Copyright

The Public Domain is So Hungry

At the close of this year, for the first time since 1997, copyrighted works will fall into the public domain, free for all to use.

|The Volokh Conspiracy |

Copyright protection for works of all kinds produced during the first half of the 20th century—novels, motion pictures, musical compositions, poems, etc.—had originally extended for 56 years from the date of publication. In 1976, Congress lengthened the term to 75 years.

As a result, while works produced in 1923—films like DW Griffith's The White Rose and Charlie Chaplin's A Woman in Paris, novels like Hugh Lofting's Doctor Doolittle's Post Office and Kahlil Gibran's The Prophet, songs like Silbur & Kohn's Yes! We Have No Bananas and George and Ira Gershwin's I Won't Say I Will But I Won't Say I Won't—were originally scheduled to enter the public domain in 1979, thanks to the 1976 extension they got an extended lease on their copyrights, which would now be valid until 1999 (1923 plus 75 years); later works received the same retroactive extension, i.e., copyright in works from 1924 would now run until 1/1/2000, those from 1925 until 1/1/2001, etc.

In 1998, Congress was at it again. It gave copyright owners another big, juicy gift: the Sonny Bono Copyright Term Extension Act ("CTEA"), which took all works then under copyright and extended their protection by another 20 years. So copyright in those 1923 works, instead of expiring in 1999, would now last until January 1, 2019.

That date will therefore mark the first time in the last 20 years that any protected works will fall—finally!—into the public domain in the U.S.

But will they actually be allowed to do so, or will Congress step in yet again, with another gift for copyright owners? Many people, myself included, pointed out at the time of enactment of the CTEA, that Congress could just keep on extending copyright duration further and further, every 20 years, thereby contravening the constitutional requirement in Article I that copyrights could only be granted for "limited times." The argument that the CTEA was unconstitutional for this very reason was ultimately rejected by the Supreme Court (in Eldred v. Ashcroft, 537 US 186 (2003)), thereby seeming to give Congress free rein to do just that.

Fortunately, it appears that the likelihood of such an additional extension is relatively low, as Timothy Lee explains in a very interesting essay over at ArsTechnica. This reflects a small but rather significant change in the politics of copyright policy. In the past, copyright owners could get pretty much whatever they wanted from Congress. The benefits of longer copyright term, and broader and stronger protection, were felt by a small and very well organized constituencies—recording companies, movie studios, print publishers—who had/have a substantial financial interest in measures to increase copyright protection, while the costs were largely invisible, spread out among the members of the entire public who were denied free access to previously-copyright protected works.

But as Lee points out, that attitude on Congress' part has changed considerably, and it is not difficult to understand why. In 2011-2012, Congress was on the verge of adopting the Stop Online Piracy Act (SOPA), which would, among other things, have given copyright owners vast new powers to take down works they considered infringing on Internet websites. To pretty much everyone's surprise, including most notably the members of Congress who had assumed, as per usual, that copyright policy was of no interest to anyone outside the copyright-dependent industries, a massive public outcry, involving the temporary blackout of thousands of popular Internet sites in protest to SOPA's terms, erupted on the Internet, and SOPA was tossed overboard with alacrity. [If you're unfamiliar with the story of SOPA's demise, and the role of the grassroots public protest, it is described in another ArsTechnica story here, in a fascinating Berkman Center study of the entire public campaign, and in a number of my earllier blog postings here, here, here, and here, …].

It marks a small but interesting little inflection point in our politics, the last days of copyright owner hegemony over copyright policy, and deserves at least a little celebration.

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  1. To illustrate how much the culture has changed around copyright in the last 20 years, the Sonny Bono Copyright Extension Act in 1998 received unanimous consent in the US Senate, and the House merely took a voice vote on it.

    1. You realize that unanimous consent, far from being an indication that nobody objects to a bill, is actually an indication that a relatively small number of members, perhaps as few as three or four, (But including the leadership!) held an unannounced vote while nobody else was present?

      Unanimous consent and voice votes are a way to circumvent the Constitution’s quorum requirement, and allow a handful of members to conduct business. All they have to do is make sure that nobody is present who will demand a quorum call. Very easy to do if only your co-conspirators were warned to be present.

      1. Would it be possible to mount a constitutional challenge to law passed by such means on grounds of lack of quorum in the courts?

