Re: copyright term arguments again

On Mar 19, 2010, at 6:07 AM, [email protected] wrote:
>
>    Posted by: "joseph harris" [email protected] joe9438
>    Date: Thu Mar 18, 2010 4:19 pm ((PDT))
>
> Marion,
>
> As always your answers are very interesting. But here your answers  
> look conflicted.
>
> There is a major difference between getting the best from any  
> current moment, and having a fair system. As I read your answers I  
> find you switching between, and while you offer some justifications  
> it is not really answering me. I'm going to try to make this clear  
> below.

Actually, I am switching between practical implications and ideal  
justification, as I see BOTH as relevant. I didn't label it as such,  
because I figure we're all bright boys and girls, and I don't want to  
insult your intelligence, but you're quite correct here.

>>>
>>> Underlying this is the question that Americans usually dodge. Why is
>>> the work of the pen any less property than anything else that a
>>> person makes.
>>
>> I don't think it is. But I know that many people see ideas as
>> something that should be shared, and extend this to artistic and
>> literary works.
>
> Copyright does not cover ideas. There is no prevention to the  
> sharing of ideas. I have yet to see how this is put forward seriously.

And neither do I -- but that's the reason that most objections by the  
general public boil down to, unless they're simply "I want to" in  
disguise.

> Copyright and term were no problem at all. If my argument holds,  
> then the issue of property establishes?

As far as I can see, IP is indeed property. Like many forms of  
property, though, there is a societal good to be had in restricting  
the rights of the owners. In this case, we have agreed, for centuries,  
that there is a good to be had in limiting the term of copyright.

In particular, most rights holders are impossible to find (or next  
thing to it) after a decade or two. They die, their heirs move, no  
one  was designated as literary executor in the first place, . . . .  
and the work is locked up until it hits public domain. Sometimes  
finding the author in order to deliver this period's royalty checks is  
next door to impossible. I've had more than a few of those.

This doesn't usually matter, as I tell novice publishers all the time.  
There are millions of alternatives to choose from and you can almost  
always find another that meets your needs, but it's still not doing  
anyone any good.

>
> But you say this:
>
>> --Most books, whether trade or not, are dead in the water after 2  
>> or 3
>> years, so 10 is plenty to cover that.
>
> As though it supported shorter term. You know better than I do that  
> there can be 1001 reasons for the short life of many. Also that a  
> failed book is quite capable of revival decades later

CAN, but it's rare.

>
> and
>> --Offering an option to renew allows those who want to extend their
>> control to do so, and keeps the contact database updated.
>
> Which is merely a sneaky opt-in - opt-out argument.  You concede it  
> is (probably) property; but then you want a licence of ownership  
> renewal? And how does anyone actually and realistically check?

In the US, you can already determine which books are under copyright  
by checking with the Copyright Office, if I understand correctly. I've  
never been an acquisitions editor, but ours never had any difficulty  
with that when we were doing older reprints.

> This doesn't answer it:
>
>> --Eternal copyright really does represent an expensive and extensive
>> requirement for database management, if those who wish to use old
>> material are to be able to ask permission.
>
> That lovely database dream! It ain't practical; and who cares in any  
> way what the db problem is. It is a tail wags dog arguemnt.

I repeat, we already HAVE a database, and I'll bet that the UK does,  
too. Not only that, but it's a publicly run one. It's just not very  
accurate when books are more than a few years old, as no one remembers  
to update their contact info. So it's not a dream at all to have one.  
And, we have the Copyright Clearance Center, where rights holders  
already register, and keep updated, what permissions they will grant  
for things like course packs, and how much they want for them.

This is just a minor extension of current practice, and it's quite  
fair: if you want to keep control of, and exploit, your own property,  
you need to keep your information updated so that you can be found.

If you own land, and you don't update your information in the property  
tax database, you lose the land. What is the difference in fairness?

>
> should be treated as abandoned property.
>> --Most societies have some way of treating abandoned property,
>
> Continuance of title is no problem at all. Dealing with truly  
> unatributable material requires no change in anything, except  
> application of exisiting property laws!

That's not true. It IS a problem, and it's a problem for many  
different kinds of property. If you abandon your car, and no one can  
find you, the car is seized. If you abandon your land or building,  
it's seized. And these are high worth items, especially compared to  
most IP, and ones that are hard to forget that you own, and hard for  
society to lose track of who owns it and where you are. Practically,  
IP is much more loosely tethered to the owner, and of much less import  
in most cases.

