Narnia Fanfic issue highlights the stupidity of lengthened copyright

[GP Hudson]

Putting a long limitation on the copyright at least gives the family estate the chance to filter out the truly horrible money grabbers until at least a generation has passed.

A generation is generally reckoned at 30 years. Life+50 gives more than that, plenty.

Life+95 is 3+ generations. That's excessive, even by your own argument.

I couldn't disagree more. I would like to see Life+200 if not more.

I know someone whose family is living off the work of his great grandfather. The great grandfather built a hugely successful business and the family has been reaping the rewards for generations, and will continue to do so for generations to come.

So, why is it ok for the founder of a corporation to provide this wealth for his heirs, but not for a writer? What gives anyone, other than the writer, the right to impose limits on how long a writer's estate can benefit from his/her work?

This is not a good analogy. Corporations have limited copyright terms as well. The corporation that's still making money is doing it on the basis of ongoing commercial activity, not old copyrights.

What's the difference? If the book is still making money then that is ongoing commercial activity.

[Bill Hiatt]

Putting a long limitation on the copyright at least gives the family estate the chance to filter out the truly horrible money grabbers until at least a generation has passed.

A generation is generally reckoned at 30 years. Life+50 gives more than that, plenty.

Life+95 is 3+ generations. That's excessive, even by your own argument.

I couldn't disagree more. I would like to see Life+200 if not more.

I know someone whose family is living off the work of his great grandfather. The great grandfather built a hugely successful business and the family has been reaping the rewards for generations, and will continue to do so for generations to come.

So, why is it ok for the founder of a corporation to provide this wealth for his heirs, but not for a writer? What gives anyone, other than the writer, the right to impose limits on how long a writer's estate can benefit from his/her work?

This is not a good analogy. Corporations have limited copyright terms as well. The corporation that's still making money is doing it on the basis of ongoing commercial activity, not old copyrights.

What's the difference? If the book is still making money then that is ongoing commercial activity.

The difference is that intellectual property rights, unlike other property rights, have traditionally had a limited life span. In fact, it took them a while to be acknowledged as property rights at all. In Shakespeare's time, there were no copyright laws, which explains those bad quarto versions coming out without his permission. The first copyright act was enacted in 1710. The length of the term was 14 years, and the same legislation included price controls to prevent authors from charging too much.  Other property rights, by contrast, have protections dating back to ancient times.

The difference is that a vigorous public domain enriches society in many ways, which is one of the reasons for that limit. See the references in my previous point. Other forms of property ownership don't operate in the same way.

The difference is that the longer the term of ownership, the higher the probability that some works, through orphaning or confusion about ownership, will become lost altogether. Again, there's no parallel with other forms of property.

You may not have noticed this upthread (and who could blame you for not reading the whole thing), but the impetus behind lengthening the term comes, not from people like you and me, but from large corporations, who want to be able to control material they create, buy, or license forever. These changes are not about authors making life more comfortable for their heirs, and it's doubtful to what extent they would have that side effect. They're totally about perpetual corporate control--even if that control means just sitting on work to prevent someone else from making a few bucks by publishing a public domain edition.

At the risk of repeating myself, it's likely a moot point for the overwhelming majority of us, anyway. Even while we're alive, our works get what visibility they have from our continued publishing endeavors and from our advertising. If we aren't alive to keep publishing new works, in most cases our titles will quickly sink out of sight. The irony of this whole conversation is that the few authors for whom that won't be true--people who, whether trad or indie, have works that sell like crazy--should be able to invest enough to keep their heirs comfortable. Invest enough, and your family could still profit indirectly from your work for many generations. Don't have much money to invest from your writing? Then realistically, that probably means the value of your catalog will not long outlive you. It certainly won't outlive you by 95 years or more. 

[GP Hudson]

Putting a long limitation on the copyright at least gives the family estate the chance to filter out the truly horrible money grabbers until at least a generation has passed.

A generation is generally reckoned at 30 years. Life+50 gives more than that, plenty.

Life+95 is 3+ generations. That's excessive, even by your own argument.

I couldn't disagree more. I would like to see Life+200 if not more.

I know someone whose family is living off the work of his great grandfather. The great grandfather built a hugely successful business and the family has been reaping the rewards for generations, and will continue to do so for generations to come.

So, why is it ok for the founder of a corporation to provide this wealth for his heirs, but not for a writer? What gives anyone, other than the writer, the right to impose limits on how long a writer's estate can benefit from his/her work?

This is not a good analogy. Corporations have limited copyright terms as well. The corporation that's still making money is doing it on the basis of ongoing commercial activity, not old copyrights.

