The Sea Wasp (Ryk E. Spoor)

I think copyright terms ought to be shorter for corporations than for content creators -- say, a flat 25 years for work-for-hire and lifetime+25 (or possibly the longer of lifetime, the lifetime of your spouse, and the time it takes your youngest child to become 21 years old) for copyright held by content creators.

If you want to release copyright during your lifetime, that's generous of you, but the bulk of this problem is not copyrights held by content creators but copyrights held by corporations. Even a prolific author has limited output and won't likely create cultural icons the size of Star Trek, Mickey Mouse, Star Wars, etc.

Also, there's no intrinsic reason copyright in the form of being paid for copies of your works has to be the same length as copyright in the form of controlling derivative works. Differentiating the two does raise the question of how much existing content can be included in derivative works (e.g. can you have a flashback to a scene in a copyright-for-original-text-only novel, from a different point of view?) But that's a relatively minor problem in that if derivative works are permitted, it's possible to have a safe harbor of all new content.

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seawasp

I don't like having different lengths of copyright for different entities, for a couple of reasons. First, it gives a motivation for a company or person to simply find a way to hand the copyright to whichever entity will have it longer, meaning either incorporating (which people already do in order to insulate themselves legally) or finding a figurehead person to "own" the rights. That just makes things messy and confusing. Make it one number.

Second, "life" is an inherently squishy number with potential -- especially with some current medical research -- to expand very significantly. As part of my point in the article is that the *currency* of an idea is important in its value in the public domain, the idea that you could end up with lifespans going to 150 years and thus average copyright lengths going easily to 130+ years makes it even worse than the current situation.

It's true that most authors won't create a Mickey Mouse. Most companies won't, either. I'm not getting rich off my stuff yet -- and if I do, it is almost CERTAIN to happen within the first decade or two of publication (and most likely when it's first published if it's gonna happen at all). Even the long-runners, in general, have been popular for a long time. Sure, Tolkien's estate made a nice bit of change off the movies, but LotR was pulling in money for a long, long time before that too.

Edited Date: 2016-05-17 03:58 pm (UTC)

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I certainly don't think anyone's going to become rich off pieces written fifty years ago. But if an author writes a book a year for sixty years before cumulative old age catches up and he becomes unable to write, the difference between royalties from thirty years of books and royalties sixty years of books might be the difference between poverty and dire poverty. I'd hate to see someone move down from poverty to dire poverty because we decided that work done thirty years ago could be copied without payment to the content creator. I have fewer qualms about saying that after thirty years you lose the right to prevent others from making derivative works. (I still have a few qualms, for living authors, but I can argue that either way; I have absolutely *no* qualms for corporations losing the right to prevent derivative works.)

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seawasp

If you want to divide the rights between derivative and original and make their release dates different, I guess, but that would likely get very complicated indeed, even compared to the current situation.

My preference would be a fixed duration copyright, AND copyright CANNOT BE HELD BY CORPORATE ENTITIES, since creative works are made by people. Maybe a lot of people, but people, not the fiction that is a corporation.

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Pondering copyright cannot be held by corporate entities, but I can't see a way to make it work for television, let alone movies. You need a single person, or at least a small group, to agree to (or refuse) use of the intellectual property under copyright.

What I think might work along the same general lines is to allow copyright to be held by a corporation ONLY if it is work-for-hire -- specifically commissioned or done by an employee as part of his job. Other copyrights can be licensed (for durations less than the copyright on work-for-hire) but not sold.

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What I think might work along the same general lines is to allow copyright to be held by a corporation ONLY if it is work-for-hire -- specifically commissioned or done by an employee as part of his job.

Which is how most, if not all, employment contracts already work. If you create something on company time or using company resources then the work belongs to the company. It holds both in the corporate world and in higher education.

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Yes, and things pretty much have to work that way. When the web developer who did 60% of the website quits, it's not a good idea to force the company to figure out which 60% of the website needs to be redone by someone else. Ditto they can't go and change all the icons on their website ten years after the graphics guy quits, if a license is presumed instead. Nor is either fair -- it's retroactively taking back the time that the company paid them for.

