IP Feudalism and the Shrinking of the Public Domain

by on January 2, 2012 at 7:35 am in Economics, Film, History, Law, Music | Permalink

Creators of intellectual property used to be granted up to 56 years of monopoly before their works entered the public domain. Since the 1976 copyright act (which came into effect in 1978) copyright has been progressively lengthened so it now extends to the life of the author plus an additional 70 years, i.e. an author’s heirs now get significantly more monopoly power than an author did prior to 1978, truly a kind of IP feudalism.

It’s hard to believe that the extension of copyright for decades after an author’s death can appreciably increase artistic creation and innovation, thus the public has gained little from copyright extension. What has been lost?

If the pre-1976 law were still in place then as of Jan 1, 2012 the following books, movies and music would have entered the public domain (from the Center for the Study of the Public Domain):

  • J.R.R. Tolkien’s The Return of the King, the final installment in his Lord of Rings trilogy
  • The Family of Man, Edward Steichen’s book of photographs showing the diversity and universality of human experience
  • Michihiko Hachiya’s Hiroshima Diary: The Journal of a Japanese Physician, August 8–September 30, 1945, translated by Warner Wells, md
  • Evelyn Waugh’s Officers and Gentlemen, the second book in his Sword of Honour trilogy
  • C.S. Lewis’ The Magician’s Nephew, the sixth volume his The Chronicles of Narnia
  • Vladimir Nabokov’s Lolita
  • Jerome Lawrence & Robert E. Lee’s play about the Scopes “Monkey Trial,” Inherit the Wind
  • Isaac Asimov’s The End of Eternity.
  • Jack Finney’s The Body Snatchers
  • The Seven Year Itch, directed by Billy Wilder; starring Marilyn Monroe and Tom Ewell
  • Lady and the Tramp, Walt Disney Productions’ classic animation
  • Alfred Hitchcock’s To Catch a Thief, starring Cary Grant and Grace Kelly
  • The thriller The Night of the Hunter, directed by Charles Laughton; starring Robert Mitchum and Shelley Winters
  • Two of James Dean’s three major motion pictures: East of Eden, directed by Elia Kazan and co-starring Raymond Massey and Julie Harris; and Rebel Without a Cause, directed by Nicholas Ray and co-starring Natlie Woods, Sal Mineo, and Jim Backus
  • Hollywood versions of major Broadway musicals such as Oklahoma! and Guys and Dolls
  • Richard III, Laurence Olivier’s film version of the Shakespeare play, co-starring Claire Bloom, Cedric Hardwicke, Nicholas Hannen, Ralph Richardson, and John Gielgud
  • Unchained Melody (Hy Zaret & Alex North)
  • Ain’t That a Shame (Antoine “Fats” Domino and Dave Bartholomew)
  • Blue Suede Shoes (Carl Perkins), Folsom Prison Blues (Johnny Cash)
  • The Great Pretender (Buck Ram)
  • Maybellene (Chuck Berry, Russ Fratto, & Alan Freed),
  • Tutti Frutti (Richard Penniman (aka Little Richard)

Under the old law these works and many others could today have been read, seen and played at low cost throughout the world. Consumers have certainly lost from copyright extension. What about creators?

We typically frame copyright and patent strength as an issue between consumers and creators, with consumers assumed to favor weaker rules and creators stronger. But, as I discuss in Launching the Innovation Renaissance, that is the wrong frame. A vibrant public domain can be good for consumers and for creators.

Under the old law, the above works could not only have been consumed they could also at low cost and without requiring the express permission of the original copyright holder have been remixed, reworked and extended in new directions. Under the new regime, innovators will not be able to easily build on these works until 2051 and it could be well into the 22nd century before we get Star Wars prequels worthy of the name.

Dan Keshet January 2, 2012 at 7:45 am

In addition to these famous and successful works, there’s a vast library of works that are difficult to even find now because they are not profitable enough to digitize, market, or put up for sale, but might enjoy a renaissance if fans were permitted to distribute them or creators rework them without cost.

anon January 2, 2012 at 9:46 am

they are not profitable enough to digitize, market, or put up for sale,

It’s not merely that something may be protected by copyright law and thus have a licensing fee payable to the copyright owner, it can be incredibly difficult and time consuming to find out who even owns a copyright so many years later.

