As with any worthwhile cause/fight, the CTEA has those who support it and those who oppose it. And when it comes to public domain, people who are somehow invested in intellectual property get pretty passionate.
Supporters of the CTEA were, unsurprisingly, copyright holders, especially entertainment corporations like Disney and artist estates. (Some people even called the CTEA the "Mickey Mouse Act" because Disney wanted to prevent old Mickey Mouse cartoons from becoming public domain works.) Opponents to the CTEA included libraries, scholars, researchers, and educators.
In the previous entry, I went over some of the reasons why Congress passed the CTEA. These were all reasons the proponents of the CTEA agreed with. If their creations (or their parents' or grandparents' creations or their corporations creations) were permitted to go into the public domain, the proponents would no longer benefit financially from them. Some proponents also argued that if these works were allowed to go into the public domain that they'd be converted from their original purpose into something perverse or unrecognizable. So in addition to the benefits of exploitation, the proponents wanted to maintain creative control over these copyrighted works.
Opponents argued that the continual lengthening of copyright terms meant that there was no limit to the time frame Congress could grant to copyright holders and their estates. The longer these terms became, opponents argued, the closer the U.S. slipped to perpetual copyright--something that would eliminate the addition of new works to the public domain entirely. Opponents also argued that the majority of copyrighted works were only profitable the first few years after they were created, and then either went out of print or otherwise became unprofitable. By extending the terms of copyright, these works were being kept out of the public domain--where they could potentially be discovered by others--for a longer period of time. Due to this limited period of profitability for most copyrighted works, opponents argued, there was little economic incentive for most people to have such a long copyright term. It only really made sense for corporations and franchises and for those wildly successful artistic works that are few and far between.
But the public domain doesn't encourage the creation of new works, argued CTEA proponents. The incentive to create new works lay in the fact that copyright protected the author's work (and paid off for the author's descendants) in the event that the work did become financially successful.
Opponents countered by saying that the public domain needed to be constantly replenished in order for artistic creation to continually flourish. Artists needed to be able to draw on previous works without fear of infringement. Besides, said opponents to CTEA, preventing works from going into the public domain is harmful because it prevents access to the many intellectual property works that are not famous or commercially exploited and that are not available for the public to access and use due to the extended copyright. Sometimes the copyright holders of these works die without an estate, or forget they even own a copyright, or just disappear. And many of these people's works become what is known as orphan works--works that are no longer in print or easily accessible to the public but that, due to copyright terms and extensions, aren't due to be in the public domain for who knows how long because no one knows if the holder is alive or dead. Orphan books are a fascinating chapter of copyright that I do hope I can explore more deeply in the future.
Another reason CTEA opponents clamored against it is that evolving technologies like the Internet and other forms of digital media mean that there are many more avenues for people to access intellectual property. Having a bigger public domain means that more material would be available to more people. But proponents of CTEA want to exploit these new media as new revenue streams.
Constitutional scholar Lawrence Lessig and electronic publisher Eric Eldred took the case that copyright extension was unconstitutional to the Supreme Court in Eldred v. Ashcroft. You can read more about the case here and an article by Lawrence Lessig here that explain more about it. Also good to read is the following article debunking the "myth" of public domain. (Be forwarned: it's long. Really long. And it has many footnotes. I wish I could share my humorous comments that I made on it throughout, but I have no idea how I'd upload a PDF on here.)
I honestly have much more to say about public domain and my thoughts on it. I believe that the public domain is a good thing, and I believe that having access to works such as orphan works is vitally important. I believe that evolving technologies are making the sharing of information so easy that to deprive people of works they should be able to access but can't is a detriment to society. But I also believe that the creators of intellectual property should have a right to benefit from their creations, and to allow their next of kin to benefit from them as well. So I hope that copyright terms are not extended again, because with people's longer life spans, that means that it will take even longer for works to reach the public domain. I am also glad for things like Creative Commons, which allows people to choose how much copyright they want to keep and to what degree they want to protect their work.
