That's how I feel about it too. When the author dies, so should the copyright. There is no valid reason for copyrights to last as long as they do; corporate greed aside.
I think that too, until I remember the piano concerto Bèla Bartók struggled to finish as he was dying, so he could provide transitional financial support to his young wife. I think that's a valid use of post-mortem copyright.
Author A writes something incredibly popular and dies the moment he wrote the last word. His children end up in the poor house because they don't get any royalties from sales.
Author B writes something incredibly popular at the age of 15 and is still living large off his royalties at the ripe old age of 100.
If you just set it to, say, 20 years and it's done (or IMO better would be an exponentially increasing fee for renewal, $1 for the first year, $2 for the second, $4 for the third, etc.) then it seems to be more predictable and cleaner.
I agree entirely. A fixed term, ideally with ongoing maintenance required to maintain, seems far fairer than tying it to a particular individual. You'd need a fixed term regardless to handle works for hire, so fairness would argue for using that same term universally.
I don't see any reason you couldn't have the greater of: a fixed term (say 20 years) or when the author dies (I don't have any problem at all with an author living off their own work for as long as they live).
I think that would be decent. I don't particularly think a person should still be getting income from a copyrighted work they created the better part of a century ago just because they happen to still be alive, but I'm not strongly opposed to it either.
I think that using just the fixed term would be better, just for simplicity's sake. How would it work if you have a collaborative novel? One author dies, the other continues living. What if the author goes missing? Changes their name, moves and leaves no forwarding address? How much effort do you need to put in to track down an author in order to re-print their works, or to tell if they're in the public domain?
It's much easier to just do a standard, fixed term for all copyrights.
>(I don't have any problem at all with an author living off their own work for as long as they live). //
It corrupts the copyright deal to some extent. Copyright in part is to encourage creation of new works in the hope that they will benefit society. If we (the people) allow authors to rest on their laurels we potentially deprive ourselves of much of the benefit that could be elicited from their creativity. We also to some extent lock up important works that would otherwise allow the inspiration of others - creators of derivative works - to be rewarded.
We want to reward creativity, but not so much so that those who happen to have societally enriching creativity don't need to exercise it more than once!
20 years would be culturally terrible. That would make it so just around the time your kids are old enough for you to introduce them to the great comics, cartoons, movies, music, and books of your childhood it would enter the public domain and become widely used in advertising and low budget productions. You are not going to be able to share the magic of, say, Calvin & Hobbes, with your kids if your kids have already been saturated by those characters as TV pitchmen for toys and junk food.
Yes, but isn't that because the edge of public domain is very far back? Some random character from the early 1900s that no one today recognizes is not going to be all that useful. Move that edge to be just 20 years back, and it picks up a lot of things that are still well known.
20 years is not nearly as long as it sounds. Harry Potter, for instance, is already 17 years old. I bet a lot of advertisers 3 years from now would jump on the chance to use Harry Potter characters.
There are plenty of classic, well-known characters in the public domain. Sherlock obviously being one, given the context of the discussion. Frankenstein. Robin Hood. King Arthur. Jesus....
On another note, it doesn't affect your point all that much, but while Harry Potter the character would go into the public domain in 2017, the first movie wouldn't go into the public domain until 2021. In that interval, you could use the characters but you couldn't replicate their likenesses from the movies without some sort of agreement.
Twenty-year-old (and even much newer) commercially successful comics, cartoons, movies, and music are, in fact, widely used in advertising, etc. -- heck, with comics and cartoons, they are used as pitchmen for toys and junk food from day one.
So, I think the cultural terror you refer to is the status quo even with effectively perpetual copyright.
> Calvin and Hobbes isn't used to promote toys and junk food
Sure, if you are going to be hyperspecific about that one particular example and that one specific use, but the issue was more general about works, and, as for that work, while it may not used to promote toys and junk food, its first titular character is used in rather ubiquitous window decals that seem to present at least as much of the same problem.
The cultural context for a succesful work, with regard to its specific characters, but also more generally, is never going to be the same when you want to introduce your kids to it as when you were introduced to it yourself, particularly if you encountered the work when it was first introduced to society (or when first became popular, which may not be the same time).
Trying to restrict other people's freedom in order to preserve that cultural context -- as by adovcating long copyright terms for that purpose -- is never going to work.
> The comment you chose to reply to was specifically about that one particular example.
Not, it wasn't. It made the following general claim about a problem that would exist without long-term copyright:
>> That would make it so just around the time your kids are old enough for you to introduce them to the great comics, cartoons, movies, music, and books of your childhood it would enter the public domain and become widely used in advertising and low budget productions. <<
> Long copyright terms seem to be doing just fine for Bill Watterson.
Perhaps its doing fine for him, but its not preventing characters -- Calvin particularly -- from Calvin and Hobbes from being ubiquitously used in our culture in a way which shifts the context in which someone newly introduced to the source works might experience them. Sure, its not specifically "marketing toys and junk food", but rather expressing preferences, but its not fundamentally different from the perspective of the kind of cultural context concern raised generally in the post I was responding to.
I don't think I follow your second graph, but you might be suggesting that copyright aside, Calvin is frequently used in stickers on the backs of Chevy and Ford trucks. Those stickers are counterfeit. They've been the subject of legal action, and if they aren't today, it's because Watterson doesn't care enough to go after their small-potatoes producers.
> I don't think I follow your second graph, but you might be suggesting that copyright aside, Calvin is frequently used in stickers on the backs of Chevy and Ford trucks.
Hardly limited to those two (either as locations or subject matter), but, sure, that's one aspect of the use.
> Those stickers are counterfeit.
Irrelevant to the cultural point under discussion, which has to do with what potential future people may be bombarded with in their environment before seeing the source work, not what is legally considered genuine or counterfeit.
> They've been the subject of legal action, and if they aren't today, it's because Watterson doesn't care enough to go after their small-potatoes producers.
Whether Watterson cares is, again, irrelevant, since the issue raised wasn't about the concerns of creators, but how extended copyright protects fans of work from having their children subjected to various forms of unwanted portrayals of the character, etc., of the work before those fans are able to introduce those children to the work in general. Both the specific kinds of unwanted portrayals pointed to as examples ("TV pitchmen for toys and junk food") of the general problem for the general class of works at issue ("great comics, cartoons, movies, music, and books of your childhood") and similar ubiquitous cultural portrayals not effectively controlled by the author (the stickers) for the specific work cited as an example ("Calvin & Hobbes"), so I don't think that there is much evidence that the current effectively-perpetual copyright does much to prevent the general problem being pointed to.
Even if that problem is agreed to be a problem whose prevention warrants government action restricting human freedom (a position I think is itself far from uncontroversial), I think its pretty clear that the existing copyright regime isn't an effective intervention to acheive that end, and so cannot be justified as a solution to that problem.
I think you have it exactly backwards. A reasonable length copyright (like 10-20 years) would be awesome for culture. You'd see loads more great new comics, cartoons, movies, music books all remixing, reworking and drawing inspiration from an renewed and thriving public domain.
Advertisers and branding wouldn't find much use for them because they were public domain. They gain value from these things by limiting the use through exclusive deals enabled by copyright.
He, quite reasonably I think, doesn't want to see loads more Calvin and Hobbes cartoons. Because they won't be created by Bill Watterson. They'll be created by PepsiCo to sell sugar water.
> Advertisers and branding wouldn't find much use for them because they were public domain. They gain value from these things by limiting the use through exclusive deals enabled by copyright
That's one way advertisers can gain value from using a character. Exclusivity strengthens the association between the character and the product being advertised. Without exclusivity, many advertising characters probably would indeed be of little value and advertisers would probably not use them. I think, though, that this would mostly apply to characters that were created for advertising, or that were outside characters that were not very significant to the public.
If the Michelin Man were used to pitch donuts, for example, I'd find it weird, because I only associate the Michelin Man with Michelin tires.
However, for characters that had significant public interest before they were used in advertising, I don't think exclusivity is very important. For instance, Michael Phelps (yes, I know he is a real person, not a character, but that doesn't change the point) has done ads for Subway Sandwiches and for Speedo, and I don't think either diminishes the other.
I think that having an exponentially increasing renewal fee seems like a good idea on the surface, but makes things more complicated than they should be.
