Happy public domain day!

by on January 1, 2014 at 12:53 am in Books, History, Law, Music, The Arts, Uncategorized | Permalink

I received this email from James Boyle at Duke:

Dear Tyler, An early Happy New Year to you and your family — I hope all is well?    You may remember our annual survey of the stuff that would be entering the public domain if we had the copyright laws from 1976.
The list this year is a particularly scrumptious one.  The mouseover of the book covers is another pleasure.

·      Samuel Beckett, Endgame (“Fin de partie”, the original French version)
·      Jack Kerouac, On the Road (completed 1951, published 1957)
·      Ayn Rand, Atlas Shrugged
·      Margret Rey and H.A. Rey, Curious George Gets a Medal
·      Dr. Seuss (Theodor Geisel), How the Grinch Stole Christmas and The Cat in the Hat
·      Eliot Ness and Oscar Fraley, The Untouchables
·      Northrop Frye, Anatomy of Criticism: Four Essays
·      Walter Lord, Day of Infamy
·      Studs Terkel, Giants of Jazz
·      Corbett H. Thigpen and Hervey M. Cleckley, The Three Faces of Eve
·      Ian Fleming, From Russia, with Love
      ·      A.E. Van Vogt, Empire of the Atom

http://web.law.duke.edu/cspd/publicdomainday/2014/pre-1976

Movies:

The Incredible Shrinking Man, The Bridge on the River Kwai, A Farewell to Arms, Gunfight at the O.K. Corral,  3:10 to Yuma, 12 Angry Men, Jailhouse Rock,  Funny Face,  An Affair to Remember, Nights of Cabiria and The Seventh Seal..

(Is this list depressing when set against 2013?)

In the world of fine arts, Picasso’s Las Meninas set of paintings… only themselves legal because no copyright covered Velazquez’s.. would also be entering the public domain.

Alexei Sadeski January 1, 2014 at 1:03 am

Wishing that the fruits of others labours should be free seems in poor taste.

Rahul January 1, 2014 at 1:17 am

How much royalty did you pay the guys inventing the internet, TCP-IP, browsers & blogs for affording you the ability to post this comment tonight?

Historically, the intellectual fruits of others labors always eventually become free; the question is only exactly when,

Z January 1, 2014 at 8:38 am

It’s funny you should mention the Interwebs. The apparent “free-ness” of it has spawned a culture of deadbeats who have turned freeloading into a religion. The Interwebs was not free. It was paid for by the US taxpayer and an army of people and companies who charged for their work.

I’m someone who thinks patents and copyrights should be only granted to humans and expire upon the holder’s death. But, every time I see a freeloader demanding the work of others be placed in the public domain I change my mind.

Ray Lopwz January 1, 2014 at 9:02 am

I’m with you Z. I used to be anti-patent until I saw all the deadbeats in that camp… then I became a strong IP advocate, but one that advocates reforming today’s rubber stamp system of granting patents. And oh, I do use thePiratebay.org and some other warez sites. To do otherwise these days is futile. But I do envision a more just society that rewards inventors–and that includes, as public policy, a law that prohibits an employee-inventor from giving everything to the company in exchange for labor. If covenants not to compete that never expire are illegal (and they are in all jurisdictions), then why should agreements where a company gets 100% of an invention also be? There should be a reward for the innovator, not just the owner of capital.

Alexei Sadeski January 1, 2014 at 9:52 am

I’ve recently switched to the opinion that copyright should be eternally renewable. Let the descendants benefit from and protect the work of their ancestors.

Z January 1, 2014 at 10:18 am

It is why I favor restricting patents to humans. treating a corporation as a person in matters of law is a convenient lie, but corporations are not people. I can break up a company and sell off its parts. I do that to my wife and they put me in a cage. Acknowledging reality here would address the abuses we see in patent and copyright law. If Dr. Wu at IBM invents some cool new thing, the patent is granted to Dr. Wu, not IBM. Maybe the employment contract grants the right to IBM, but the patent last only for the natural life of Dr. Wu.

It is not a perfect solution, but it does address some of the major abuses without creating new avenues for abuse. In cases where a team is awarded the patent, the members of the team hold the patent until they die. Unless Congress can find a way to legislate a longer life span, the term of the patent is known in advance and everyone can plan accordingly.

Dan Weber January 1, 2014 at 10:41 am

the term of the patent is known in advance and everyone can plan accordingly.

This is the exact opposite of what you proposed. No one knows when people will die. If you really want “the term to be known,” then make it just a flat number of years. Like . . . well, like patents are right now. I’d like copyright to just be a fixed number of years, too, irrelevant of the physical health of its creator.

prior_approval January 1, 2014 at 11:48 am

Interesting typo in the website name – normally, mention of that web site is automatically denied – posting is not possible at all (found that out when talk was about 3d printing, and an attempt to link the physibles section simply did not work).

