'Should auld copyrights be forgot ?'

Subject: 'Should auld copyrights be forgot ?'
From:
Date: 28 Dec 99 - 03:12 PM

A piece by Sam Williams entitled "Should Auld Copyrights be Forgot ?" was recently posted at Upside, and may be of interest to some Mudcatters. Its focus is on film and software, but the issues raised have implications for music as well.

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From:
Date: 28 Dec 99 - 03:17 PM

It is also posted here. T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: McGrath of Harlow
Date: 28 Dec 99 - 08:38 PM

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: T in Oklahoma (Okiemockbird)
Date: 29 Dec 99 - 09:06 AM

Oops. FYI It was I who started this thread. I forgot to put my name in the "from" field. T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: MMario
Date: 29 Dec 99 - 09:11 AM

You signed 'em tho...so we won't have to report you to the Gang of Twelve...

I liked the last bits of the article--where they were reccomending MAXIMUM copyrights of 10 years...it'll never happen, but one can dream...

MMario

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 29 Dec 99 - 10:38 AM

Ten years is too short even for me. I think the 42-year term that stood for most of the 19th century was about right.

Anyhow, Eldred v. Reno is on appeal: Limited copyright at least has a fighting chance.

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okeimockbird
Date: 04 Jan 00 - 12:47 PM

The second link above may no longer work, but I think this one will. T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From:
Date: 04 Jan 00 - 02:00 PM

I'd like to see a short absolute copyright period of 10 to 15 years, after which there be another 20 or 30 years with a limited copyright limitation, permitting not for profit use and suchlike.

Whether that ever happens depends on whether the people who stand to benefit from long restrictive copyright have more influence than the ones who stand to benefit from short and limited copyright. As so often it's a case of "they've got the money, but we've got the numbers".

At present the money wins out most of the time, because it's easier to bring the power of money to bear on judges and lawmakers than it is to bring the power of people, especially people who don't live in the USA. That can change however. It'll have to change, or we've all had it.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: McGrath of Harlow
Date: 04 Jan 00 - 02:05 PM

That last post without a name on it was from me. The reply boc at the bottom of the thread seems to have lost it's default sender-name-thingy. (I thought of signing this as you-know-who just to stir things up a bit and confuse people, but thought better of it.)

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Richard Bridge
Date: 04 Jan 00 - 06:13 PM

Life plus 50 was fairly good. My forst attempt to post was eaten by teh "dleete button bug" which takes a whole post out whn you correct. Just as well. I was rather cross.

Today, no money - no art.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 04 Jan 00 - 07:02 PM

No public domain = no art.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: SEAROSS
Date: 04 Jan 00 - 10:58 PM

So, how many authors and lyricists do we have here. Sonny Bono sponsored the extension to life plus 70, it also happened to match the Berne convention and other international agreements. I don't think you'll see it getting shorter anytime soon.

Of course for software it's likely to be totally obsolete well before that time, so maybe it should be patented instead of copyrighted.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Chet W.
Date: 04 Jan 00 - 10:59 PM

An interesting and often debated argument here, but I have to ask again, if I create something, be it a song or a plow or a plastic bag, you're saying I should have no right to a share of the money that someone else makes off of it, right? Under current laws, you can use my songs as much as you like as long as you don't make a profit. When you do, I'm entitled to a predetermined and very small percentage of it. This is somehow wrong? What about painters; Should we be able to enter their studios and snatch what we want? If you're going to bring up the poor venue operators that can't have music because of the yearly licensing fee, so we all have less access to art, somebody has been bullshitting you on that one. If a business can't afford that fee, it's on the verge of folding anyway and might as well go non-profit. What they're really doing is lying to you to get you to play for less or for nothing. So what is this right you have to my work? Is it a moral right, a spiritual right, a natural right? I'd really still love to hear, after discussing this subject a hundred times in this forum, an intelligent answer to that.

Chet

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 05 Jan 00 - 10:29 AM

As usual on the web, nothing in this post is legal advice or establishes a lawyer-client relationship. (I'm not even a lawyer).

All works of the human mind, by natural right, are the property of all mankind. They are, in justice Holmes' words, "as free as the air to common use".

As a pragmatic expedient, the public grants a temporary monopoly (a copyright or a patent) for a limited time, to the authors of certain classes of works of the mind. These gimmicks are arbitrary, temporary exceptions to the natural "free as the air" state of works of the mind. The ultimate aim of these state-granted temporary monopolies is to enlarge the public domain for the sake of the propagation of knowledge and the preservation of artistic and intellectual freedom. Everlasting monopolies (which are the objective of many of the copyright extension's supporters, as their own words prove) are as insulting to our ideas of equality and freedom as everlasting titles of nobility would be.