And, when you do find owners, many of them have unrealistic fees. It is somewhat analogous to what houses would be priced at if they were all FSBOs in a rising market.

BTW, the relevant clause in the US Constitution is in Article. I., Section. 8.

(Clause 8 – Copyrights and Patents)
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

babar January 2, 2012 at 7:45 am

it’s the same thing as really low interest rates

Rahul January 2, 2012 at 7:56 am

It’s a good thing that most of the internet doesn’t care a hoot for US IP laws. Many of those titles are available for free download. e.g.

http://www.vahidnab.com/lolita.pdf

http://www.univeros.com/usenet/cache/alt.binaries.ebooks/10.000.SciFi.and.Fantasy.Ebooks/Isaac%20Asimov/Isaac%20Asimov%20-%20The%20End%20of%20Eternity.pdf

Not sure about remixing and extending but reading them does not seem difficult.

RZ0 January 2, 2012 at 8:00 am

I think extending and remixing is Alex’s point. There is a definite cultural loss when a new generation of artists is unable to build upon the genius of predecessors.

Rahul January 2, 2012 at 8:25 am

What are good pre-1978 derivative works of literature that were based on such extension and remixing as to attract litigation under current IP laws? I can’t think of any.

PS. think long copyrights are evil too; just that Alex’s line of argument seems weak ( for literature)

Adrian Ratnapala January 2, 2012 at 9:26 am

The Illiad,
The Oddesey,
The Ramayana,
The legend of King Arthur,
Beowulf,

and so on … and that’s just one very narrow genre. The point being that “remixing” is just a new word for what storytellers have always done.

But you do have a point: serious authors don’t write anything resembling fan fiction. Or at least they are not taken seriously if they do. Quite unlike musicians and movie-makers. However, this seams like you are just pointing out a habit of the 20th century (and earlier?) literati. New technology (like cinema) can shake that up.

swedenborg January 2, 2012 at 9:42 am

Matthew. Mark. Luke. John.

Wagner’s Der Ring des Nibelungen.

Tom Jones.

Disney’s Pinocchio and Hunchback of Notr Dame.

West Side Story.

Nigel January 2, 2012 at 11:39 am

You’re not thinking very hard, then.

Ignoring the histories, and possible litigation from the Holinshed estate (not that Holinshed would have been free of his own IP difficulties), under current IP rules the following Shakespeare plays would have been the subject of serous litigation:
Romeo & Juliet, Macbeth, Lear, Othello, Twelfth Night, The Winter’s Tale, The Two Gentlemen of Verona, Much Ado About Nothing, Measure For Measure, As You Like It.

Actually, under the current rules, many of the sources for the plays would likely not have existed.

CBBB January 2, 2012 at 1:22 pm

Virtually every film Disney ever made

Rahul January 2, 2012 at 1:42 pm

Aren’t a lot of these examples after the 70 year protection window?

CBBB January 2, 2012 at 1:49 pm

Yeah but the fact is that 70 year protection window is going to be constantly expanded so that examples like these can’t be produced any more

RZ0 January 2, 2012 at 7:57 am

Free Mickey!

zbicyclist January 2, 2012 at 9:20 am

Well, that’s the point: until Disney and other corporate mammoths feel they have protection, there are likely to be endless extensions.

But we are ignoring effects in the other direction. Consider classical music, chained to the giants of the past perhaps in part because Bach can be performed with no royalties while chancier new music requires royalties.

Dan Weber January 2, 2012 at 10:34 am

I don’t think Disney would be appreciably harmed by the ending of copyright for “Steamboat Willie,” because they still have a trademark on Mickey Mouse.

bodley heath January 2, 2012 at 7:58 am

“remixed, reworked and extended in new directions”
Mash-up culture is a big nothing.
The biggest load of shit ever.
Soon everything will be boingboing. The opposite of culture, the death of thought.

DW January 2, 2012 at 2:38 pm

William Shakespeare would disagree.