This web site has multiple levels of screening/deletion – par for the course these days, admittedly.

john personna January 1, 2014 at 12:48 pm

Even with our moderate IP system, the tragedy of the anti-commons is real and growing. With eternal IP it would be madness. Negotiating with heirs for the Federalist Papers? For every textbook quotation? See also the “I have a dream speech.”

john personna January 1, 2014 at 12:52 pm

Also, I agree with Dan Webber, and would pick a flat 50 years. I consider that to err on the long side. Ymmv

Z January 1, 2014 at 11:15 am

Dan, the lack of precision is a trade-off. Putting a fixed number gives Congress the chance to change it, which is what we want to remedy. Learning from past mistakes is a good habit to acquire.

Rahul January 1, 2014 at 12:24 pm

If Congress wants to change they can still make it the inventors life + n years. What’s stopping them?

Old Man January 1, 2014 at 9:17 pm

Freeloading younguns with their hiphop and vidjamabobbins!

Thomas Paine January 1, 2014 at 1:21 am

You must be unclear about this being an economics blog.

brickbats and adiabats January 1, 2014 at 1:45 am

Having governments impose an artificial scarcity constraint on something that is otherwise a public good seems in poor taste.

See, there! I can do it too!

prior_approval January 1, 2014 at 6:38 am

Actually, it is a government granted monopoly. However, as the GPL has clearly demonstrated, it is not true that copyright necessarily leads to ‘artificial scarcity.’ If the owner of the copyrighted material wishes to share it, that is well within the owner’s rights. Even when other owners of competing copyrighted material find this to be ‘unfair.’

The spread of the Internet we have today is clearly linked to the fact that copyright ensures that creators are allowed to do with their creations as they wish – the exact opposite of scarcity in the case of those that laid the Internet’s various foundations. Not that this web site ever actually explores any of the ideas behind copyleft, while taking full advantage of its fruits. Stallman is the sort of non-academic economics revolutionary that just doesn’t fit well into a certain sort of privately sponsored, only superfically academic environment – after all, Stallman has actual achievements to his name that has affected humanity over three decades. And it doesn’t involve the profit motive at all. Anyone interested in his life and perspectives can read the copyrighted (and later revised by Stallman) biography here – http://static.fsf.org/nosvn/faif-2.0.pdf Spread it around freely – its what its copyright licence creator intended, after all.

brickbats and adiabats January 1, 2014 at 10:14 pm

Mainly I was responding to the blanket generalizations offered by Alexei. You’re absolutely right of course, copyleft depends on copyright. I am a Debian user, so of course I get an earful of this.

Marian Kechlibar January 1, 2014 at 11:03 am

An eternally renewable copyright?

Imagine that the whole western world would have to pay royalties to Lebanon for the use of the alphabet (Phoenicians were the first, right?)

99% of ideas that you pick up during your school years aren’t your own. Imagine finding the current copyright holders for all of them and paying them.

I do business in software development, and I still think that copyright is bloated today. 10 years should suffice.

derek January 1, 2014 at 12:05 pm

Tight copyright has engendered the Duck Dynasty. Own it.

Chris H January 1, 2014 at 12:27 pm

Fine. Duck Dynasty has entertained a lot of people. From a utilitarian perspective, shows like this produce a lot of utility for a lot of people. Can’t ask for much more than that.

mike January 1, 2014 at 2:03 am

To be fair, the law isn’t very strongly enforced, even for movies that came out three months ago.

Rahul January 1, 2014 at 2:07 am

They would if they could. Just lucky that technology handicapped their ability to enforce.

Once in a while they do. Forget the million dollar lawsuits & jail time threats for torrent uploaders?

Enrique January 1, 2014 at 4:29 am

Putting aside questions of taste and aesthetics, one could argue that Congress’s decision to extend copyright is a kind of “reverse-taking” … from the public, since all those creative works listed in this post would have been in the public domain had it not been for the law extending copyright. Perhaps a better approach is to make any extension apply only to future works, not to past ones; otherwise, it’s like changing the rules of a game mid-way through the game

Max January 1, 2014 at 7:53 am

Yes, well…the entire point of extending copyright is to prevent old works from entering the public domain. The extension for new works is just a side effect; nobody really cares about that.