Clearly, there's much more to say, and I do hope to carry on this discussion about Creative Commons, orphan books, and online publishing and cataloging projects like Google Books. But I've actually decided to take this project in a different direction for the duration of the semester, and I hope you'll all join me for the ride.
For the remainder of my project, I've chosen to focus on how copyright affects authors. It's all fine and good to talk about all of this stuff theoretically (which I've been doing for the most part until now), but now I'd like to apply it in a very real context that is relevant to my career choice of publishing and that also applies to many of my readers and colleagues, who are authors or involved with authors themselves. I'll be examining some cases in publishing involving writers' rights issues and I'll be looking at copyright issues in the context of author contracts. I'll also take a look at subsidiary rights. Basically it'll be a look at the legal process that goes into making a book and the ecconomics of copyright. So my hope is that this will serve as a sort of go-to guide for people who want to know more about their rights as writers.
Once the project ends and I've completed this leg of it, I'll probably continue to read and post about some of the other issues I mentioned above, because they really do interest me, so I hope you'll all stay tuned...
Showing posts with label public domain. Show all posts
Showing posts with label public domain. Show all posts
Monday, July 16, 2007
Wednesday, July 11, 2007
So Why Extend Copyright Terms Anyway?
I’ve been absent from the blogosphere for the past week because I was on vacation, attending to birthdays and parties and weddings (oh my!), but during that whole time I found myself thinking and reading about public domain. Really! This week I’m playing catch up and will be posting entries more frequently.
Ah, public domain. There’s so much to say—so much so that I feel like I don’t even know where to begin. I know I outlined what it is in my previous entry and I touched upon the Copyright Term Extension Act (from here on out referred to as CTEA). But boy oh boy did that Sonny Bono ever open up a can of worms.
The CTEA is called the Sonny Bono Act because Congressman Bono was a big proponent and sponsor of extending the terms of copyright. In fact, his wife and congressional successor, Mary Bono, is cited as saying that Sonny wanted copyright terms to last “forever”—terms that would violate the Constitution, which only allows copyrights to exist for a limited amount of time. The CTEA extended the terms of copyright to life of the author plus 70 years (so they added 20 years to the already existing 50-year term) and they also retroactively applied copyright to things that would have gone into the public domain. Of course this pissed off a lot of people. Even though the Constitution gave Congress the power to extend the terms of copyright (as long as the duration of the term was “limited”), there were many people who were against this, for a variety of reasons. And of course there were many people who were strongly for the lengthening of these terms—mainly copyright holders, media conglomerates, and the descendants of successful creators. But before we look at these folks and their points of view, let’s examine why Congress extended copyright terms in the first place.
The United States wanted to match the European Union’s copyright terms. This wasn’t just a case of competition. American authors wouldn’t be protected by the European copyright terms of life plus 70 unless the American copyright terms matched. Plus, the United States has become a major exporter of copyrighted material, so Congress figured the United States should lead rather than follow when it came to copyright terms. It would also allow for more timely collection of payments owed to the United States for its exported copyrighted materials.
The United States also wanted to encourage further investments in existing copyrighted works. How does one further invest in an already existing work? Converting things into new formats. Think of all the movies that existed before the advent of the DVD player. A lot of those movies that were previously only available on VHS are now also available on DVD (and other forms of media that I probably don’t even know exist because I’m a technological troglodyte). That’s a further investment. Thus Congress was embracing the fact that the advent of new technologies meant new opportunities for the exploitation of existing copyrighted materials.
Congress also wanted to be sure that the descendants of creators got their fair share of profits from a copyrighted work. Since people now have longer life expectancies, Congress said, it only made sense to extend the terms of copyright so that the children and grandchildren of authors and artists could continue to earn revenues.
Congress also believed that extending the terms of copyright would encourage the creation of new works. The reasoning for this one hinges on the previous point of providing for one’s descendants. Artistic creators testified before Congress saying that knowing that the profits from their works would be available for a longer period of time to their next of kin would give them added incentive to create further artistic works. Knowing that a creator could benefit from his or her creation for a longer period of time would encourage more people to be creators, Congress reasoned, and thus the arts and sciences would progress. The extended term of copyright protection would thus encourage the creation of more works than would otherwise be created, and this would thus lead to an increased number of works that would eventually land in the public domain when the copyrights expired.
