Re: Re: will everyone concerned about copyright please read this

On 9/21/2011 8:02 PM, joseph harris wrote:

> Books are of so many types, and enter so many niches, that it is
> extremely difficult to see trademarks offering much protction [sic].
> Especially where the point is that the form of words used does have
> value - this applies to both fiction and non-fiction - and only
> copyright, so far, offers protection of that. We might consider poetry
> in that light. Apart from the endless sagas of long ago most poetry is
> fairly short and succinct - that is in fact largely its point.
> Trademarks would offer no protection.

You have apparently missed the point, which is not that trademark law 
and copyright law are alternatives, but that they each deal with a 
certain scope of the problem. If you want to profit from controlling 
publication of a work, use copyright. If you want to profit by selling 
your "brand" to a game company, use trademark. Figure out what you want, 
then choose the right tool to do it. Licensing your copyright to a game 
company so they can build a game from it is like driving a screw with a 
hammer: you can do it, but you may not like the results.

[snip]

> Your general point might be true for the US, but you should also note
> that the Berne Convention, signed around 1989 by the US, requires the
> recognition of copyright law of other countries for works from those
> countries. The derivatives concept is fully established in practically
> all Berne countries [170 or so]. It would be difficult for the US courts
> to provide adequate protection for foreigners under Berne, and deny that
> same Berne protection to US authors.

Ahh, but luckily I live in the United States, so I don't have to worry 
about Berne. In the Berne Convention Implementation Act of 1988 the U.S. 
Congress declared that the Berne treaty was not self-implementing, and 
that they deemed the provisions of that act to completely satisfy the 
demands of the treaty. So long as I satisfy the requirements of U.S. 
law, I'm golden. If citizens of other countries don't like our laws, 
that's their problem, not mine.

[snip]

> I agree that a sequel would hardly be a derivative work if it was the
> product of the same author. Fan fiction is, however, breach of
> copyright;

A conclusion unsupported by evidence, and therefore inadmissable. Can 
you point me to a United States court decision that supports that assertion?

[snip]

>> So, if you're trying to profit from publication of a work, you want to
>> turn to copyright law. If you're trying to profit from the brand created
>> by the publication of a work, turn to trademark.
>>
>
> Yes, I'd certainly agree with that. Though I'm under the impression that
> much branding on products can be covered by copyright.

And I think that impression is incorrect. Let others judge for themselves.

> It is a pity that the US clung to registration, especially as
> it tied the right to go to court and a timely condition on damages to
> that registration.

It's a pity that the U.S. had to give up registration just to comply 
with Berne, as the U.S. courts, in a long line of cases, have uniformly 
praised registration and notification requirements as part of the 
balance between the rights of copyright holders and the rights of 
copyright consumers. Non-registration and non-notification seem to me to 
be a recipe for either anarchy or tyranny.

> The real goal of writers is to receive decent payment for their efforts,
> without having to bow to any form of patronage.

Well, you don't always get what you want. U.S. law is not designed to 
assure that writers receive decent payment for their efforts, it's 
designed to give writers the incentive to continue producing by offering 
them a limited, artificial monopoly on publication in the hope that they 
might be able to exploit it effectively.

In the 21st century, the effectiveness of that limited monopoly may no 
longer be sufficient to prompt writers to write (although there seems to 
be no shortage of new writers even in this brave new world). If so, 
perhaps some alternative to traditional copyright may need to be enacted 
(although I cannot support further criminalizing infringement, and 
pressing unsuspecting third parties into service as gendarmes). I 
suspect that there is no shortage of creators who would gladly give up 
copyright for /any/ form of reliable patronage. Maybe we need some sort 
of social safety net where taxes are used to subsidize authors. But I 
don't support inventing some new sort of property right so authors can 
claim that a story is just like a car.



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