Attacking Copyright

One of the big arguments fanficcers like to make is that copyright is too restrictive and that the rules should be loosened up. Once something is published, they argue, it should belong to the world.

The fanfic take on copyright is one championed, oddly enough, by proponents of Google’s effort to digitize books into their database. The New York Times ran a piece a week or two ago in which Wired contributor Kevin Kelly argued in favor a digital library that would make all books available for free to people around the world. He believes that the original purpose of copyright was to give authors an incentive to keep working, but that now that intent has been warped to benefit the commercial interests of corporations. Books, Kelly argues, should now become public domain shortly after publication for any derivative use you can imagine. On this issue, he wrote, in part:

But the 1976 law, and various revisions and
extensions that followed it, made it extremely difficult to move a work
into the public commons, where human creations naturally belong and
were originally intended to reside. As more intellectual property
became owned by corporations rather than by individuals, those
corporations successfully lobbied Congress to keep extending the
once-brief protection enabled by copyright in order to prevent works
from returning to the public domain. With constant nudging, Congress
moved the expiration date from 14 years to 28 to 42 and then to 56.

corporations and legislators were moving the goal posts back,
technology was accelerating forward. In Internet time, even 14 years is
a long time for a monopoly; a monopoly that lasts a human lifetime is
essentially an eternity. So when Congress voted in 1998 to extend copyright an additional 70 years
beyond the life span of a creator—to a point where it could not
possibly serve its original purpose as an incentive to keep that
creator working–it was obvious to all that copyright now existed
primarily to protect a threatened business model. And because Congress
at the same time tacked a 20-year extension onto all existing
copyrights, nothing–no published creative works of any type–will fall
out of protection and return to the public domain until 2019. Almost
everything created today will not return to the commons until the next
century. Thus the stream of shared material that anyone can improve
(think “A Thousand and One Nights” or “Amazing Grace” or “Beauty and
the Beast”) will largely dry up.

Sara Nelson, editor of Publishers Weekly, took exception to this and I agree with her views. She said, in part:

Such a suggestion, frankly, disavows the amount of work—the
amount of time!—it actually takes to create a book, not to mention the
lack of financial reward that comes, even in this era of inflated
advances, during that sometimes lifetime-long process. Why shouldn’t
generations of Joyces or Morrisons or, more pointedly, Richard Yateses,
benefit from the work that the authors scraped by to produce? Believing
that your book could become a source of enlightenment for generations
is a great thing, of course. Knowing that it might provide some comfort
for your own great-great-grandchildren ain’t such a bad incentive

[…]Yes, it’s hard to keep track of copyright, especially when
publishers (who, essentially, "lease" copyright from the author)
disappear and morph and merge, as they do […] But as books become digital files that
require few warehouse fees, and the whole notion of "out of print"
becomes moot, copyright should be similarly simplified: it should rest
with the author, or his descendants, for way longer than they both
shall live.

Your thoughts?

27 thoughts on “Attacking Copyright”

  1. I have never understood the appeal of writing or reading fan fiction. Also, contrary to Mr. Kelly’s argument, I do not believe that the classics he cites (“A Thousand and One Arabian Nights,” etc.) need to be improved upon.
    For me, though, the most chilling part is Kelly’s assertion that an author’s copyright constitutes a monopoly. In the strictest sense, I suppose that definition is correct, but Kelly’s word choice seems obviously intended to conjure up images of trusts and robber barons…greedy writers clawing for every penny they can get from poor, defenseless readers. Crap.
    It takes years of hard work to become a published writer, and even then the financial compensation (if any) may not amount to much. The last thing any of us need is to have to worry about is that our intellectual property will be sucked away into “the stream of shared material.”

  2. Although Mr. Kelly’s conclusions are wrong, his underlying premise is correct. Thus Ms. Nelson’s conclusion that “[copyright] should rest with the author, or his descendants, for way longer than they both shall live.” is not factually supportable.
    Here’s an edited version of a post I made on another forum a few months ago:
    The root of the problem is that we allow corporations to hold copyrights and we tie the term of the copyright to the life of the copyright holder. (e.g. life of the author plus 75 years.)
    This runs counter to reason copyright laws were created–to increase the creation of new works–because it removes the incentive; the work will remain copyrighted for as long as the company “lives” (read: is in business) which is essentially “forever”, especially when viewed from the company’s standpoint. (If you knew your meal ticket would last until you died, how motivated would you be to find a new one? Compared to if your meal ticket expired in ten years? In ten days? The counter point to this is: how motived would you be to create a meal ticket for yourself if someone else could take it from you immediately upon creation.)
    If I were king, the first thing I would do is abolish the “for the life of the author” clause in favor of a fixed term from the date of creation (or perhaps, from the first time the copyright is exploited). The second thing I would do is implement a sliding scale, maybe something along the lines of: 80 years for copyrights held by individuals; 40 years for copyrights held by partnerships, i.e. groups of individuals; and 20 years for copyrights held by corporations. (It seems logical to me that a corporation should have an easier time creating new works than, say, a group of three or four individuals, who in turn would probably have it easier than a single individual working alone.) This would reintroduce a temporal incentive in addition to maintaining the financial one.
    My 2¢ – Mark