What's the difference? If the book is still making money then that is ongoing commercial activity.

The difference is that intellectual property rights, unlike other property rights, have traditionally had a limited life span. In fact, it took them a while to be acknowledged as property rights at all. In Shakespeare's time, there were no copyright laws, which explains those bad quarto versions coming out without his permission. The first copyright act was enacted in 1710. The length of the term was 14 years, and the same legislation included price controls to prevent authors from charging too much.  Other property rights, by contrast, have protections dating back to ancient times.

The difference is that a vigorous public domain enriches society in many ways, which is one of the reasons for that limit. See the references in my previous point. Other forms of property ownership don't operate in the same way.

The difference is that the longer the term of ownership, the higher the probability that some works, through orphaning or confusion about ownership, will become lost altogether. Again, there's no parallel with other forms of property.

You may not have noticed this upthread (and who could blame you for not reading the whole thing), but the impetus behind lengthening the term comes, not from people like you and me, but from large corporations, who want to be able to control material they create, buy, or license forever. These changes are not about authors making life more comfortable for their heirs, and it's doubtful to what extent they would have that side effect. They're totally about perpetual corporate control--even if that control means just sitting on work to prevent someone else from making a few bucks by publishing a public domain edition.

At the risk of repeating myself, it's likely a moot point for the overwhelming majority of us, anyway. Even while we're alive, our works get what visibility they have from our continued publishing endeavors and from our advertising. If we aren't alive to keep publishing new works, in most cases our titles will quickly sink out of sight. The irony of this whole conversation is that the few authors for whom that won't be true--people who, whether trad or indie, have works that sell like crazy--should be able to invest enough to keep their heirs comfortable. Invest enough, and your family could still profit indirectly from your work for many generations. Don't have much money to invest from your writing? Then realistically, that probably means the value of your catalog will not long outlive you. It certainly won't outlive you by 95 years or more.

When I asked what the difference was, I meant that in regards to this statement you made: "The corporation that's still making money is doing it on the basis of ongoing commercial activity, not old copyrights." Since a book that is still being bought and sold is an "ongoing commercial activity" I maintain that it should not be treated differently than someone who has inherited shares of a corporation, or any other form of property for that matter. If I pass down my house to my kids, and they pass it down to their kids, who pass it down as well, and this keeps going, there may be some practical problems, but there is no expiry as to how long ownership lasts. Regardless of how copyright law was enacted, the point is intelectual property is still property and should not expire, even if someone thinks it should be part of the public domain. Whether a corporation buys those intellectual property rights or not is irrelevant. Property is property, whether that property is made up of bricks, or shares, or notes, or words on a page.

[bardsandsages]

I would be perfectly fine with copyright simply being reduced to life of creator, though I would also like to see the reduction in time coupled with stronger protections for creators while they are alive.

In all seriousness, patent rights expire after 20 years (or less, in certain cases) but the copyright on a book lasts author + 70.

I believe that creators have the right to profit from their own work, and we need stronger protections to make sure they are the ones that profit from the efforts. But I also think the current copyright term is excessive.

[Tom Wood]

Disney is the single most potent company that is driving the copyright extension periods. They really, really, really do not want Mickey Mouse to pass into the public domain. They have a lot of very smart lawyers working on this topic, so I think it's wise to assume they have a solid strategy.

I've noticed that the Mickey Mouse head and ears are a recurring theme in their marketing. That's a smart strategy because they can claim trademark status, which has no expiration date.

For books, I think it would be wise to write a series with a legitimately unique series name, and then trademark that name. For example, Harry Potter is forever a legitimate trademark even though the books themselves will eventually pass into the public domain.

[Bill Hiatt]

When I asked what the difference was, I meant that in regards to this statement you made: "The corporation that's still making money is doing it on the basis of ongoing commercial activity, not old copyrights." Since a book that is still being bought and sold is an "ongoing commercial activity" I maintain that it should not be treated differently than someone who has inherited shares of a corporation, or any other form of property for that matter. If I pass down my house to my kids, and they pass it down to their kids, who pass it down as well, and this keeps going, there may be some practical problems, but there is no expiry as to how long ownership lasts. Regardless of how copyright law was enacted, the point is intelectual property is still property and should not expire, even if someone thinks it should be part of the public domain. Whether a corporation buys those intellectual property rights or not is irrelevant. Property is property, whether that property is made up of bricks, or shares, or notes, or words on a page.

Let's agree to disagree.

You certainly have the right to argue that intellectual property should be treated as the same way as every other type of property. There is no question, however, that legally it isn't currently the same and never has been.