        1. The Supreme court has already rejected that. It’s the “enrolled bill doctrine”; If the presiding officers of the two chambers say that a bill was properly passed, the courts won’t entertain any claim to the contrary.

          The Supreme court has already ruled that no evidence can possibly prevail against their word.

          1. I’m not quite so sure that it’s all as settled as you might think. As you say Field v Clark is entirely based on what evidence it would be proper to admit rather than the fundamental constitutional principle at stake :

            ..a bill, signed by the Speaker of the House of Representatives and by the President of the Senate, presented to and approved by the President of the United States, and delivered by the latter to the Secretary of State, as an act passed by Congress, does not become a law of the United States if it had not in fact been passed by Congress. In view of the express requirements of the Constitution, the correctness of this general principle cannot be doubted.

            It is not obvious that respect for the integrity of the other two branches of government is uppermost in the thoughts of today’s judiciary; and stare decisis is a bit floppy when the judges want to go the other way.

            It’s interesting that the judgement harps on about the President’s signature (which was forthcoming in F v C) but the court’s reasoning seems to apply equally to cases where the President has not signed, but where Congress has overridden his veto. Which raises the interesting question – suppose a very controversial Bill were rejected by the President, and then repassed by 60-40 majorities in House and Senate, and then signed off by the presiding officers as having scored the necessary two thirds majorities. What would SCOTUS do ?

            I don’t think they would feel bound by Field v Clark.

      2. I don’t get the sense that the Sonny Bono Act was passed as some kind of conspiratorial maneuver, though. Its co-sponsors were bipartisan, and included Republicans like Trent Lott and Chuck Hagel, and Democrats like Dianne Feinstein, Tom Daschle, Patrick Leahy, and Robert Torricelli. One of the people who took the Senate floor to praise the bill was Sheila Jackson-Lee.

        And to be clear, I’m not *defending* the bill. It’s a travesty and IMO ought to be reversed. I’m just evidencing what Timothy Lee is saying in the Ars Technica article, that Congress was so unilaterally in favor of passing this bill in 1998 that there was hardly even *debate* over it at the time. And thankfully, we’re in a much different place today, so that we can prevent it from happening again.

        1. And I can only say that I’ve watched enough CSPAN to know that almost all voice votes are conducted in the absence of a quorum. It’s scarcely surprising that nobody objects to a bill, if you arrange for only the people in favor of it to be present when the vote is held.

          1. Or, to put that the other way around, it’s scarcely surprising that hardly anyone turns up to vote for a bill that’s going to pass anyway.

            1. Since the Constitution clearly mandates that no business be conducted by Congress without a quorum, with the solitary exception of sending somebody to get more members to assemble one, we start out knowing that the people conducting business in a nearly empty chamber are bad actors.

              So, why do you assume that they’re not doing something bad?

              Maybe you’ve forgotten, but I can recall a couple of high profile cases back in the 90’s where they actually bragged about passing things with three people in the chamber.

              1. “…we start out knowing that the people conducting business in a nearly empty chamber are bad actors.”

                Why do we know that?

                “So, why do you assume that they’re not doing something bad?”

                It isn’t clear why you assume they’re doing something bad? The mechanism for frustrating a non-quorum vote is a simple quorum call. There are a lot of non-evil reasons why members rarely invoke a quorum call.

              2. Because if they were doing something bad they could be frustrated by the simple expedient of more Congresscritters walking into the room. It’s not like they’re barricading the doors.

                Leaving the letter of the law aside, I see no principled objection to Congress passing wildly popular measures while technically being inquorate.

                (Then again, I’m from a country with more faction discipline in political parties, meaning that back home it often happens that each party spokesperson on an issue is deemed to vote on behalf of their entire party. That frees up the other members of parliament to focus on their own briefs.)

                1. Not a big fan of the rule of law, are you?

                  Yes, they could be frustrated by the simple expedient of more Congressmen walking into the room, if they knew they needed to walk into the room, which is the point of not telling them.

                  Furthermore, again from watching CSPAN, “voice votes” do not, typically, involve actually giving members an opportunity to voice vote. “ALLINFAVORSAYAYEALLOPPOSEDSAYNAYTHEAYESHAVEIT” is one word.

                  1. “Not a big fan of the rule of law, are you?”

