, Sep 8th, 2011 @ 7:33am

    Re: Re: Terms...

    Better religious nutjobs than corrupt corporate lapdog Obama and his friends

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

  37. icon
    The eejit (profile), Sep 8th, 2011 @ 10:43am

    Re: Re: Re: Terms...

    I would much rather have corrupt politicos than people who have gone on record as saying they would rather the country burn than raise taxes on the wealthiest 1% of American citizens, AND who want to wipe Africa off the map.

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

  38. identicon
    Anonymous Coward, Sep 8th, 2011 @ 11:03am

    Re: Terms...

    I don't think this is a political board, do you honestly think that RIck Perry will be better for anti-copyright supporters?

    Come on.

    Wake up. It's not this person or that person, it is economic reality.

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

  39. icon
    DanZee (profile), Sep 8th, 2011 @ 1:15pm


    The ironic thing is that copyright laws are protecting a tiny percentage of information and literature. Probably more than 99% of stuff that's printed is NEVER reprinted, meaning that it's inaccessible since there's no incentive to print it until it goes into the public domain (which it never will).

    I love how Goggle has digitized entire libraries, totally ignoring copyright laws. They're sitting on a database that contains almost the entire literary output of the world since the beginning of time. But they're not allowed to share it freely.

    The bottom line is that works should go into the public domain after a reasonable length of time. Families members who weren't even born during Faulkner, Hemingway and Fitgerald's lives should not be profiting from their works,

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

  40. icon
    That Anonymous Coward (profile), Sep 8th, 2011 @ 4:31pm

    Re: Re: Re:

    The common ground we want is not what we have now.
    While I appreciate the idea of over thinking and trying to find something/one we can all agree on, the clock is running out on the people.

    We need to target as many of them as we can. I'm willing to put up with 2 more years of stupidity from a new face, if the fact all of that stupidity is from freshmen congresscritters because we cleaned out every single one of them we could.

    The power is in showing that as a block, we are not these apathetic people who whine on the net, but that we say what we mean and we mean to have change.

    It will not matter how much money the special interests give them when our goal is to not let a single one of them remain in office until they start doing whats best for the people and not only for corporations.

    Sure they can have a warchest of 150 million for their election, will that matter when a large group of motivated people says the lesser of 2 evils is evil so I'm voting for the other guy. Eventually they will learn that they have gone to far ignoring the people who put them in office.

    Stunning upsets always make them a little worried, imagine when there are that many stunning upsets.

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

  41. identicon
    Anonymous Coward, Sep 8th, 2011 @ 9:34pm

    Re: Re: Re: Re:

    You do understand that putting someone blindly in power is dangerous right? You could end up with the next Mussolini in power.

    Aside from that, what good does it make?
    The laws are not made by politicians they are drafted by the industry and their lobby and put in front of ignorant politicians that don't read anything.

    It doesn't matter who you put there, if you don't have a pledge from that person they could just as well vote for anything the industry says they need to vote on, if you want to really start to change you have to work harder and draft your own bills to so the ignorant politician in there can choose another law to vote for as it stands today the only people putting options in front a politician is the industry and not the people.

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

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