In order to do that, you have to have a central authority that actually keeps track of copyrighted works, who owns the rights to it, if they've been extended, if the fees have been paid, etc. On top of that, you need to think about the broke independent author who can't afford to extend the copyright on that 5th year because they got a divorce, got in a car accident, and landed in the hospital. Or the high schooler who wrote a book for NANOWRIMO, self-publishes it, but doesn't know the first thing about copyright law or needing to continually do extensions. The copyright inevitably lapses, and some publisher finds it, likes it, and starts printing copies and selling them because it's in the public domain.
I really, honestly believe that we need to reform copyright, but I also think we need make sure that it doesn't favour people with money and people with access to intimate knowledge of copyright law. I think everyone probably has at least one copyrighted work to their name, so we should make it a goal that just about everyone should be able to understand copyright.
Most countries already have that central authority, so that's not a particularly big hurdle. Note that for most of the history of copyright in the US, it wasn't automatic, and you had to register your work. Automatic copyright for simply creating something didn't happen in the US until 1989. There's still a central authority, as registration is still required for certain additional whatnot.
Of course, "that's how it was" doesn't necessarily make it a good idea. But it's not completely disastrous.
I think most of your objections would be solved by a sort of hybrid system that I hinted at. Don't start the exponential renewal until the 20 year mark. If you haven't learned about the need for renewal by then, you clearly don't need it. Start it at a dollar, so it's a tiny barrier for anyone making any money at year 20.
By year 30 it'll be a thousand dollars, and by year 40 it'll be a million. This will start to scare off small time folks who aren't making a ton of money. Highly profitable properties will be able to afford the fees for a while longer, although year 50 will hit a billion dollars a year, and soon after it'll exceed the GDP of most countries.
So in essence, it breaks down to a 20-year period for even the worst crap, a ~30 year period for obscure but selling works, a 40 year period for properties that continue to be fairly profitable, and maybe a 50 year period for Mickey Mouse class stuff.
I think 20-30 years should be plenty to figure out how profitable something is going to be, so it shouldn't much depend on how much money people had before, but how much they can make from the work. If we consider that a proxy for how valuable the work is to society (a bad proxy to be sure, but perhaps better than nothing) then why not allow profitable works to last longer? Make some money for Uncle Sam too.
Am I right in thinking we can still do automatic copyright assignment, even with your proposed hybrid system? One could just check the registry, and if the work is not present in the registry then it can be assumed to have the 20 year lifespan.
I still think we need to make sure that we keep very good records with this registry, however. I could foresee more instances like we have with Happy Birthday if we don't do a good job of it.
> There is no valid reason for copyrights to last as long as they do; corporate greed aside.
I dunno about that. I think there should be a minimum term of, say, 15 years, so if the author conks right after her first book her family doesn't starve.
Or she could buy actual life insurance, rather than enforcing a bizarro version via a grant of monopoly whose value depends on the immediate commercial value of a creative work.
I'm guessing most authors don't write a book for life insurance purposes, just that the fact that a standard 15 year term is probably more beneficial to most people than a term based on when you die.
John Oliver did a bit in his wealth gap segment where he mentioned that, in the US, estate taxes are exempt even to children on amounts up to 5 million, and up to 10 million if it's a couple leaving the amount to their children.
General searching around turns up these numbers here and there as well. Assuming that is in fact true, _most_ people shouldn't be giving up anything in estate taxes.
Estate taxes in the US are 40% and the first ~$5 million in value is exempt. So its impossible to lose most of any estate to estate taxes in the US, and very few estates (0.14% [1]) are subject to any estate tax at all.
That's not really at all comparable. With writing, unless you get an advance on an unwritten book, you first work for months or years unpaid, and then (if you're lucky) you get an up-front sale payment and then royalties for a while. What would you think if you started a new programming job, kicked the bucket after 29 days, and your employer tried to claim that they didn't have to give your last paycheck to your family because you didn't finish the month?
What if an author writes a book that no one wants to buy, right before croaking and leaving the family to starve? Most published books probably earn very little for their authors, yet people tend to think of a copyright as this guarantee of comfortable living.
since basically every reason to shorten copyright boils down to the personal greed for entertainment, or the personal greed to profit from the work of others, I have to ask; why is that automatically better?
1) In my view the primary reason to drastically shorten copyright is so that it is easier to create new works. For example, documentaries have startling problems due to copyright, see for example http://www.nytimes.com/2005/10/16/movies/16rams.html?_r=0
2) Isn't someone who holds a copyright other than the creator (say in this example the Conan Doyle estate) profiting from the work of others?
3) Like all sensible issues, deciding the proper term of copyright should be understood as a set of tradeoffs. Longer copyright terms may encourage more creative work by increasing the payoff, may give authors more creative control in how their creations are used and so forth. Shorter copyright terms may encourage more creative work by reducing the cost of remixing other's ideas, can provide a common pool of cultural resources for all to draw on, and so forth. What is necessary is to try to balance these competing interests against each other. It is not that shorter copyright terms are "automatically better", but I (and apparently many others in this thread) strongly believe that the balance right now has copyright terms that are too long to be socially beneficial.
Another good point is that for every book, movie, song, game, etc. that is very popular and keeps getting re-printed, re-published, re-released, or ported to new platforms, there are tens to hundreds of books that do not. Having long copyright terms makes the chances of vast swathes of works stop existing entirely, simply because of the decay of the medium that they are produced and stored on.
Agreed. Yet another related point is that strict copyright regimes can be discriminatory against, say, the visually impaired, when rights holders are neither willing to expend the effort to translate works into a more suitable format nor willing to allow others to do so.
But would this not increase the incentive to harm authors? If the author dies, film studios/HBO etc no longer have to pay for movie/TV rights to out-of-copyright work.
But why should we link death with the release of copyright? While temptation of assassination is probably reduced with extra-long copyright duration after death of author, it's a lot saner to assign a fixed-duration copyright from the original release date, not from (whole life of author + fixed duration). The problem goes away if you have a fixed duration from the start.
they should be assignable property as if they were physical goods. Just as the person can assign their physical wealth the copyright should be assignable as well. The expiration of copyright should be independent of the author's lifespan.
Why not? If anything, producing those movies should have been easier if LotR was in the public domain, since they wouldn't have had to negotiate with the Tolkein estate first.
I think it's partially because of the negotiations with the Tolkein estate that the movies turned out as great as they were.
If no negotiations were needed, then anyone could have picked up and done a low-budget adaptation and called it a day.
But, because there were some rather expensive and difficult negotiations to settle, the amount of people able to do the movies was limited to those who would be able to spend the money to get the rights. And with that sort of investment, there's a big incentive to also invest heavily in the quality of the production to ensure a good return.
> If no negotiations were needed, then anyone could have picked up and done a low-budget adaptation and called it a day.
And? Anyone can do a low-budget adaptation of Alice in Wonderland and call it a day.
Copyright is supposed to incentivize authors to create more work (by having a return on 'investment'/time put in). Not to restrict those who can create 'work inspired by others' to the uber-rich.
Are you familiar with the hilariously bad 1978 version of Lord of the Rings? It's animated, but at some points switches to rotoscoped live action to save on costs. And it doesn't even finish the story.
You seem to be implying in your last paragraph that people won't care as much about making money if they didn't put in a lot up front. This doesn't make a whole lot of sense to me. These movies made money by the truckload. Surely the people who made it would enjoy truckloads of cash even if they hadn't been required to pay for the rights.
Right now copyright, in theory, has a fixed term. That is a fixed term no matter the owner: corporation, individual, estate. It can be sold (technically licensed exclusively, but same thing) and yet the term continues to be fixed.
What you're suggesting SOUNDS good but in reality it would just encourage authors to claim they wrote the work under licence for a non-living entity (e.g. their own business) and then transfer the business to their descendants.
Plus under your scheme you have one rule for humans and another rule for corporations with the corporations coming out MASSIVELY ahead. If Warner Studios has a movie made it might get 115 years of copyright (or whatever it is now), but if joe shmoe produces a short film they only get whatever their natural lifespan in copyright protection (which I can assure you won't be 115 years).
Bad idea. Sounds good, but that's because you guys haven't given it even the most modest amount of actual thought.
The only real issue with copyright is that they keep extending it. 100 years was a nice round number that would allow most individuals to profit for their whole natural lives and for a little to roll onto their descendants. Now with the way things keep getting extending, it wouldn't shock me if for all intents and purposes a lot of works NEVER fell into the public domain, they'll just keep slapping on another 10 years here, 5 years there...