                    The Rule of Law, right now, is that quorum is presumed unless someone makes a call for it. That’s governed by Congressional rules. (Not a fan of rules, are you?) “may be compelled” is not “must be compelled”. And where a non-quorum is taking place, the people who would contest an unconstitutional action are complicit in it.

                    1. Complicit in it? Because they should just live in the chamber?

                    2. Because the presumption can be overturned any time by a change to the Senate/House rules.

                      Also “live in the chamber”? Congressional schedules don’t require people to live in the chamber to ensure presence to make a quorum call. It’s a part-time job.

                2. “Leaving the letter of the law aside, I see no principled objection to Congress passing wildly popular measures while technically being inquorate.”

                  But it ought to be possible to easily pass widely popular measures with a full chamber and a roll call vote.

                  No, the only bills that they need an empty chamber and a voice vote to pass are the ones that are wildly UNpopular.

              3. So, why do you assume that they’re not doing something bad?

                Because, as you said, you’ve seen it on CSPAN. Do you think that the other members of Congress are less aware than you of what’s happening on the floor of Congress?

                If you want to argue that this conduct is improper because it violates the law, that’s one thing. But the conspiracy argument — like most conspiracy arguments — is loony. They pass uncontroversial bills this way because it’s more convenient to not force everyone to show up; they don’t do it to get around opposition. Nobody, contrary to what you write below, is “not being told.”

                1. “They pass uncontroversial bills this way because it’s more convenient to not force everyone to show up; they don’t do it to get around opposition.”

                  They also pass bill using that method that while widely supported in Congress, are highly controversial with the general public and no one in Congress wants to be on the record as supporting it.

  2. I actually thought that the other argument in Eldred was stronger: extending the copyright on works that have already been created can’t reasonably be said to be aimed at “promot[ing] the progress of science and useful arts”. You can’t incentivise the creation of a work that has already been created.

    1. Copyrights protect the product of the creator, they don’t “incentivize” creation of the product.

      And I don’t think promoting the progress of science and art is analogous to incentivizing the creation of scientific works, art and music.

      1. Copyrighted works exist regardless of whether they are protected by law. What is protected is the creator’s ability to make money off them, and the reason for that protection is stated unequivocally in the Constitution: “to promote the progress of science and useful arts”.

        (And if you know of another way to promote something other than by incentivising it, please do tell.)

        1. Actually, in the case of copyrighted works that are protected by law, but not valued by the copyright owner, or where the copyright owner can’t be identified, they often will effectively cease to exist. Because the only person who might theoretically distribute copies isn’t doing so.

          They didn’t just extend copyrights of popular works that were being reissued, you know, They did it wholesale, including works that nobody cares to reissue, or maybe deliberately doesn’t reissue in order to make room for new works.

          It’s effectively a cultural holocaust, as old works molder away, but can’t be copied and distributed.

        2. Art and music are created regardless of the “incentive” of possible commercial success*. The world is filled to the brim with people creating whether they will ever see, or even care to see, a single dime off their work. Art and music are the incentives. Formal copyright protection protects, or perhaps more precisely “reinforces”, my right to earn off my work before you do.

          *This by the way is a concept Conservative culture warriors can never seem to grasp. For more on this, please review the great works of Roy Edroso, who covers the Conservative culture war, and its warriors, so we don’t have to.

          1. Art and music are created regardless of the “incentive” of possible commercial success*. The world is filled to the brim with people creating whether they will ever see, or even care to see, a single dime off their work.

            Yes. It’s certainly true that some people would create some art and some music whether or not they could see a dime coming. But it’s equally true that not all art and not all music is created by people whose productions and productivity are unrelated to money. Moreover there is more to copyright than art and music. There’s literature. Lots of books are written for money. And there’s software. I don’t think Apple and Microsoft do their purely stuff for the love of it.

            All the same, if you reject the notion that artists are incentivised to produce their stuff by money, and have a decent write up, by all means forward it to those parts of government that insist on handing out Arts subsidies.

            1. Anyway you’d better hope that copyrights are incentives because the Copyright Clause does not give Congress the power to grant copyrights simply to “protect, or perhaps more precisely “reinforce”, my right to earn off my work before you do.” It grants Congress the power

              “To promote the Progress of Science and useful Arts”

              using copyright as the means :

              “by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

              If Congress or the courts came to believe that copyrights were simply a welfare measure for starving artists, and did not promote the progress of science and the useful arts, then that would be it for copyrights.