There are all sorts of things that get made for work which could be put under copyright but which just make no sense to be owned by anyone other than the corporation which hired the work done. Documentation for work-related tasks. Computer programs for internal use. Manuals for using computer programs. Materials for training programs. Very often these are written by multiple people, too. These aren't the sort of content which is really being discussed here, but they *are* subject to copyright, and they *should be* subject to copyright; there's no clean dividing line between fiction and a training manual which makes heavy use of entertaining hypotheticals.

It's kind of annoying that I can't legally reuse the code I wrote for work for my personal usage, but there are good reasons why not, if it's genuinely for personal use no one would catch me anyway, and if it actually matters I can likely rewrite the code from scratch a lot quicker than I wrote it the first time.

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seawasp

But your example has nothing to do with COPYRIGHT as such. The web developer could retain COPYRIGHT, but having made the site for the company the company would retain the license to continue using it for the purpose for which it was developed. However, if the company wanted to sell the web CODE to some other company THEN they would need to have an agreement from the developer that they had that right, or they'd have to negotiate one after the fact. Presumably any employee leaving would have licensing requirements worked out for any IP they developed. (this would provide a strong motivation to keep your employees reasonably happy).

The above is very similar to how SBIR IP rights are currently managed. The US Government has a nonexclusive license in all IP developed under the SBIR, but the small business retains the actual IP rights and controls any and all other use of the IP, and the Government's constrained in its distribution of the IP.

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My examples have everything to do with copyright. They're things that *could* be addressed by licensing, but then if you allow all licenses to be sold anything can be addressed by licensing.

If by default companies had only use-licenses in the work that employees do which is currently work-for-hire, every software company in the world will demand that employees sign a bulk-exclusive-licensing agreement which gives them the control they currently have, and if those licenses aren't allowed they'll make their employees sign noncompete agreements, and noncompete agreements are evil.

I was paid hourly by Company A to write Computer Program X, Y, and Z. Should I be allowed to also sell said computer programs to Competitors B, C, and D?

Or take a television program, Season One. Twenty episodes: nine written by Screenwriter F, three written jointly by screenwriters F and G, five written jointly by screenwriters F and H, and one each written by screenwriters G, I, and J. Meanwhile, the pilot was written by G to an outline by F, Season Two was written in various proportions by G, J, K, L, M, and N, Season Three was written in various proportions by F, G, M, O, and P, Season Four was written in various proportions by F, G, M, P, and Q, Season Five was written in various proportions by F, K, M, Q, R, and S, Season Six was written in various proportions by K, M, R, S, and T, and then the show was cancelled.

Who owns the copyright for the show if the company isn't allowed to buy it outright? If each screenwriter individually owns his episodes, then there are thirteen people you need to make deals with reair the show when the license runs out. If the screenwriters collectively own the show (i.e. majority rules, holdouts can't refuse to let you show their episodes), then you've got a corporation in all but name.

I can see compelling reasons to limit the terms for which corporations can own copyrights. I can't see any reason not to let them do it at all.

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scott-sanford.livejournal.com

As noted above, sometimes it's rational for a company to HOLD a copyright. What if companies cannot BUY copyrights? Imagine a situation wherein any copyright transfer must be human-to-human, human-to-corporation, or corporation-to-human; direct corporation-to-corporation is not allowed. How does this change things?

I think most of the legitimate corporate copyright would be fine (such as the websites and training manual examples). If the corporation gets bought by another company that's fine too - unless the buyer tries to close out the old organization; then they'd be unable to simply move copyright from one metaphorical pocket to another. If a corporation goes bankrupt does the copyright fall into the public domain? This may bear more thought.

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The prohibition as you describe it has a loophole: corporation to human to corporation.