Since the Constitution never specifies the maximum duration of copyright term, simply that the term must be “limited” (that is, finite), in theory Congress could continually extend the length of copyright duration so that works take centuries to reach the public domain. And herein lies the problem that has raised a rallying cry from opponents—something we’ll cover next time when we examine the pros and cons of the CTEA and how it affects the public domain.
USEFUL LINKS
A site all about copyright extension: http://www.copyrightextension.com/
The Senate Report 104-315 CTEA (if you really want to read the whole thing…): http://thomas.loc.gov/cgi-bin/cpquery/R?cp104:FLD010:@1(sr315)
Ah, public domain. There’s so much to say—so much so that I feel like I don’t even know where to begin. I know I outlined what it is in my previous entry and I touched upon the Copyright Term Extension Act (from here on out referred to as CTEA). But boy oh boy did that Sonny Bono ever open up a can of worms.
The CTEA is called the Sonny Bono Act because Congressman Bono was a big proponent and sponsor of extending the terms of copyright. In fact, his wife and congressional successor, Mary Bono, is cited as saying that Sonny wanted copyright terms to last “forever”—terms that would violate the Constitution, which only allows copyrights to exist for a limited amount of time. The CTEA extended the terms of copyright to life of the author plus 70 years (so they added 20 years to the already existing 50-year term) and they also retroactively applied copyright to things that would have gone into the public domain. Of course this pissed off a lot of people. Even though the Constitution gave Congress the power to extend the terms of copyright (as long as the duration of the term was “limited”), there were many people who were against this, for a variety of reasons. And of course there were many people who were strongly for the lengthening of these terms—mainly copyright holders, media conglomerates, and the descendants of successful creators. But before we look at these folks and their points of view, let’s examine why Congress extended copyright terms in the first place.
The United States wanted to match the European Union’s copyright terms. This wasn’t just a case of competition. American authors wouldn’t be protected by the European copyright terms of life plus 70 unless the American copyright terms matched. Plus, the United States has become a major exporter of copyrighted material, so Congress figured the United States should lead rather than follow when it came to copyright terms. It would also allow for more timely collection of payments owed to the United States for its exported copyrighted materials.
The United States also wanted to encourage further investments in existing copyrighted works. How does one further invest in an already existing work? Converting things into new formats. Think of all the movies that existed before the advent of the DVD player. A lot of those movies that were previously only available on VHS are now also available on DVD (and other forms of media that I probably don’t even know exist because I’m a technological troglodyte). That’s a further investment. Thus Congress was embracing the fact that the advent of new technologies meant new opportunities for the exploitation of existing copyrighted materials.
Congress also wanted to be sure that the descendants of creators got their fair share of profits from a copyrighted work. Since people now have longer life expectancies, Congress said, it only made sense to extend the terms of copyright so that the children and grandchildren of authors and artists could continue to earn revenues.
Congress also believed that extending the terms of copyright would encourage the creation of new works. The reasoning for this one hinges on the previous point of providing for one’s descendants. Artistic creators testified before Congress saying that knowing that the profits from their works would be available for a longer period of time to their next of kin would give them added incentive to create further artistic works. Knowing that a creator could benefit from his or her creation for a longer period of time would encourage more people to be creators, Congress reasoned, and thus the arts and sciences would progress. The extended term of copyright protection would thus encourage the creation of more works than would otherwise be created, and this would thus lead to an increased number of works that would eventually land in the public domain when the copyrights expired.
Since the Constitution never specifies the maximum duration of copyright term, simply that the term must be “limited” (that is, finite), in theory Congress could continually extend the length of copyright duration so that works take centuries to reach the public domain. And herein lies the problem that has raised a rallying cry from opponents—something we’ll cover next time when we examine the pros and cons of the CTEA and how it affects the public domain.
