Copyright Once Again Hiding Important Cultural Artifacts

from the copyright-getting-in-the-way-again dept

Last week on NPR's Fresh Air, I first heard about the publication of the book Barracoon, which sounds fascinating -- as is the backstory behind the book. The book was actually written in 1931, based on interviews anthropologist Zora Neale Hurston did with then 86-year-old Cudjo Lewis, then the last known living person to have been brought to America from Africa on a slave ship. In the Fresh Air piece, Maureen Corrigan described the decades long delay in publishing the book this way:

Hurston's manuscript has a complicated backstory, but the gist is that the book generated little interest back then from publishers. Only Viking Press was willing to publish it with the stipulation that Hurston change Cudjo's voice, transforming his dialect speech into the King's English. Hurston refused and Barracoon languished, known only to scholars until now.

However, over at the Washington Post, Ted Genoways tells a more detailed story that pins the lack of publication on a key factor of copyright law blocking the publication. It turns out that Genoways had come across this work decades ago and tried to get it published back then. But... copyright got in the way. Specifically, he was unable to establish clearly whether or not the work was in the public domain.

The typescript was thin, just over a hundred pages, with a few emendations and additions in Hurston’s handwriting, but it seemed complete and worthy of note. I looked into getting it published — but the rights to the work were unclear. Had the writing been conducted as part of Hurston’s fieldwork for the Federal Writers’ Project — making it a government work-for-hire and public domain? Or was it a separate literary work controlled by her estate? No one seemed to know, and no one was too interested in finding out. Unable to get answers, I eventually gave up on the effort.

As Genoways notes, under any reasonable copyright regime -- including the copyright regime that was in place at the time Hurston wrote the book -- the book should have gone into the public domain long ago. But, of course, as we've detailed many times over the years, rather than enable that culture to reach the masses, Disney had to protect its mouse (which, as Larry Lessig detailed years ago, Disney created by borrowing heavily from copyright-protected works).

It’s mostly due to the Walt Disney Co.’s efforts to protect ownership of a certain cartoon mouse. Over the years, the company has successfully worked to extend copyright restrictions far beyond the limits ever intended by the original authors of America’s intellectual property laws. Under the original Copyright Act of 1790, a work could be protected for 14 years, renewable for another 14-year term if the work’s author was still alive. In time, the maximum copyright grew from 28 years to 56 years and then to 75 years. In 1998, Sonny Bono championed an extension that would protect works created after 1978 for 70 years after the death of the author and the copyright of works created after 1922 to as long as 120 years.

As Genoways notes, it's surely no coincidence that the focus on Sonny Bono's copyright extension was to cover works created after 1922. The Walt Disney company was founded in 1923. However, as he notes, this is preventing all sorts of cultural works from reaching the public:

Here, Hurston is the rule rather than the exception. I have a file that I’ve kept over the years of significant unpublished works by well-known writers from the era: William Faulkner, Langston Hughes, William Carlos Williams, Hart Crane, Sherwood Anderson and Weldon Kees, among others. The works aren’t really “lost,” of course, but they are tied up in a legal limbo. Because of the literary reputations of those writers, their unpublished works will eventually see the light of day — whenever their heirs decide that the royalties are spreading a little too thin and there’s money to be made from new works. But other important writers who are little-known or unknown will remain so because they don’t have easily identifiable heirs — or, worse, because self-interested, or even uninterested executors, control their estates.

He also goes into detail on the works of the poet Lola Ridge, whose work was celebrated, but much of it kept from publication. Some works fell into the public domain and were re-released, but there are still multiple volumes tied up by copyright that cannot be released.

And lest you think this is a small problem, I'll point again to the research of Paul Heald, who has documented the giant hole in our culture created by lengthy copyright terms. Public domain works published prior to 1923 are available. Works in the last few years tends to remain available. Works from the many, many, many decades in between? Not so much:

Every time I see that image again, I am dismayed about what it says about our culture, and how little supporters of our existing copyright system seem to care about what copyright is doing to our culture. Supporters of the existing system regularly exclaim how they are the ones who support culture and creators with their views on extensive copyright protections, yet they run away and hide when people point out things like this, where copyright gets in the way of culture, locks it up and (unfortunately) sometimes throws away the key completely. As Genoways concludes:

Copyright laws rewritten by major corporations to preserve income from nearly century-old creations have all but erased a generation of less famous writers and unknown works by well-known writers. It is an effect that extends the life span of biases that have long silenced female writers, minority writers and working-class writers. “Barracoon,” to return to the original example, was rejected for publication in 1931, because it was deemed too vernacular by Hurston’s editor. Current copyright law unintentionally conspired to unnaturally extend the duration of that wrongheaded judgment for decades. That is why I bridle at the description of works like “Barracoon” as “lost.” They are not lost — they have always been here — but they have repeatedly encountered power structures that block their publication. It’s time for that to change.

Copyright is -- according to our Constitution -- "to promote the progress of science." It is difficult to see how locking up a book like Barracoon for all these decades could possibly be seen as accomplishing that purpose.


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  • icon
    Gary (profile), 17 May 2018 @ 8:01am

    Eternal Copyright

    Copyright should have a brief duration and certainly end with the author's death. There is no reason to drag it out to infinity -1.

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    • icon
      Roger Strong (profile), 17 May 2018 @ 9:49am

      Re: Eternal Copyright

      I have no problem with copyright extending beyond the author's death. If the author of a best-selling book dies soon after, it's reasonable to expect that a spouse and children will be looked after by collecting royalties.

      If I instead build a house, it doesn't go into the public domain when I die. The wife and kids still get the benefits of ownership.

      Having said that, there should be reasonable limits on copyright. Life of the author plus 70 years plus 20-year extensions is ridiculous.