If a corporation goes bankrupt and does not sell the rights to their works then those works do *not* fall into the public domain. The copyrights still exist because copyrights are automatic per the Copyright Act of 1976, but the legal entity which owns the copyrights no longer exists so there is nobody who can pursue infringements. These works are frequently referred to as orphaned works.

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scott-sanford.livejournal.com

There are no constructs without some loopholes. That's a known one.

And the situation now is as you describe - but it need not be forever. Certainly we need better handling of orphan works anyway...

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To be honest? I think that copyright law in the US as it currently stands is fine on this point. The purpose of copyright is to grant the creators of works the time-limited, exclusive right to profit from their works. It would be unfair to creators for them to "vanish", have their works forced into the public domain, and then reappear only to have lost the rights to their work.

I think that the real problem is the duration that works remain orphans until they enter the public domain. To wit, copyright term extension to the point where "time-limited" becomes meaningless.

Also, Kudos to Ryk for choosing to put his books into the public domain when they would have had the Sonny Bono Act not passed.

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seawasp

Well, technically you should wait on the kudos until I actually DO it. Talk is cheap, action is what matters, and I don't even have to worry about it until 2031 at the earliest.

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Actually, it is something to worry about now. If you really do want it to happen then you should specify it in your will. This will ensure it does happen regardless of your fate.

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seawasp

I suppose I need to make a will.

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Personally, I'm against the time-based IP model and think it should be more use-based, on the development of more activity.

Like, one of the big examples that is the reason things get pushed back is Mickey Mouse. Anything made after Mickey tends not to be PD. But... Mickey's been made a central figure that people's livelyhoods are based on, so it's no wonder they want it controlled, and if we have a use-based model, it'd be one of the *only* things from that timeframe that has been in active use.

Star Trek? It's in active use, it's been in active use, sure not by the original creator, but a very steady stream of material. That Gene personally is dead shouldn't, IMO, decide when it falls into the PD.

And yea, I realize this can lead to semi-permanent copyrights, but as long as stuff keeps being made, and especially in cases like shared universe stories, I'm good with that. I just don't want it blocking stories that are actually done from falling into the PD either.

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seawasp

Gods no, that would be terrible for the public domain and thus the general civilization that copyright was designed to benefit. You would have to define "in use", and as soon as you do that, you give the VAST advantage to any company with decent resources. They will do SOMETHING that just-barely-meets-requirements with their IP at EXACTLY the legal limit, and will have entire departments dedicated to keeping track of that for all their IP and making sure it happens.

Since you can't put limits on "quality", with quality being a subjective quality, this would result in corporations DELIBERATELY producing TIDAL WAVES of crappy books, comics, movies, whatever, to the lowest standard possible, to maintain copyright. And when I say crappy, I don't mean like the current situation, I mean like the AVERAGE would be around "Alien Apocalypse" level, or the 1990 "Captain America". Sharknado would be high art.

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Maybe, but still, fundamentally I don't have an issue with long-time holding, and it'd drop a lot more stuff in the public domain.

Sure, you'll have a flow of stuff... but that means the stuff is being made. And I don't think it'll all be crap on the grounds that it's more profitable to make non-crap. Does some makework-to-hold-licence outweigh having a compromise that'd prevent us from having the ever-expanding time it takes to drop into public domain?

I don't know if there is an idea solution, but I'd rather have companies do some makework- which can only prevent ones they own falling into PD, and also means companies that go under will lead to all their stuff going in PD- than the current situation where Disney and etc. can continually push back the time gap because it's worthwhile for them to spend hundreds of millions to get it pushed back.

Even if it does make Alien Apocalypses, I don't have to *watch* those.

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seawasp

Well, I *do* have an issue with long-term holding, as it goes directly against the intent of copyright, which was never meant to provide indefinite-length coverage.

Especially since this would favor companies over individuals, and very drastically so. So basically you'd have virtually all privately-owned material dropping into the PD, and corporate stuff pretty much never doing so -- in other words, the current situation only far worse, because in this new version the private individuals wouldn't be being "carried along" by the corporate demand to increase copyright duration.

