Another legal institution that may aptly be compared to copyright is the old feudal privilege of suit-to-mill. Something I wrote about this 10 years ago seems still to be on point:
Human institutions tend to perpetuate themselves at others' expense, and even at the expense of the purposes for which they were originally set up. A possible asymptotic condition resulting from this process can be seen in the grievances of the Senechaussee of Rennes, who in 1789 petitioned the Estates General praying for
Supression de la servitude plus meurtrière du droit de suite de mouline...usage libre des meules à bras; proscription absolue de la capitation seigneuriale à raison de ces tristes machines; et que la postérité ignore, s'il se peut, que la tyrannie féodale bretonne, armée du pouvoir judiciare, n'a pas rougi, dans ces derniers temps, de briser les meules à bras, et de vendre annuellement à des malheureaux la faculté de broyer entre deux pierres une mesure d'orge ou de sarrasin. (Translation: Suppression of the mankilling servitude of suit-to-mill, ... free use of querns; [and] absolute abolition of the royalty on these pathetic engines; that posterity may never know (if that is possible) that the tyrannical Breton lords, armed with the judicial power, did not blush in these modern times to smash querns, and to "sell" to the unfortunate folk annual "license" to grind a measure of barley or buckwheat between two stones.) M.J. Mavidal and M.E. Laurent, eds., Archives Parlementaires de 1787 a 1860, 1st Series, Vol. 5, Paul DuPont, Paris, 1879, p.547 (Article 171).
What might originally have been a reasonable way of funding the construction of large mills had degenerated into a lords' right that reached even to one of the simplest of everyday activities. The peasants had to get a "license" even to crush grain. I little doubt the lords defended their "property right" in the milling monopoly with many fine words.
It wasn't many years ago, in nineteen and seventy-eight,
they added nineteen years onto the term of copyright;
then said the movie barons and the proud high-lords of song,
"our copyrights will suit us well if they can last this long."
But when the nineteen extra years were nearly past and done,
those same proud barons then returned with cash to Washington.
"We want another twenty years, we hate the public domain.
And here's some cash that you can use to fund your next campaign."
So if the NZ songwriter's wisecrack is seriously meant, it's a case of life imitating art.
Did Lomax ever enforce his claims, asking for injunctions against anyone who reprinted the songs he collected? If so, then we may fairly find fault with him. If not, his registration of claims may have been intended to be a way of protecting downstream users. In the 1930s, a record label recorded "The Wreck of the Old '97." They found the author of the words and paid him for his contribution. (The tune, The Ship that Never Returned by Henry Clay Work, was in the public domain by then.) But then another claimant came forward, claiming he was the author, and that the label had violated his common-law right of first publication. The case, David Graves George v. Victor Talking Machine Company, 17 USPQ 133 (D.N.J, 1933), 20 USPQ 107 (3rd Cir., 1934), 293 U.S. 544 (1934), 293 U.S. 377 (1934), 38 USPQ 222 (D.N.J, 1938), 42 USPQ 346 (3rd Cir., 1939), certiorari denied 308 U.S. 611 (1939), rehearing denied 308 U.S. 638 (1939), 309 U.S. 693 (1940), went on for about 7 years. Perhaps with cases like the George case in mind, Oscar Brand wrote in 1962,
If I were to sing "The Battle Hymn of the Republic on a program, the "music clearance" department would insist on knowning the name of some book or publisher who would be willing to claim authorship. (The Ballad Mongers: Rise of the Modern Folk Song, Funk & Wagnalls, New York, 1962, p. 209)
Registering copyright claims may (or may not) have been Lomax's way of saying that he would take responsibility if any RFP claimants for any of the songs, or parts of them, ever came forward. Also it may (or may not) have been intended strengthen the case, by making an official record of the publication, that any such claimants in the songs, or parts of them, had "acquiesced" in the publication of the songs, and so lost their common-law rights. Finally, we should remember that in those pre-Feist days, some circuits had a "sweat of the brow" theory according to which a collector might indeed claim copyright in songs collected. This was how Wihtol v. Wells, 231 F.2d 550 was interpreted by at least one commentator.
James Madison called patents and copyrights "sacrifices of the many to the few." Levi Lincoln, U.S. Attorney General under President Thomas Jefferson, called patents "monopolies in derogation of public right"--a description that I would apply to copyrights also.
This language means that the public initially has rights in works of the human mind which it temporarily "sacrifices" or "derogates" to the rightsholder for purposes of public policy ("to promote the progress of science.") At the point of legislative drafting, the question then becomes, how much of the public's rights will be derogated or sacrificed to achieve the policy's goals. The language of balance, or trade-off, is a reasonable choice of language to describe this sort of political calculus. The language of balance, or trade-off, or "spoils fight" becomes even more appropriate when interested parties become involved.
Hence I will continue to use the terms "balance" or "trade-off" when appropriate in describing the legislative drafting process, however little others may care for such language.