Ray Lopwz January 1, 2014 at 9:10 am

As I pointed out in another post, it is the Disney version of classic fairy tales like Snow White that are copyright, where there’s a happy ending. In the public domain versions, it is more like Rumpelstiltskin as originally published, where there is a gruesome end. If you don’t like Disney copyright tales, then stick to reading to your kids the fairy tales by Brothers Grimm, which I believe were originally political tracts in disguise and the protagonists often meet a bitter end.

cthulhu January 1, 2014 at 12:38 pm

Are you being deliberately obtuse? (Along with most of the commenters in this thread…)

The point of copyright and patents is to encourage creators to create by giving them a government-protected monopoly on their work(s), but not in perpetuity: viz., U.S Constitution, Article I, Section 8, Clause 8 – “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.”

By granting this government-protected monopoly at all, the authors of the Constitution are acknowledging that control of one’s work is a powerful incentive to creating original work, and this is a Good Thing; but by making the government-protected monopoly “limited Times”, the authors of the Constitution also acknowledge that allowing “Writings and Discoveries” to eventually pass into the public domain encourages derivative “Writings and Discoveries” that can be just as much a Good Thing as the originals, regardless whether the original “Authors and Inventors” approve. A recent example is, of course, Maguire’s “Wicked”, which was enabled by the Wizard of Oz books being in the public domain.

So, the argument from this side is that the current term of copyright is biased way too heavily toward the copyright holder and as such is discouraging “Writings and Discoveries” based on works that would have been in the public domain (e.g., Mickey Mouse) were it not for the powerful lobbying of Disney and other Hollywood studios. And the attendant irony is that the vast majority of Disney’s best-known output is based on public domain work. Sauce for the goose…

Ray Lopez January 1, 2014 at 1:43 pm

@cthulhu – no, you missed it. Disney’s tales are NOT in the public domain. They have happy endings NOT found in the original (public domain) tales.

cthulhu January 1, 2014 at 9:05 pm

@Ray Lopez – I totally get that Disney’s tales are not in the public domain; however, many of them would be without the unconscionable extensions of copyright that have been passed. And they would then be available to extend and alter and riff on, just like Disney extended and altered and riffed on Grimms et al.

davidwho January 1, 2014 at 2:16 pm

+1, cthulhu. Yes, this is a dispiriting display of obtuseness from a normally logical and pragmatic group. Copyright policy has become a tool of corporations, nothing more.

conor January 1, 2014 at 9:33 am

With regard to Disney look at how many of their stories are derivative of public domain works. Current laws make doing the same thing with Disney works impossible.

Alexei Sadeski January 1, 2014 at 9:55 am

Your argument could justify eternal copyright as well – if the Grimm tales hadn’t entered public domain, then Disney couldn’t have ‘stolen’ from them without an agreement.

Marian Kechlibar January 1, 2014 at 11:06 am

So, why precisely should a 7th-removed great-grandcousin of Shakespeare benefit automatically and eternally from work of his ancestor? Isn’t this eerily similar to hereditary titles of nobility?

Dan Weber January 1, 2014 at 10:35 am

How is this relevant to anything? One of the points of the public domain is that you can make privately controlled works off of it. Harry Potter wasn’t and shouldn’t have been public domain just because they talk about Merlin.

prior_approval January 1, 2014 at 11:44 am

‘One of the points of the public domain is that you can make privately controlled works off of it’

But without controlling the characters – anyone can make Snow White, for example.

And the only reason the government granted monopoly of copyright exists in the U.S. is to create a broader public domain. A process that has stopped since 1976 – even as the monopoly rights distort the political process to the extent that the clear text in the Constitution has now interpreted to mean that a limited time is eternity minus 1 day, if Congress so desires (Article I, Section 8, Clause 8 – 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.)

Dan Weber January 1, 2014 at 4:14 pm

Modern extensions of copyright terms are mostly to keep in line with international treaty.

prior_approval January 2, 2014 at 7:08 am

Not the Sonny Bono one, which blew right past any Berne Convention requirements -

‘The Copyright Term Extension Act (CTEA) of 1998 extended copyright terms in the United States. Since the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship. The Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier.[1] Copyright protection for works published prior to January 1, 1978, was increased by 20 years to a total of 95 years from their publication date.’

Mainly because of this – ‘After the United States’ accession to the Berne convention, a number of copyright owners successfully lobbied the U.S. Congress for another extension of the term of copyright, to provide for the same term of protection that exists in Europe.’ There was no requirement for this – it was just another one of those seemingly never ending gifts along the way of ensuring American copyright remains limited to eternity minus one day.