Companies going under won't lead to them going PD unless the "going under" means that no one even bothers to pick up their IP, which virtually NEVER happens unless the company really was utterly worthless. Almost always someone picks up the IP and all other property for cents on the dollar. Someone will buy the IP and maintain it.

You also don't understand the mechanics of large commercial productions. It will, in general, be far cheaper to make some crappy thing than a good thing, because if you make a GOOD thing and invest time and money that way, you'll probably have to invest time and money to promote it, license it, etc. As opposed to telling the intern working for $7.50 plus "experience" who just graduated to make a new Mickey Mouse short and upload it to Youtube, and no, as long as it's not obscene and doesn't infringe on anyone else we don't care what's on it, have fun guy.

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Have you been following Sony's Spider-Man movies? Have you seen how crap they are? Do you know why they are crap?

It's because the licensing deal stipulates that Sony must release a new Spider-Man movie every X number of years in order to retain the license. They don't have to be profitable. They don't have to be good. They just have to be made and Marvel gets a royalty check.

Marvel made similar licensing deals with 20th Century Fox for X-Men and Fantastic Four movies.

This is your activity-based model in action in the real world.

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seawasp

Um, well, I LIKED Sony's Spider-Man movies. I liked the Garfield ones even better than the Maguire ones.

EDIT TO ADD: and that's to keep a LICENSE, not a copyright. You can stipulate a lot of requirements in the license, not in the copyright, so "keep copyright movies" would be done at the level of a typical YouTube vid by fanboys. CHEAP fanboys.

Now, if you pointed at "Fant4stic", I'd go along with you. Or an even better example of "we finished this because contractually we had to to keep the license", Roger Corman's FF movie.

Edited Date: 2016-05-19 03:53 pm (UTC)

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They're still the use-it-or-loose-it model.

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seawasp

Yes, but hugely different in what you're likely to see out of them. One assumes that in pure copyright law you'd want as few requirements laid on the holder as possible -- otherwise you just increasingly favor the larger organization that can afford the effort of maintaining a copyright division. One thing I *loved* about the adoption of the Berne Convention was that it explicitly meant that once you wrote something, you had copyright. No need to FILE something or spend money on it just to say "this is something I made and no one else did".

A licensing contract such as Sony's can have dozens of stipulations (for instance "must be released and shown in X number of theaters domestically and in at least Y overseas", "must have been properly promoted with A, B, and C", etc.) which you simply will not get -- or one certainly HOPES you won't get -- in the copyright version. If it was JUST to keep their license (which isn't the case with the Sony Spider-Mans, they want to keep the license because they think it will make them money, and in fact it HAS, just not quite the oodles of cash that Marvel's raking in), and there were no stipulations, you can be assured that they'd release a cheap YouTube vid. With advertising being a mention in their Twitter feed.

This is a huge difference; people LIKE the Sony Spider-Man films. Maybe not as much as people like the Avengers and the Guardians of the Galaxy, but they are reasonably successful films into which a VERY large amount of effort was placed, and they were not intended to fail. They weren't placemarkers. Roger Corman's film is closer, but even that was a license deal and he still had to fulfill a fairly large set of contractual requirements.

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I think I'm not making my point clearly?

I understand that the Sony and Fox license deals are licenses, not copyrights. They're private contracts. These contracts stipulate various requirements which, all told, require Sony and Fox to put actual effort into their respective productions.

What I'm on about is the requirement that the studios make X number of films every Y years. This is the essence of q99's active use copyright idea: you have to create something "new" with the property on a regular basis in order to retain rights to that property.

This requirement has given the Sony and Fox films a feeling that they were made because the studios needed to make them. Some feel it more than others but they all share it. Perhaps I should have used the Fantastic Four films as examples of the worst of this rather than the Spider-Man films which I think are the best of the bunch. Some of them are still crap (Spider-Man 3 is awful) but overall they are less crap than what Fox did with the Fantastic Four films.

I've not seen the Roger Corman FF film.