It is reasonable that someone who has contributed to the common store of knowledge should be paid, just as a contractor who builds a public road should be paid, perhaps by being allowed to collect tolls for a time. The privilege of collecting tolls may be considered to be analagous to a private possesion. But the road is, from the start, a publicroad.

The silly notion that "we should be able to enter artists' studios and snatch what we want" does not follow from the inherently public nature of works of the mind. The security of one's person, house and personal goods operates on the fundamental level of society; a violation of these is an attack on society itself. Copyrights operate on the administrative level of society; copyright infringement is more like moonshining than like theft. As I read, law that works on the administrative level doesn't (or anyhow shouldn't) ordinarily compromise the protection given by laws that operate on society's fundamental level. Copyright law recognizes this by requiring one to go to court to obtain relief, and by distinguishing the work from the physical copy of of the work. The work-in-itself is, and always has been, considered a distinct entity from any tangible chattel in which the work is incorporated. After the patent expires in a widget, you have a right to copy a widget that you have legally acquired, not to steal someone else's widget. After the copyright in a book expires you have a right to copy a book or picture to which you have lawful access, not to steal anyone else's copy of the book or picture. I consider this distinction so obvious that I am a bit peeved at having to expound on it here.

Someone once hinted that arguing for limited copyright disqualifies me from objecting to someone stealing my car. The absurdity of this argument should be obvious. A copyright isn't like a private car which you have bought with your own money. It's like a company car, lent to you for company reasons. For me to assert that the company shouldn't give you the company's car on terms that don't benefit the company has no connection to my right to a secure property in my own car, or your right to your own car.

Besides this there is the following concern: it is the copyright law, in the form of so-called "moral rights", that reaches into your house and tells you what you can and can't do with a painting that you have already paid good money for. As digital publication becomes ever more common, other provisions of the copyright law will allow plaintiffs, armed with court injunctions, to enter your house, sieze your computer, and copy all files from your disks. (This has already happened in at least one case). We may fairly question in whose minds concern for our right to be secure in our persons and property truly lies.

When the copyright extension was signed into law, I felt as if I had been a few years away from paying off the mortgage on a house, only to have the bank send punks with baseball bats who said, "That house you bought for a hundred thousand dollars ? We've decided it should have been two hundred thousand dollars. You owe us twenty more years of house payments!"

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 05 Jan 00 - 01:17 PM

As a qualification on one of SEAROSSs remarks, I wish to point out that the term required by the Berne convention, at the time the extension act was signed, was life plus fifty, and may still be. There was, and is, no outstanding treaty to which the US is a party which requires a term of life plus 70. As in the case of environmental and labor laws, so in the case of copyright laws "harmonization" and "trade" have begun to look like excuses for interested parties to push through legislation that can't be defended on the merits.

It is true that the European Union (not the Berne Union) changed to life plus seventy beginning in 1993 or so. This was supposedly in the interests of "harmonization" but even in this case "harmonization" was a fairly flimsy excuse. Most European countries at the time had a term of life plus fifty. So far as I know only Germany (life + 70), France(life + 70 at least for some copyrights), and Spain(life + 60) had longer terms. Spain had reduced its term by 20 years sometime in the past. My hunch is that Spain probably would have finally come down to life plus fifty. The life plus seventy term which was used in Germany and France had originally been justified as a temporary measure to allow rightsholders extra time to make up for wartime losses. Now, suddenly, this supposedly temporary extension has been declared an international standard!

The European extension is discussed in this book review by Richard Morrison.

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Chet W.
Date: 05 Jan 00 - 04:16 PM

Peeve on, my friend. "All works of the human mind, by natural right, are the property of all mankind." Since you don't cite a source for this philosophy, please do so. I'm not giving legal advice either, but if the above quote were subject to legal review, it would have to be deemed so vague as to be unenforceable and therefore meaningless. Your so obvious distinction between snatching paintings and taking intellectual property, which by definition cannot be made tangible in the same way, is not nearly so clear to me. If I choose (or it chooses me, as you like) to be a writer instead of a painter, then by "natural right" I lose all ownership of the produce of my own mind? What is the real distinction, sufficient to negate right of property, between paint on a canvas and words with music, other than the issue of tangibility? It is just that issue of tangibility that made copyright law seem necessary in just about every civilized (realized or unrealized) culture on earth, and just that incompatibility with "natural right" that makes it so difficult and culture specific. Of course I want my work to contribute to the overall wealth of ideas that benefit mankind, but to me, people who make such contributions should be treated with extraordinary respect and protection, as those contributions, in exalted cases of full artistic realization and the common comfort and edification of humanity are precious far above cars and $100,000 houses. The creators thereof represent us all. Do we truly want them to have less right to their creations than General Motors has to theirs? I am a teacher; All I have to sell is ideas, and I think that my job is extremely important. I'm not asking to be made Bill-Gates-rich because of it, but I hear all the time where some idiot is griping about teachers making more than burger-wrappers. For God's sake would they want to send their children to a doctor that was making minimum wage? But they are willing to financially humble those who work to enable their children's minds.