Corey January 2, 2012 at 8:15 am
tom January 2, 2012 at 8:19 am

But does any of those things have a real effect on our economy? A better example would show me that I could save $150 on every car if the windshield wipers, headlights, and axles weren’t all covered by license agreements that would not have been needed with shorter patents. And there, you have to confront the fact that big companies are sometimes capable of rationally amortizing tech investment costs over decades, which is not the case for individuals.

CB January 2, 2012 at 9:01 am

Just the typical corporate regulatory capture by Disney, MPAA, RIAA. It’s how the system is designed – for the benefit of we the (corporate) people in the land of the free (most incarcerations per capita.) Just wait for SOPA v2 with a smoother sounding title attatched to some unrelated bill passed in the dead of night when nobody’s looking.

Dan Weber January 2, 2012 at 9:07 am

I don’t see why the death of the creator should have anything to do with copyright expiration. Just like we shouldn’t care if the owner of a bond is a poor retiree or a rich speculator.

If I build an apartment building and then die, my heirs gain the benefit of the rents I made. Someone might scream about this being feudalism and how the apartment renters should then become the apartment owners, I guess.

Plus there is the fact that lots of works are created by groups of people. If me and two friends write a song, we’d form a corporation to own it and then trade ownership of the corp.

(I think that copyright terms should be somewhere around a flat 30 years, regardless of the kind of person the creator is.)

Spiritsplice January 4, 2012 at 11:04 am

Which is why IP is not valid in the first place, it is not tangible and therefore bot transferrable. Ideas are not property nor could they ever be because they are not rivalrous and in order to make an IP claim a person must resort to a prior claim on tangible property thay they already own. Ip amounts to a secondary claim of ownership on already owned property. This is an absurd claim. Finally, IP enforcement requires the destruction of real property righteous, this alone make the concept invalid

joshua January 2, 2012 at 9:14 am

Rahul, Bodley, Tom, Dan have some good points. I confess my own reaction to this post – while vehemently opposed to the rent-seeking behavior here – is less one of “Man I wish that stuff wasn’t copyrighted so I could build on it to create great things for profit and humanity” and more one of “Man I wish that stuff wasn’t copyrighted so I could legally get a bunch of free stuff”

DW January 2, 2012 at 2:45 pm

Anyone making this argument needs to realize we are talking about works from 1955 here. So the hypothetical thought you voiced should be more like “Man I wish stuff was copyrighted under the old law so that I would only have to wait 56 years before legally getting a bunch of free stuff.” Do you really think that wanting to get stuff for free is the motivation behind changing the copyright law?

Also realize that people regularly pay money for works that are in the public domain. Such as buying a copy of the Iliad from a bookstore.

joshua January 2, 2012 at 9:19 am

Btw here is the list of authors who DID enter public domain yesterday. Most notable were Joyce and Woolf.

http://www.publicdomainday.org/2012/authors

Alex Tabarrok January 2, 2012 at 10:14 am

Alas, no. In the U.S. not a single publication is entering the public domain this year.

http://www.law.duke.edu/cspd/publicdomainday

Rahul January 2, 2012 at 11:23 am

Effectively won’t the nation with the shortest copyright term be what matters for most purposes? Once gutenberg puts up an ebook who’s going to police where a download happens?

CBBB January 2, 2012 at 1:37 pm

This is why there’s the big push in Congress for SOPA

joshua January 2, 2012 at 12:11 pm

@Alex Argh.

@Rahul. See SOPA / PIPA…

Rahul January 2, 2012 at 1:43 pm

Even with SOPA how would they block a site hosted in, say, Australia?

DW January 2, 2012 at 2:47 pm

I thought the whole intention behind SOPA was to block “foreign rogue sites.” Not sure how the implementation would work but the sites hosted in foreign countries is exactly what SOPA was designed for.

joshua January 2, 2012 at 3:01 pm

You make it illegal for every DNS based in America to resolve the IP address of an accused site hosted in, say, Australia. Of course, every decent pirate knows how to use foreign DNS (which is why the law is simultaneously useless for preventing piracy and dangerous for the potential of wrongly blacklisting sites that regular Internet users won’t know how to get to anymore).