Everyone is bringing up the case of providing royalties to the descendants of the author. I wonder how common that is, and whether it ever motivates an author to create work they otherwise would not (which is the purpose of the copyright, to incentivize people to create).
Do royalties add up to something meaningful for the estate of authors in 1% of the case? 0.1% 0.01%?
And, just as importantly (perhaps more so), do authors take this into account when they are creating?
I think you have to consider the opposite question as well: would authors consider the situation with their heirs if copyright expired with the author?
My guess is that most don't consider it now, but that could easily change if you enshrined it in law and horror stories got passed around of Joe Schmoe Author who died young and left a destitute family.
However, the entire question of how copyright incentivizes creation is extremely murky and there seems to be roughly zero hard data on it, so that could be totally wrong.
On the other hand, Joe Plumber can just as easily die young and leave a destitute family. Does that mean that we have to make a law that all clients of plumbers have to make annual payments to their plumbers and their descendants for up to 70 years after the plumber’s death?
When a plumber does a job, they get paid for it in full immediately. When an author writes a book, the income comes in a trickle over an extended (but in theory fixed) time period.
If a plumber and an author were to die young, the Plumber's family have already benefited in full from the results of work the plumber did before death, because payment in full was made immediately when the work was done. What you are arguing for is that the author's family should not benefit in full from the work the author did in life. Why is that?
Only if the clients were going to make those annual payments anyway.
Consider the scenario in which a plumber does a job, then dies before he gets paid. Should that invalidate your debt, or should you still pay what you owe to the plumber's estate? It seems obvious that it's the second one.
An author exploits their copyright by assigning rights and options under it. The price is based on the discounted future cashflows possible from the licensing project in question. If the scope of "future" is limited solely to the lifetime of the author, then the socioeconomic inequities that cause, say, race to be a significant factor in life expectancy will be directly responsible for enforcing that distinction further.
Or more simply, it causes the same novel written by a rich young white man to receive a better licensing deal than if it were written by a poor old black man.
This may of course already be the case, but any such rule would exacerbate matters. Today, that extra 70 year buffer helps at least to throw the present-value discounting beyond the foreseeable future.
Wait, are you claiming to believe that the change in aggregate economic outcomes driven by a change in copyright assignment is enough to measurably affect aggregate life expectancy?
Besides which, the average member of the population will spend far more money on creative works than they will receive in revenue on them; it would be to their benefit to have the price of creative works drop.
No, the claim would be that it's discriminatory for a work by a person with a statistically short life expectancy to have less market value than a person with greater. Possibly true, but it's an interesting for of poetic justice for all works upcoming young black females to be inherently more valuable than than yet another bestselling sequel by an established octogenarian white male.[1]
As for the price of creative works, a common fear is that if copyright protection was weaker, artists might no longer feel properly incentivized to make creative works, and an uncreated work is not isn't available at any price. I have trouble sharing this fear, although the impact would probably depend on your taste in art.
If a person with a shorter life expectancy values a lifelong copyright less than a person with a longer life expectancy, presumably that means the people value being able to pass their copyright onto kin or other beneficiaries (like charity) after their death. But what about people with no kin or beneficiaries, or people who don't want to pass on their earthly possessions after they die? They will also be discriminated against, by this logic.
To decline an opportunity (choosing to bequeath to nobody) is not the same as to be denied that same opportunity. The latter could be discrimination, the former case could not, as who would be the discriminator?
If any denial of opportunity counts as discrimination, then why discriminate against everyone who didn't write the book by prohibiting them from making copies? Copyright is inherently discriminatory, and any specific implementation of a copyright system will discriminate in certain ways against certain people.
How would you arrange a copyright system that would not be discriminatory? For example, if you allow copyrights to be passed on to kin or other beneficiaries after death, you discriminate against people with no family or close friends. If you only let copyrights last a year, you discriminate against people who have less than a year to live, as well as young people who would prefer to have the monopoly for much longer.
As the commercial rights of copyrights are transferrable, both your examples are not really valid - people with no family nor close friends, as well as those with less than a year to live can sell their rights to whomever and spend those resources as they wish while they can.
This isn't discriminatory, as the value of the rights would be the same for author with/without family, and for the author with 6 months to live vs 60 years expected lifespan.
I doubt that the value of knowing you will pass on wealth to your children when you die is the same as just selling the copyright to a third party while you're still alive. I thought that was the point of the original argument.
Unfortunately, the future value of a 70 year income stream is effectively nil.
You can look at this in terms of the present values of annuities or perpetuities. In the case of a perpetuity (a constant income stream forever), the present value is expressed as: C/r
Where C is the period cash flow, and r is the nominal rate of interest expressed as a decimal fraction, e.g., a 5% interest rate is given as 0.05.
The value for any period of the perpetuity is C/(1+r)^n
Where n is the period.
Assuming a $1000 constant payment stream, the present value of the 70th payment is only $32.86. Double that and you're down to $1.08 as present value of a $1000 future payment.
At 14 years, you're seeing $505 in present value, at 28 years, $255.
This is sensitive to the interest (discount) rate, where the present value falls as interest rises. A 10% nominal interest rate gives you a $263 value for 14 years, $69 at 28, $1.27 at 70, and $0.001 at 140 years. At a 2% interest rate, the values are $758, $574, $250, and $62, respectively.
So while your argument does make a case for a fixed term of copyright, it doesn't pass muster for an extensive duration. Nor, more compellingly, does it allow for the retroactive extension of copyright duration as has been the case for the Doyle estate. Sir Arthur didn't write his works, published between 1887 and 1927, with any reasonable expectation that his heirs or corporate designates would be continuing to profit by them in 2014.
Modeling IP DCF as a perpetuity is like the physicist who assumes perfectly smooth surfaces. Fine for Finance 101, not so much in the real world of lumpy cashflows.
Notwithstanding which, those numbers actually indicate that even after 70 years there's a significant present value in the return. You wrote: "Assuming a $1000 constant payment stream, the present value of the 70th payment is only $32.86."
I would write that: "Assuming a $1000 constant payment stream, the present value of the 70th payment is still as high as $32.86". And they'll be even better than that since very-long-term compound average discount rates are low, closer to 3% iirc.
Instead, try modelling an annuity (yes, that's as bogus as the perpetuity, but bear with it) for two periods: 45 years and 52 years. At 3%, I make that a 5.5% better deal for the extra seven years of viability. I won't bore everyone with the math.
Note also, I'm not arguing for the current system; merely pointing out that (irrespective of other complications) setting IP rights as coterminous with the originator is inequitable.
You're not just doing math, you're making a moral argument: that if the length of a copyright term is lesser due to the lifespan of the author, that this is somehow 'discriminatory'.
I'm actually willing to accept the argument that copyright term should be independent of the life expectancy of the author -- that does affect the perceived present-value of the work. It's also how copyright was initially construed: a 14 year term, extensible once. Later extended to 28 years, with one renewal (by the author or heirs), to a maximum of 54 years.
What I don't support is for the term to be either indeterminate (as the repeated extensions of the past century have established), or perpetual, or even particularly extended. There are only a small number of cases where a 50-60 year term wouldn't be sufficient, and the concept of an extension means that unvalued works would enter into the public domain quickly.
The perpetuity model allows for a clear illustration of what the possible return on a constant stream of book sales might be. In reality, for virtually all works, the actual story is that you'll see a few sales in the first few years, and virtually none afterwards. A very small number of works hit the long-term publication lottery.
Which means that you're looking at a future payment stream that's both decreasing nominally AND is being discounted to an ever increasing amount.
But in order to support the increasingly perpetual duration of copyright, for which only a handful of works benefit, the public is enjoined from having access to _any_ works published in the past century, unless the copyright holder can be found, identified, and persuaded to publish the work.
This has a number of profound effects.
There's a hole in the sale of new editions from Amazon (not "freely available downloadable books", mind you, but sales) from 1920 to 2000. There are more books from the 1840s available than from the 1930s.
Germany's industrial expansion from a series of disjoint states to the powerhouse of Europe in the 19th century is thought to have been greatly promoted by weak copyright.
I interpret your final paragraph as suggesting that copyright should be of short fixed terms, for some meaning of 'short'. Is that right?