Free everything sounds like a sweet utopian ideal, but in a way that is awfully naive or at least inconsiderate in the extreme. A lot of things look good on paper or in the ecstacy of self-gratification, but they do not work out so well in real life. If I were not more polite, I would be moved to characterize the above post, with all its academic citations, as a "silly notion" that "peeved" me to rebut. But rebut I must, having butted already. How monumentally selfish.

Chet

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 05 Jan 00 - 04:45 PM

If Chet insists on misreading what I wrote, then he is entitled to nothing better than his own misunderstanding of my ideas. T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Chet W.
Date: 05 Jan 00 - 04:57 PM

Being ignorant, insensitive, and not all that intelligent, I guess I'll have to settle for that. Oh, to be a little smarter, that elusive shining prize!

Chet

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: arkie
Date: 05 Jan 00 - 05:32 PM

The copyright issue gets hashed and rehashed and the still nothing constructive will be done as long as the music industry sets its own rules and makes it own laws. The creative artist should get some financial reward when their work makes money. Publishers should be rewarded for their investment. What is happening now is that copyright payments are weighted toward charted mainstream, top selling music, meaning folk, bluegrass, and other artists who rely on independent recording sales and live performances collect little or nothing for their creative effort. All of the fees collected from live performances goes into the coffers of the collecting agency. Zip is shared with the writer. The extension of the copyright simply means that more artistic treasures will locked away in vaults until someone figures a way to profit from them. When my company asked if we could just pay for what we used, we were told no. We had to essentially pay for music we would never use. Practically everything done in our theater was traditional music. Yet we were required to pay a fee for the top forty. If folk, bluegrass, and other alternate music writers are ever going to collect a fair payment, some major changes need to be made in the way copyright fees are assessed.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 06 Jan 00 - 09:18 AM

Another Richard Morrison column which discusses, among other things, the misdeeds of copyright holders, can be found here.

arkie, this article by Harvey Reid suggests to me that other share your concerns about the music licensing system.

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 06 Jan 00 - 10:22 AM

Chet W, I apologize for losing my temper and questioning your motives.

If you might help me to understand the source of your vehemence, I might be able to sort out whether I have communicated my ideas clearly. You might still loathe my ideas afterward, but at least it will be my ideas that you loathe, rather than (as I suspect) some misunderstood versions of them.

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From:
Date: 06 Jan 00 - 11:08 AM

T, You've shown yourself the better man by coming to me before I came to you. I too let some things you wrote bother me more than it should. In full reality mode, what bothers me the most about this issue are the countless posts over the moral or otherwise propriety of copyright in general. It is such a complex issue and your description of existing laws and agreements was fine, but the initial philosophy that there is a natural right to any work of the mind is, to my mind, arbitrary and against the very basis of "natural law" (like don't kill me, don't take my food); I couldn't let it pass. I'll write more when I get home, but no harm done, and I'm sorry myself for getting out of hand.

Chet

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 06 Jan 00 - 11:37 AM

Oops. The words "free as the air to common use", which in my post of 10:29 yesterday I attributed to Mr. Justice Holmes, are in fact those of Mr. Justic Brandeis, in his dissent at International News Service v. Associated Press, 248 U.S. 215 (1918), (Brandeis, J., dissenting).

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: arkie
Date: 06 Jan 00 - 12:57 PM

Glad to see T and Chet make up. This is a sticky issue. One further word. If anyone thinks that the perpetual copyright legislation is to protect the product of a creative artist for the sake of the artist, then they must be incredibly naive. This is the work of the business end of the industry, the publishers and the licensing agencies, who will reap far greater profit than the person who created any musical piece. The name of the game is profit, power, and control. The only creativity of interest to them is with numbers and ledgers. I need some air.