USEFUL LINKS
A site all about copyright extension: http://www.copyrightextension.com/
The Senate Report 104-315 CTEA (if you really want to read the whole thing…): http://thomas.loc.gov/cgi-bin/cpquery/R?cp104:FLD010:@1(sr315)
Thursday, June 28, 2007
Public Domain: What Is It?
Public domain. The term makes me think of a sprawling public space, like Boston Common, except instead of being covered in grass, dog poo, and panhandlers, it’s covered in ideas. Piles of books, stacks of DVDs, painted canvases spreading as far as the eye can see, all for the taking. And in essence, this image is a somewhat accurate manifestation of what public domain actually is.
So what is it? I like to think of it as the happy hunting ground where intellectual property goes after its copyright has expired. But instead of the intellectual properties going there to die, they are instead experiencing a sort of rebirth—a second life. Because intellectual property that’s in the public domain is available for anyone to use, in any capacity, with no infringement repercussions. And works that have entered the public domain can’t be copyrighted again, either. So it’s all there for the taking.
As a lover of all things literary, I find the concept of public domain fascinating. I just wish there were a better term for it. For some reason, the word “public” conjures images of dilapidated facilities that have grown shabby after years of use by the masses, something that has been devalued due to overuse. Really public domain is a hugely important thing. If the copyright on intellectual property never expired, the copyright owners and their estates would basically have a monopoly of control on that piece of work, which could potentially limit or eliminate the public’s access to it. Imagine if Shakespeare’s plays were under copyright, and his descendants charged exorbitant sums for anyone to publish or perform his plays. How many less people would know and appreciate his works? Think of all the different editions of Shakespeare’s plays currently available, and all the times his plays are performed around the world. How would this be possible if his work were protected by a copyright that never expired?
The duration of copyright has changed throughout the years, progressively becoming a longer and longer term. Currently in the U.S., the terms of copyright protection are life of the author plus 70 years (for most works, but exceptions include work-for-hire, anonymous/pseudonymous works, and works by corporate entities*), and this is the same for Berne Convention countries. Those plus-70 years alone are a pretty long time, let alone the addition of however many years the author is alive. The current terms of copyright also mean that a person needs to know a little basic arithmetic in order to determine when a work’s copyright has expired and it has become public domain. It all comes back to Sonny Bono (yes, that Sonny Bono) and Mickey Mouse.
The Sonny Bono Copyright Extension Act of 1998 warrants its own entry exploring the pros and cons of its passage, as it has raised a great deal of debate about the nature of copyright and the constitutionality of extending copyright. For now, I’ll just say that it’s the act responsible for extending copyright to life plus 70 years for post-1978 works. Works published before 1978 also received a second renewal term of 67 years, up from the previous 28 years, and the renewal became automatic. It’s all pretty confusing to figure out when what expires and how long something is protected, so here’s a breakdown for works published in the U.S. (This confusion, of course, is somewhat of a given since as we’ve already learned, nothing involving copyright is ever simple.)
Works are in the public domain if they were:
• published before 1923
• published between 1923 and 1978 without a copyright notice
• published between 1978 and March 1, 1989 without a notice and without subsequent registration
• published between 1923 and 1963 with notice but the copyright was not renewed
Works are protected for 95 years after the publication date if they were:
• published between 1923 without notice but the copyright was renewed
Works are protected for life of the author plus 70 years if they were:
• published between 1978 and March 1, 1989 without notice but with subsequent registration
• published between 1964 and 1978 with notice
• published between 1978 and March 1, 1989 with notice
• published after March 1, 1989 with no conditions necessary
So that’s a basic rundown of what public domain is and how to figure out when a work’s copyright expires. In my next entry, I’ll talk about the proponents and opponents and pros and cons of the Copyright Term Extension Act (CTEA).
*COPYRIGHT EXCEPTIONS
Works for hire, works held by corporate entities, works under a pseudonym or published anonymously: term of copyright is 95 years from date of first publication or 120 years from date of creation, whichever comes first.
