Concepts of Copyright

Concepts of Copyright

You are a reader.

What books you have to read depends, to a large degree, on copyright.

If there was no copyright protection, arguably, a lot of existing books would suddenly become available to you for free.

One of the questions, though, would be how it would affect future books.

Could someone make a living writing books if anyone could reproduce them and sell them with nothing paid to the author?

It is possible.

People might make a point of paying the author to support them.

Many people, though, wouldn’t, of course.

The USA didn’t invent copyright…it was at the least inspired by England’s Statute of Anne. America’s copyright came about 80 years afterwards, but even the idea that copyright belonged in the courts was derivative.

The copyright clause from 1787 explains the reasoning this way:

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

There was a lot of discussion of the clause at that time…and the discussion still goes on today.

The way it is written, it doesn’t say anything about a natural right to the copyright…that authors should own their creations because they created them.

It says it is to “promote the Progress”: I think we can safely say that means to encourage the production of new works.

With that idea, it goes basically like this:

“Authors will not create if they can’t have compensation for having created their works, so we offer them protection for a limited time.”

After that, the works then become available to everybody.

How long should that term be?

That’s where some of my readers, have a very definite idea.

I respect these readers a great deal, and am…impressed by their passion.

I wanted to take a post to explore this a bit more.

First, I do want to bring up one thing that to me seems quite weird.

In much of the world, including the USA, the copyright term is based on the author’s life plus a certain number of years.

I’m open to a lot of things, but I particularly don’t like that one.🙂

It seems inherently ageist and unfair, and I’m surprised that there haven’t been legal challenges to it.

It’s simple.

If you publish a book when you are 90 years old, and the copyright term is Life+70 years (which it is in the USA right now), you and your estate will be able to make a lot less money on it than if you published it when you were 20.

People also talk about Life+70 as being designed for the author’s kids to become mature adults.

So, should a childless author get a shorter copyright term?

The other reason I don’t like life+ systems is it makes it much harder to tell if something is in copyright or not. You can’t just look at the publication date and know.

My readers haven’t proposed that change (to a finite term), by the way.

I think a finite term would tend to “promote the progress”. Some books take a considerable amount of time and effort to create, especially some non-fiction. While a 90 year old might have the same passion to create as a 20 year old, the money they could get for the book would be less…because the publisher would have a shorter time to make money.

If there is a finite term, how long should it be?

Ah, there’s the rub.😉

Proponents of shorter terms (as short as fourteen years) may believe that we have a shared culture. They may point out that, if Shakespeare was still under copyright, poorer people would have less access to it.

I think that’s a reasonable point…I read a lot of public domain works which I got legally for free.

However, those of lesser means can read in-copyright books now…through public libraries and donations, often from the publishers.

When I’ve explored the idea of permanent copyright (which would require amending the Constitution, so it’s very unlikely), I have suggested that, in exchange, greater Fair Use rights would be made available. I would allow the use of copyrighted books for scholastic study without compensation, for one thing.

Let’s ignore permanent for now.

What would be different if copyright was fourteen years versus if it was fourteen hundred years?

With the fourteen year term, you would be able to read a book published today for free in about a decade and a half.

That sounds good…but it seems obvious to me that publishers would have to do something different to make anything like the same amount of money they make now.

One option would be to charge a lot more money for the book. If a book can sell for, oh, one-fifth the amount of time it can now (at least, sell with compensation to the publisher), one could hypothetically charge five times as much for it to make the same amount of money.

That, of course, doesn’t work very well.🙂

You wouldn’t sell the same number of copies.

Let’s go with $10 as a price for a new e-book novel (you can pay a lot less than that, of course, but we are really looking at the traditional publishing model right now). If the book cost $50, would as many people pay for it?

Nope.

Would piracy also increase?

Very likely.

Licensing might also tighten. We have what I consider to be quite generous licensing terms right now from the Kindle store. Typically, six people on the account can be reading the same book at the same time for one purchase price (what you are purchasing is a license). You could have 100 people (or more) on the account, and they could all read the same book…just, usually, not all at the same time.

If the rights are for a much shorter time, I would expect them to want to crack down on “serial reading”, where one person (or set of people) read the book, then another person does. I expect that my descendants can read my ebooks…clearly, with a fourteen year term, that’s not going to happen as much the same way. They’ll read the books for free.

As a purchaser, the value of the book goes down considerably if it’s only good for a relatively limited time…why not wait?

The value comes in reading it before other people, and while it is “hot”.

It becomes a luxury.

The value has gone down in terms of multiple readers with shorter terms, which could drive down the price, but the prestige has gone up, which could drive up the price.