CBBB January 2, 2012 at 4:16 pm

As far as I know any website is now libel for not just it’s own content but any content on any website that it links to.

anon January 2, 2012 at 9:31 am

It’s hard to believe that the extension of copyright for decades after an author’s death can appreciably increase artistic creation and innovation, thus the public has gained little from copyright extension. What has been lost?
The real question is, “What has been gained, and by whom?”
The extension to 70 years plus life of author is absurd. Although Mark Twain would likely say it was not long enough…

Here is what Twain told Congress
http://www.thecapitol.net/Publications/testifyingbeforecongress_Twain.html
- – -

Necessarily I am interested particularly and especially in the part of the bill which concerns my trade. I like that bill, and I like that extension from the present limit of copyright life of forty-two years to the author’s life and fifty years after. I think that will satisfy any reasonable author, because it will take care of his children. Let the grandchildren take care of themselves. “Sufficient unto the day.” That would satisfy me very well. That would take care of my daughters, and after that I am not particular. I shall then long have been out of this struggle and independent of it. Indeed. I like the whole bill. It is not objectionable to me. Like all the trades and occupations of the United States, ours is represented and protected in that bill. I like it. I want them to be represented and protected and encouraged. They are all worthy, all important, and if we can take them under our wing by copyright, I would like to see it done. I should like to have you encourage oyster culture and anything else. I have no illiberal feeling toward the bill. I like it. I think it is just. I think it is righteous, and I hope it will pass without reduction or amendment of any kind.

I understand. I am aware, that copyright must have a term, must have a limit, because that is required by the Constitution of the United States, which sets aside the earlier constitution, which we call the Decalogue. The Decalogue says that you shall not take away from any man his property. I do not like to use the harsher term, “Thou shalt not steal.” But the laws of England and America do take away property from the owner. They select out the people who create the literature of the land. Always talk handsomely about the literature of the land. Always say what a fine, a great monumental thing a great literature is. In the midst of their enthusiasm they turn around and do what they can to crush it, discourage it, and put it out of existence. I know that we must have that limit. But forty-two years is too much of a limit. I do not know why there should be a limit at all. I am quite unable to guess why there should be a limit to the possession of the product of a man’s labor. There is no limit to real estate. As Doctor Hale has just suggested, you might just as well, after you had discovered a coal mine and worked it twenty-eight years, have the Government step in and take it away–under what pretext!

The excuse for a limited copyright in the United States is that an author who has produced a book and has had the benefit of it for that term has had the profit of it long enough, and therefore the Government takes the property, which does not belong to it, and generously gives it to the eighty-eight millions. That is the idea. If it did that, that would be one thing. But it does not do anything of the kind. It merely takes the author’s property, merely takes from his children the bread and profit of that book, and gives the publisher double profit. The publisher and some of his confederates who are in the conspiracy rear families in affluence, and they continue the enjoyment of these ill-gotten gains generation after generation. They live forever, the publishers do.

Scoop January 2, 2012 at 10:50 am

No one is “taking” your property by using it for free. You still have all the access to it that you ever did.

Laws that guard physical property in perpetuity do so because, in the overwhelming majority of cases, physical property can only be enjoyed by one person or, at least, by one person at a time. Either I can have my watch strapped to my wrist or someone else can. Not so intellectual property.

Indeed, giving any one person control over property that already exists certainly reduces the total welfare created by that property, but we believe, probably correctly, that we have to give such control, temporarily, to induce people to make the effort to create intellectual property. Hundreds of people are reading this post at the exact time I am.

Thus, the only relevant question for IP law is “What term of protection maximizes public welfare by balancing the need to inspire creation with low prices?” And the answer sure as hell isn’t “life + 70 years.” I’d guess that the original copyright term of about 25 years is much closer to the mark and even that is high, by 15 years or so.

The current system allows artists to make far too much from individual hits and leave the life of creation for the life of consumption, which may be lovely for them but isn’t in the public interest. Everyone from individuals like J.D. Salinger to corporations like Disney would create more if they couldn’t coast of earlier triumphs.