Appointing Espinel to the post of IPEC ("IP Tsar") and placing the IPEC in OMB are not, in and of themselves, alarming acts. The IPEC's role, read narrowly, deals mainly with enforcement of existing laws and international agreements. The OMB and the office of the USTR are explicitly required by law to be part of the Intellectual Property Enforcement Advisory Committee which the IPEC heads. Considered from this narrow perspective, Appointing Espinel to the post and placing the IPEC in OMB are reasonable moves.
But "this narrow perspective" is not the only way to look at things. One of the IPEC's duties is to "make recommendations, if any and as appropriate, to Congress for improvements in Federal intellectual property laws and enforcement efforts." A broad perspective could make the IPEC's work part of a comprehensive policy of copyright reform. But we learn from the CNET interview with Aneesh Chopra that copyright reform is simply not a priority for President Obama. Seen in this light, placing the IPEC in OMB can be taken as part of a comprehensive policy not to rock the boat where copyright is concerned. The clear conclusion to draw is that we copyfighters frankly have much much more work to do if we want to get our concerns assigned higher priority in the halls of power.
The original U.S. copyright statute of 1790 had no derivative work right. Abridgements and translations were free, as were all other derivations. Derivation-rights began to be added in the later 19th century. Perhaps at next April's Berkeley Symposium on the 300th anniversary of the Statute of Anne we'll get some discussion of the pros and cons of a derivation right.
Someone wrote: "The Catcher in the Rye knockoff wasn't banned from existing, it was simply banned from being sold."
Actually, the right in the present statute is the right "to prepare derivative works based upon the copyrighted work". Not "to prepare derivative works for publication or sale." Simply "to prepare". No qualifications. No exceptions. Simply creating an unauthorized derivation, even in private, is prima facie a violation of the derivation right.
We shouldn't be having the discussion at all. If the copyrights from the 1920s had expired after 56 years, as the public was promised they would when the copyrights were secured, all that music would be in the public domain now.
An analogy I have used before on these boards is the analogy of copyrights to patents in antibiotics. For the public to get the full benefit of the patent in an antibiotic, the patent should expire, and the drug be promoted to the public domain, while the drug is still near the peak of its effectiveness: sooner, in other words, rather than later.
In the same way, for the public to get the full benefit of a copyrighted song, copyright in songs should expire while the song's popularity is still a living memory. This puts an upper limit of about 60 years on such copyrights, with shorter terms being better still.
Are there any actual treaties that require the U.S. to have a term of life+70? Berne only requires life+50. The U.S. could drop back to life+50 without running afoul of Berne. I would especially like it if, at the same time, 1909-Act works had their copyrights knocked back down to 75 years, or to "time already served" whichever is longer. I think this would be constitutional since what Congress gives it can take away, and all 1909-Act works that had their terms extended by the CTEA have already gotten more than the 56 years they originally settled for.
1) Withdraw from the Berne Convention
2) Reduce the duration of copyright to 60 years maximum for published works. Shorter still would be even better.
3) If the term of copyright in published works is greater than 50 years, require formalities for the copyright to be fully effective beyond the 50th year. If the formalities are not complied with, the copyright would subsist for the full term, but remedies would be much reduced.
4) Repeal the DMCA's "device" and "circumvention" provisions
5) Automatic termination of all assignments at fixed intervals.
6) Author's successors to be specified by statute. Not even the author can will the copyright to anyone else. This, together with the automatic termination, will prevent excessive fragmentation of rights and provide for easy identification of the rightsholder.
7) Provide for more generous margin of fair use, possibly narrowing the derivative work even so far as to reach only to translations, abridgements, arrangements, and other derivations that remain close to the original.
8) Scrap copyright in architectural works themselves. Blueprints will of course remain copyrightable.
9) Amend the law of trademark to focus more narrowly on graphical marks (no sounds.) Burden to be on mark-holders to inform the public to look for its mark and beware of imitations. Any publisher, for example should be permitted to publish Peter Rabbit in an edition of the same dimensions as the Warne editions. The public would need to take care to look for the Warne mark if it wanted Warne editions.
The statute can be reviewed periodically to see how well it "promotes progress". Further changes should be made cautiously, on the basis of clear evidence of need, with a decent respect for copyright's public purposes as former Congressmen Kastenmeier advised so long ago.
The early medieval annals record a controversy involving Columba and the right of sanctuary.
A 14th or 15th century source reports a controversy between Columba and Finnian "concerning a book" but gives no details.
The 16th century Irish life of Coumba then gives the familiar "copyright" version of the story.
My own hunch is that when the late medieval source reported a controversy "concerning a book" (de libro) this was a misspelling for "concerning a boy" (de libero,) that is, the writer was intending to repeat the old story about the violation of Columba's sanctuary. The 16th century compiler of the Middle Irish Life of Columba then embellished the (mistaken) report of a controversy "concerning a book" into the form we now have.
But however that may be, the "to every cow its calf" story is not recorded in its present form before the 16th century.
You wrote: All "modern" works will enter the public domain at some point. It might not be fast enough to be "in your lifetime", but it isn't lost.