As to the rest of what you said, isn't it somewhat obviated by the article, it saying that the Doyle estate has been making money from his works, despite them being written around a hundred years ago? I'm wondering if I misunderstood something.
The purpose of US copyright is to "promote Science" (that is, written knowledge"), and to effect that by "securing for limited times to authors ... the exclusive right to their respective writings". Since Doyle was a British subject, he'd have been governed by UK statute and purpose, and I'm less familiar with British legal doctrine in this case. I do understand, though that UK copyright at the time his works were authored didn't extend to 2014 -- that was a subsequent extension.
Which means: at the time Doyle composed his works, the benefits he anticipated could not have extended to the present day. Even if they had, the economic present-value analysis shows that the benefit would have been minuscule.
The fact that the Doyle estate has been benefiting from his writings has no retroactive incentive encouraging his writing them in the first place.
I suppose that really I just don't find your model compelling - I don't think that is how copyright revenues work. I understand that you are simplifying for the purposes of discussion, but in reality most copyrightable works of the kind we are discussing either "die" or, rarely, they "live on".
If the work does live on, you won't be charging a constant price for them year after year - the price of a book, for example, will go up to match inflation, so if you sell a constant number of books per year, your "dollar" revenue will also go up with inflation (I'm ignoring technological advances in printing, etc., which are independent of this argument). It is essentially in this way that the Doyle estate continue(s/d) to make money from Arthur's works, albeit through licensing - the point is those things were priced at current market value.
However, I personally don't believe that the creators of copyrightable works take any of this into account when they are producing those works, partly because of the uncertainty involved in future revenues - it is highly likely that any given work will be one of the ones that just dies, and so anyone who might bank on a perpetual revenue stream is probably deluded, and most people are smarter than that.
I'm not sure, but I think your analysis might provide the expected value of a work, but that is essentially meaningless for someone who is only going to produce a relatively small number of works, which are highly unlikely to somehow represent a random sample of all possible works.
Assuming I understood correctly, I agree with everything in the post to which I'm replying, regarding the role of incentives, just not the present-value analysis you refer to.
My model is simple. It's also markedly better in financial performance than most actual works' sales, which are heavily front-loaded. That is: as weak as the case the perpetuity model is for copyright any real-world revenue stream model is worse.
Prices rising with inflation is only keeping them stable in constant dollars. You'd have to apply an inflation discount to your future revenues as well.
My model isn't trying to argue that you'd value the actual real-world value of a book in terms of a constant, real-value, revenue stream. Reality is far less remunerative than that.
It's that even if that were an accurate model, the distant-future revenues would provide a minimal incentive to a current opportunity-cost analysis of writing for publication and income vs. alternative activities.
Which is to say: copyright terms are far longer than can be justified on an economic basis as incentive to authors.
That they're an incentive to present copyrightholders of aged works with some present value isn't at debate, but that's the only justification for post-hoc copyright term extension.
Ok, I get you now - I find it more clear now that you've explicitly spelled it out as a kind of "expected upper bound". And of course, I completely agree with your conclusions, but that should by now be a given.
Also, apologies for not replying sooner, I thought you'd lost interest and had stopped checking.
This is flat out absurd. By your logic, any aspect of society which benefits those which live longer, which is nearly every aspect of society, is discriminatory.
Those with leukemia will tend to experience less of life than those without; does that mean that society is discriminating against those with leukemia? No; it means that leukemia is a bitch. Society is not at fault there, leukemia is.
I think copyrights should be perpetual. That will much more greatly reward authors, who can sell their works to investors. This will better incentivize more writing and good writing.
The worst case (and unrealistic) scenario of a stingy heir just doesn't matter. If someone deprived us of Sherlock Holmes or Harry Potter or Mickey Mouse or whatever, we would all be just fine. None of them are essential.
How is that a good deal for the public, we promise to uphold a perpetual copyright and in return we get ...? Copyright is a deal, we uphold a legal defence for the author [or their successor] to monopoly rights on their work and they promise to put the work in the public domain when the term expires.
The public domain release is the payment to society in exchange for the monopoly rights protection.
Why would the public go for the deal that you suggest?
In the US at least, perpetual copyright is explicitly unconstitutional [0] as copyrights are to be granted for a limited term [1].
I quote Mary Bono speaking on behalf of the Copyright Term Extension act:
> Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. ... As you know, there is also [then-MPAA president] Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.
Sources:
[0] http://www.gpo.gov/fdsys/pkg/CREC-1998-10-07/pdf/CREC-1998-1...
[1] 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. Article 1, Section 8, Clause 8, (the Copyright Clause)
I don't understand what you're trying to argue here. On the one hand, this is obviously true. On the other hand, it is also true that art forms can essentially die out. Who works with stained glass murals or illuminated manuscripts anymore?
It is certainly true that the US constitution can be amended. Nevertheless, we live in a world in which what you want is not [just not the law of the land] but explicitly [forbidden by the land's highest legal authority].
As I see it, there are two separate conversations here. The first one is whether the changes you're proposing would have the effect that you intend. The second is whether the changes you are proposing could be made in our society.
My original comment was meant to convince you that this second point wasn't reasonable. To change something that's unconstitutional is a much bigger deal than just changing something that is currently a law.
For the record, I also strongly disagree with you on the first point. I think, and have expressed elsewhere in this thread [0], that the current copyright regime is far too strong to be maximize social welfare.
To directly address your original points:
1) Increasing incentives for authors does not necessarily produce better works. It turns out that money is an exceptionally poor motivator of creative work. Dan Pink has a rather famous TED talk [1] in which among other things he describes how offering people money for a task can make them perform worse at it.
2) Stronger copyright regimes do not reward creators, they reward rights holders -- a crucial difference. The creative industries are notorious bad actors with respect to the artists that do the work. See for example, Hollywood Accounting [2], the RIAA failing to pay musicians [3], and even when everything goes according to plan "For every $1000 worth of music sold, the average musician makes $23.40." [4]
3) Allow me to quote you for a second. You write
> The worst case (and unrealistic) scenario of a stingy heir just doesn't matter. If someone deprived us of Sherlock Holmes or Harry Potter or Mickey Mouse or whatever, we would all be just fine. None of them are essential.
If these works aren't essential why should we as a society subsidize the creation of new works through long-lasting monopoly rights? I am rather confused by what difference you perceive between yet-to-be created works and already created works.
I've written a lot that probably won't be read by anyone, but in conclusion, arguing for an extension of copyright law requires a lot more thought than you seem to have put in.
In a sense I agree with you, because I think the fairest thing to do would be for all property to escheat to the state at death (which should use the property to establish a trust fund for every child born the same year).
Barring that level of social reorganization, I see no reason why it's more fair for copyright to end at death than it is for other property rights to so end. It makes no sense to me why my legal claim to a piece of land, which my predecessors stole from the Indians and which in any case existed long before humans roamed the earth and will exist long after, should be stronger than my claim to a unique work that exists solely by virtue of my creativity, intellect, and effort.
Well, much in the way that the land we have today exists due to how it was shaped by history (1000 years ago, there probably wasn't a paved road and electric wires run to the plot of land you have now), no creative work exists in a bubble. If you're writing a story, you're building on generations of story tellers that came before you. As powerful and social creatures, there is nothing we can do that is not either directly or indirectly related to tons of other people's work. Nothing exists solely by virtue of your creativity, intellect, and effort.
If anything that argument supports making copyright stronger than other property rights. Even though my story, movie, or computer program builds on the past, it's still much more the result of my own effort than any land I own. I did very little of the work involved in stealing my back yard from Indians, clearing it, leveling it, running electricity, sewer, and water to it, etc.
> I did very little of the work involved in stealing my back yard from Indians, clearing it, leveling it, running electricity, sewer, and water to it, etc.
But you paid people for that, or paid other people who paid people for that, or so on. You don't pay the people who created the culture you participate in (I mean, you might buy a few specific works - but the common cultural language, standard symbolisms, the very notion of the structure of a novel...). How could you fairly pay for those? And if you were charged for every iota of culture you osmosed, how could that possibly be done justly, without making you suddenly liable for charges every time you had a casual conversation, or even walked out your door and looked around?
An utilitarian argument: Scarcity. Land ownership is inevitable - for you to build a house, someone else must give up on digging a well -, you can only transfer it, and there's no reason to assume the new owner (even if it's the State) will use it better and increase society's welfare.