Back to the point. This kind of copyright or license requirement doesn't encourage creativity. It mandates sequelitis, and the worst of it will be things like cheap YouTube vids as you describe, the absolute minimum effort necessary to comply with the law.

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A thing about Fant4stic is, while it was use-it-or-lose it, they did actually put budget and a director they had real hopes in. It... just turned out their hopes were misplaced.

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-Marvel made similar licensing deals with 20th Century Fox for X-Men and Fantastic Four movies.-

Some of the X-men movies are pretty good!

Now, I don't think most stuff should be on nearly that tight a schedule, but honestly, I kinda take them as an example that people will try and put effort even if they're on deadlines, because that's where money is.

Also a thing about use-or-lose, is it means you *don't* have properties just languishing with nothing done. Either it's used, or it's PD.

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Let me ask you this: what do you mean by "languishing"? I mean, once a book is written and published then it's done. What else is there for the author to do with it that might constitute "use"?

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Publish new stories, or related material, make an adaptation (show, play, etc.)....

The point of stuff falling into the PD is so that it can be used, isn't it?

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How does this work if an author does not want to write a sequel? Bram Stoker's "Dracula" for example. The story is finished. Why should Stoker have been required to write more stories "related" to that just to maintain copyright?

How does this work if the author keels over dead the day after the book is published? Do the inheritors of the author's estate get nothing?

How does this work for a record album? A band can go on tour but what about musicians who are physically incapable of touring? Or musicians who's music can't be performed live in its original form?

How does this work for cover art? Cover art which is typically under a different copyright from the text or music, and frequently is under commission as a one-off. How can an artist working on commission, or the commissioner, retain copyrights through continued use when only a single one-off cover was authorized?

And speaking of art, how would Michelangelo have demonstrated continuing use of his statue of David or the Sistine Chapel fresco?

The short answer is: it doesn't work.

Requiring active copyright maintenance stifles creativity except for the few who can afford to perform that maintenance or are fortunate enough to have been selected by an organization which can perform those duties. One of the key points of the Copyright Act of 1976 and Berne is to remove the onus of actively maintaining copyright from creators, to make copyright automatic and inherent in the act of creation (setting ideas in tangible forms).

It worked.

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seawasp

This. "extendable through action" permits infinite copyright for those who have the resources to perform whatever actions are required, and for those who don't particular care about the quality of that action. As another example in addition to

ninjarat's above, if I write a novel that's pretty much complete in itself, you're saying that I'll HAVE to have someone produce a movie, write a sequel I think is unneeded, etc., just to retain copyright in the thing I actually CARE about.

Length between required "actions" doesn't change the fact that it's a problem, either, it just changes the specific issue. Short duration (i.e., every three years)? Some people can't even WRITE one book every three years, so they're guaranteed to lose it. Also, you force even companies to have a constant stream of stuff going, making it even more likely that in the rush you get stuff that sucks. Long duration (say the original 28)? Makes maintaining infinite copyright trivial for companies, difficult for individuals as they not only have to produce stuff, they have to make sure they produce it towards the end of the term for maximum effect. And they'll die anyway eventually.

And no ,"The point of stuff falling into the PD is so that it can be used, isn't it?" is not true, because you leave off the CRUCIAL point of Public Domain. The statement is "The point of stuff falling into the PD is so that it can be used BY ANYONE". For commentary, for cameos, for crossover fiction, for reimaginings, whatever, so that it becomes part of our CULTURAL heritage. Shakespeare, Dumas, Verne, Baum, Wells, Baroness Orczy, Mary Shelly, Conan Doyle, Ovid, Homer (the Greek one, not Simpson or Price), all these are resources anyone writing, filming, or otherwise producing creative works can draw upon to the smallest or largest extent desired. That's the public domain.

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*Edit* Originally had more written down, but decide to wipe it on the grounds that I don't actually disagree much on goals, merely approach that'd actually get stuff into the PD.

Edited Date: 2016-05-21 07:01 pm (UTC)

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