The notion that shorter terms would discourage creativity — that great artists would stop writing books or recording music for the joys of a life working in a factory or selling insurance — is simply absurd.

And I’m not particularly moved by your argument that the public should be forbidden free access to endlessly reproducible “property” because you’d like your kids to be guaranteed comfortable lives without having to create any value on their own.

The members of Congress who voted for that bill, those who are still alive, should go to jail for committing contract theft, as should any member who is paid to support it now. And I’m not kidding.

bodley heath January 2, 2012 at 11:52 am

“The current system allows artists to make far too much .. ”

You obviously don’t know any artists (or maybe the only ones you know are Sting and Michael Bay.)

Read jaron lanier’s book, and deepen your understanding.

Scoop January 2, 2012 at 12:30 pm

A. Stop being a troll with comments like “you obviously” and implying that your artistic tastes are so much more sophisticated than mine (and those of the unwashed masses) and giving people reading lists, particularly when you’re recommending rambling works of opinion — particularly ones that are largely off topic, if sporadically interesting — rather than works that purport to have found facts relevant to the discussion at hand.

B. That said, I didn’t phrase my point well.

I should have said “the current system allows successful artists to keep milking one thing for too long, thus discouraging many of them from making as much art over the course of their lives as they otherwise would have.”

I do, in fact, know several struggling writers — yes, even a mouth breather like me knows some artists — who would dispute any assertion that the current system allows them to make too much money.

That said, I don’t know a single artist who would produce less if the law were changed such that his children had no chance of profiting from his work after his death. Are you asserting that you know such people? If so, I’ll assert that either you’re lying to me or they’re lying to you.

jimi January 2, 2012 at 3:17 pm

If anything, if copyrights expired after 10 years, they’d have to product ***more*** works to stay solvent.

anon January 2, 2012 at 12:07 pm

And I’m not particularly moved by your argument that the

Uh, that’s Mark Twain’s argument.

cranky critter January 3, 2012 at 12:30 am

Would Mark Twain make the same argument if he had had his greatest success in this era? Probably not. Because he would have been a rock star like Steven King, and would have a mountain of dough. And that’s the point isn’t it, the right to a livelihood off your product?

I am not troubled if someone who wrote one catchy tune doesn’t get paid for that song for the rest of their live and on into their heirs.

And Alex’s point about creative development, echoed by others, is well taken. I have no doubt that we’d see a LOT more amazing creative works if copyrights were diminished. In the area of historical documentaries alone, a torrent of amazing new work would ensue. That copyrights not along the lines of patents is just tragic.

JonF311 January 2, 2012 at 12:15 pm

Another motive, at least with, popular books: many literary heirs are appalled at the thought that anyone else should extend the original works should they fall into the public domain. The behavior of the Mitchell (“Gone With The Wind”) and Tolkien heirs seems to be more about about locking up those fictional worlds from other would-be writers rather than just about naked greed. The Mitchell heirs finally did allow a couple of Gone With The Wind additions to be written, by noted authors, but that just had the effect of re-locking the gate on Tara for another seventy years. Tolkien himself was very conflicted about his works. On one hand his avowed purpose was to create an English mythology which others could use as classical writers used the myths of ancient Geeece. But when confronted with actual fan-fic he had a proper fit about it. Yes, fan-fic is often dreadful, but there were probably a lot of truly awful ancient poems based on Troy and Oedipus too, none of which have survived– the market is pretty good about sorting that stuff out.

JonF311 January 2, 2012 at 12:05 pm

Re: Thou shalt not steal.” But the laws of England and America do take away property from the owner

No one in antiquity or the middle ages, not even the most pharisaical of rabbis, ever though that “Thou shalt not steal” granted eternal copywrite. If that were the standard every monk of who copied the works of saints and philosophers would have been a thief, and the Bible itself would not be in the public domain.

Careless January 3, 2012 at 12:47 am

The publisher and some of his confederates who are in the conspiracy rear families in affluence, and they continue the enjoyment of these ill-gotten gains generation after generation. They live forever, the publishers do.