E.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 06 Jan 00 - 03:00 PM

It may be of interest to the Mudcat that one of the foremost copyright scholars in the country, William Patry of Yeshiva University/Cardozo School of Law, agrees (as I read him) with arkie that U.S. copyright law has drifted from its constitutional purposes. Patry's opinion was stated in an article provocatively entitled, "The Failure of the American Copyright System: Protecting the Idle Rich", Notre Dame Law Review, Volume 74, Number 4 (May 1997), pages 907-933, from which I quote the following two passages. (The article was written in 1997, over a year before term extension passed, so it describes term extension as a "proposal", not as an accomplished fact.)

"Proposals...to extend the term of copyright an additional twenty years present us with a striking snapshot of how far adrift current copyright thinking is from the constitutional objectives. Instead of protecting authors, these proposals are heavily weighted in favor of distributors such as publishers. Instead if encouraging living authoris to create new works for the benefit of the public, term extension is being pushed by the estates of long deceased authors" (page 908)

"United States copyright law has failed of its essential purpose--to benefit authors--and is being shaped largely by powerful distributors and their lobbyists with the dual goals of extending a monopoly (in order to extract high prices from the public) while simultaneously depriving authors of as much money as possible (though they push authors forward, puppet-like, as the intended beneficiaries). In creating this system Congress has exceeded its authority under the Constitution, and unless checked by the courts is likely to transmogrify copyright from a vehicle for the promotion of learning into a form of business protectionism divorced from the creation of new works." (page 909)

arkie, are you the same as the "Arkie" with a capital "A" who sometimes posts to the forum ?

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Chet W.
Date: 06 Jan 00 - 03:58 PM

So, back again. I have no doubt, T, that your opinions and findings are, when citations are given as you usually do, based upon real law, convention, and experience. I even agree, as I must, that the artist does not profit from current law nearly as much as they should, and not nearly as much as the soulless publishers and licensing agencies. It's just that whenever this subject comes up, the concensus seems to be that we should do away with copyright protection altogether because somebody didn't get to play at Barnes and Noble's cafe because they said the licenses cost too much. What we should be advocating in terms of change, is that the artist receives more protection, and that a way be found around the money entities that do indeed wield way too much power. However, there does not currently exist an administrative or regulated commercial way of making this happen, and until there does, I would dearly hate for us to head in the direction of universal ownership of what is and must be primarily the property of the creators of songs. I can still make no distinction that makes sense to me between creating music and creating a painting. We of all people, who have a better than average idea of what it means to be creative, should be clamoring not for some socialist seizure of intellectual property, but for a more just and protected place for artists. We should, because we know how it feels and what it means, revere and teach reverence for the creative spirit that makes the rest of our or any other culture worth protecting at all. As far as how long that protection should last, I think the life of the author and maybe a surviving spouse is the least that is called for. Artists deserve extraordinary respect and care, for their work is more precious to all of us than just about anything else.

The current system is not good. Let's change it in a way that is fair. Let's not degrade the interests of creative artists, even if we have to live with the sadly unfair system that we now have.

Knowledge is power. Ideas are wealth. Don't be satisfied for anybody to steal them from anybody else.

Chet

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: arkie
Date: 06 Jan 00 - 05:53 PM

T - I'm one and the same. Just found another way to speed up the signature. Since the computer is so slow I need to cut corners here and there. Thanks for the post on Wm. Patry's observations. Had not seen the article, but sure is nice to see an articulate scholar addressing such problems. Was also moved by the piece that started this thread. Thanks for that as well. Chet - the creative artists certainly deserve payment for their product. On the other hand in many other areas of creation, except for music, there comes a point at which the personal or business ownership ceases. Even patents have a defined life span. Also, as the years wear on, less and less is paid to aging artists and their survivors since the focus of payments is on charted music. But the collection fees go on an on. Agencies collect for no other reason that ownership or a granted privilege to do so. To compare music to art is not quite the same. We do not pay by the look. Thirty cents everytime we view the painting. If Muzak or the radio is playing, however, while the painting is viewed a fee is owed to the licensing companies by the people who play the music and by the place which plays the music. While I think copyrights have been extended for too long a time, my real fear is what lies ahead if the power of licensing agencies and publishers is not checked.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: McGrath of Harlow
Date: 06 Jan 00 - 09:12 PM

I go down to the pub, I talk to my friends. Anyone can overhear what I am saying, copy it down, recycle it, do what they like with it.

Still down in the pub. I sing a few of my songs. Why is that so different? Or some of the words I say might be described as a poem. And we are supposed to stick a cage round the words so they become private property?

The only reason I can make a song is because I have heard other songs, and live in a world where there are other people I'm involved with.

One the most common things that people who make songs say is that you don'yt really make up songs half the time, you just seem to pick them up in mid-air, you find them floating past, and have the sense to grab them and hold on to them.