              1. I am using “art” as a catch-all, though including music did open the door for greater specificity. And I suppose it comes down to a chicken-egg arrangement. From my seat, formal copyright protection protects a person’s work but has little to nothing to do with the creation of that work, whereas you seem to believe the protection it grants provides the incentive for producing the work. In my experience, “art” doesn’t work that way. Art is something the creator has to create because it comes from within, not a product that is produced for gain due to outside legal forces.

                1. “In my experience, “art” doesn’t work that way. Art is something the creator has to create because it comes from within, not a product that is produced for gain due to outside legal forces.”

                  Then you take the position that most of the classical “art” sitting in art museums around the world is not art?

                  Much of that art was actually produced on commission.

                2. As Matthew implies, even for the most driven artists, the need to eat comes ahead of the need to create. Creating works of art requires considerable investment and the hungry artist is forced to bend his creative drive to the pursuit of food. This constrains the content of the artistic product – we get a portrait of the Arnolfinis, who can pay, not a portrait of the Mcgillicuddys, who cannot. And van Eyck gets the commissions, not Joe the Plumber. Joe has to fritter his life away plumbing, and only gets the chance to doodle in his spare time, which is not plentiful.

                  The justification for copyrights (and patents) is that society benefits from encouraging creators to create. The “moral right” of the creator to reap the benefits of his creation is a very shaky foundation, because there are millions of creative acts every day that are not copyrightable, and which benefit society when they are copied by observers. Why should the daubers of paint get a “moral right” to the exclusive economic exploitation of their creation, when the creator of a new way of throwing a football, or a new way of scrambling eggs, does not ?

                  How much useful creation copyright provokes is debatable, but the moral (and legal) case for it rests on the notion that the answer is greater than zero.

    2. Similarly, Martinned, if we allowed people to zero out their bills with you after you had done your work for them, you wouldn’t be less incentivized to keep working in the future.

      1. I don’t follow this analogy.

        I can see it would be a reasonable analogy if Congress attempted to shorten copyrights for existing works, but how does it apply to lengthening them ?

        1. People develop expectations based on patterns of past behavior, and those expectations motivate their behavior.

          If copyright extensions are routinely granted over and over, new copyright holders can claim they have an expectation, or at least a hope, that they’ll continue to get similar extensions. Ranchers who’ve had their leases on BLM land renewed over and over for decades have made similar claims.

          Not saying the extensions are good idea – I think they suck, and it’s been so long that a lot of the creators are dead. But the incentive effect probably isn’t zero.

          1. OK, even if we grant that all persons contemplating creating a new copyrightable something have 100% confidence that Congress will always extend copyright forever, and that the new creator will be able to monetise the value of distant payments, we can estimate the value of this.

            The value of a stream of income from now to 75 years time is, at a discount rate of 3%, about 90% of the value of a stream of income from now to forever – assuming a steady stream of income. Given that creators of original material face a very large risk that no one will be interested in their creation, and that even the tiny minority of successful creations will not be generating any income 75 years hence, this 10% differential falls somewhere between trivial and non existent. For the new creator.

            But the same arithmetical approach shows the true beneficiaries of copyright extension – people who own existing copyrights that are approaching expiry but which are still generating income. A copyright which is due to expire in 5 years time gains not much less than 400% in value from a 20 year copyright extension. This represents a fantastic return on rather modest political contributions.

            Big copyright (the movie and music industry) need not despair. They only need to buy the votes of thirty GOP House members and a dozen GOP Senators, and these are pretty cheap. Never mind the fact that Big Copyright is 107% Democrat. Contributions beat ideology every day.

  3. Something similar happened in Canada in 2008. The Conservative government proposed copyright reforms that would almost exclusively benefit large copyright holders. The reforms were met by resistance – much less dramatic and widespread resistance than SOPA, but certainly more resistance than the government expected. The rumours leaking out of Parliament were that the Prime Minster sat in his office wondering aloud “since when do normal people care about copyright?”

  4. You neglected to mention the worst copyright outrage: In 2012 they actually took many works that had fallen into the public domain, and clawed them back out of it! Golan v Holder.