This law, also known as the Sonny Bono Copyright Term Extension Act, Sonny Bono Act, or (derisively) the Mickey Mouse Protection Act,[2] effectively “froze” the advancement date of the public domain in the United States for works covered by the older fixed term copyright rules. Under this Act, additional works made in 1923 or afterwards that were still protected by copyright in 1998 will not enter the public domain until 2019 or afterward (depending on the date of the product) unless the owner of the copyright releases them into the public domain prior to that. ‘

http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act

derek January 1, 2014 at 12:10 pm

For some reason folks believe that giving copyright gives value. In fact, for the vast majority of creative production the costs imposed by the copyright regime are higher than the value of the works, making it a certainty that there will be vast swathes of creative literature and art disappearing never to be seen or heard of again.

Reality TV brought to you by the copyright regime. The collapse of the music industry hold on music has rid the world of future Britney Spears.

20 years. If you don’t like that someone is using your 20 year old material, write another damn book.

Ray Lopez January 1, 2014 at 8:55 pm

@derek: you are confusing no doubt copyrights and patents. If you don’t like copyrights, simply don’t reproduce the works–nothing is lost to society. Copyright–contrary to what Alex T seems to think–is a very weak form of protection. In copyright, the expression of the idea is protected, not the idea itself (true, sometimes copyright is misused in litigation to scare authors–I am thinking of the litigation in Russia over Baba Yaga which was IMO wrongly compared by the lawyer for JK Rowling to Harry Potter–and they won under copyright law, but I digress–however, this is a misuse of copyright law in a rather corrupt country, Russia).

For example, automatically this passage is copyright even without the notice. If you use it word for word, technically I can sue you once I register it. But the idea behind it is not copyright. Got it now? LOL the masses are asses as S. Jobs once said, based on a Yiddish proverb.

(c) copyright 2014 by Ray Lopez. All worldwide rights reserved. You are on notice! lol you guys are so clueless, it just underscores my intellectual superiority– once again! :-)

derek January 2, 2014 at 1:59 am

No I’m talking about copyright. Once you distribute something it enters into my head, other creative output may be stimulated. I can hum or sing the song, imagine a novel with a similar character or theme or rhyme. A short copyright allows creative folks to benefit from their creation, but too long it ends up harming the creative processes, which are all based on previous works.

I don’t think you understand the loss to society. Almost all creative output is based on something that the author heard or read previously. A never ending copyright creates burdens that make the use of such things impractical for new works. For one thing you need to find someone who owns it, then go through the difficult and expensive process of coming to some agreement. So it doesn’t happen in many cases. That is the point I made with reality tv; to put together a variety show is impossible with the work required to honor copyright. So it isn’t done. It is not by chance that movies constantly rework pre copyright themes. If you ran across or was told of a great story told in the late 40′s, even found the book in a library somewhere, what are the chances that you could find the holder of copyright? The hurdles to even start on such a thing are very high, so you just don’t.

Patents are a different thing, and as long as they are not too long, attached to actual solutions as opposed to speculative ideas, and that the clerical and legal regime is rational and not open to abuse, they can encourage innovation. The current regime is counterproductive in many ways, and actually discourages innovation, or rather drives the innovation offshore. There is no stagnation, it is simply happening somewhere else.

Copyright is an attempt to create scarcity, patents were originally proposed as a way to promote the distribution of ideas. The collapse of the copyright regimes and the legal responses that border on totalitarian are simply desperate response to the collapse of a distribution model. That is what happens when you have lawyers run your business.

Arbor Landon January 1, 2014 at 5:49 pm

The books/movies that currently are creating profits for somebody: not the problem.

Copyright is broken not because of the few works that are currently available, but because of the countless orphaned works that aren’t.

Michael January 1, 2014 at 6:24 pm

I love the irony of Atlas Shrugged being on that list.

Mark January 1, 2014 at 8:11 pm

Eternally renewable duration of copyright, but there’s a fee for each renewal that increases by some biggish fraction each time, and if you miss one it’s in the public domain forever. A politically tractable compromise?

Arbor Landon January 1, 2014 at 10:37 pm

I’ve heard this proposed years ago, and I fell in love with it the moment I heard it.

…It makes sense, ends the deadweight loss of orphaned works, keeps the rights-holders to profitable works happy… it’s a winner on every front. And in theory practicable.

Rahul January 2, 2014 at 3:26 am

What if you had a similar system for patents? If a competitor offers to pay the patent office a larger fee he gets to keep the patent and the original assignee gets a chunk of this payoff. Below a certain minimum fee the patent lapses. After a certain period, say 6 /10 / 14 years, patent lapses any ways.

It would only protect such IP that has real significant commercial value & reduce nuisance patents. Also in a Coaseian way patent rights would mostly go to the entity that can get the most value out of a patent.

Dan Weber January 2, 2014 at 10:01 am

What is your unit of what you need to renew?

Does Lucas pay the same to renew Episode IV as a photographer who took a single photograph in 1977? What if that photographer took 200 photos that year that form his work?

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