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      • identicon
        Anonymous Coward, 17 May 2018 @ 10:04am

        Re: Re: Eternal Copyright

        Your argument is bodied because there is only one physical house, while there can be infinite digital copies of something digital, virtually without cost

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        • icon
          Roger Strong (profile), 17 May 2018 @ 10:34am

          Re: Re: Re: Eternal Copyright

          The family gets the benefits of owning that house. It's cheaper than rent, even before the mortgage is paid off.

          Likewise, they get the benefit of copyright via royalties. Take that away and allow unlimited digital copying, and they lose that benefit.

          I'm arguing that copyright terms should be reasonable. You're arguing for replacing one extreme with the other.

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          • identicon
            Anonymous Coward, 17 May 2018 @ 11:00am

            Re: Re: Re: Re: Eternal Copyright

            Like Defoe once wrote:

            "that mine was the middle state, or what might be
            called the upper station of low life, which he had found, by
            long experience, was the best state in the world, and the
            most suited to human happiness"

            With digital copying, the scale tips into one extreme and it needs *some* adjustment to cater for both creators and consumers. So fine, give the creators a few years of copyright during their lifetime.

            The insanity comes with the legacy producers, in the form of corporations, which don't die.

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      • identicon
        Anonymous Coward, 17 May 2018 @ 10:10am

        Re: Re: Eternal Copyright

        If I instead build a house, it doesn't go into the public domain when I die. The wife and kids still get the benefits of ownership.

        They also get the costs and efforts of ownership as well, as houses need maintenance and taxes need to be paid.

        How many years pay is one years work worth? Anybody who does not create copyrighted works has to work to earn an income, and save for a rainy day or to protect their family if they can.

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        • identicon
          Anonymous Coward, 17 May 2018 @ 10:36am

          Re: Re: Re: Eternal Copyright

          The idea of a "property tax" on copyright comes up frequently. If nothing else, it's an excellent way to solve the "orphaned works" problem (if the author is paying taxes, the copyright office can identify them; if not, it goes public-domain).

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          • identicon
            Anonymous Coward, 17 May 2018 @ 2:30pm

            Re: Re: Re: Re: Eternal Copyright

            If they want to call it property then they also pay tax upon it just like real world property, you do not get a free pass just because it is not a physical object.

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      • icon
        Stephen T. Stone (profile), 17 May 2018 @ 10:23am

        Re: Re: Eternal Copyright

        If the author of a best-selling book dies soon after, it's reasonable to expect that a spouse and children will be looked after by collecting royalties.

        In such a case, copyright becomes a form of welfare for the successful. Why should they be allowed to profit from work they did not do and success they did not earn?

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        • identicon
          Anonymous Coward, 17 May 2018 @ 10:40am

          Re: Re: Re: Eternal Copyright

          In such a case, copyright becomes a form of welfare for the successful. Why should they be allowed to profit from work they did not do and success they did not earn?

          You must mean "for the spouse/children of someone successful", because the successful one did do the work. It does raise the question of why the author should continue to profit from work that's already been done. The majority of people, including house-builders, don't; they stop getting money when a job's complete. Why shouldn't we expect authors to negotiate payments before writing a book?

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        • identicon
          Thad, 17 May 2018 @ 10:45am

          Re: Re: Re: Eternal Copyright

          Because the alternative is to punish the author for dying young.

          If Philip K Dick had lived longer, he would have made a lot of money, and he would have left that money to his children when he did die. Should his death at a young age mean that his children don't get that money?

          I think most of Dick's work should be in the public domain by now. But I've got no problem with its original (mostly 56-year) copyright term being honored and allowed to pass to his heirs.

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          • icon
            Stephen T. Stone (profile), 17 May 2018 @ 10:51am

            Re: Re: Re: Re: Eternal Copyright

            If Philip K Dick had lived longer, he would have made a lot of money, and he would have left that money to his children when he did die. Should his death at a young age mean that his children don't get that money?

            Yes.

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            • identicon
              Thad, 17 May 2018 @ 12:25pm

              Re: Re: Re: Re: Re: Eternal Copyright

              An argument is a connected series of statements intended to establish a proposition. It isn't just contradiction.

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          • identicon
            Anonymous Coward, 17 May 2018 @ 11:17am

            Re: Re: Re: Re: Eternal Copyright

            > Should his death at a young age mean that his children don't get that money?

            The money would not have been made, so could not have been lost :-) It's the same argument that is pushed in favor of the separate court system for failed investments (ISDS and the likes): the investors want to extort money they didn't earn in the first place.

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        • icon
          Roger Strong (profile), 17 May 2018 @ 10:49am

          Re: Re: Re: Eternal Copyright

          Nonsense. If I build a house for my family and take other steps to ensure their well-being after I die, that home ownership is not "welfare." Collecting the retirement plan I paid into for decades isn't "welfare" just because they personally didn't earn it.

          Again, I favor reasonable limits on copyright. Something much less than life plus 70 years plus 20-year extensions. Rather than replacing one extreme with another.

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          • icon
            Stephen T. Stone (profile), 17 May 2018 @ 10:57am

            Re: Re: Re: Re: Eternal Copyright

            If I build a house for my family and take other steps to ensure their well-being after I die, that home ownership is not "welfare." Collecting the retirement plan I paid into for decades isn't "welfare" just because they personally didn't earn it.

            In the first case, ownership of a tangible thing—a house—is fair because it is tangible. In the second case, you earned the retirement monies and deserve to distribute them however you see fit.

            In the case of copyright, your family would be earning money for work they did not do and success they did not earn. It would become a form of welfare in that they do not have to work for the money to come rolling in; other than proving they own the copyright, they would have nothing else to do but wait for the royalty checks to come in.

            Copyrights should end with the death of the author. If their family wants to keep making money from their work, they can do the work to sell that work in spite of the public domain.