Said the man whose.publishing house went bankrupt and dissolved

Rahul January 2, 2012 at 9:33 am

As an aside has anybody gotten sued yet for illegal download of a book?

affenkopf January 2, 2012 at 11:12 am
Rahul January 2, 2012 at 12:35 pm

Amusing that Wiley chose its elite “For Dummies” books to file the first lawsuit against the Bit-torrent pirate downloaders. Ironically Wiley also sells a “Bittorrent for Dummies” book. Wonder if that book had a section on “How not to get caught” section?

Dan Weber January 2, 2012 at 12:44 pm

Bittorrent is not, in and of itself, a piracy engine. Unlike some other sharing systems, BT was not created with the goal of trading other people’s works without their permission.

John Mark Ockerbloom January 2, 2012 at 9:40 am

The publicdomainday.org site is focused on Europe. Joyce’s and Woolf’s published works just went into the public domain there, but their later published works are still copyrighted in the US. (Their unpublished work– letters, diaries, papers, and the like– did go PD here in the US, though, if they didn’t see publication in any form before 2003).

I have a post with more on the state of the public domain in the US– and what we here can do about it this year– at my blog.

Bill January 2, 2012 at 10:01 am

I think we need to make some distinctions on copyright “properties” that would justify lowering the term for some properties, and raising it for others.

Can we make a distinction between a novel and a movie adoptation AND a cartoon character that becomes the indentity of a business, that is, between a novel and a movie, and a business where there is persistent investment in the brand and name based on the original work.

If you can make some distinctions between both types of copyright properties–one which received tremendous sustained investment and which would not have received it otherwise but for protection, and a one time investment (the publication of a book for example), then you might find a basis for advancing protection for one and limiting protection for another.

Dan Weber January 2, 2012 at 10:36 am

a cartoon character that becomes the indentity of a business

That’s what trademarks are for.

Cliff January 2, 2012 at 11:07 am

+1

Bill January 2, 2012 at 1:09 pm

Yes, but trademarks overlap with copyright. You must be unaware of section 1512.

Bill January 2, 2012 at 1:26 pm

In case you are interested, you can copyright or trademark cartoon characters.

CMS January 2, 2012 at 3:40 pm

Trademark is more for removing confusion from consumers as well as a kind of fraud prevention. I should be able to make a cartoon about Mickey Mouse if I wished. But I can’t call it “Disney’s Mickey Mouse” or use logos and the like that could be construed as Disney’s as I am not associated with Disney. Trademark, although frequently tangled up with it, has little to do with the much broader area of copyright as it is practiced currently.

Bill January 2, 2012 at 3:54 pm

CMS, Perhaps you might want to consult the Copyright and Trademark office on this, and also look up the law review articles about how to handle cartoon characters and how you choose copyright, trademark or both. For example, see http://www.gisselberglawfirm.com/downloads/trademark-cartoon2.pdf (for use of trademark protection and http://www.gisselberglawfirm.com/downloads/trademark-cartoon2.pdf (for use of copyright protection).

Bill January 2, 2012 at 3:57 pm

The second link repeated itself, so here is the second link on the use of copyright for cartoon characters: http://ipmall.org/hosted_resources/IDEA/35_IDEA/35-4_IDEA_497_Lalor.pdf

CMS January 2, 2012 at 12:01 pm

A good example would be the old Mystery Science Theater 3000 show.

For those unfamiliar with it, the show’s format was essentially playing a bad movie and then having three people “riff” and make jokes about the movie as it played along with skits during several breaks. So they took an effectively worthless and often forgotten movie and made it enjoyable and watchable (most of the time anyway). The show was eventually canceled not because it wasn’t popular or the creators of the show decided to stop doing it, but because the copyright holders for the movies they used began charging greater and greater fees for using their material. This despite the fact these types of movies would otherwise be moldering in some basement. Some of the shows are not even available on DVD because of further copyright issues.

JonF311 January 2, 2012 at 12:24 pm

I don’t know that the movies themselves were made any better– most were real stinkers and those who made them should have retired to distant hermitages to do penance for their sins.
But the snarky commentary, delivered with wide-eyed naiveté as if the viewers really were enjoying the films*, was simply hysterical. I was just out of college when that show aired. For a while Saturday night was regularly “Let’s get bombed and watch MST3K”.