  5. The purpose of copyright is to incentivize the creation of works of art! If Walt Disney knew that someday Steamboat Willie might one day pass into the public domain decades after his death, he would have remained a newspaper deliveryman! Sheesh.

    1. I can’t tell if this is a joke or not.

      1. It’s a joke.

  6. So you are saying that Mr Walt Disney was ignorant of copyright law as it existed in 1928? Despite being a prominent businessman who was deeply involved with copyright issues and legal cases?

    Mr Disney may well have wished for his character to somehow stay private (and his heirs and successors have certainly worked hard enough to pervert the law to make that so) but to say that he was ignorant in 1928 of the state of the law and that he was ignorant of the fact that Steamboat Willie would eventually pass into the public domain is pure hokum.

    1. Who are you asking? Nothing in Mr. Post’s post says that.

      1. Sorry. That was composed as a reply to Brandybuck. For some reason, replying to the last item on the list (which Brandybuck’s was at the time) seems to sometimes confuse the commenting system and the reply gets logged as a separate comment.

        And if Brandybuck’s comment was intended as a joke – well, I guess I’m humor-impaired tonight. It did not seem that way to me.

        1. Somebody’s Law: No matter how ridiculous you make a post, some commenter will assume you’re being serious.

          cf. Gorilla Channel

    2. Rossami,
      I’m pretty sure Brandybuck was kidding…I think he/she and you are probably in completely agreement on this issue.

  7. Everyone brings up Disney and makes it seem like this is about Mickey Mouse (although I’d argue the Seven Dwarves are no small part of it). I’d love someone to explain exactly the consequences of Steamboat Willie falling into the public domain. Others can make stories about Steamboat Willie, right? Can the main character be Mickey Mouse? Can Mickey Mouse look like the Mickey Mouse owned by Disney? Can they make Steamboat Willie derivative works – meaning other adventures of Mickey Mouse?

    1. IANAL, but I remember reading about how some of the Sherlock Holmes stories were out of copyright, and that a case was brought against an author that had put out new Holmes books.

      IIRC, the result was that the author could reference anything that was in the public domain, but no characters, traits, locations, etc that were still under copyright.

      Ok, a little google-fu. and I found it.

      Klinger v. CONAN DOYLE ESTATE,LTD

      7th Circuit, June 16, 2014. Docket Number: 14-1128

    2. (although I’d argue the Seven Dwarves are no small part of it)

      Not for what, another 14 years

    3. Hatcher’s reply is correct. I believe he was referred to as Mickey Mouse at debut. Steamboat Willie was the name of the short.

      Mickey’s buddies follow him shortly. Minnie Mouse was introduced in 1929. Donald’s duck in 1934.

      A person can distribute the Steamboat Willie clip. They can also make-up other Mickey Mouse stories. As other details and characters fall into public domain, those parts of his background can be copied directly. You can also put him in works which Disney did that were in the public domain like Prince and the Pauper and a Christmas Carol (you can’t distribute you’re version, but you can make your own which will be very similar as it’s combining the same source material).

      The biggest hammer you’ll after he falls into public domain is Disney trying to use trademark to stop people from using him. Mickey Mouse is trademark of Disney. Trademarks are used to indicate origin of goods. Putting Mickey Mouse on a shirt is going to cause Disney to sue you. They will say that it’s trying to pass off your goods as Disney good and creates a likelihood of confusion to customers. If they can’t get copyright extended, expect a lot of litigation revolved around trademark.

      1. That’s why Disney is putting Mickey heads on everything they make. They’re trying to cement his status as a corporate logo rather than just a fictional character, so making a non-Disney Mickey Mouse cartoon will feel like a cartoon starring the Nike “swoosh.”

  8. It’s about time. It’s obscene that, after nearly a century, anthologists and critics still have to pay off rights-holders to quote Yeats and T.S. Eliot at length, and orchestras need to pay to perform compositions by Stravinsky and Sibelius.

    For most of history, great works quickly became part of the shared culture in which a whole society could participate. Almost all of Shakespeare’s plays were based on existing works, and many of his plays would have violated modern copyright law (look up King Lear vs. King Leir). Ancient Greek tragedians actually wrote plays as sequels and prequels to one another’s recent works.