That can reasonably entitle you perhaps to some kind of finder's fee and privileges - but the idea that copyright should extend past the lifetime of the person who made up the song is simply ridiculous.

And the idea that someone can sell that kind of personal property to someone else, so that they might have to end up paying money in order to sing their own song - I find that slightly disgusting.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: sophocleese
Date: 06 Jan 00 - 10:30 PM

McGrath I agree the idea of having to pay anybody for the right to play my own tunes is absurd and even sick to my mind.I hadn't even thought of it until you brought it up. I have been reading this thread with interest but feel that anything I could say has already been said, usually better than I would do it myself. It has made me start to wonder about issues of copyright in Canada now and how they differ from the American model.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 06 Jan 00 - 10:49 PM

Chet, I don't have time just now to respond in detail. For now I hope it will be enough simply to state that in the tradition of U.S. law, copyright is a means to an end. To my mind, the best single word for that end is freedom. Such concepts as "ownership" and "property" are not fundamental to copyright as I view it, but are only incidental, and should be allowed into the language of copyright only as long as they don't obscure the ultimate goal of enhancing our knowledge and freedom.

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From:
Date: 07 Jan 00 - 07:46 AM

For the first time in my life, I'm about to PAY royalties on my own, as my first CD project will be finished in a couple of months. As a songwriter myself, but mostly as a performer, I have no problem with this; I am grateful for the use of the songs and I do not mind paying the 6 or 8 cents per song per copy to do so. The money I have received for my own songs over the years has never been enough to save my life, but it did come in handy on occasion and I also felt that it was a form of recognition and a compliment, although not necessarily given freely, to my work.

I don't know whether to continue this discussion, as we all seem to be settled. Just tell me, since my painter analogy fell completely flat, would you grant any protection to creators of intangibles, and if so, what?

Chet

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 07 Jan 00 - 09:42 AM

Chet W., I think copyright is the worst means of encouraging the arts, except for every other means.

More seriously: If you examine my post of 29-Dec-1999 10:38 AM above you'll see that I commented favorably on the old 42-year term for published works.

The question of the scope of copyright is tricky. For the most part I think rightsholders' lawyers have tended to overreach. On the other hand, some (though not all) of the music licensing provisions that were passed as the quid pro quo for the copyright extension seem to take a blunt-instrument approach to problems with the music licensing system. A bit more finesse would have been better, even if that would have made the scope of copyright in some circumstances slightly broader than under the rules that were actually passed.

Very generally, I tend toward a minimalist view of copyright. No more copyright, in duration or scope, should exist than is necessary "to promote science and useful arts". I am, however, impressed by an article by Neil Weinstock Netanel, "Copyright and a Democratic Civil Society", 106 Yale Law Journal 283(1996) which argues that copyright's purposes should be seen as supporting the existence of an independent writing profession, and for this one needs to extend copyright a bit beyond the minimum needed to encourage the creation of new works, though not to anything like the extent that the copyright maximalists desire.

I consider the extension of term for old works from 75 to 95 years, to have been nothing but a double-crossing act of greed--especially since the term of those old works was extended once already, from 56 years to 75 years, in 1978. A 95-year term is totally unnecessary even under the broadest reasonable interpretations of "promote science and useful arts" and "limited times" that I am willing to consider.

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 07 Jan 00 - 12:49 PM

McGrath of Harlow, your remarks remind me of something Thomas Jefferson once wrote: "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me." (Letter to Isaac McPherson, August 13, 1813). Jefferson was writing about patent law, not copyright, but I think the same principle applies to artistic expression as to inventions: light should be shared; your light doesn't darken me.

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 08 Jan 00 - 11:53 AM

Chet W., your painter analogy didn't "fall flat". We simply failed to communicate.

I make no distinction, for copyright purposes, between making music and making a painting; the law as it now stands operates on works of both types. The effect of the law, as I read it, is to create a legal distinction between two components of a created work:

(1) The tangible implementation--in the case of a painting, canvas and paint.

(2) The intangible work-in-itself--In the case of a painting this is the intangible picture, which can be thought of as existing in an abstract space perceptible to the human mind.