It's worth noting that other forms of property rights aren't absolute, either. Yes, you own your home, and hypothetically, that home could be passed down over an infinite number of generations. In practice, however, if the government decides a freeway needs to run through that area, then that property is going to be taken through eminent domain. Yes, you will be compensated, but you won't have the ability to say no. The underlying philosophy in such a case is that the public good sometimes outweighs the rights of individual property holders. And that's exactly the philosophy behind public domain for intellectual property. Please refer to the links in my previous post for examples, but I'll include one quote here from the David Bollier article:  "Though rarely acknowledged, the public domain has always been critical to new creativity, the progress of science and technology and the vitality of our democratic culture."

As far as the relevance of corporate ownership is concerned, wasn't your whole point that people should be able to provide for their heirs indefinitely? Well, trad pubbed authors whose books are under the increasingly common life-of-copyright contracts are really providing more for their publisher, who may or may not be doing anything so long after the author's death to justify their big piece of the pie. And there's really nothing to prevent the publisher from taking the works out of print or at least neglecting them to death. The longer the publisher holds those rights, the more likely an outcome that is. Similarly, the further removed from an author the heirs are, the less likely they are to know anything about publishing. Even if the author is indie, the heirs may not have clue one about how to handle that literary legacy. It's not hard to hold on to stock and collect the dividends. It's not hard to sell a house and get fair market value for it. It's considerably harder to keep a literary catalog going. It's fairly likely a lot of heirs in that situation would fall victim to corporations making seemingly good deals that really weren't. That assumes the literary catalog has maintained value enough for corporations to bother exploiting.

But for me, that's really a critical point--most of our catalogs won't retain value to the end of the current copyright period, much less forever. We'd all love for our books to be read for centuries to come, but given the way visibility works in this industry and the rising tide of books, that just isn't practical. As I've said before, in most cases, catalogs that aren't maintained by advertising, but especially by new releases, will quickly vanish beneath the waves. There will be a few exceptions, of course, but most of won't generate royalties indefinitely. So why are we spending so much energy worrying about the fact that our heirs won't be making anything on our books when they go into public domain. News flash--most of our heirs will stop making money on our work long before that.

[TimothyEllis]

But for me, that's really a critical point--most of our catalogs won't retain value to the end of the current copyright period, much less forever. We'd all love for our books to be read for centuries to come, but given the way visibility works in this industry and the rising tide of books, that just isn't practical. As I've said before, in most cases, catalogs that aren't maintained by advertising, but especially by new releases, will quickly vanish beneath the waves. There will be a few exceptions, of course, but most of won't generate royalties indefinitely. So why are we spending so much energy worrying about the fact that our heirs won't be making anything on our books when they go into public domain. News flash--most of our heirs will stop making money on our work long before that.

You're making a lot of assumptions here about the future. We don't know what the future will bring.

If in a few years time, Amazon is seriously challenged and pay to play gets dismantled as a result, the whole ballgame changes again. You're making the assumption this wont ever happen. Amazon wont last forever, and what takes over may work totally differently or return to what Amazon used to be.

Nothing in books stays the same for more than 6 months, so making any prediction about how well catalogs will do in the future is pointless.

I'd rather lean on the side of protection of assets, rather than assume the asset will vanish.

[Bill Hiatt]

But for me, that's really a critical point--most of our catalogs won't retain value to the end of the current copyright period, much less forever. We'd all love for our books to be read for centuries to come, but given the way visibility works in this industry and the rising tide of books, that just isn't practical. As I've said before, in most cases, catalogs that aren't maintained by advertising, but especially by new releases, will quickly vanish beneath the waves. There will be a few exceptions, of course, but most of won't generate royalties indefinitely. So why are we spending so much energy worrying about the fact that our heirs won't be making anything on our books when they go into public domain. News flash--most of our heirs will stop making money on our work long before that.

You're making a lot of assumptions here about the future. We don't know what the future will bring.

If in a few years time, Amazon is seriously challenged and pay to play gets dismantled as a result, the whole ballgame changes again. You're making the assumption this wont ever happen. Amazon wont last forever, and what takes over may work totally differently or return to what Amazon used to be.

Nothing in books stays the same for more than 6 months, so making any prediction about how well catalogs will do in the future is pointless.

I'd rather lean on the side of protection of assets, rather than assume the asset will vanish.

It's true that we can't know the future for sure. But unless self publishing dies, it's hard to imagine that visibility for works of long-deceased authors will suddenly become greater. (And if self publishing dies, maybe our catalogs will simply poof out of existence.)