Copyright over a work can be eliminated, granting everyone (including the original creator) the possibility of building on top of it without conflicts arising, so the total welfare is increased.
The reason we have land ownership is because without it, we have a tragedy of the commons situation: there is no incentive to improve the land, because anybody can just come along and harvest the corn you spent your hard work planting.
I don't get why people assume that creative works are any different. Creative works are scarce! We don't have an infinite number of creative people laboring to make new works. We actually have a pretty limited supply of such people, and creation is labor-intensive as well as not very scalable. You eliminate copyright, and you allow anyone to just come along and harvest the fruits of their labor, and you eliminate the incentive to engage in that labor.
The fanfiction phenomenon suggests otherwise; plenty of creative people are willing to spend a lot of time and effort on creative work even when they don't and can't own it.
My daughter loves drawing cartoons and comics. But she's not going to build something as ambitious as an entire graphic novel, because that would (a) turn her enjoyable hobby into work --- an often unpleasant expenditure of energy performed in the service of a long-term goal and (b) consume more time than she has available to her.
And so it is with fanfiction. The fanfiction process isn't going to generate _The Sound and the Fury_ or even _The Moon Is A Harsh Mistress_. At least, that isn't going to happen the way fanfiction is constituted now.
I respect any hobby that involves huge amounts of creative writing. But there's a difference between a hobby and a profession.
Meanwhile: if you don't believe that society benefits by having an economic framework wherein JK Rowling and Thomas Pynchon can dedicate all their productive hours to writing, and that instead we should do away with commercial publishing and switch entirely to the fruits of people's hours after they get home from their real jobs, you can have that. Today. Just don't read commercially published books. There is, as you point out, a lot of fanfiction out there, and a lot of it is probably quite good.
> The fanfiction process isn't going to generate _The Sound and the Fury_ or even _The Moon Is A Harsh Mistress_.
By which you mean what exactly? I'd say e.g. To The Stars is every bit the equal of The Moon Is A Harsh Mistress.
> if you don't believe that society benefits by having an economic framework wherein JK Rowling and Thomas Pynchon can dedicate all their productive hours to writing, and that instead we should do away with commercial publishing and switch entirely to the fruits of people's hours after they get home from their real jobs, you can have that. Today. Just don't read commercially published books. There is, as you point out, a lot of fanfiction out there, and a lot of it is probably quite good.
Unfortunately, copyright means that every so often some of it gets taken down, and potential socially valuable services don't exist (e.g. I'd happily pay for bound copies of certain works, but because they were produced in violation of copyright that business doesn't exist). So while I will continue to read fanfiction, I will also continue to argue for a relaxation of copyright law.
A "property right" is an entitlement to government protection for that property. Society is willing to protect Manhattan indefinitely - it only takes a fixed number of police officers to do so. But protecting everyone's unlimited imagination indefinitely is impractical (as time went on the number of historical creative works increases, and people continue to own all the rights to them, so we get an ever-increasing number of lawsuits per new creative work), so we set some time-based cutoff (which is an imperfect approach, but we need some rule).
I've been following this case for a while and I love this, especially the part where they have to pay the plaintiff's legal fees. The Doyle Estate fabricated a line of reasoning that is clearly not part of copyright law.
"The Doyle estate’s business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the “rational” writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand. The strategy had worked with Random House; Pegasus was ready to knuckle under; only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice—a form of extortion—and he is seeking by the present motion not to obtain a reward but merely to avoid a loss. He has performed a public service—and with substantial risk to himself, for had he lost he would have been out of pocket for the $69,803.37 in fees and costs incurred at the trial and appellate levels ($30,679.93 + $39,123.44). The willingness of someone in Klinger’s position to sue rather than pay Doyle’s estate a modest license fee is important because it injects risk into the estate’s business model. As a result of losing the suit, the estate has lost its claim to own copyrights in characters in the Sherlock Holmes stories published by Arthur Conan Doyle before 1923. For exposing the estate’s unlawful business strategy, Klinger deserves a reward but asks only to break even."
Note that the above is the official opinion of the court, and not just that of Klinger and his attorney. And although only citing it as a quoted example, Posner makes it clear that he feels Warner Brothers is using the same strategy with "Happy Birthday":
"Depoorter and Walker (id. at 345 n. 172) give the example of the Summy-Brichard Company, a subsidiary of Warner Music Group, which “receives approximately $2 million per year in royalty payments for licenses to the song ‘Happy Birthday to You,’ despite the fact that the song is most likely in the public domain,” as argued in Robert Brauneis, “Copyright and the World’s Most Popular Song,” 56 J. Copyright Society U.S.A. 335, 338–40 (2009.)
My God, I love Posner's opinions, even a trivial one like this. You have to appreciate the part where he calls out the estate as having "enlisted [Amazon and other booksellers] in a boycott of a competitor of the state, and boycotts of competitors violate the anti-trust laws. ... It's time the estate, in its own self-interest, changed its business model."
The point is that this isn't a trivial decision. Thought it's only a very small slap on the flagrant abuses and extensions of copyright over the past century and more.
Trivial only in the sense that there was no question Klinger had the right to recover under 17 USC§505; the decision on the case itself was obviously more important.
Even then, though, it was obvious the estate had no case in regards to the out-of-copyright work, and their argument was laughably specious. If their theory had won out, judges would be called upon to do double duty as literary critics, which no sane jurist would go anywhere near. (When a judge calls your appeal "bordering on quixotic," you aren't facing a sympathetic bench.)
It is important to note that the lower court did find that the use of elements from in-copyright stories (such as Watson's athletic background, or Holmes' retirement from detective work) would constitute infringement, and that such elements were incremental expressions that were protectable. My expectation is that, until the entire canon is out of copyright, publishers will continue to pay the estate rather than have to run the risk of an author illegally if inadvertently importing still-copyrighted aspects into a story.
For anyone interested in the reasoning behind the creation of copyright, and how the various interests are balanced out, these two speeches by Macaulay should be of interest. The interests and rights of legatees are specifically discussed.
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[ 2.7 ms ] story [ 192 ms ] threadConsidering two extreme cases:
Author A writes something incredibly popular and dies the moment he wrote the last word. His children end up in the poor house because they don't get any royalties from sales.
Author B writes something incredibly popular at the age of 15 and is still living large off his royalties at the ripe old age of 100.
If you just set it to, say, 20 years and it's done (or IMO better would be an exponentially increasing fee for renewal, $1 for the first year, $2 for the second, $4 for the third, etc.) then it seems to be more predictable and cleaner.
It's much easier to just do a standard, fixed term for all copyrights.
It corrupts the copyright deal to some extent. Copyright in part is to encourage creation of new works in the hope that they will benefit society. If we (the people) allow authors to rest on their laurels we potentially deprive ourselves of much of the benefit that could be elicited from their creativity. We also to some extent lock up important works that would otherwise allow the inspiration of others - creators of derivative works - to be rewarded.
We want to reward creativity, but not so much so that those who happen to have societally enriching creativity don't need to exercise it more than once!
20 years is not nearly as long as it sounds. Harry Potter, for instance, is already 17 years old. I bet a lot of advertisers 3 years from now would jump on the chance to use Harry Potter characters.
On another note, it doesn't affect your point all that much, but while Harry Potter the character would go into the public domain in 2017, the first movie wouldn't go into the public domain until 2021. In that interval, you could use the characters but you couldn't replicate their likenesses from the movies without some sort of agreement.
So, I think the cultural terror you refer to is the status quo even with effectively perpetual copyright.
Sure, if you are going to be hyperspecific about that one particular example and that one specific use, but the issue was more general about works, and, as for that work, while it may not used to promote toys and junk food, its first titular character is used in rather ubiquitous window decals that seem to present at least as much of the same problem.
The cultural context for a succesful work, with regard to its specific characters, but also more generally, is never going to be the same when you want to introduce your kids to it as when you were introduced to it yourself, particularly if you encountered the work when it was first introduced to society (or when first became popular, which may not be the same time).
Trying to restrict other people's freedom in order to preserve that cultural context -- as by adovcating long copyright terms for that purpose -- is never going to work.
Long copyright terms seem to be doing just fine for Bill Watterson.