The copyright law (as usual, this is private opinion, not legal advice, does not establish a lawyer-client relationship, etc., etc.) further resolves component (2) into two sub-components:

(2.1) Uncopyrightable elements

(2.2) Copyrightable elements

Finally, the law creates a copyright, a set of temporary monopoly privileges over certain uses of component (2.2). Component (2.1) is made immediately "as free as the air to common use" (Justice Brandeis's phrase), and component (2.2) becomes free to all after the expiration of the temporary monopoly privileges. But what is free to all after the expiration of the copyright is the intangible component, the work-in-itself. Ordinarily this freedom to use component (2) doesn't give anyone any rights over component (1), a tangible chattel incorporating component (2). The same applies to a song or poem or novel. If the song is in the public domain we are free to print it or perform it or modify it in any way we choose--complete creative freedom! But public domain status doesn't entitle us to steal from anyone a tangible book containing the song. Public domain status of artistic expression is therefore perfectly compatible with the idea that our houses and goods should be secure from intrusion and unwanted alienation. When you put the question, "should we be able to enter [painters'] studios and snatch what we want ?" I understood you to be suggesting that public domain is somehow incompatible with tangible private property. Was this the point you were trying to make, or did I misunderstand ?

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Chet W.
Date: 08 Jan 00 - 05:49 PM

Yeah, I think that was it. Two art forms, one is a material object, one is temporal (music). Why should there be a difference? I want both (and all other) kinds of artists to enjoy the protection as well as the honor and respect they deserve (when they deserve it, but when they don't why would you want to sing their songs anyway, ne c'est pas?). Sorry I have guests and I've had several drinks at this point. Must get back. Pretty good spelling, eh? Chet

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Richard Bridge
Date: 08 Jan 00 - 06:55 PM

I am rushing, but I am a copyright lawyer. Remember that US coopyright law is not mirrored worldwide. Without copyright there would be no rich artists and even rich companies would be poorer. But copyright poses a problem because of the power of prohibition. There may be a case to be made for "domaine publique payante" after a certian time.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Chet W.
Date: 09 Jan 00 - 12:18 AM

Sure. Somebody said above that you don't have to pay everytime you look at a painting. Well, if you didn't, then somebody else paid for you, either the person that bought it or the museum that puts it up for you. These arguments seem so empty to me. I like a good intellectual debate, but sometimes that keeps the object of discussion out of bounds. Sometimes if you understand something on an intellectual level then you really understand only a very small, and occasionally insignificant, part of it. I mean the legal part is more or less cut and dried (relatively anyway) but I was trying to make an ethical argument. It makes me sick everytime I hear of a fine artist, one that contributed to our culture more than, say, Martha Stewart, that died broke or worse. Is that a value that represents us? If so, I think we could do better.

Chet

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: SEAROSS
Date: 09 Jan 00 - 01:33 AM

I may have misstated which convention it was, but there was international pressure on the US to extend the length of copyright protection. It may have been the WIPO, I would have to look up the file at work. We do follow copyright concerns closely because I work for one of those horrible money grubbing publishers, and we have to pay for using people's writings and artwork all of the time.

One of the distinctions that the current copyright law does make is to separate ideas and facts from the tangible copyrighted materials. What is protected is the individual's expression of an idea or organization of the data. If Mr. Gingrich and his cronies had had their way, all facts would have been granted in perpetuity to the first person to put a fact into an electronic database. (what fun to prove who did it first!) Fortunately, the Senate rejected his ideas after hearing from publishers and librarians, among many others.

Unfortunately, copyright is a business approach to allow the creative artist to make a living on his works, and those who die broke have not had the business sense to make that money themselves. I have 2 good friends that use their artistic talents to make a living. One of them has been hired by various comapnies to be the staff artist. He receives no residuals from his efforts and he sells his original art for virtually nothing or gives it away. The other sells his works and prints of them for enough to have supported his family and continues to be able to make money off of them and protects this with copyright control of his material.

Even in musics, remember Willie Nelson sold his song "Hello Walls" to Ray Price for $100.00. The song has been worth much more than that to Mr. Price.

Earlier in the string someone mentioned what you wish to do with something that you own, under the law you do have rights as first owner as to what you can do with something, as long as it does not compete with the artist's rights. If the artist wants to display his painting that you bought from him, he cannot do so without your consent

If you wish to express more serious concerns, the last round of legislation is not finished with copyright. The Libraian of Congress has been instructed to come up with new guidelines for certain classes of materials. Go to the Library of Congress web site (www.lc.gov) and follow the discussion and make comments to the people making the decisions.

Sorry about getting so carried away with this.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 10 Jan 00 - 01:11 PM

A "paying public domain" or a government-adminstered or audited escrow fund might be useful in cases where the copyright holder is not known. But as human beings we have a right to free expression, and that means we have a right to a full, unfettered, constantly expanding pure public domain in arts and literature. It is copyright, not the public domain, that needs to be justified, excused, and apologized for. We should not further compromise our overly compromised right to free expression by submitting to any paying public domain in addition to the already obscenly long copyright term. The term of copyright should be shortened to no more than life plus thirty years (if that), and any paying public domain should come out of the life plus thirty, not be added to it.