That remains to be seen. We have already seen calls in Europe for an extension of the copyright in phonograms from 50 to 95 years. (More recent proposals knocked this down to 70 years, but an extension will still pass if the Council of Ministers agree to it). And writer Mark Helprin has already begun beating the drum for yet another U.S. extension. Is he a lone crackpot, or a pilot fish for the robber-barons? We'll see in a few years, when the copyright in Steamboat Willie will again approach expiration.
You also wrote: Mickey Mouse is as vibrant and fresh today in new material as the mouse was 50 years ago, so why suddenly push a whole bunch of material into the public domain? Would the world suddenly be a better place if you could make legal copies of Steamboat Willie?
The world would be a freer place if we had freedom to market competing editions of Steamboat Willie. This is called "free trade" and "competition". Deluxe versions would go for more, but still, lower prices would be available for those who wanted them, as budget editions would be sold at prices close to the marginal cost of production. The monopolistic market would become a competitive market. The monopolist's surplus would become a consumer's surplus. Ordinarily competitive markets are considered better than monopolistic ones. Ordinarily consumer surpluses are considered better than monopolistic surpluses. That is how the world would be a better place if the copyright in works published in 1923 through 1928 were to expire.
And of course the market for Steamboat Willie should become a free market while the film is still "vibrant and fresh". Just as the patent on an antibiotic drug should expire while the antibiotic is still near the height of its potency.
In the course of the 20th century Spain reduced its term of copyright, at least for some classes of works, from life+80 to life+60 years post mortem auctoris. This applied to works created after the new term went into effect; works that already had a life+80 copyright term did not have their term reduced, or so I understand. In the 1990s, of course, the term of Spanish copyrights was raised to life+70 in accordance with EU directive.
To say that unpublished works would "never" have entered the U.S. public domain is to overstate the case, just as it would be an exaggeration to state that the common-law right of first publication (RFP) was "perpetual". It is more accurate to say that the RFP was indefinite. It could last for generations if it was carefully maintained, but unless it was carefully maintained, there might after a few generations have been no one able to claim the right, and hence no one able successfully to challenge a would-be publisher. Under such circumstances an "unpublished" work could in practice be published by anyone who came into possession of the manuscript.
The biggest problem with the indefinite RFP was that for two classes of works, sound recordings and plays, public performance of the work did not count as "publication", resulting in the unfair situation that a work that was being publicly exploited might not have its copyright clock running. The 1976 act took care of this problem. The 1976 act. The 1998 CTEA was completely unnecessary.
BibinBaltimore, I agree that things were very different in 1728, but that's part of the point. The 69 tunes in the Beggars' Opera outnumber those of many of our modern jukebox-musicals by 2-to-1 or more. Yet Gay was able to (1) use all 69 of the tunes he wanted, which were popular standards of the time, and (2) write new words to all of them. To all appearances, he had full creative freedom. Copyright, by contrast, creates a frictional force against many types of creativity. For example, the Def Leppard song "Rock of Ages" is not in the set list for the play "Rock of Ages", apparently because Deff Leppard denied permission. And this lawyer notes that
I've been brought in to help with more than one musical where songs have had to be ˜pulled" and replaced because of license expirations, or ˜holdback" provisions imposed by publishers. Obviously, changing a show mid-run can be a hair raising adventure, and may disappoint audiences and critics.
It is true that there is an important cultural difference between Gay's time and ours. The popular airs Gay used were melodic formulas that were commonly used with more than one set of words. In our time, when a new set of words is set to an existing contemporary tune, it is often for comic effect, as in the work of "Wierd Al" Yankovic. I'm not aware that it is often done seriously with contemporary tunes. Maybe someone should try it in a serious way. But maybe, someone who tried wouldn't get permission.
That monopolies are "illegal" is a consequence of a Congressional statute. But for those statutes, monopolies would be perfectly legitimate. In other words, there is nothing inherently unconstitutional about a monopoly
Maybe not. Freedom from unreasonable monopolies was considered an inherent right by some thinkers (including Thomas Jefferson) at the time of the framing of the constitution, so it is at least arguably latent in the 9th amendment. (Argument here:(link.))
A very strict reading of the constitution would hold that copyrights and patents are the only monopolies Congress is authorized to grant. This seems to have been James Madison's view. A broader view has however prevailed of late, which holds that Congress may use its commerce-clause power to grant limited sui-generis intellectual monopolies, as in boat-hulls.
The following may be of interest: In my own take on this story I note that the article on A.S. Sulliavan in the first edition of The New Grove held that the expiration of copyright in Gilbert and Sullivan's operettas "proved Salutary, leading to...an all-round improvement in standards and a reawakening of imaginative interest."
Depending on who is put in charge of the Cunningham copyrights, we may have a long wait before we get such a "reawakening of imaginative interest" applied to the Cunningham dances. If the Cunningham estate goes the way of the James Joyce and Samuel Beckett estates, policing Cunningham's work with a heavy hand, the wait will seem long indeed.
The report is too perfunctory to be rightly deemed as having "many, many problems." Rather, it has the single overarching problem of being too vague. Because it never defines a "core copyright industry" and never breaks down its $13.8 billion figure, there aren't any precise mistakes mistakes we can catch the author, or the lobbyists, on.