Not, it wasn't. It made the following general claim about a problem that would exist without long-term copyright:
>> That would make it so just around the time your kids are old enough for you to introduce them to the great comics, cartoons, movies, music, and books of your childhood it would enter the public domain and become widely used in advertising and low budget productions. <<
> Long copyright terms seem to be doing just fine for Bill Watterson.
Perhaps its doing fine for him, but its not preventing characters -- Calvin particularly -- from Calvin and Hobbes from being ubiquitously used in our culture in a way which shifts the context in which someone newly introduced to the source works might experience them. Sure, its not specifically "marketing toys and junk food", but rather expressing preferences, but its not fundamentally different from the perspective of the kind of cultural context concern raised generally in the post I was responding to.
Hardly limited to those two (either as locations or subject matter), but, sure, that's one aspect of the use.
> Those stickers are counterfeit.
Irrelevant to the cultural point under discussion, which has to do with what potential future people may be bombarded with in their environment before seeing the source work, not what is legally considered genuine or counterfeit.
> They've been the subject of legal action, and if they aren't today, it's because Watterson doesn't care enough to go after their small-potatoes producers.
Whether Watterson cares is, again, irrelevant, since the issue raised wasn't about the concerns of creators, but how extended copyright protects fans of work from having their children subjected to various forms of unwanted portrayals of the character, etc., of the work before those fans are able to introduce those children to the work in general. Both the specific kinds of unwanted portrayals pointed to as examples ("TV pitchmen for toys and junk food") of the general problem for the general class of works at issue ("great comics, cartoons, movies, music, and books of your childhood") and similar ubiquitous cultural portrayals not effectively controlled by the author (the stickers) for the specific work cited as an example ("Calvin & Hobbes"), so I don't think that there is much evidence that the current effectively-perpetual copyright does much to prevent the general problem being pointed to.
Even if that problem is agreed to be a problem whose prevention warrants government action restricting human freedom (a position I think is itself far from uncontroversial), I think its pretty clear that the existing copyright regime isn't an effective intervention to acheive that end, and so cannot be justified as a solution to that problem.
Advertisers and branding wouldn't find much use for them because they were public domain. They gain value from these things by limiting the use through exclusive deals enabled by copyright.
That's one way advertisers can gain value from using a character. Exclusivity strengthens the association between the character and the product being advertised. Without exclusivity, many advertising characters probably would indeed be of little value and advertisers would probably not use them. I think, though, that this would mostly apply to characters that were created for advertising, or that were outside characters that were not very significant to the public.
If the Michelin Man were used to pitch donuts, for example, I'd find it weird, because I only associate the Michelin Man with Michelin tires.
However, for characters that had significant public interest before they were used in advertising, I don't think exclusivity is very important. For instance, Michael Phelps (yes, I know he is a real person, not a character, but that doesn't change the point) has done ads for Subway Sandwiches and for Speedo, and I don't think either diminishes the other.
In order to do that, you have to have a central authority that actually keeps track of copyrighted works, who owns the rights to it, if they've been extended, if the fees have been paid, etc. On top of that, you need to think about the broke independent author who can't afford to extend the copyright on that 5th year because they got a divorce, got in a car accident, and landed in the hospital. Or the high schooler who wrote a book for NANOWRIMO, self-publishes it, but doesn't know the first thing about copyright law or needing to continually do extensions. The copyright inevitably lapses, and some publisher finds it, likes it, and starts printing copies and selling them because it's in the public domain.
I really, honestly believe that we need to reform copyright, but I also think we need make sure that it doesn't favour people with money and people with access to intimate knowledge of copyright law. I think everyone probably has at least one copyrighted work to their name, so we should make it a goal that just about everyone should be able to understand copyright.
Of course, "that's how it was" doesn't necessarily make it a good idea. But it's not completely disastrous.
I think most of your objections would be solved by a sort of hybrid system that I hinted at. Don't start the exponential renewal until the 20 year mark. If you haven't learned about the need for renewal by then, you clearly don't need it. Start it at a dollar, so it's a tiny barrier for anyone making any money at year 20.
By year 30 it'll be a thousand dollars, and by year 40 it'll be a million. This will start to scare off small time folks who aren't making a ton of money. Highly profitable properties will be able to afford the fees for a while longer, although year 50 will hit a billion dollars a year, and soon after it'll exceed the GDP of most countries.
So in essence, it breaks down to a 20-year period for even the worst crap, a ~30 year period for obscure but selling works, a 40 year period for properties that continue to be fairly profitable, and maybe a 50 year period for Mickey Mouse class stuff.
I think 20-30 years should be plenty to figure out how profitable something is going to be, so it shouldn't much depend on how much money people had before, but how much they can make from the work. If we consider that a proxy for how valuable the work is to society (a bad proxy to be sure, but perhaps better than nothing) then why not allow profitable works to last longer? Make some money for Uncle Sam too.
I still think we need to make sure that we keep very good records with this registry, however. I could foresee more instances like we have with Happy Birthday if we don't do a good job of it.
I dunno about that. I think there should be a minimum term of, say, 15 years, so if the author conks right after her first book her family doesn't starve.
If I died one month after starting a new programming job, my employer wouldn't pay a salary to my family for 15 years.
I'm not sure why society has to take care of the family of an author but not a programmer.
IP is more about property than a job, I think.
Nice trick, that.
Hereditary transfer of IP is a bizarre anachronism.
General searching around turns up these numbers here and there as well. Assuming that is in fact true, _most_ people shouldn't be giving up anything in estate taxes.
Estate taxes in the US are 40% and the first ~$5 million in value is exempt. So its impossible to lose most of any estate to estate taxes in the US, and very few estates (0.14% [1]) are subject to any estate tax at all.
[1] http://www.cbpp.org/files/estatetaxmyths.pdf
Death or 15 years seems fair to me.
2) Isn't someone who holds a copyright other than the creator (say in this example the Conan Doyle estate) profiting from the work of others?
3) Like all sensible issues, deciding the proper term of copyright should be understood as a set of tradeoffs. Longer copyright terms may encourage more creative work by increasing the payoff, may give authors more creative control in how their creations are used and so forth. Shorter copyright terms may encourage more creative work by reducing the cost of remixing other's ideas, can provide a common pool of cultural resources for all to draw on, and so forth. What is necessary is to try to balance these competing interests against each other. It is not that shorter copyright terms are "automatically better", but I (and apparently many others in this thread) strongly believe that the balance right now has copyright terms that are too long to be socially beneficial.
But would this not increase the incentive to harm authors? If the author dies, film studios/HBO etc no longer have to pay for movie/TV rights to out-of-copyright work.
But why should we link death with the release of copyright? While temptation of assassination is probably reduced with extra-long copyright duration after death of author, it's a lot saner to assign a fixed-duration copyright from the original release date, not from (whole life of author + fixed duration). The problem goes away if you have a fixed duration from the start.
I doubt that we would have gotten things like The Lord of The Rings Trilogy without protective copyrights.
That's really fantastic art, that adds to the collective culture in a meaningful way. Copyright should be there to protect things like that.
If no negotiations were needed, then anyone could have picked up and done a low-budget adaptation and called it a day.
But, because there were some rather expensive and difficult negotiations to settle, the amount of people able to do the movies was limited to those who would be able to spend the money to get the rights. And with that sort of investment, there's a big incentive to also invest heavily in the quality of the production to ensure a good return.
And? Anyone can do a low-budget adaptation of Alice in Wonderland and call it a day.
Copyright is supposed to incentivize authors to create more work (by having a return on 'investment'/time put in). Not to restrict those who can create 'work inspired by others' to the uber-rich.
https://www.youtube.com/watch?v=wZpmZyTK2dI
But for all of that, I don't see how it stopped Peter Jackson's movie from being made.
Right now copyright, in theory, has a fixed term. That is a fixed term no matter the owner: corporation, individual, estate. It can be sold (technically licensed exclusively, but same thing) and yet the term continues to be fixed.
What you're suggesting SOUNDS good but in reality it would just encourage authors to claim they wrote the work under licence for a non-living entity (e.g. their own business) and then transfer the business to their descendants.
Plus under your scheme you have one rule for humans and another rule for corporations with the corporations coming out MASSIVELY ahead. If Warner Studios has a movie made it might get 115 years of copyright (or whatever it is now), but if joe shmoe produces a short film they only get whatever their natural lifespan in copyright protection (which I can assure you won't be 115 years).