About a hundered and fifty years ago, Lord Macaulay characterized copyright--rightly--as "a tax on readers for the benefit of writers." Like many taxpayers I am willing to pay reasonable taxes for reasonable public purposes. I am not willing to pay exorbitant taxes just to line bureaucrats' pockets. In our lifetime, the tax known as copyright has increased steadily (in the form of term extensions), but I doubt that the increased revenue has benefitted writers as much as it has benefitted big corporations and other middlemen.

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From:
Date: 10 Jan 00 - 02:12 PM

Someone makes up a song, sells it for the price of a drink or a meal.The song goes on to be enormously successful, makes the owners a lot of money for many many years after the person who write the song has died penniless, without having made a penny more out of it.

Something wrong there surely.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 10 Jan 00 - 02:47 PM

Anonymous: The copyright law contains termination rights to help prevent what you describe. But the rules for termination, according to professor Patry, are even more complicated than the rules for renewal were under the old law. And the recent copyright extension law, as I understand, explicitly denies a second use of the termination mechanism to during the additional 20 years to those who have used it once to get a bite of the revenue derived from the previous 19-year extension.

In addition, Professor Patry writes that "music publishers, in testifying at the 1995 term extension hearings before the house and Senate, argued for the elimination of the [termination] provisions entirely." ("The Failure of the American Copyright System: Protecting the Idle Rich", Notre Dame Law Review, Volume 72, Number 4(May, 1997), pages 907-933, at page 922, footnote 75.)

That doesn't sound like a law designed to benefit authors.

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: sophocleese
Date: 10 Jan 00 - 03:00 PM

Okiemockbird, you lost me there. I can see your basic premise that a mechanism in place to protect authors was argued against by those wanting to extend copyright, thus shifting the group of people benefitting from copyright extension, but I don't know what termination rights are. Can you define them for me?

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 10 Jan 00 - 03:28 PM

sophocleese,

"In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions...[17 USC 203 (a)]....Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier [203(a)(3)]"

Got that ?

The gist, as far as I can make out, seems to be that, if author A, say, creates a work and sells the copyright to publisher B (other than by will), A or A's heirs can in theory recapture the copyright, subject to conditions and quailifications, by properly completing some complex paperwork during a five-year "termination window".

Pre-1978 works are covered under special provisions in chapter 3 of Title 17.

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Chet W.
Date: 10 Jan 00 - 03:41 PM

Gosh, T, after all this I finally learn that you are for longer copyright terms than even I have suggested, so we agree after all. I have learned a lot from you in this discussion, and I appreciate it. A "tax on readers for the benefit of writers" is something I could support, under the generous limitations we're talking here. If anyone wants to join in a cause to benefit the artists more than the various middlemen (publishers, galleries, etc) I'll be with you all the way. From what I've heard about Ireland, and I believe France, they seem to have priorities straight, in my way of thinking.

Chet

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: lamarca
Date: 10 Jan 00 - 06:26 PM

Copyright can be debateable even in the visual arts. Galen Rowell, the nature photographer, and several other published photographers took Costco to court over use of their images in Costco advertising without attribution or payment. Costco's defense, as I understand it, was that having purchased photographic prints from the artists, they were entitled to do what they wanted with "their" copy of the artists' work - including reproduction of it. I realize this is probably an oversimplification of the case, but it's all I understood from Rowell's description of it in Outdoor Photographer a couple years ago. I don't know how, or if, the case was decided.

The music industry has many examples of creators who no longer own the rights to their own creations - Michael Jackson buying the copyrights for much of The Beatles' work and selling it for use in advertisements is one example, and John Fogarty being legally enjoined not to play any of the music HE wrote for Creedance Clearwater Revival because he sold the rights to the record company is another. Extending a copyright in these instances gives no reward to the original creators, but a lot to the scavengers who would like to see the payback on their investments prolonged.

There needs to be some mechanism for giving legal protection and renumeration to the creators of "Art", whether written, visual or musical, but right now the copyright system seems to be heavily biased toward corporations and away from the actual artists themselves...

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: SEAROSS
Date: 10 Jan 00 - 07:51 PM

re:lamarca's comments

You do have a valid point, however the parties involved were reimbursed for their efforts. Jackson paid the Beatles millions of dollars for their songs. I'm sure Fogerty took some sort of quitclaim in return for those songs (David Guard took a lump sum in excess of $300,000 in 1961 in lieu of future revenues and agreed to not to sing the arrangements nor songs that he had written for the Kingston Trio. His former partners continue to collect the revenues from those songs even today.)