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            • icon
              Roger Strong (profile), 17 May 2018 @ 11:10am

              Re: Re: Re: Re: Re: Eternal Copyright

              In the second case, you earned the retirement monies and deserve to distribute them however you see fit.

              In the case of copyright, your family would be earning money for work they did not do and success they did not earn.

              You haven't shown how these are different.

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              • icon
                Stephen T. Stone (profile), 17 May 2018 @ 11:17am

                Re: Re: Re: Re: Re: Re: Eternal Copyright

                Retirement monies are monies you already earned. Post-mortem royalties are monies you would have earned if you were still alive, but are no longer able to earn because you are dead. While I would take no issue with a family receiving royalties from copies of works already on the market up to the death of the author (and possibly any new copies distributed within a brief window of time after their death), any monies earned by the sale of any new copies released after that point should go directly to whoever made and distributed those copies.

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                • icon
                  Roger Strong (profile), 17 May 2018 @ 11:49am

                  Re: Re: Re: Re: Re: Re: Re: Eternal Copyright

                  Retirement monies are monies you already earned. Post-mortem royalties are monies you would have earned if you were still alive, but are no longer able to earn because you are dead.

                  Most retirement plans you've built up or paid into over the years - whether home ownership, a pension plan, investments, building a successful business etc. - don't disappear when you die. You earned them and your family benefits from them, as you say, post-mortem. It's one of the big motivators for savings and investment.

                  There's still no difference between your two cases.

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                  • icon
                    Stephen T. Stone (profile), 17 May 2018 @ 12:00pm

                    Re: Re: Re: Re: Re: Re: Re: Re: Eternal Copyright

                    You do not build up a copyright; it exists when the work does (though registering a copyright makes the proving of ownership less of a hassle). You do not pay into copyright; it requires no payments to remain active. Why, then, should we treat copyright as we treat retirement plans when they are not the same thing? Why should someone’s heirs be entitled to money made from works that said someone made and (possibly) distributed without the help or input of said heirs?

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                    • identicon
                      Thad, 17 May 2018 @ 12:29pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Eternal Copyright

                      You do not build up a copyright; it exists when the work does (though registering a copyright makes the proving of ownership less of a hassle).

                      That hardly seems relevant, seeing as we've only had automatic copyright since 1978.

                      If you registered a pre-1978 copyright, then should it be eligible for inheritance? And if the answer is still "no", then why did you bring up automatic copyright at all?

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                      • icon
                        jupiterkansas (profile), 17 May 2018 @ 1:20pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Eternal Copyright

                        If you registered a pre-1978 copyright, it would likely be in the public domain by now. Automatic copyright changed all that by retroactively extending the life of copyright beyond what it was when you registered it.

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              • identicon
                Shadow-Slider, 17 May 2018 @ 11:39am

                Re: Re: Re: Re: Re: Re: Eternal Copyright

                The difference is that you owning a house does not stop me from building a house just like your on my own land with my own materials. You running and owning a bookstore does not prevent copying everything about your bookstore that is not trademark-able or trade dress. And then running and owning my own bookstore with my own money, property, and materials. Whereas copyright prevent me from printing, publishing and distributing copies of a book you own the copyright to with my own money, property, and materials.

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                • icon
                  Roger Strong (profile), 17 May 2018 @ 12:07pm

                  Re: Re: Re: Re: Re: Re: Re: Eternal Copyright

                  In your house scenario you're using YOUR materials. YOUR sweat equity. Not someone else's (the authors's.) Likewise your bookstore is competition, but it's not built off someone else's work.

                  The original reasoning behind copyright is sound: It encourages new works for the good of all. Of course it had shorter, more reasonable copyright terms.

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                  • identicon
                    cpt kangarooski, 18 May 2018 @ 9:26pm

                    Re: Re: Re: Re: Re: Re: Re: Re: Eternal Copyright

                    The original reasoning behind copyright is sound: It encourages new works for the good of all.

                    Just remember, a work isn't very good for all, or even most, unless it's in the public domain where it can be used freely by all

                    Thus copyright should encourage the creation and publication of new works, but it should also discourage protecting those works one iota more than is necessary for them to be created and published. That is, the public should get the most bang for their buck, as it were. Encouraging creation to the exclusion of all else will not produce optimal outcomes, and may even be more harmful than having no copyright at all.

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                    • identicon
                      Wendy Cockcroft, 21 May 2018 @ 6:01am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Eternal Copyright

                      It seems to me that copyright should:

                      a) revert to the original 28yr maximum it used to be
                      b) not be some kind of welfare scheme
                      c) end at the cessation of the copyright term

                      We've forgotten that royalties are disbursed to authors in exchange for copyright, which belongs to publishers. Okay, so how can we ensure that authors (and their families) benefit from the works? I propose that a deal be struck with the publishers to:

                      a) share profits from all publications of the works in question even after copyright terms expire on the grounds that if the publisher didn't have a work to sell, they wouldn't have a profit in the first place
                      b) set up a life assurance scheme into which a proportion of the profits are paid. This might have to be a mutual fund. This is then made available to the author and/or the family of the author in the event of a catastrophic event
                      c) buy shares in Google, etc., in order to share the dividends out among the authors. That ought to stop the complaints about Google profiting off piracy

                      Basically, publishers need to work with and for authors and the internet instead of being greedy and blaming us for their failure to adapt to the digital age.

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                      • identicon
                        cpt kangarooski, 21 May 2018 @ 8:59pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Eternal Copyright

                        > It seems to me that copyright should: a) revert to the original 28yr maximum it used to be

                        Meh. The only serious investigation of optimal term length I've seen came up with was 14 years. I'd rather it vary depending on the nature of the work. Computer software, for example, probably doesn't need terms as long as movies.