  3. “The New York Times ran a piece a week or two ago in which Wired contributor Kevin Kelly argued in favor a digital library that would make all books available for free to people around the world.”
    Oh, really? Tried reproducing any NY Times pieces receently?
    You might be put off by this:
    Copyright Notice
    All materials contained on this site are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of The New York Times Company or in the case of third party materials, the owner of that content.
    Okay.. how about “legacy content?
    Guess what? You have to PAY to access copyrighted articles from the archives.

  4. Several points:
    The short duration of patents, seventeen years, is widely understood to be the reason for this nation’s technological brilliance and the constant improvement of our lives and the constant reduction of the costs of goods. (I remember when early TV sets cost a thousand 1950s dollars.)
    Many who favor almost endless copyrights are on the opposite side when it comes to patents and are very eager to see patents expire because of the obvious benefits to their wallet.
    I believe lengthy copyrights deaden literature and doom works to permanent obscurity. I have been toying for years with the idea of willing all my works to the Library of Congress with the stipulation that they be made available free and unhindered to any publisher.
    One of the most perverse twists in copyright/trademark law, now being done by heirs of well-known authors, is the trademarking of the name of the dead author. Thus, when an author’s work enters the public domain, a publisher must pay the heirs for the use of the author’s trademarked name, and cannot simply reprint the work even though the copyright has expired. The heirs of Ernest Hemingway and Zane Grey have engaged in this little game.
    I believe that technology is trumping intellectual property, and there will be no way to protect it in the near future. Royalties will be obsolete, and the only income that can be derived from intellectual property will be the initial payment for the work. Once it becames public, technological theft will swiftly render it valueless and make it available to anyone for very little.

  5. All this to protect Mickey Mouse from the public domain. *sigh*
    For every Joyce, Morrison, or Vonnegut there’s a million workaday authors whose books fall off the shelves and go out of print in their own lifetimes. The idea that most authors will be able to provide for their future offspring is, frankly, irrelvant to the point of being laughable.
    Those who hate Google’s efforts must despise libraries — or me, for that matter, when I take my copy of, say, The Man with The Iron On Badge and loan it to six of my friends. Those loans could turn into future sales. On the digital side, it’s a matter of scale. There’s a big difference to lending out a pulp copy to a half dozen friends and seeding copies to six thousand strangers on bittorrent. But I’m not convinced future sales wouldn’t scale there as well.
    As for those who want Mickey and his gang to be protected for ever and ever: Think about all the productions and reinterpretations of Chekov, Shakespeare, Arthur Conan Doyle, Bram Stoker, Jules Verne, et cetera that you’ve read, viewed, and enjoyed over the years. Think about a culture without *any* of those things at all, because that’s where we’re headed.
    I’m absolutely in favor of author’s capitalizing on their work, but not at the long-term detriment to the culture at large.

  6. “Why shouldn’t generations of Joyces or Morrisons or, more pointedly, Richard Yateses, benefit from the work that the authors scraped by to produce? Believing that your book could become a source of enlightenment for generations is a great thing, of course. Knowing that it might provide some comfort for your own great-great-grandchildren ain’t such a bad incentive either.”
    This is as inane of an argument as the other side’s position that no copyright at all will produce a utopian ideal.
    Listen, the public domain is a good thing. It’s a noble thing. The remixing and repurposing argument isn’t nearly as compelling as the idea of work being freely and widely available. Classic works of literature in cheap paperbacks may not be profitable for the dead creators’ descendants, but it makes it a lot easier for every student to actually READ them.
    How is scrapping that whole concept for the idea that your crack-addicted great-grandson can license the rights to your work in order to fund his habit a better solution? As each generation reproduces, will the royalty checks be carved up just that much more finely? And who gets to make the decisions when 27 great-great-grandchildren are spread out over 3 continents and have 27 separate ideas of what to do with the works they retain the rights to? Oh, right, no one does and the work fades into obscurity (along with the author) when no one gets to read it and everyone forgets about it.
    For a different take on this, try this post by Teresa Nielsen Hayden:The life expectancies of books
    Part of this whole argument over copyright extensions always seems to be a fear on the part of authors not of being improperly compensated, but of being forgotten. Unfortunately, we all die, and most of us eventually fade into obscurity, published or not. Being a devoted spouse, a loving parent, and a doting grandparent is going to go a lot further in having your family remember you fondly than being a revenue stream years after you’re dead. Trust me, to them, the money will be real (if there is any, and that’s not a given by a long shot), the creative person will be an abstract, and the creative works will be just means to an end (namely fur coats and dune buggies).
    (Oh, and as for NYTimes articles being behind a pay wall — does anyone know if the writers actually get any of that money when someone pays for their articles? Their families? Their estates? Or does it just go into the Times’s coffers?)