* “Look! It’s the Republican convention!” as a herd of elephants stampedes. “Wow, how did my ex get in this movie?” as a wicked witch casts a spell.

D January 2, 2012 at 12:41 pm

I’m sure the 1976 copyright act has nothing to do with wealth equaling power.

CBBB January 2, 2012 at 1:21 pm

Okay now this is a respectable topic to discuss – more posts about issues like this and libertarianism might actually gain some credibility.

bdbd January 2, 2012 at 2:05 pm

Moving songs like Maybellene into public domain would be worthwhile just to get rid of Alan Freed’s writer’s credit on all those songs.

Arbor Landon January 2, 2012 at 2:57 pm

Here’s something I don’t understand– for music recordings, the UK abides by a strict 50-year copyright. Everything from 1961 and early is completely in the public domain in Britain. (Many British labels, from JSP to Proper to Jasmine, function because of this.)

But– and this is what I find strange– it’s perfectly legal for these British albums to be sold in the United States. Online, and even in brick-and-mortar stores. How is that the case?

I’m very thankful for this; these British record labels do a great job (there’s been a wave of new boxed sets coming out in the past few years, offering 6 Chuck Berry/Little Richard/Ray Charles original LPs for $9.99), but I don’t understand how they’re operating legally.

Arbor Landon January 2, 2012 at 2:53 pm

None of the works listed really comes at a loss to consumers– they’re readily available in affordable (and in the case of music and film, well-restored) editions nearly everywhere.

Compare to post-1920 works that HAVE slipped into the public domain. Stanley Donen’s “Charade,” for instance. Public domain editions have been put out by every fly-by-night DVD manufacturer, leading to a loss for consumers.

…That’s the crux of the public domain– it isn’t so bad, just as long as people ARE making money on it. If Lolita/Night of the Hunter/Lady and the Tramp are still making money, they’re still available and well-preserved for consumers.

Orphaned works are the only real tragedy. Check out the sad state of Tin Pan Alley sheet music of the ’20s, ’30s, and beyond. Many university libraries have spent a great deal of time digitizing said works. They’re catalogued online, but absolutely unavailable to the public, due to the fact that they’re not in the public domain.

But no one is profiting. The sheet music is not available in free digitized form, and it is not available in for-profit form.

…The most sensible solution for the public domain, I think, is for more hurdles for renewing, with higher fees– if every author of a book (or estate of an author) from the 1920s until now was required to pay a $100 fee to retain the copyright for the book, the vast majority of books would not be renewed.

This would unfree the orphaned works, and relieve the public from this deadweight loss.

Bill January 2, 2012 at 3:59 pm

All good points. People do not consider the costs of free.

Bill January 2, 2012 at 8:13 pm

Arbor,

What would also happen with your proposal would be that persons who saw value in a soon to expire right would seek out and contract with the estate, pay the fee, and invest in improvement and marketing the work.

Frankly, what has been interesting to me about Alex’s post is that I would have expected Libertarians to support property rights, and claim that you needed to create property rights to protect and develop the property. I am also surprised at myself for being as protective of IP rights, but only do so because I have seen that when you create property, and protect it, you also create value.

Padraic January 2, 2012 at 4:01 pm

Ernest Hemingway enters the Canadian public domain: http://bit.ly/vpAx3X

Daniel Earwicker January 2, 2012 at 5:52 pm

“It’s hard to believe that the extension of copyright for decades after an author’s death can appreciably increase artistic creation and innovation”

Correction: it’s impossible to believe!

The Beatles recordings should be going out of copyright soon. The reason you’d extend them is so you (EMI) can keep selling the same classics, no need to invest in building an audience. Retrospective copyright period extension can ONLY discourage investment in new art – there’s no ‘maybe’ about this.

Is the influence of a copyright extension supposed to travel backward through time somehow, and increase the incentive for the Beatles? Clearly not.