                        > I propose that a deal be struck with the publishers to:
                        > a) share profits from all publications of the works in question even after copyright terms expire on the grounds that if the publisher didn't have a work to sell, they wouldn't have a profit in the first place
                        > b) set up a life assurance scheme into which a proportion of the profits are paid. This might have to be a mutual fund. This is then made available to the author and/or the family of the author in the event of a catastrophic event
                        > c) buy shares in Google, etc., in order to share the dividends out among the authors. That ought to stop the complaints about Google profiting off piracy

                        Go nuts trying, but remember that they'll have little incentive to agree to that, especially given that publishers outside of that agreement will not have to pay permanent royalties for publishing public domain works. Also, what do you do about derivative works? Do those authors have to kick back some of their permanent royalties to the original authors?

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                        • identicon
                          Wendy Cockcroft, 22 May 2018 @ 2:35am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Eternal Copyright

                          I disagree about copyrighting computer software; those terms need to be either very short or non-existent. The confusion over APIs is a case in point.

                          **remember that they'll have little incentive to agree to that, especially given that publishers outside of that agreement will not have to pay permanent royalties for publishing public domain works. Also, what do you do about derivative works? Do those authors have to kick back some of their permanent royalties to the original authors?**

                          And there I was thinking I was so clever. Truth is, I'd given no consideration to that. However, I think we can agree that ultimately all works are derivative, e.g. The Shannara Chronicles, and indeed Babylon 5 owe their origins to Lord of the Rings.

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            • identicon
              Thad, 17 May 2018 @ 12:26pm

              Re: Re: Re: Re: Re: Eternal Copyright

              In the case of copyright, your family would be earning money for work they did not do and success they did not earn.

              Yes, and if you died ten years later, they'd have that same money, and wouldn't have done any more to earn it than the case where you died young.

              Are you arguing against the entire concept of inheritance?

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      • identicon
        Thad, 17 May 2018 @ 10:46am

        Re: Re: Eternal Copyright

        I was with you up to "If I instead build a house". I hate that analogy. Copyrights aren't houses.

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        • icon
          Roger Strong (profile), 17 May 2018 @ 10:54am

          Re: Re: Re: Eternal Copyright

          Fair enough. How about "Any retirement plan you've built up or paid into over the years." Whether it's home ownership, a pension plan, investments, building a successful business etc.

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          • identicon
            Anonymous Coward, 17 May 2018 @ 11:09am

            Re: Re: Re: Re: Eternal Copyright

            The retirement plans I know you put in money continuously. A book you write once. Of course, if you want to be wasteful you can go and engage the legal system.

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            • icon
              Roger Strong (profile), 17 May 2018 @ 11:16am

              Re: Re: Re: Re: Re: Eternal Copyright

              In very few cases will one book's royalties cover your retirement. Just like one payment (or one year's payments) won't cover retirement either.

              For writing it takes a body of work over decades, just like you pay into a retirement plan for decades.

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              • identicon
                Wendy Cockcroft, 21 May 2018 @ 6:02am

                Re: Re: Re: Re: Re: Re: Eternal Copyright

                You're assuming that enough books are sold to generate an income at all. That's not the case with every book. I've published two and am yet to receive any royalties because no bugger has bought them.

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          • identicon
            Anonymous Coward, 17 May 2018 @ 11:09am

            Re: Re: Re: Re: Eternal Copyright

            How long does it take to write a book, and how many years income is that effort worth?

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            • icon
              BernardoVerda (profile), 17 May 2018 @ 5:07pm

              Re: Re: Re: Re: Re: Eternal Copyright

              It varies -- and it doesn't matter.
              Copyright and patents (at least as enacted in North America) give no special privilege to "sweat of the brow". A 30 second speech and the Great American Novel are equal in the eyes of copyright law.

              Whether someone scribbled that book out as a lark over a couple of weeks, or laboured over it for decades, whether it runs 40 pages or 1400 -- it's all the same.

              It's the same with music: it doesn't matter whether the author struggled over that bit of music for years, or dashed it off in an inspired coffee break -- the copyright is exactly the same.

              The copyright exists only to protect, promote and preserve useful expression -- how long it/how much effort it takes to produce that copyrighted work is the artist's problem.

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          • identicon
            Anonymous Coward, 17 May 2018 @ 11:35am

            Re: Re: Re: Re: Eternal Copyright

            That may not be an ironclad example either, as there have been corporate raids upon the retirement funds of their employees - apparently supported by some of the courts. Also, it appears that even employees contributions are being stolen.

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          • identicon
            Thad, 17 May 2018 @ 12:35pm

            Re: Re: Re: Re: Eternal Copyright

            I think that's getting a little closer, but Stephen's criticism of that analogy is a fair one: you continually pay into a retirement account, so it's not quite the same as an individual work.

            I think an individual investment might be a little nearer the mark: a one-time purchase of a stock, or some similar item that you hope will appreciate in value but whose future performance is not guaranteed.

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        • identicon
          Anonymous Coward, 17 May 2018 @ 6:01pm

          Re: Re: Re: Eternal Copyright

          Copyrights aren't houses.

          They've already tried copyrighting house designs. Give them time. I'm sure the IFPI will eventually bribe, I mean, figure something out.

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      • icon
        jupiterkansas (profile), 17 May 2018 @ 1:40pm

        Re: Re: Eternal Copyright

        This analogy is terrible and doesn't take into account the purpose of copyright.

        Copyright isn't a retirement plan. It's not a pension.

        It's a pact the government makes with creators that that says we will temporarily let you control copies of your work so that you can try to earn a living from it (although it's not required that you earn anything) because society considers that valuable.

        Copying is a natural act that all people do. Copyright is a government imposed restriction on that act for the benefit of culture (not the benefit of creators). It's an incentive for you to create, not an end-of-life financial plan.