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 10 Jan 00 - 08:50 PM

Fogerty was sued for infringing a copyright of a song that he himself wrote. He eventually "won" in the Supreme Court Fogerty v. Fantasy, 1994), in the sense that the judges ruled in his favor. I don't know whether he considers the victory to be worth the disruption of his life and the expense he was put to.

Chet W., it is too strong to say that I am "for" a life-plus-thirty term of copyright. Life plus thirty is about the maximum life-based term for a published work that I am willing to admit is constitutional--assuming life-based terms are constitutional at all for published works, which I consider subject to doubts. But it's true that I consider strictly limited copyright to be a useful expedient to a society which wishes to encourage learning creative freedom.

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 10 Jan 00 - 08:52 PM

Oops, that should be "learning and creative freedom". Alwais profred.

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 10 Jan 00 - 09:04 PM

I hadn't remembered the case law quite right. Fogerty won in the district court on the question of infringement. What went to the Supreme Court was the district court's denial of his attorney's fees. The Supreme Court ruled that the denial of attorney's fees had been based on the wrong standard, and sent the case back down. I don't know if Fogerty was ever awarded attorney's fees. I'll try to check into it.

If in my post above substitute "court" or "district court" for "Supreme Court", and "judge" for "judges", you come up with what still amounts to a true statement: It was expensive and disruptive for Fogerty.

Sorry about the mixup.

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: T in Oklahoma (Okiemockbird)
Date: 11 Jan 00 - 02:07 PM

This piece by Steve Zeitlin, from the New York Times April 25 1998, may be of interest. It mentions Alan Lomax, Pete Seeger, and Woody Guthrie.

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: AKS
Date: 12 Jan 00 - 06:41 AM

I am growing more and more convinced that copyright protection period should not be else than the author's lifetime - if not less - ever.

And further, copyright should not be considered as 'transferrable property' (I mean that the author could choose to declare 'a product' as pd, perhaps to rent out or to licence it temporarily to someone else, but NOT to SELL it away). So the author, always, would be the one to say the final word whether her/his 'intellectual property' can or can not be used without paying royalties.

wishful thinking, I know, but still ...

AKS, Joensuu, Finland

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 12 Jan 00 - 12:44 PM

AKS, you just gave your location as "Joensuu". Once, at least, you gave it as "Pohjois-Karjala". Are these compatible references ? I guess that Karjala = Karelia. Is that right?. Is Joensuu a town in Karelia, or have you moved?

Speaking of Karjala, here is a link to the website of Prof. Dennis Karjala, an American law professor whose surname apparently derives from the place-name in AKS's country.

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 12 Jan 00 - 01:31 PM

sophocleese, here is an article about a recent termination-of-transfer filed by the heirs of one of the creators of the character Superman. Most of what the article says about the termination process is accurate, as far as I can tell. There is one point in the article, however, where an interviewee seems to imply that authors' heirs have termination rights for each of the two extensions (19 years + 20 years) of the renewal term. This is not the case. Heirs of authors of old works get exactly one chance to exercise termination rights, as far as I can make out. In any case, those who have already terminated to recapture a bite of the 19-year extension of 1978 have no right to terminate a second time to recapture the full value of the new 20-year extension, though they might arguably be able to capture a share of the last four years.

T.

Subject: RE: BS: 'Should auld copyrights be forgot ?'
From: Okiemockbird
Date: 14 Jan 00 - 09:35 AM

In light of SEAROSS's comments concerning the copyright and the WIPO treaty, the following might be of interest:

David Nimmer, coauthor with his late father of the influential treatise Nimmer on Copyright, some years ago wrote an article entitled "The End of Copyright", 48 Vanderbilt Law Review, October 1995, pages 1385-1420. In his article he states

"If indeed the new master of copyright is the world of international trade, if the events of last December [the enactment of the Uruguay Round Agreements Act] are sustained in a broad construction, then the Constitution must simply follow compliantly behind. Copyright today serves not the needs of authors nor even the popular good, whereby works are relegated to the public domain to become the heritage of all humanity and copyrigh is simply a temporary way station to reward authors on the road to that greater good. Instead of those goals, the balance of payments has become all-decisive. Whatever bows to that god is now worthy of implementation." (page 1416).

"Because copyright now serves as an adjunct of trade, were my father composing his treatise today, instead of in 1963, the most accurate title he could choose would be Nimmer on the Implementation withing the United States of Annex 1C to the Agreement Establishing the World Trade Organization. Mired in notions of marketing and reader recognition, the publisher has unaccountably refused to budge from the current title, Nimmer on Copyright, notwithstanding that it has become an anachronism." (page 1412).