Bad idea. Sounds good, but that's because you guys haven't given it even the most modest amount of actual thought.
The only real issue with copyright is that they keep extending it. 100 years was a nice round number that would allow most individuals to profit for their whole natural lives and for a little to roll onto their descendants. Now with the way things keep getting extending, it wouldn't shock me if for all intents and purposes a lot of works NEVER fell into the public domain, they'll just keep slapping on another 10 years here, 5 years there...
http://en.wikipedia.org/wiki/Copyright_law_of_the_United_Sta...
Do royalties add up to something meaningful for the estate of authors in 1% of the case? 0.1% 0.01%?
And, just as importantly (perhaps more so), do authors take this into account when they are creating?
My guess is that most don't consider it now, but that could easily change if you enshrined it in law and horror stories got passed around of Joe Schmoe Author who died young and left a destitute family.
However, the entire question of how copyright incentivizes creation is extremely murky and there seems to be roughly zero hard data on it, so that could be totally wrong.
If a plumber and an author were to die young, the Plumber's family have already benefited in full from the results of work the plumber did before death, because payment in full was made immediately when the work was done. What you are arguing for is that the author's family should not benefit in full from the work the author did in life. Why is that?
Consider the scenario in which a plumber does a job, then dies before he gets paid. Should that invalidate your debt, or should you still pay what you owe to the plumber's estate? It seems obvious that it's the second one.
Here's why: life expectancy matters.
An author exploits their copyright by assigning rights and options under it. The price is based on the discounted future cashflows possible from the licensing project in question. If the scope of "future" is limited solely to the lifetime of the author, then the socioeconomic inequities that cause, say, race to be a significant factor in life expectancy will be directly responsible for enforcing that distinction further.
Or more simply, it causes the same novel written by a rich young white man to receive a better licensing deal than if it were written by a poor old black man.
This may of course already be the case, but any such rule would exacerbate matters. Today, that extra 70 year buffer helps at least to throw the present-value discounting beyond the foreseeable future.
Besides which, the average member of the population will spend far more money on creative works than they will receive in revenue on them; it would be to their benefit to have the price of creative works drop.
As for the price of creative works, a common fear is that if copyright protection was weaker, artists might no longer feel properly incentivized to make creative works, and an uncreated work is not isn't available at any price. I have trouble sharing this fear, although the impact would probably depend on your taste in art.
[1] A slight poetic license, as statistically American black females have slightly greater life expectancy at every age than do American white males: http://www.cdc.gov/nchs/data/nvsr/nvsr62/nvsr62_07.pdf
This isn't discriminatory, as the value of the rights would be the same for author with/without family, and for the author with 6 months to live vs 60 years expected lifespan.
Unfortunately, the future value of a 70 year income stream is effectively nil.
You can look at this in terms of the present values of annuities or perpetuities. In the case of a perpetuity (a constant income stream forever), the present value is expressed as: C/r
Where C is the period cash flow, and r is the nominal rate of interest expressed as a decimal fraction, e.g., a 5% interest rate is given as 0.05.
The value for any period of the perpetuity is C/(1+r)^n
Where n is the period.
Assuming a $1000 constant payment stream, the present value of the 70th payment is only $32.86. Double that and you're down to $1.08 as present value of a $1000 future payment.
At 14 years, you're seeing $505 in present value, at 28 years, $255.
This is sensitive to the interest (discount) rate, where the present value falls as interest rises. A 10% nominal interest rate gives you a $263 value for 14 years, $69 at 28, $1.27 at 70, and $0.001 at 140 years. At a 2% interest rate, the values are $758, $574, $250, and $62, respectively.
So while your argument does make a case for a fixed term of copyright, it doesn't pass muster for an extensive duration. Nor, more compellingly, does it allow for the retroactive extension of copyright duration as has been the case for the Doyle estate. Sir Arthur didn't write his works, published between 1887 and 1927, with any reasonable expectation that his heirs or corporate designates would be continuing to profit by them in 2014.
http://www.investopedia.com/terms/p/perpetuity.asp
Notwithstanding which, those numbers actually indicate that even after 70 years there's a significant present value in the return. You wrote: "Assuming a $1000 constant payment stream, the present value of the 70th payment is only $32.86."
I would write that: "Assuming a $1000 constant payment stream, the present value of the 70th payment is still as high as $32.86". And they'll be even better than that since very-long-term compound average discount rates are low, closer to 3% iirc.
Instead, try modelling an annuity (yes, that's as bogus as the perpetuity, but bear with it) for two periods: 45 years and 52 years. At 3%, I make that a 5.5% better deal for the extra seven years of viability. I won't bore everyone with the math.
Note also, I'm not arguing for the current system; merely pointing out that (irrespective of other complications) setting IP rights as coterminous with the originator is inequitable.
What I don't support is for the term to be either indeterminate (as the repeated extensions of the past century have established), or perpetual, or even particularly extended. There are only a small number of cases where a 50-60 year term wouldn't be sufficient, and the concept of an extension means that unvalued works would enter into the public domain quickly.
To achieve the ends, that is, the progress of science and useful arts, the means is provided: exclusive rights for limited times.
Which means that you're looking at a future payment stream that's both decreasing nominally AND is being discounted to an ever increasing amount.
But in order to support the increasingly perpetual duration of copyright, for which only a handful of works benefit, the public is enjoined from having access to _any_ works published in the past century, unless the copyright holder can be found, identified, and persuaded to publish the work.
This has a number of profound effects.
There's a hole in the sale of new editions from Amazon (not "freely available downloadable books", mind you, but sales) from 1920 to 2000. There are more books from the 1840s available than from the 1930s.
Germany's industrial expansion from a series of disjoint states to the powerhouse of Europe in the 19th century is thought to have been greatly promoted by weak copyright.
I explore both here: http://www.reddit.com/r/dredmorbius/comments/23xrkd/copyrigh... (with some bonus entertainment thrown in).
Freakonomics has looked into the question of whether or not copyright makes books disappear: http://www.reddit.com/r/dredmorbius/comments/1wp3o8/freakono...
And noted copyright jurist and author Pamela Samuelson, of UC Berkeley, has stated: "Copyright has become the single most serious impediment to access to knowledge" http://www.reddit.com/r/dredmorbius/comments/1wssas/copyrigh...
As to the rest of what you said, isn't it somewhat obviated by the article, it saying that the Doyle estate has been making money from his works, despite them being written around a hundred years ago? I'm wondering if I misunderstood something.
Yes.
The purpose of US copyright is to "promote Science" (that is, written knowledge"), and to effect that by "securing for limited times to authors ... the exclusive right to their respective writings". Since Doyle was a British subject, he'd have been governed by UK statute and purpose, and I'm less familiar with British legal doctrine in this case. I do understand, though that UK copyright at the time his works were authored didn't extend to 2014 -- that was a subsequent extension.
Which means: at the time Doyle composed his works, the benefits he anticipated could not have extended to the present day. Even if they had, the economic present-value analysis shows that the benefit would have been minuscule.
The fact that the Doyle estate has been benefiting from his writings has no retroactive incentive encouraging his writing them in the first place.
If the work does live on, you won't be charging a constant price for them year after year - the price of a book, for example, will go up to match inflation, so if you sell a constant number of books per year, your "dollar" revenue will also go up with inflation (I'm ignoring technological advances in printing, etc., which are independent of this argument). It is essentially in this way that the Doyle estate continue(s/d) to make money from Arthur's works, albeit through licensing - the point is those things were priced at current market value.
However, I personally don't believe that the creators of copyrightable works take any of this into account when they are producing those works, partly because of the uncertainty involved in future revenues - it is highly likely that any given work will be one of the ones that just dies, and so anyone who might bank on a perpetual revenue stream is probably deluded, and most people are smarter than that.
I'm not sure, but I think your analysis might provide the expected value of a work, but that is essentially meaningless for someone who is only going to produce a relatively small number of works, which are highly unlikely to somehow represent a random sample of all possible works.
Assuming I understood correctly, I agree with everything in the post to which I'm replying, regarding the role of incentives, just not the present-value analysis you refer to.
Prices rising with inflation is only keeping them stable in constant dollars. You'd have to apply an inflation discount to your future revenues as well.