        You take that money you earn off copyright and put it into a retirement plan for your family, or build your house with it, but saying it should belong to your heirs the same way a house does is damaging to culture (read the above article) and denying it to the rest of the world.

        Just because some people (the lucky few whose IP is actually valuable) see it as a gravy train that doesn't stop until long after they're dead doesn't mean that why copyright exists or should exist. And sadly all the non-valuable IP has been drug along with it, making a century's worth of culture inaccessible.

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        • icon
          Roger Strong (profile), 17 May 2018 @ 2:01pm

          Re: Re: Re: Eternal Copyright

          Copyright isn't a retirement plan. It's not a pension.

          Sure it is. (With reasonable limits. More reasonable than now.) The author has invested sweat equity in creating it.

          You take that money you earn off copyright and put it into a retirement plan for your family, or build your house with it, but saying it should belong to your heirs the same way a house does is damaging to culture (read the above article) and denying it to the rest of the world.

          If you finally have a bestseller but die soon after, you wouldn't get those benefits to invest to protect your family. It's not like earning a regular salary where you can invest or pay into a retirement fund a bit each paycheque.

          Even on a bestseller, some of those royalties may not arrive until a decade or more later. Like royalties on movie rights. Or book adaptation rights. (It's common now for movies to arrive with freshly-written book adaptations, even when the movie was based on a book. I could go SO far off-topic on this...)

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          • icon
            jupiterkansas (profile), 18 May 2018 @ 2:22pm

            Re: Re: Re: Re: Eternal Copyright

            > If you finally have a bestseller but die soon after.

            Copyright isn't there to make sure the artist can make as much money as possible or to support their family after their deaths. Copyright is merely supposed to give you an incentive to create.

            An author might invest sweat equity in creating something, but their ownership of the right to make use of it is at the expense of the public and culture at large. That's why they don't have complete and total ownership of the creation, and that's why it's not a retirement plan, even though some people depend on it as such.

            > Even on a bestseller, some of those royalties may not arrive until a decade or more later.

            That's more of a problem with the publishing industry than a problem with copyright.

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            • icon
              Roger Strong (profile), 18 May 2018 @ 2:58pm

              Re: Re: Re: Re: Re: Eternal Copyright

              Copyright isn't there to make sure the artist can make as much money as possible or to support their family after their deaths. Copyright is merely supposed to give you an incentive to create.

              You don't see the connection?

              For someone with a family - or who plans to have one - meaning most people - the ability to support them IS copyright's incentive to create.

              That's more of a problem with the publishing industry than a problem with copyright.

              It's not a problem; it's just reality. There's no reason to expect that any movie based on your book would happen in the first year.

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

              • icon
                jupiterkansas (profile), 20 May 2018 @ 4:30pm

                Re: Re: Re: Re: Re: Re: Eternal Copyright

                By that argument, why limit the term of copyright at all? Why not just let the estate (or whatever company ultimately ends up owning the copyright) keep it for eternity? After all, that house you compared copyright to never reverts back to public ownership.

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

              • icon
                PaulT (profile), 21 May 2018 @ 3:30am

                Re: Re: Re: Re: Re: Re: Eternal Copyright

                "There's no reason to expect that any movie based on your book would happen in the first year."

                There's no reason to expect that your specific book will *ever* be adapted into a movie. The vast majority are not. Why should hypothetical possibilities of what might happen in another medium factor into the status of your novel writing? Especially since the argument is apparently that he shouldn't even bother starting the book unless he can get that.

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

                • identicon
                  Wendy Cockcroft, 21 May 2018 @ 6:11am

                  Re: Re: Re: Re: Re: Re: Re: Eternal Copyright

                  What PaulT says. I wrote two books because I wanted to. I wasn't under any illusions that I'd be either rich or even "comfortably well off" afterwards. I invested sweat equity in terms of doing the research and all of the typing but ultimately it's up to the market to decide whether I'm any good as a writer or not and apparently the answer is "Meh!" I'm okay with that. The market has spoken.

                  What I'm saying is, work you have chosen to undertake of your own free will, unless it's work for hire, is of your own free will. If you've got a book deal you'll have got an advance based on projected sales and they'll expect at least five books off you. In that case, assuming the publisher at least breaks even on the deal, you've had your money. You've been paid. Your sweat equity has been released. If the publisher makes more money than projected you make your share of that in royalty payments. If you get a movie deal, good luck to you. Enjoy!

                  What I don't want to see is an entitled attitude from someone who believes that just because they put effort into creating an item outside of work for hire they deserve to be paid. The market doesn't work like that whether it's free or not.

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

                  • icon
                    PaulT (profile), 22 May 2018 @ 2:13am

                    Re: Re: Re: Re: Re: Re: Re: Re: Eternal Copyright

                    Exactly. Most authors in the past never got published. Of those who did get published, only a portion of those got to do it as a full time living. Of those who did that, only a few ever got enough money to sit on their laurels - most had to keep writing. Some of the authors of the greatest works of the 20th century died in poverty, what makes others think they deserve to get more just because they wrote something?

                    For some reason, the current copyright regime has people thinking that simply the act of writing a novel should be enough to be able to live off the work forever, regardless of its actual commercial potential. That not only is not possible with the number of authors out there, it never has been. You just have more chance of getting your book into the hands of the public - but then so does every other author.

                    It seems everyone wants to be Stephen King, but forget that he only got to where he was by struggling for years to get published, has worked prolifically and obsessively for several decades and has had great luck with capturing the popular zeitgeist at various points in his career. Some people seem to think that he just got that fame and fortune by publishing Carrie and getting a couple of movies made.