  7. Eternal copyright would be a very bad thing. I consider life+70 to be way too long as well.
    But a very short or nonexistent copyright period would be a mistake, too.
    I don’t have a pat answer, but it seems to me that copyright has become too restrictive in recent years. Documentarians have been having a heckuva time with it, especially.
    What needs closer scrutiny is not the length of the copyright period (which has set numbers and is easy to discuss) but the rules around fair use. I believe the fair use rules need to be loosened a bit.

  8. Current copyright law has nothing to do with legacies, hard work, or writers’ rights.
    It has everything to do with Mickey Mouse.

  9. Excellent points have been made in these comments. I agree with what Mark says about corporations. The rights of an individual to protect the products of his imagination are one thing, but to allow Mickey Mouse to be protected in perpetuity? Un-uh. I’m tired of corporate interests being given the same protection as human ones. Corporations are money-making machines. Think Cylons, folks. Can you imagine how expensive drugs would be if patents lasted forever?
    As to length of copyright, it makes sense to me that one immediate heir could continue to benefit, such as a spouse who depended in part on my income, but the newer time limits do seem excessive to me. Seventy years is a LONG time. If my writings are still read that far down the line (should they by some quirk of destiny be worth anything in the future), then I hope they become public domain before some relative I don’t even know and who might not give me the time of day if I did inherits the rights to them. (Is it obvious that I have no children? It gives me the freedom to consider all people in the future my heirs–after my hubby.) Let the kids write their own stories, and let the world have mine–if they want them.

  10. For me, though, the most chilling part is Kelly’s assertion that an author’s copyright constitutes a monopoly. In the strictest sense, I suppose that definition is correct, but Kelly’s word choice seems obviously intended to conjure up images of trusts and robber barons…greedy writers clawing for every penny they can get from poor, defenseless readers. Crap.
    It isn’t just Kelly’s assertion. Madison and Jefferson both refered to copyright and patents as monopolies when discussing the creation of the Constitution. So while the term may inspire us to think of trusts and robber barons, it is not without its own history in this debate.

  11. I might be mis-remembering my history, but wasn’t the original intent of the copyright system to strike a deal between Creators (who have a right to profit from their work) and Society (which benefits from having an enormous body of creative work that belongs to everybody)?
    IE, please do go ahead and write that novel. We, the government, will help you go after anybody who tries to sell your work without your permission. BUT in exchange for our help, at some point in the future, that book will go into the public domain.
    I don’t like the idea of weakening either side of that deal. When “information wants to be free!” neo-hippies demand that copyrights are fascist, they envision a fantasyland in which authors will continue to do high-quality and often expensive work, even in a world where you sell about ten copies of your new book before it’s available for free everywhere in the People’s Paradise. Whereas Disney et al believe that there really is such a thing as a completely original work, and that gosh, they came up with the idea for “Cinderella” all on their own.
    Still, it’s a complicated situation. When a book enters the public domain, it’s good news for that book. Would Mark Twain’s lesser books and essays be so widely available if his estate was the only entity capable of making them available?
    But the same isn’t true for recordings, for example, and movies in particular. What happens to the restoration movement when movies enter the public domain? Would Disney have invested so much time and money in restoring “Fantasia” if they knew that their $20 DVD would be sold next to $4 discs of the old, washed-out film, struck from a scratchy road print with missing scenes?
    Meanwhile, we have the Creative Commons license. People who want to give away their creations have a wonderful new solution…even if you want to give away some rights but not others.
    Let me make dough off what I write. Let my kids see some of that cash if (dear God please yes) my books are still making money thirty years after I’m dead. After that, it’s a land rush.

  12. When was the last time anyone here fired up their P2P application and looked for a bootleg ebook of the latest hot book?
    What will author’s lose if (big if) someone wants to take the time to scan their book and throw it onto the internet when it has been shown over and over that very few people like reading book length works on digital devices?