FOR FURTHER READING
Complete Copyright: An Everyday Guide for Librarians by Carrie Russell. This book is awesome; it explains everything in plain language, has lots of sidebars of information, and it also includes all these anecdotes about a group of librarians and their copyright woes.
The Sonny Bono Copyright Term Extension Act: http://www.copyrightextension.com/page01.html
So what is it? I like to think of it as the happy hunting ground where intellectual property goes after its copyright has expired. But instead of the intellectual properties going there to die, they are instead experiencing a sort of rebirth—a second life. Because intellectual property that’s in the public domain is available for anyone to use, in any capacity, with no infringement repercussions. And works that have entered the public domain can’t be copyrighted again, either. So it’s all there for the taking.
As a lover of all things literary, I find the concept of public domain fascinating. I just wish there were a better term for it. For some reason, the word “public” conjures images of dilapidated facilities that have grown shabby after years of use by the masses, something that has been devalued due to overuse. Really public domain is a hugely important thing. If the copyright on intellectual property never expired, the copyright owners and their estates would basically have a monopoly of control on that piece of work, which could potentially limit or eliminate the public’s access to it. Imagine if Shakespeare’s plays were under copyright, and his descendants charged exorbitant sums for anyone to publish or perform his plays. How many less people would know and appreciate his works? Think of all the different editions of Shakespeare’s plays currently available, and all the times his plays are performed around the world. How would this be possible if his work were protected by a copyright that never expired?
The duration of copyright has changed throughout the years, progressively becoming a longer and longer term. Currently in the U.S., the terms of copyright protection are life of the author plus 70 years (for most works, but exceptions include work-for-hire, anonymous/pseudonymous works, and works by corporate entities*), and this is the same for Berne Convention countries. Those plus-70 years alone are a pretty long time, let alone the addition of however many years the author is alive. The current terms of copyright also mean that a person needs to know a little basic arithmetic in order to determine when a work’s copyright has expired and it has become public domain. It all comes back to Sonny Bono (yes, that Sonny Bono) and Mickey Mouse.
The Sonny Bono Copyright Extension Act of 1998 warrants its own entry exploring the pros and cons of its passage, as it has raised a great deal of debate about the nature of copyright and the constitutionality of extending copyright. For now, I’ll just say that it’s the act responsible for extending copyright to life plus 70 years for post-1978 works. Works published before 1978 also received a second renewal term of 67 years, up from the previous 28 years, and the renewal became automatic. It’s all pretty confusing to figure out when what expires and how long something is protected, so here’s a breakdown for works published in the U.S. (This confusion, of course, is somewhat of a given since as we’ve already learned, nothing involving copyright is ever simple.)
Works are in the public domain if they were:
• published before 1923
• published between 1923 and 1978 without a copyright notice
• published between 1978 and March 1, 1989 without a notice and without subsequent registration
• published between 1923 and 1963 with notice but the copyright was not renewed
Works are protected for 95 years after the publication date if they were:
• published between 1923 without notice but the copyright was renewed
Works are protected for life of the author plus 70 years if they were:
• published between 1978 and March 1, 1989 without notice but with subsequent registration
• published between 1964 and 1978 with notice
• published between 1978 and March 1, 1989 with notice
• published after March 1, 1989 with no conditions necessary
So that’s a basic rundown of what public domain is and how to figure out when a work’s copyright expires. In my next entry, I’ll talk about the proponents and opponents and pros and cons of the Copyright Term Extension Act (CTEA).
*COPYRIGHT EXCEPTIONS
Works for hire, works held by corporate entities, works under a pseudonym or published anonymously: term of copyright is 95 years from date of first publication or 120 years from date of creation, whichever comes first.
FOR FURTHER READING
Complete Copyright: An Everyday Guide for Librarians by Carrie Russell. This book is awesome; it explains everything in plain language, has lots of sidebars of information, and it also includes all these anecdotes about a group of librarians and their copyright woes.
The Sonny Bono Copyright Term Extension Act: http://www.copyrightextension.com/page01.html
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