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

          • identicon
            cpt kangarooski, 18 May 2018 @ 9:32pm

            Re: Re: Re: Re: Eternal Copyright

            The author has invested sweat equity in creating it.

            That's literally an unconstitutional justification for copyright. See Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)

            If you finally have a bestseller

            Authors of bestsellers aren't who we need to concern ourselves with the most. Surviving family members of authors can starve equally well whether the author wrote a bestseller or not, and there's a lot more authors (and family members) without bestsellers than with.

            So if you actually are motivated by concern for widows and orphans, you need social welfare policies to protect them; copyright will not get the job done. Plus, survivors of people who aren't authors at all have the same problems. Why should authors' families get special privileges?

            Good financial planning, life insurance, and welfare programs solve the problem you're obsessing over way better than copyright ever could, and for more people, and more fairly.

            Copyright policy should ignore widows and orphans and stick just to what benefits the public at large.

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

            • identicon
              Wendy Cockcroft, 21 May 2018 @ 6:13am

              Re: Re: Re: Re: Re: Eternal Copyright

              Thank you. I was hoping someone would point out the logical fallacy: appeal to emotion.

              Life assurance policies ought to be part of the deal offered to authors — that would solve the "orphans and widows" problem.

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

      • identicon
        Anonymous Coward, 18 May 2018 @ 6:46am

        Re: Re: Eternal Copyright

        it's reasonable to expect that a spouse and children will be looked after by collecting royalties.

        Then let's extend that idea to everyone. If a worker dies then let the spouse and children be looked after by collecting that worker's paychecks for 70 years after death.

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

        • icon
          Roger Strong (profile), 18 May 2018 @ 8:07am

          Re: Re: Re: Eternal Copyright

          a) As I wrote in the same post: Having said that, there should be reasonable limits on copyright. Life of the author plus 70 years plus 20-year extensions is ridiculous.

          b) A worker's paychecks don't continue after death. But a worker's retirement plan - whether home ownership, a pension plan, investments, building a successful business or something else - DOES continue to protect his family after death. There's no reason why royalties - within reasonable limits - shouldn't do the same.

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

      • identicon
        cpt kangarooski, 18 May 2018 @ 9:21pm

        Re: Re: Eternal Copyright

        I have no problem with copyright extending beyond the author's death. If the author of a best-selling book dies soon after, it's reasonable to expect that a spouse and children will be looked after by collecting royalties.

        I have no problem with copyright extending beyond the death of the copyright holder, but it's entirely unreasonable to base the reason for doing so on the old 'widows and orphans' rationale.

        Remember: the vast majority of copyrighted works have no copyright-related economic value. Of the small number that have any copyright-related economic value, the vast majority of those have their value 'front-loaded.' That is, most of the value is realized in a short period after publication in a given medium. For example, most of the profit that will ever be made on a book will be made within 18 months or so of first publication. It's extraordinarily rare to have a work that has long-lasting significant copyright-related economic value. It's like winning the lottery.

        Your mistake is that you seem to be assuming that it's the norm, or that we should base general policies on super-rare outliers. Your idea is as useless for the vast majority of widows and orphans as suggesting that the soon to be late author should put all of their money in scratch-off lottery tickets to provide for their family. Relying on copyrights to provide for them is just as irrational.

        If you're worried about the families of dead authors, support social welfare systems and sound financial planning. It will work infinitely better than having long copyright terms.

        As others have noted, the best option for copyright terms is to make them simply predictable terms of years. If the copyright on a book were, say, a maximum of 20 years, taking all renewals into account, then it doesn't matter whether the author dies just after the term starts, or in the middle, or after the work enters the public domain.

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

    • icon
      Wyrm (profile), 17 May 2018 @ 10:05am

      Re: Eternal Copyright

      Actually, I don't agree with "end with the author's death".

      When you want to sell or license the exclusivity to a work, the buyer will want a period he can plan on. If you say that the exclusivity might expire on the very day the contract is signed (accident, murder, etc.), the contract will have a very random value. The publisher might not like that.

      Instead, make it a set duration. Registration (to keep track of both the author and the date of creation, also keeping current beneficiary) for a minimal fee (a fee low enough to not be a barrier of entry something like $1), possibly short times renewable a few times. 5 years renewable twice, or ten years renewable once, that kind of duration would be ok since I've read somewhere that a close-to-optimal copyright duration is 15 years.

      Not a lifetime (you want to encourage creation? don't provide a lifetime revenue to craetors).
      No expiration on death (to keep exclusivity deal worth the paper they were signed on).

      Then, it's the author's responsibility to save his revenues and/or create more work as with any other job.

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

      • identicon
        Anonymous Coward, 17 May 2018 @ 11:36am

        Re: Re: Eternal Copyright

        How does that contribute toward the furthering of useful arts and sciences?

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

        • identicon
          cpt kangarooski, 18 May 2018 @ 9:36pm

          Re: Re: Re: Eternal Copyright

          How does that contribute toward the furthering of useful arts and sciences?

          Very well, thank you.

          It promotes the progress of science (useful arts are patents) by limiting restrictions on what the public can do with works while still encouraging their creation and publication. And by making terms more predictable than something based on lifespans, while remaining reasonably short, it encourages publishers to do business with authors, which is fundamentally the mechanism by which authors make money from their works (since few authors are equipped to, or are good at, self-publishing).

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

      • identicon
        Anonymous Coward, 17 May 2018 @ 1:20pm

        Re: Re: Eternal Copyright

        Your approach seems sensible, though I wouldn't mind having a little randomness. It helps establishing more real life conditions on a market that is centered around monopoly, because that's what copyright is. In nature monopolies are not common, as actors faces many risks all the time, which subvert their power to monopoly. When they do acquire it it's due to their unique abilities achieved through millions of generations work: for example, fungus is excellent at growing very large underground, the biggest living being is a fungus in Oregon. But it also can get dangerous: humans are by far the greatest producers of culture, and it often proves desastrous for other species. Therefore, monopoly needs to be limited.