As a matter of fairness: if you can't be bothered to keep track of  
your rights, and let others find you, why should society care either?  
I'm not talking about a Google-style grab, but a reversion to a  
shorter term. I really don't see how a term of life plus 70 is useful  
for the owners of the vast majority of works. For most works, the  
shorter term is plenty, and it puts a limit on the amount of data  
tracking we're asking our governments to do.

>
>>> Marion suggests a ten year copyright term. But this immediately
>>> introduces the need for sets of definitions that are vital to
>>> writers and publishers. When does the ten years start?
>>
>> At publication, or if never published, at the earliest date that can
>> be proven for its existence in the current form.
>
> The new term of 'current form' is unexplained

As in whatever "fixed form" it is that's being registered, or claimed,  
as the basis for the copyright. But, as a practical matter, and for  
the sake of fairness, I'd like copyright to extend to 10 years from  
first publication automatically, and to be extendable in 10 year  
increments for as long as the rights holders want. If it's still in  
use, and they still want it, I'm not at all sure that there's any  
societal good, or practical reason, that we should yank it out from  
under them.

>
> And what if your budget means you can renew OR reprint/update? And  
> why should my work be updateable by someone else?

Renewing copyright has never been a budget breaker. Even in the US,  
even now, initial copyright is $30, IIRC, and renewals were always a  
matter of filling in a form (which could be done online, these days).  
This is a straw man.

> Here, though, your argument really collapses. Apart from my  
> objections about permission to use your own work, isn't infinite  
> renewal worse that life plus 70?:

Yes, it is, if you're looking at it with covetous eyes, from outside.  
But as you said, it's property. And we don't take property away from  
owners who are tending it, unless there's a really vital need. Eminent  
domain is a last resort, or it should be.

What good is served by seizing, say Mickey Mouse? Do we really need to  
be able to do mashups of it? I grant you that Disney's lawyers and  
negotiators are sharper than sharks teeth, and that they not only reap  
full value from the licenses they grant, and make sure that they don't  
overlap, but that they also reject a lot of uses as likely to impair  
the value of the properties as a whole, but is that harming society?

And even if they weren't using it, and didn't want anyone else to do  
so, that's true of many other types of property. If the owner of a  
pristine forest refuses to lease or sell, that's their right. And most  
of us would be quite understanding of that right.
>
snip
> asking why only US experience is 'publishing' in a modern  
> interconnected world?

It isn't. It is, however, the only area I can discuss in detail, from  
personal knowledge. And it's also the largest publishing ecology in  
the world, by a significant margin.


> If the argument is *for* culture*, then the need is for those who  
> perfect their vision to be able to charge prices that will enable to  
> their next version of perfection.

No one, ever, to my knowledge, has forced the use of a certain price  
point by the publisher. Bookstores, however, buy those books, and  
charge whatever they darn well please, in free markets like those in  
the US and recently in the UK. Amazon wants that same privilege, but  
is having to negotiate some of it away.

READERS are the ones, though, who determine what price points fly off  
the shelves, and which sit there until they're returned.

>
>
> Who decides pricing,
publishers set list, booksellers set the sticker, and readers decide  
whether or not it's worth buying. Demand and supply all the way. And  
that's WHY publishers have settled on those "standard" prices, as I  
suspect you already know.


> who decides ownership

Society through the legislature. And, quite frankly, ownership, like  
money, is all a fairy tale we have jointly decided to live in. It  
works well, and we like it in here, but we could, as a group, decide  
to live in a different one.   That would be cataclysmic, of course.  
But minor tinkering is an adjustment of something that we have all  
invented together, and is NOT like messing with a law of physics or  
chemistry.

> , who actually owns the property?

We all get to decide what the rules are, and then follow them. It's  
not written in the stars, but by us. It's something we can change to  
make our world run better. But, if we're to work by analogy with the  
rules we already have, and which we have thrashed out over millennia,  
as the ones that work best, then I would say that the creator owns the  
work, and can determine what use it's put to. Then his or her or their  
heirs own it. And that continues until either society changes the  
rules, or the owners abandon it.

NB: setting something down as you carry in your groceries isn't  
abandoning it. Parking your car isn't abandoning it. Neither is  
keeping a book out of print, or out of a given format, abandoning that  
right. But leaving all rights to it lying around for years, and then  
not being findable at your last registered location, that MIGHT be  
considered abandonment. The analogy is a house that's shuttered and  
unused for years. If the authorities try to contact the owner, and  
cannot, and the taxes go unpaid, then it will be seized and held as  
public land.


Marion Gropen
Gropen Associates, Inc.
By-The-Question Consulting,  Tools for Publishers, & Classes
www.GropenAssoc.com
Her blog: www.GropenAssoc.com/blog





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