    Modern copyright’s absurdly long periods of protection have stultified the development of such a shared participatory culture. For example, the mid-20th century produced many works that are still widely enjoyed (e.g., Disney movies, the Godfather, Gone With the Wind). Yet a half-century later, they’re still viewed mainly as commercial products for our detached consumption, not as parts of a cultural dialogue in which we can all participate.

    This persistent more-commercial-than-cultural status stands in stark contrast to the popular works of the 19th century (e.g., Dickens’ and Twain’s novels). If a mid-20th-century author had wanted to re-write Huckleberry Finn from Jim’s perspective, it would seem a sin against literature if copyright law had prevented him from doing so. Yet that’s exactly what copyright law is doing now for post-1923 works.

    1. Personally I’d roll back copyrights to the same length of patents. Around 20 years or so, and even that might be a bit too long.

      1. Agreed. The fair use exception also should be expanded and more objective, so it’s not necessary to hire an expensive New York firm to study case law from a multitude of jurisdictions to guess at what’s fair use in each one. For example, the Copyright Act could be amended to create a “safe harbor” set of objective criteria that, if satisfied, grant fair use protection as a matter of law (in additional to the traditional, subjective fair use analysis).

    2. It’s obscene that, after nearly a century, anthologists and critics still have to pay off rights-holders to quote Yeats and T.S. Eliot at length, and orchestras need to pay to perform compositions by Stravinsky and Sibelius.

      IIRC, aren’t you an Angeleno? Because this Salonen era survivor would gladly pay a few pennies more per concert ticket to assure I never have to hear Sibelius again. Stravinsky, of course, is another matter.

      1. New Yorker, but I agree that Sibelius is best in small doses.

  9. I always found it ironic how one can theoretically live forever off the proceeds of some song or tv show but not a livesaving drug or momentous scientific achievement. I also find it ironic how many Republicans glom on to the idea of eternal copyrights despite it largely benefiting a demographic which hates their guts. Of course plenty of so called ‘champions of the little guy’ like Clinton and Ginsburg, have done their part to screw over the public domain too.

  10. If the public domain is so hungry let them make their own works. Make copyrights forever

    1. Your proposed eternal copyrights would have prevented:

      * Almost all of Shakespeare’s plays, which, except for two of them, were based on works by others
      * Virtually all written mythology, as it’s just a retelling of existing oral stories
      * Every retelling of stories from the Bible or other religious texts (indeed, some books of the Bible would violate copyrights in other older books of the Bible)
      * Every work built upon the Bible’s literary universe, such as Dante’s Divine Comedy and Milton’s Paradise Lost
      * Most of Greek tragedy, which draws heavily on existing fictional characters
      * Other great epics, such as the Aeneid (as a sequel to the Iliad) and Goethe’s Faust (as a retelling of Marlowe’s Dr. Faustus)
      * Wagner’s Ring Cycle, Mozart’s Don Giovanni, Monteverdi’s L’Orfeo, Verdi’s Falstaff, Purcell’s Dido and Aeneas, and most other great operas ever composed

      Needless to say, I don’t think your eternal copyrights would help progress the arts, as required to satisfy the Constitution’s Copyright Clause. But hey, who cares about that — more vigorous protection for more intangible private “property,” created from thin air by government fiat to restrict free expression, is always better!

      1. All those books and stories suck. Where’s the bad news?

      2. “indeed, some books of the Bible would violate copyrights in other older books of the Bible”

        On the other hand, through discovery during the inevitable copyright infringement litigation we’d finally definitively establish the degree to which the Bible is divinely inspired!

      3. It would also have prevented almost the entire Disney oeuvre from having been created.

      4. This, of course, entirely speculative as a more permanent copyright regime would likely not operate as it does now (perhaps opening up for more fair use the longer the copyright is held) and, more importantly, would not preclude (1) licensing (i.e., I have no doubt Disney could have afforded to license their materials) or (2) lapsing of IP rights. Particularly when you speak of ancient or older texts, ownership cannot be established.

        Anyway, most remakes suck anyway.

      5. And many Disney films based on stories collected by the Brothers Grimm would either have required a substantial addition to the budget to buy rights from the Grimm’s estate, or not been made at all – except that eternal copyright would have prevented the Brothers Grimm from collecting those stories in the first place.