        Coming back to copyright, your proposal sure could be used, but with some limitation. Exclusivity rights should only be able to be sold in the first 7 years of the copyright. After that, the Damokles Sword of sudden death can swing if it wants.

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

  • icon
    Ninja (profile), 17 May 2018 @ 8:53am

    At the very least the authors are surely living a great and rich afterlife, no? As Gary said, copyright should last much less and end automatically when the holder dies.

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

    • icon
      Ninja (profile), 17 May 2018 @ 8:54am

      Re:

      Actually, there shouldn't be a holder. It should not be transferable.

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

      • icon
        Anonymous Anonymous Coward (profile), 17 May 2018 @ 9:27am

        Re: Re:

        Then there would need to be a mechanism where a creator could give some rights to a publisher/recording studio/film producer...etc. so that those entities would be able to go about the business of distributing the content. How to go about doing that without copyright, which is what the origin of copyright was all about, becomes a big question. I would not trust any legislature to come up with something that works as I know you intend.

        Maybe the rule (law) should be that any transfer of copyright would be limited, and temporary. Wait, that's what we had before the Disney/Bono fiasco.

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

        • identicon
          Anonymous Coward, 17 May 2018 @ 9:59am

          Re: Re: Re:

          The origin of copyright is in England (d'oh). At the time, the purpose of copyright might well have been to secure a basic foundation for publishers business, because copying equipment and copying itself was expensive. Today though, copying is virtually for free, so copyright could be scrapped to a mere year or so.

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

          • identicon
            Anonymous Coward, 17 May 2018 @ 10:14am

            Re: Re: Re: Re:

            The real reason for copyright was the risks involved in batch production. It was not possible to create a copy on demand, but rather enough copies to satisfy the market has to be produced before the first copy could be sold. Having somebody undercut the market for cheap copies would be ruinous for those invested in the better copies, as they would be left with copies that they could not sell.

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

          • icon
            Anonymous Anonymous Coward (profile), 17 May 2018 @ 10:27am

            Re: Re: Re: Re:

            While the concept of copyright originated in England, our laws originated here. The rules for copyright are stated in the Constitution, but the Constitution did not require copyright to exist, it mere gave Congress the authority to do so. I think the legislative interpretation of 'a limited time' 14 years with a 14 year extension was certainly better than what we have now. Studies, however, have shown that most of the value of copyrights are expended within the first 7 years. So I would be in favor of there being a cost to apply for that 14 year extension, a significant cost. I would also support shorter terms.

            And, if we could talk the legislature into coming to their senses (unlikely unless we change the way 'soft money' and 'lobbying' (a.k.a bribery/coercion) work, they should also return all copyrights to these time frames.

            As to the changes in publishing techniques, those shouldn't change the fact of copyright, but might change pricing. In fact, some think that giving away their works helps to increase sales. Oh look. They were right.

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

            • icon
              Roger Strong (profile), 17 May 2018 @ 1:24pm

              Re: Re: Re: Re: Re:

              While the concept of copyright originated in England

              Modern copyright law may start there, but the concept was around much earlier.

              Wikipedia: Battle of Cúl Dreimhne

              3,000 casualties. Fought over copyright law in Ireland somewhere between 555 AD and 561 AD. Really.

              The copyright offender was later made a saint. But that was over converting the Picts to Christianity by vanquishing a monster in the River Ness. (That's right, the Loch Ness Monster is part of Christianity.) So pirates probably can't claim holy backing.

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

              • identicon
                cpt kangarooski, 18 May 2018 @ 9:47pm

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

                The origins of the basic trade-off of a monopoly on an otherwise unprotectable thing because it benefited society actually dates at least as far back as about a thousand years earlier to an ancient Greek joke.

                The joke was that the citizens of Sybaris (a Greek colony in what's now southern Italy) were so dedicated to their hedonistic lifestyle that they deliberately encouraged the development of new forms of luxury by giving out one-year monopolies on them to the inventors.

                Copyright originated as a publisher's monopoly (indeed, that's what the story you mention supports) but the modern utilitarian model is basically patent-like.

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

              • identicon
                Wendy Cockcroft, 21 May 2018 @ 6:17am

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

                Erm... RE: the Loch Ness monster, that's Scottish, not part of Irish folklore, and not in the Bible.

                RE: copyright somewhere between 555 AD and 561 AD, I dimly remember a documentary about that. LOL at the offender being made a saint. But that's copyright for you, always getting in the way of the public good.

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

            • icon
              BernardoVerda (profile), 18 May 2018 @ 12:51pm

              Re: Re: Re: Re: Re:

              Yes.

              If 14 years (with an option for 14 more if it seemed worth the copyright holder's while) was good enough for when communication and shipping were conducted by horse, steam, and sail, then that 14 years should certainly be more than good enough today -- when copyright holders can, more easily, reach far, far larger markets in a far shorter time-frame.

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

        • identicon
          Anonymous Coward, 17 May 2018 @ 10:32am

          Re: Re: Re:

          Then there would need to be a mechanism where a creator could give some rights to a publisher/recording studio/film producer...etc. so that those entities would be able to go about the business of distributing the content.

          We do that all the time without reassigning copyright—eg. Techdirt has permission to distribute this comment. Works for hire also operate without a transfer (the payer holds copyright ab initio).

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

          • icon
            Anonymous Anonymous Coward (profile), 17 May 2018 @ 10:55am

            Re: Re: Re: Re:

            In a legal contract between say a writer and a publisher, both need some control. The publisher needs to be able to protect its interests while doing those things needed to get the work out to the public (admittedly less costly today unless they still use a printing press) and the author needs some protection as well. In the past this was a contract that returned royalties, but gave up the copyright. I submit that there should be a way for the author (in this example) to retain the copyright, get the royalties, yet also protect the interests of the publisher. I am unaware of such a vehicle.