If campaigners for neverending copyright were truly concerned about fostering new talent, they would exempt all existing works from the new rules.

jkl January 2, 2012 at 6:18 pm

Author plus an additional 70 years..that is the rule worldwide. LOTR was not in the public domain in England nor many of the works you named.

jkl January 2, 2012 at 6:21 pm

seen and played at low cost throughout the world…wrong .still would be piracy in any country that had signed the Berna Convention. BTW: in the world most people dont read english and the translation wont be in the public domain

jkl January 2, 2012 at 6:27 pm

J.D. Salinger to corporations like Disney would create more if they couldn’t coast of earlier triumphs… really. no one here is a creator. Many authors only wrote one book at all.
Weber was right intil the 30 year proposition.I did not know tabarrok is a communist against inheritance of property

Hansjörg Walther January 2, 2012 at 9:22 pm

Maybe this is of interest, if you can read German. Here is a link to the Reichstag debates of 1901 on extending copyright from 30 to 50 years after a writer’s or composer’s death. On May 2, 1901, Eugen Richter makes some very similar points:

http://www.reichstagsprotokolle.de/Blatt_k10_bsb00002792_00550.html

Extending copyright by twenty years after someone’s death will have very little impact on their creativity. But that’s not really why it is pushed in parliament. In this case it is Cosima Wagner, heir to Richard Wagner’s estate, who wants to exploit her rights longer at Bayreuth, and it is Richard Strauß who organizes the move.

Eugen Richter also opposes restricting transfer of musical compositions to pianolas. Here is where he praises pianolas as a way to end the “Klavierseuche” (piano plague) where untalented children are sentenced by their parents to playing piano and annoy their neighbors to death. I really burst out in laughter when I read his account:

http://www.reichstagsprotokolle.de/Blatt_k10_bsb00002792_00256.html

Feel free to write me if you need help with the German.

Bill January 2, 2012 at 11:35 pm

Re: “If the pre-1976 law were still in place then as of Jan 1, 2012 the following books, movies and music would have entered the public domain (from the Center for the Study of the Public Domain):”

It would be really COOL if some Austrian economists works had otherwise would have been thrown into the public domain and Alex would be opposing the economist’s estate by advocating limiting the extension.

We can only hope.

Tim January 3, 2012 at 12:24 am

You have cancer right now and a US company is thinking about raising funds to develop the drug cure your type of disease. Do you support tight IP protections that will encourage investment?

Careless January 3, 2012 at 12:54 am

Drug patents do not last anythhing close to 100 years (guessing a life+70 average), so who cares in this context?

Rahul January 3, 2012 at 2:27 am

In any case is there strong empirical evidence for longer IP protection and drug development success? Mostly seems like a thought experiment.

Danny Lynch January 4, 2012 at 1:31 am

“It’s hard to believe that the extension of copyright for decades after an author’s death can appreciably increase artistic creation and innovation, thus the public has gained little from copyright extension.”

I don’t really understand why this is so hard to believe.
The author gets to decide who obtains the copyright upon death, and he could certainly cash in on the future revenue stream while he was still living. It is certainly feasible that the present value of the future revenue streams is significant.

In the case of copyrights held by corporations (pixar say) how much more capital are they willing to put into movie development because the copyright lasts so long. More explicitly, what is the marginal value of an +/- 1 year on the copyright of the Toy Story or Finding Nemo characters?

A couple of potential ways to quantify it off the top of my head:
1. Are there any cases of the same copyrights being exchanged both before and after a copyright extension?
2. How do copyright prices vary with the holder’s age (trying to adjust for any correlation of quality with age)?
3. How much did investment in ‘artistic creation and innovation’ vary with copyright term, either across countries or across changing copyright terms within one country? Not sure what the metric of ‘artistic creation and innovation’ should be.

My personal opinion, copyright terms should by default be relatively short, but the holders should be aloud to extend it for some amount of time (not sure how long is best, depends on the quantification above).

To put it in the context of the Twain example earlier in the comments, you have to pay property taxes on your real estate every year, and maintain control of it. Otherwise either the State, or squatters will take your property.

jva January 4, 2012 at 7:32 am

Copyright nonsense makes me wish for Hansonian EMS age.
When you have a braint that can consume Ulysses in 2 millisenconds, copywriting it will make as much sense as copywriting number “19″.

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