My model isn't trying to argue that you'd value the actual real-world value of a book in terms of a constant, real-value, revenue stream. Reality is far less remunerative than that.
It's that even if that were an accurate model, the distant-future revenues would provide a minimal incentive to a current opportunity-cost analysis of writing for publication and income vs. alternative activities.
Which is to say: copyright terms are far longer than can be justified on an economic basis as incentive to authors.
That they're an incentive to present copyrightholders of aged works with some present value isn't at debate, but that's the only justification for post-hoc copyright term extension.
Also, apologies for not replying sooner, I thought you'd lost interest and had stopped checking.
Those with leukemia will tend to experience less of life than those without; does that mean that society is discriminating against those with leukemia? No; it means that leukemia is a bitch. Society is not at fault there, leukemia is.
The worst case (and unrealistic) scenario of a stingy heir just doesn't matter. If someone deprived us of Sherlock Holmes or Harry Potter or Mickey Mouse or whatever, we would all be just fine. None of them are essential.
The public domain release is the payment to society in exchange for the monopoly rights protection.
Why would the public go for the deal that you suggest?
> This will better incentivize more writing and good writing.
> This will better incentivize more writing and good writing.
Here's Spider Robinson's take on this dystopia:
http://www.spiderrobinson.com/melancholyelephants.html
> Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. ... As you know, there is also [then-MPAA president] Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.
Sources: [0] http://www.gpo.gov/fdsys/pkg/CREC-1998-10-07/pdf/CREC-1998-1... [1] 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. Article 1, Section 8, Clause 8, (the Copyright Clause)
It is certainly true that the US constitution can be amended. Nevertheless, we live in a world in which what you want is not [just not the law of the land] but explicitly [forbidden by the land's highest legal authority].
As I see it, there are two separate conversations here. The first one is whether the changes you're proposing would have the effect that you intend. The second is whether the changes you are proposing could be made in our society.
My original comment was meant to convince you that this second point wasn't reasonable. To change something that's unconstitutional is a much bigger deal than just changing something that is currently a law.
For the record, I also strongly disagree with you on the first point. I think, and have expressed elsewhere in this thread [0], that the current copyright regime is far too strong to be maximize social welfare.
To directly address your original points: 1) Increasing incentives for authors does not necessarily produce better works. It turns out that money is an exceptionally poor motivator of creative work. Dan Pink has a rather famous TED talk [1] in which among other things he describes how offering people money for a task can make them perform worse at it. 2) Stronger copyright regimes do not reward creators, they reward rights holders -- a crucial difference. The creative industries are notorious bad actors with respect to the artists that do the work. See for example, Hollywood Accounting [2], the RIAA failing to pay musicians [3], and even when everything goes according to plan "For every $1000 worth of music sold, the average musician makes $23.40." [4]
3) Allow me to quote you for a second. You write
If these works aren't essential why should we as a society subsidize the creation of new works through long-lasting monopoly rights? I am rather confused by what difference you perceive between yet-to-be created works and already created works.I've written a lot that probably won't be read by anyone, but in conclusion, arguing for an extension of copyright law requires a lot more thought than you seem to have put in.
[0] https://news.ycombinator.com/item?id=8143683
[1] http://www.ted.com/talks/dan_pink_on_motivation
[2] http://en.wikipedia.org/wiki/Hollywood_accounting
[3] https://www.techdirt.com/articles/20120305/04332117978/how-b...
[4] http://www.theroot.com/articles/culture/2010/07/the_root_inv...
Barring that level of social reorganization, I see no reason why it's more fair for copyright to end at death than it is for other property rights to so end. It makes no sense to me why my legal claim to a piece of land, which my predecessors stole from the Indians and which in any case existed long before humans roamed the earth and will exist long after, should be stronger than my claim to a unique work that exists solely by virtue of my creativity, intellect, and effort.
But you paid people for that, or paid other people who paid people for that, or so on. You don't pay the people who created the culture you participate in (I mean, you might buy a few specific works - but the common cultural language, standard symbolisms, the very notion of the structure of a novel...). How could you fairly pay for those? And if you were charged for every iota of culture you osmosed, how could that possibly be done justly, without making you suddenly liable for charges every time you had a casual conversation, or even walked out your door and looked around?
Copyright over a work can be eliminated, granting everyone (including the original creator) the possibility of building on top of it without conflicts arising, so the total welfare is increased.
I don't get why people assume that creative works are any different. Creative works are scarce! We don't have an infinite number of creative people laboring to make new works. We actually have a pretty limited supply of such people, and creation is labor-intensive as well as not very scalable. You eliminate copyright, and you allow anyone to just come along and harvest the fruits of their labor, and you eliminate the incentive to engage in that labor.
And so it is with fanfiction. The fanfiction process isn't going to generate _The Sound and the Fury_ or even _The Moon Is A Harsh Mistress_. At least, that isn't going to happen the way fanfiction is constituted now.
I respect any hobby that involves huge amounts of creative writing. But there's a difference between a hobby and a profession.
Meanwhile: if you don't believe that society benefits by having an economic framework wherein JK Rowling and Thomas Pynchon can dedicate all their productive hours to writing, and that instead we should do away with commercial publishing and switch entirely to the fruits of people's hours after they get home from their real jobs, you can have that. Today. Just don't read commercially published books. There is, as you point out, a lot of fanfiction out there, and a lot of it is probably quite good.
By which you mean what exactly? I'd say e.g. To The Stars is every bit the equal of The Moon Is A Harsh Mistress.
> if you don't believe that society benefits by having an economic framework wherein JK Rowling and Thomas Pynchon can dedicate all their productive hours to writing, and that instead we should do away with commercial publishing and switch entirely to the fruits of people's hours after they get home from their real jobs, you can have that. Today. Just don't read commercially published books. There is, as you point out, a lot of fanfiction out there, and a lot of it is probably quite good.
Unfortunately, copyright means that every so often some of it gets taken down, and potential socially valuable services don't exist (e.g. I'd happily pay for bound copies of certain works, but because they were produced in violation of copyright that business doesn't exist). So while I will continue to read fanfiction, I will also continue to argue for a relaxation of copyright law.
"The Doyle estate’s business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the “rational” writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand. The strategy had worked with Random House; Pegasus was ready to knuckle under; only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice—a form of extortion—and he is seeking by the present motion not to obtain a reward but merely to avoid a loss. He has performed a public service—and with substantial risk to himself, for had he lost he would have been out of pocket for the $69,803.37 in fees and costs incurred at the trial and appellate levels ($30,679.93 + $39,123.44). The willingness of someone in Klinger’s position to sue rather than pay Doyle’s estate a modest license fee is important because it injects risk into the estate’s business model. As a result of losing the suit, the estate has lost its claim to own copyrights in characters in the Sherlock Holmes stories published by Arthur Conan Doyle before 1923. For exposing the estate’s unlawful business strategy, Klinger deserves a reward but asks only to break even."
Note that the above is the official opinion of the court, and not just that of Klinger and his attorney. And although only citing it as a quoted example, Posner makes it clear that he feels Warner Brothers is using the same strategy with "Happy Birthday":
"Depoorter and Walker (id. at 345 n. 172) give the example of the Summy-Brichard Company, a subsidiary of Warner Music Group, which “receives approximately $2 million per year in royalty payments for licenses to the song ‘Happy Birthday to You,’ despite the fact that the song is most likely in the public domain,” as argued in Robert Brauneis, “Copyright and the World’s Most Popular Song,” 56 J. Copyright Society U.S.A. 335, 338–40 (2009.)
Ouch.
Even then, though, it was obvious the estate had no case in regards to the out-of-copyright work, and their argument was laughably specious. If their theory had won out, judges would be called upon to do double duty as literary critics, which no sane jurist would go anywhere near. (When a judge calls your appeal "bordering on quixotic," you aren't facing a sympathetic bench.)
It is important to note that the lower court did find that the use of elements from in-copyright stories (such as Watson's athletic background, or Holmes' retirement from detective work) would constitute infringement, and that such elements were incremental expressions that were protectable. My expectation is that, until the entire canon is out of copyright, publishers will continue to pay the estate rather than have to run the risk of an author illegally if inadvertently importing still-copyrighted aspects into a story.
http://www.gutenberg.org/files/2170/2170-h/2170-h.htm#link2H... http://www.gutenberg.org/files/2170/2170-h/2170-h.htm#link2H...