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

            • icon
              Stephen T. Stone (profile), 17 May 2018 @ 11:09am

              Re: Re: Re: Re: Re:

              An author could never be able to retain copyright and protect the interests of the publisher because it is in the publisher's interest to own the copyright so they can protect their investment.

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

            • identicon
              Anonymous Coward, 17 May 2018 @ 11:49am

              Re: Re: Re: Re: Re:

              The publisher needs to be able to protect its interests

              Which interests are these? Why wouldn't a copyright license (exclusive or not) protect them adequately?

              Distribution of royalties is easily handled by a contract.

              In the domain of books, I thought authors usually kept copyrights already.

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

          • identicon
            Shadow-Slider, 17 May 2018 @ 11:10am

            Re: Re: Re: Re:

            What is the practical difference a perpetual exclusive license with the right sub-license and make derivative works, versus the transfer of the copyright. The only difference I see is the creator still owns the copyright but enjoy no benefit doing so.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 17 May 2018 @ 9:34am

    Not about copyright: to gain money publishing existing works.

    That's KEY point. He could have scanned it in and put on Pirate Bay to preserve our cultural heritage -- which is "legal" because money never previously in the mix -- but no, this person wants UNDESERVED MONEY from efforts of a writer on life of person long ago, both grifting AND grave-robbing.

    You also casually conflate unpublished manuscript with "book".

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 17 May 2018 @ 9:38am

      Re: Not about copyright: to gain money publishing existing works.

      The banner advertising your "Kickstarter" project -- not coincidentally grifting off what YOU didn't make -- is really annoying.

      SO I ask: Does "Kickstarter Masnick" pay a fee to "Techdirt" for the advertising? Cause, that seems "valuable" promotion.

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

      • identicon
        Anonymous Coward, 17 May 2018 @ 11:41am

        Re: Re: Not about copyright: to gain money publishing existing works.

        Started in 1997 by Floor64 founder Mike Masnick and then growing into a group blogging effort...

        Yeah, he pays himself. Now get back under your rock.

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

    • identicon
      Anonymous Coward, 17 May 2018 @ 9:41am

      Re: Not about copyright: to gain money publishing existing works.

      lol

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

    • icon
      PaulT (profile), 17 May 2018 @ 9:49am

      Re: Not about copyright: to gain money publishing existing works.

      "He could have scanned it in and put on Pirate Bay to preserve our cultural heritage -- which is "legal" because money never previously in the mix"

      You seem even more extraordinarily confused about the subject than normal. Getting ready for the weekend a little too early?

      But, hey, glad you agree that money isn't everything and some laws need to be skirted for cultural heritage.

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

    • icon
      Stephen T. Stone (profile), 17 May 2018 @ 10:28am

      Re: Not about copyright: to gain money publishing existing works.

      He could have scanned it in and put on Pirate Bay

      And then he could be face a lawsuit by someone claiming to own the copyright, which would result in a lot of time and money being wasted in pursuit of the truth. I cannot imagine many people who would want to face a lawsuit over this kind of situation, even if what they think they did was morally in the right.

      Of course, none of this would be an issue if copyright terms did not last for a hundred-plus years. If copyright terms had not been extended by Disney and their government grunts, none of this would likely even be an issue.

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

  • identicon
    I.T. Guy, 17 May 2018 @ 10:14am

    " I have a file that I’ve kept over the years of significant unpublished works by well-known writers from the era: William Faulkner, Langston Hughes, William Carlos Williams, Hart Crane, Sherwood Anderson and Weldon Kees, among others. The works aren’t really “lost,” of course, but they are tied up in a legal limbo."

    Then they should be digitized and given away.

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

  • identicon
    Shadow-Slider, 17 May 2018 @ 10:45am

    Some Clarification

    The 1909 Copyright Act did not have date from creation limitation that was the 1976 act. Secondly if been published back then and there were not any extensions it would have expire in 1987, one extension 2006, both extensions 2026, assuming not work for hire and if it was published now 2030.

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

  • identicon
    Anonymous Coward, 17 May 2018 @ 11:56am

    lets see either life+25 or 25 flat with an 7-10 year extension. either would work, though i prefer the second. less ways to fuck up the second

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

  • icon
    OldGeezer (profile), 18 May 2018 @ 12:08pm

    Works lost forever

    I had a great aunt who was renowned in the 30's for both her poetry as well as religious writings. The only way you can see her poetry in in a special Kansas collection at the Wichita library. You cannot check them out. I assume the Catholic church has control of her writings that she co-wrote with a priest. If my family has any rights to her poetry after she passed I never heard any mention of it. Frankly I doubt any of us would care if someone wanted to publish it. As brilliant as her work is, there is little chance of anyone seeing it who might want to because of copyright issues. Years ago I could have bought a copy of her most recognized book online from a rare book site despite the price being pretty steep. A search for her now only shows up about the special collection. She is just one among many hundreds of thousands of writers & artists whose great works died with them.

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

  • identicon
    ReallyOldGeezerWannaBe, 19 May 2018 @ 11:53pm

    What happens when life is extended?

    So, what happens to Copyrights if Aubrey De Grey and his compatriots succeed and extend human lifespan to, say, 1000 years? The framers of the current copyright regime have clearly not thought this through. Or, perhaps they have? That would be the practical equivalent of infinity - 1.

    As an aside, have there been any Techdirt articles on the new copyright bill in Congress? Wired has an article at

    https://www.wired.com/story/congress-latest-move-to-extend-copyright-protection-is-misguided/

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


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