The truth is that historically the works of most authors either vanished completely or diminished substantially in value after their deaths. Of course, the exceptions are the ones that we remember. But those exceptions are a tiny percentage of the total number of books published. This is not a phenomenon caused by Amazon or by any other modern development. Nor can I think of any likely scenario in which all books will magically remain discoverable in perpetuity. The ebook format may enable them to stay in print--though even that isn't a certainty--but as the number of ebooks multiplies, visibility is bound to decline regardless of how the system operates. Publishers (and self publishers) will invariably be pushing new books, won't they? That doesn't mean that no one will ever stumble across an older one that isn't a classic, but it means that such sales will be few and far between. So maybe once every three thousand years enough royalties will accumulate for my heir to buy a cup of coffee. Is that really worth fussing over?

I'm not saying the copyright term should be shortened. I'm just not an advocate for extending it into infinity as GP Hudson appears to be. The public domain has value for society that outweighs the value most literary works will have for heirs generations after the author's death. (Ironically, some of the older literary gems we do still remember are only in print now because they became public domain.)

[Post-Doctorate D]

The public domain has value for society that outweighs the value most literary works will have for heirs generations after the author's death. (Ironically, some of the older literary gems we do still remember are only in print now because they became public domain.)

How much of that is more due to clarity of rights rather than the work being in the public domain?

I've used public domain materials before.  If you use works before 1923 (might have been 1922 or 1921 when I started), the rights were clear.  Unless the work was first published outside the U.S., material published before 1923 was clearly in the public domain.  So, the rights were easy.

For works first published in the U.S. from 1923 to 1969(?), the copyright had to be renewed every 28 years or something.  So, you would have to research the work to see if it was renewed.  And that was not easy.  It wasn't like you could go online and look it up in an online database.

Far easier to use material first published in the United States from before 1923 (or 1922, 1921, etc.) where the work was clearly in the public domain, so there was no question of rights.

And sometimes works are forgotten not because they aren't public domain, but because the rights aren't clear.  Who owns them?  Did any heirs even realize there was intellectual property in the estate?  Who got the rights?  So, if you wanted to license a work to use for something, who would you contact about getting a license?  Or, maybe, who would you contact regarding buying the copyright?

One solution might be, well, after x number of years, it becomes public domain, then you don't have to worry about rights.  And that might have been a useful way of managing things back in the old days of paper records that might take years to go through and research who owns what.  And it was.  Researching copyright records for works first published in the U.S. from 1923 to 1969 can be a royal pain.  Easier to use the stuff from prior to 1923.

But, now we have computers and huge hard drives that can store hundreds of thousands of records, millions of records even.  And, you can buy racks of hard drives that can store millions more plus maintain backups.  So, the more modern solution may be to keep better track of rights ownership in a robust copyright database.  Any time ownership changes, perhaps the law would require a change of copyright ownership be filed to update the database.  That way, the ownership and rights are clear.

Then better train the public to be as aware of intellectual property as they are of physical property.  Plenty of people know to riffle through grandma's goods to look for stuff they can sell on eBay; how about making sure they know to see what intellectual property she may have created?  Creators should make sure wills cover their intellectual property; in case where there was no will, perhaps public education or resources for executors ought to train them to search for intellectual property so the copyrights can be assigned to an heir, sold or otherwise handled.

If finding the copyright owner is easy, if it's easier to find a contact person to inquire about licensing, then copyrighted materials can be as useful as public domain materials.

[Bill Hiatt]

The public domain has value for society that outweighs the value most literary works will have for heirs generations after the author's death. (Ironically, some of the older literary gems we do still remember are only in print now because they became public domain.)

How much of that is more due to clarity of rights rather than the work being in the public domain?

I've used public domain materials before.  If you use works before 1923 (might have been 1922 or 1921 when I started), the rights were clear.  Unless the work was first published outside the U.S., material published before 1923 was clearly in the public domain.  So, the rights were easy.

For works first published in the U.S. from 1923 to 1969(?), the copyright had to be renewed every 28 years or something.  So, you would have to research the work to see if it was renewed.  And that was not easy.  It wasn't like you could go online and look it up in an online database.

Far easier to use material first published in the United States from before 1923 (or 1922, 1921, etc.) where the work was clearly in the public domain, so there was no question of rights.

And sometimes works are forgotten not because they aren't public domain, but because the rights aren't clear.  Who owns them?  Did any heirs even realize there was intellectual property in the estate?  Who got the rights?  So, if you wanted to license a work to use for something, who would you contact about getting a license?  Or, maybe, who would you contact regarding buying the copyright?

One solution might be, well, after x number of years, it becomes public domain, then you don't have to worry about rights.  And that might have been a useful way of managing things back in the old days of paper records that might take years to go through and research who owns what.  And it was.  Researching copyright records for works first published in the U.S. from 1923 to 1969 can be a royal pain.  Easier to use the stuff from prior to 1923.