    2. Eternal copyright would be unconstitutional without a constitutional amendment.

      US Constitution Article 1, 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;

      1. 10,000 years is a time period that is limited.

        1. Sadly, the Supreme court is on board with that reasoning.

          1. They were on board with that reasoning when the 1998 Sonny Bono Copyright Term Extension Act was passed and challenged in the courts.

            On the other hand, a majority (5) of the current justices were appointed after that, so if something happened to bring that issue back before the court, we might get a different result.

  11. I am an amateur hymn-writer, and I usually rely on someone else to provide the text. I make it a point to not even bother trying to use anything written after 1922 because it’s pointless to try and get permission. The copyright law actively prevents, not promotes, the “useful arts” as far as I’m concerned.

    1. Yes. There are many situations where this problem arises.

      Remember that most copyrighted works, 99% or more, generate virtually no revenue for their creators. But try and use something and someone will come out of the woodwork.

      1. “Remember that most copyrighted works, 99% or more, generate virtually no revenue for their creators.”

        Source?

        1. Common sense.

        2. Under current law, every student* essay and term paper has a copyright owned by the student who wrote it. As does every document generated by every corporation/business.

          Under current law with automatic copyrights for everything, 99.999% of copyrights will never generate a single cent of revenue from their very creation. But then most of those works weren’t written to generate revenue/income.

          * From K-Graduate.

          1. And think of out of print books.

            The linked site offers 100 million!! titles.

            1. A drop in the bucket against all the works afforded automatic copyright that were never intended for publication.

              A single large corporation like GE for example could easily produce more than 100 Million documents per year.

              1. I don’t disagree.

                I was addressing the issue of copyrighted materials written to generate income that no longer do so.

    2. That’s why the plaintiffs in Eldred also made an (unsuccessful) 1st amendment argument.

    3. I’m having a hard time picturing your process. You write the music, but use lyrics from pre-1923 works? Im not trying to be snotty, I’m just wondering what you meant.

      1. Sometimes I find a great text with an outdated tune, one that people will never sing again, so I’ll write a new tune for the same words. Other times its the reverse, I come up with a tune and then look for a text that fits.

        I self-publish the works at http://www.newhymns.org

        I tried a couple of times to get permission to use a text, and even though I spent a lot of time on it, ultimately no one gave me permission.

      2. Sometimes I find a great text with an outdated tune, one that people will never sing again, so I’ll write a new tune for the same words. Other times its the reverse, I come up with a tune and then look for a text that fits.

        I self-publish the works at http://www.newhymns.org

        I tried a couple of times to get permission to use a text, and even though I spent a lot of time on it, ultimately no one gave me permission.

  12. In this day and age copyright owners need MORE and LONGER protections, not less. It’s 2018 and liberals have convinced people that they are entitled to everyone else’s creative works. It’s INSANITY to support curtailing copyright protections.

    1. That’s one vote, from the capitals-loving fringe, for terming the Constitution “insane.”

    2. What’s “insanity” is suggesting that a lifetime plus 70 years isn’t a long enough copyright duration to provide an incentive to publish works, when copyrights lasted a small fraction of that for most of U.S. history, and vastly more works are being published now than at any point before now — far more than there is any market for.

      Extending that already absurd copyright duration does not meaningfully encourage the creation of new art; no one is saying, “Golly, I’d draft a new novel, if only copyright protection lasted 90 years after I died instead of 70!”

      This is not a conservative versus liberal issue. What’s going on here is that owners of a temporary right to suppress useful and valuable expression by others are seeking to extend that right indefinitely for the sake of personal profit. Worse yet, the owners who are doing so typically aren’t even the actual authors — they’re just media corporations who are trying to exploit the law to artificially increase the value of their intangible assets as rights-holders, at the expense of the public.

  13. All the people out here who support reducing copyright protections never created any works of value. If they had/have or do, they would be fighting tooth and nail to protect THEIR VALUABLE creative works. If any one of you wrote Stairway To Heaven and reaped the yearly royalties, you’d be huffing and puffing for the other side. No doubt.

    1. I’ve created plenty of valuable works. For my employers, who have patented them or retained them as proprietary technology, as they saw fit.

      In the case of the patent, they got maybe 20 years. If 20 years is good enough for patents, it’s good enough for copyright.