  13. Peter —
    Yeah, “ripping” a book isn’t nearly as easy as ripping a CD, but it’s done all the time…particularly sci-fi titles.
    And in the realm of comic books, it’s an enormous problem. New comics arrive in the shops on Wednesday and by Thursday, nearly every title from the Big Two publishers is available as a torrent somewhere.
    But that wasn’t the point. The point is that folks at the extreme end of this argument don’t simply believe that unlimited copyrights are wrong and that the system is in need of reform; they believe that the very concept is borderline-fascist and should be abolished. Literally, that you should be able to take any book, movie, or audio recording and distribute free copies to whoever wants them.
    Which is just plain nuts. It feels good intellectually, but anyone who thinks that it would have no impact on the quality of (books, albums, movies, software) is clearly a terrible chess player. No ability to see what will happen to the game board two or three moves later.
    Thankfully, it is indeed an extremist POV…but in life, it’s the extremists who shout the loudest.

  14. I’m most certainly with Andy on this one. Books have a different life cycle then movies and different needs when it comes to copywrite.

  15. I think the old system 28 years, renewable for another 28 was a good one. Books that no longer seemed to be worthwhile keeping protected went public domain pretty early while books that the copyright holder was still profiting from could be protected another 28 years.
    As to the New York Times, see Tassini v. NY Times. They’ve tried to insist that anyone who writes for them signs a work for hire agreement even freelancers in whose case that request is illegal.

  16. Based on a few quotes from Kelly’s article I read on your blog and elsewhere, I wasn’t going to read Kelly’s article because I was under the impression that it was the usual utopian gas about how digitization and ebooks will transform publishing.
    I have now read Kelly’s article and I’m glad that I did. It is a ctually a very reasonable piece.
    Nowhere does Kelly argue for the abolition of copyright. What he does argue for is some attempt to rationalise the concerns of authors and publishers with the reality that digitising content, including text, becomes easier all the time and therefore inevitable.

  17. Hey Peter. Are you related to Scotty Winkler, man? You’re probably cousins or something, right? Next time you see him, tell I’m still waiting for him to pay me back that forty bucks I loaned him in Tijuana. And you can tell him I know he didn’t need the whole forty ’cause that hooker didn’t charge that much anyway. I ought to charge him interest or something, man. I’ll probably have to get right up in his face and tell him I hope she gave him the clap. I’ll do it, man. I swear to God I will.
    I gotta go.

  18. First, I do think that copyright law (like all laws) should be reevaluated from time to time to determine if it is still serving its purpose. (Of course, courts do reevaluate it all the time.)
    Second, I think the comparison between copyright law and patent law is inapt. Getting a patent consists of both establishing that your invention or process is unique, non-obvious and useful (at least to the satisfaction of the Patent Office) and (2) explaining in detail how the subject is put together and used. You thus explain how others can do the same thing; but for 17 years you can sue anyone else who does without licensing it. None of that applies to copyright. And the technological-development incentive behind limiting patent protection is really not applicable to copyrighted literary works. (I’m not going to talk about computer program copyrights.) Since you can’t copyright ideas — only their embodyment — there’s hardly as much need to put literary works in the public domain as tech creations. The Lord of the Rings remains protected by copyright; that has not stopped authors from glutting the bookshelves with innumerable Tolkien-like fantasies.
    Third, while Disney and other studios have been behind elongation of the copyright protection, the laws still protect not only corporations, but individual creators (at least, those that don’t do work made for hire).
    Finally, copyright protection that outlasts the author’s life doesn’t just guarantee heirs a pittance; it theoretically gives creators something of value to license.

  19. Twenty-five years or so would be fine, as long as all derivative works must ask permission of the owner, whether they are ‘for profit’ or not. But the owner and the owner’s heirs should be allowed to extend that copyright for a significant time period after, even unto inperpetuity, if that’s what they want. There should also be a grace period for realizing the copyright has lapsed, or for setting up perpetual renewals. The owners should have the right to revoke the derivative privilege, if they wish.
    Thing is, it’s impossible to know if one’s work will remain popular for decades after the fact. We can pass down stocks, real estate and other tangibles to our heirs. Our published work should be no different.

  20. I believe all ownership laws are unfair. That’s why I have no problem with taking whatever I want from someone else’s house. I may narrow my scope to stealing only from fanfiction writers from now on, however. I’m sure they’d understand and not involve the authorities.

  21. I may narrow my scope to stealing only from fanfiction writers from now on, however.
    On taking a look around my flat, don’t bother breaking in, I’m sure if you want my dog-eared books and dusty ten-year-old TV I’m sure we could come to some arrangement. I suspect, though, it’ll cost you an international flight.


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