But, now we have computers and huge hard drives that can store hundreds of thousands of records, millions of records even.  And, you can buy racks of hard drives that can store millions more plus maintain backups.  So, the more modern solution may be to keep better track of rights ownership in a robust copyright database.  Any time ownership changes, perhaps the law would require a change of copyright ownership be filed to update the database.  That way, the ownership and rights are clear.

Then better train the public to be as aware of intellectual property as they are of physical property.  Plenty of people know to riffle through grandma's goods to look for stuff they can sell on eBay; how about making sure they know to see what intellectual property she may have created?  Creators should make sure wills cover their intellectual property; in case where there was no will, perhaps public education or resources for executors ought to train them to search for intellectual property so the copyrights can be assigned to an heir, sold or otherwise handled.

If finding the copyright owner is easy, if it's easier to find a contact person to inquire about licensing, then copyrighted materials can be as useful as public domain materials.

Those are good suggestions, though educating writers and their heirs isn't going to be a process that works overnight. It might take years to get to the state that you're talking about. And having dealt with the (I assume undermanned) copyright office, I'm not confident that changes in copyright ownership are going to be recorded as fast or as meticulously as you suggest.

There's also the problem of the recalcitrant copyright holder. When It's a Wonderful Life was rotting in the studio vaults, the problem wasn't that nobody knew who the rights holder was. Everyone knew it was the studio. The studio just wasn't interested in doing anything with the movie. Had it not reverted to the public domain when it did, it would have been lost forever.

Perhaps that issue could be addressed by a requirement that the copyright holder has to keep the creative work in circulation. For instance, a requirement that if a book was out of print for x number of years, rights would revert from the publisher to the heirs, and if it was still out of print in y more years, then the rights reverted to the public domain. Self published works would have a somewhat different timetable. Of course, someone would need to police that. I suspect that's one reason authorities on the public domain are reluctant to give up the concept. We can imagine other ways to maximize the social value of works, but they require more government effort. Maintaining the public domain requires no government effort.

[bardsandsages]

Perhaps that issue could be addressed by a requirement that the copyright holder has to keep the creative work in circulation.

That is how Trademark works. If a mark is taken out of use, it loses its status as a mark. Compared to other forms of intellectual property (trademark, patents) copyright's excessive length is sort of ridiculous. I don't want anyone crying for the pharmaceutical industry, but does it really make sense that a company can spend $1,000,000 creating a breakthrough drug for cancer and only have a 20 year patent, but anything written down regardless of distribution or expense is protected automatically for author life PLUS 70 years?

[Guerin]

Correct me if I am wrong, but I believe after the Copyright Act of 1998, or as it is better known, the Mickey Mouse Protection Act, the copyright for an individual author went from life+50 to life+70, not life+95. This same act increased the copyright of corporate authorship from 75 years to 120 years after creation, OR, 95 years after publication, whichever comes first.

I believe the original article that was posted is incorrect. I believe that this book, The Lion, the Witch, and the Wardrobe, was copyrighted by a corporation, some authors do form their own LLCs or even write for big companies, and will not be in the public domain until 2045. The author of this book died in 1963. If the copyright had been filed for by the individual author, it would enter the public domain in 1933.

I don't have a problem with life+70 for an author. That seems reasonable to me and not much of a change from life+50. We still have a few years before Mickey is at risk, I think that happens in 2024, so let's wait and see what happens.

[Bill Hiatt]

Perhaps that issue could be addressed by a requirement that the copyright holder has to keep the creative work in circulation.

That is how Trademark works. If a mark is taken out of use, it loses its status as a mark. Compared to other forms of intellectual property (trademark, patents) copyright's excessive length is sort of ridiculous. I don't want anyone crying for the pharmaceutical industry, but does it really make sense that a company can spend $1,000,000 creating a breakthrough drug for cancer and only have a 20 year patent, but anything written down regardless of distribution or expense is protected automatically for author life PLUS 70 years?

I wouldn't mind seeing legitimate patent terms be longer. The problem we're now seeing is with "patent trolls" who manage to patent an idea without the means or intention to ever develop it. They make their income from suing others who try to develop a related idea and/or by charging exorbitant license fees. That can be a real drag on innovation. It seems to me that patent terms should end if there has been no development over x number of years, but I wouldn't at all have a problem with a longer term for someone who is genuinely developing an idea.

I feel somewhat the same about copyright. Doing nothing but sitting on a copyrighted work isn't helping anyone, including the rights holder. I could see a system with relatively long terms for actively used material but termination in the event the work is no longer available for more than x years.