      1. I agree that copyrights are already absurdly long. However, there are much better reasons to limit patents.

        You already know this: a lot of – maybe most – patent violations aren’t a case of stealing someone’s drawings or copying their product. Instead, they are cases where someone invested a lot of money and sincere effort in solving some design problem, only to get hit with a patent they didn’t know existed. Or worse yet, they straightforwardly solved an easy problem, only to find out that someone else got a patent through the USPTO’s laughably lenient non-obviousness standard. So for 20 years people are *prevented* from using what the best solution to a problem, and to some extent punished and disincentivized from designing new products because they have to invest more in defensive patent searches than in the engineering.

        On the other hand, no one has to fear that they might be violating an obscure Disney or Random House copyright if they create their own cartoon characters or write their own novel.

        The key difference is that copyright only prevent *copies*, patents block whole categories of solutions and ideas.

        1. Back in the mid 90’s, I worked for a small family owned stamping company. The owner invented a new, very superior form of lumbar support for seating. We spent considerable effort taking it from a concept to a full system capable of being manufactured, and obtained a patent.

          Our competition then went and got a foreign patent on our product, and came to us, saying, “Try to sell your support, and we’ll take you to court. Sure, you’ll probably eventually win, but our lawyers are on retainer, and you can’t sell the product while in court, so you’ll likely go bankrupt before the court battles are done. Or you can sell us the rights for the money you’ve spent developing it, and go off and do something that doesn’t compete with us.”

          Our counsel told us that, sadly, they were right about the consequences of trying to defend our patent. We sold the rights. The kicker was, they never used our technology, kept selling their inferior product instead. I guess because they had so much invested in the machinery to produce it.

          What’s really needed is a better patent system. Not shorter patents, they’re already short enough.

          1. Oh, and I invented the side bolster that went with it. The rat-bastards got that patent, too.

          2. You have my sympathy – quite seriously.

            Patent litigation is a disaster for small companies, and they can easily be bullied. This has especially been a problem in software, of course, but it’s not limited to that.

    2. Stairway to Heaven was released in 1971. How long do you think it should be protected? Until 2066?

      I doubt the creators will be around then.

    3. “If any one of you wrote Stairway To Heaven…”

      Strange choice, since there was a very public copyright fight between Led Zepplin and Spirit over the former’s stealing the main riff for the song from the latter. It’s on appeal right now, I believe.

  14. I’ve got a soft spot in my heart for American “rouged individualism”. A successful Maverick is an American hero. The American dream is now much more than a comfortable middle class existence. It is also the dream of citizens to be that unlikely, brilliant, superstar captivating the admiration they themselves had for those before. American dreams of stardom are viewed not only as legitimate but patriotic. Rightly or wrongly, releasing works to the public domain might be viewed as diminishing the legacy of the originator.

    1. Knowledge is not owned like a physical object. Preventing others from emanating some specific pattern everybody knows because some long dead individual 70 years ago was the first to bring it to the attention of the patent office and that is why it belongs to Corporation A is hardly individualism.

    2. Why would it diminish the legacy?

      Putting works in the public domain makes them more widely available, not less. The legacy is having works read, paid attention to.

      Is Shakespeare ignored?

  15. Seems silly and inequitable to me for a copyright term to depend on when the creator dies. What was the reason given for switching to such a regime from one that runs from publication date?

    There’d be a 5th amendment problem with reducing copyright terms in one fell swoop, but a term reduction program could be phased in so that no running copyright would have its termination date come earlier.

    Seems to me a maintenance fee requirement would be in order too. Doesn’t have to be much, just enough of a nuisance that those who hold copyrights with no anticipated commercial value wouldn’t want the trouble. Not an issue fee, though; let it run some years at no charge to let the holder decide if it’s valuable.

    1. System was required to change when the US decided in the 1970s to ratify the Berne Convention of 1886. Even then the US continued to retain important features of copyright law as it existed prior to the Copyright Act of 1976. Those retained features were ultimately cast aside about 1992 when the US went “full in” to implement all Berne Convention requirements. Copyright term was extended from life plus 50 to life plus 70 shortly thereafter to place US copyright holders on an equal footing with EU copyright holders.

      1. That just regresses the “why” another step. Why were those foreign copyrights based on the creator’s death date?

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