Read the current Stephen King for $100, or one from the year 2000 for free? There would be people who would pay the $100, but there would be fewer of them.

I want to return at this point to the purpose of copyright.

I would say there are two basic conceptions here:

  • It is a business license
  • It is to protect a natural right

As a business license, it makes sense that it can be for a limited time. The only considerations, really, have to do with money. Authors are granted a limited term to have exclusive rights to the work so they can make money on it to encourage them (and others) to write more works, which benefits the culture.

After that limited time, the book becomes the property of the public, and becomes part of our shared culture.

The “natural right” concept says that the author created the work, and has a natural right to control its use. In that case, it seems to me that an unlimited copyright is a reasonable possibility.

One argument against the natural right means permanent argument is that the natural right only exists for the creator, and some extend it to the creator’s children. That creator’s children part supposedly explains life+70: seventy years is a reasonable approximation of life expectancy, so it means that if an author writes a book, dies right away, and has an infant child, that child can be supported by the book throughout its expected life. I find that a pretty unlikely scenario, personally.

Some people don’t like that properties end up under the control of a corporation: they say it then becomes “profits in perpetuity”, and that it likely is no longer benefiting the author or the author’s  descendants.

They wouldn’t want Disney or Sony determining how Mark Twain is used by the world, for example.

They also see it as benefiting an entity which has done nothing to deserve it.

The author, though, chose to license the rights to the publisher. If the author has control over the work, why isn’t that something they should be able to control? The longer the copyright term, the more potential value to the company, the more the likely purchase price will be. Authors should theoretically make more money when the copyright is longer, in terms of licensing fees.

It also seems to me that Disney has done a great deal of work on perpetuating the value of Mickey Mouse. The example of Mickey is often brought up in copyright discussions. We go back to Steamboat Willie, the first Mickey Mouse cartoon (1928). The Disney company has undeniably lobbied to have the copyright terms extended when Steamboat Willie’s protected end time was nigh. A 1998 act is sometimes colloquially referred to as the “Mickey Mouse Act”.

I’m not talking about those lobbying efforts as things Disney has done with Mickey…although that does show time and effort.

They have carefully promoted the character.

They have built on it over time.

Anybody who doesn’t think the Disney corporation is a large factor in why we even think the rights to Steamboat Willie are valuable…well, I’d be interested in hearing the arguments that without the Disney corporation, Mickey Mouse would be equally as valuable today as it would be if copyright had run out on Steamboat Willie in 1942 (or 1956…the original 14 year copyright term was renewable once).

Another argument in favor of earlier public domain status is that it allows more creative works to happen. People can then build upon the earlier works.

Two iconic examples of that are West Side Story (based on Romeo and Juliet) and Forbidden Planet (based on The Tempest).

The argument goes that those wouldn’t exist if the original Shakespeare works weren’t in the public domain.

I’m not convinced of that.

If the creators of those works had to license the originals, would that have made been an impossible hurdle or unreasonable burden?

Sure, it would have been up to the rightsholder. If the hypothetical “We Bought Shakespeare Corporation” didn’t like science fiction, or didn’t want the social commentary of West Side Story to happen, they could have refused the rights.

That is a perfectly legitimate argument: that’s a point I understand, about not wanting a limited group to control how something which is part of our shared culture to be used.

I also think it isn’t as simple as to say that when something is in-copyright, creativity is stymied.

Let’s say you wanted to take the beloved Archie Andrews characters (Archie, Betty, Veronica, Jughead, and so on), and put them into a violent zombie comic. That would be up to the publisher…and Archie Comics allowed just that with the popular and critically-acclaimed

Afterlife with Archie (at AmazonSmile: benefit a non-profit of your choice by shopping*)**

If Archie had been in the public domain, anyone could have created an Afterlife with Archie type comic, of course…but how many people would ever have seen it? Since it was under license (being in-copyright) to a major distributor, it could get comic book store distribution…and the company spent money on promotion and quality control.

What about Superman flying or the existence of Kryptonite? Both brought to the company from outside, both approved by the company (see my article, xxy).

Remember, also, that in the USA, parody is protected by copyright. There are also some rights around “fanfic” (fan created fiction), at least where characters are not trademarked. What allows both of those? Fair Use. I do think that balancing longer copyright terms with greater Fair Use provisions is a possible balance.

Stepping away from the corporations for a minute, another argument I hear is that people don’t want there to be a class of people who are well off through inheritance, in this case, inheritance of intellectual property rights. That’s an interesting question of social engineering. My own feeling on that is that it should apply in a similar manner to other property rights. If intellectual property rights have limited inheritance, so should other property rights. I’m sure there are people who would agree with that:  I’ve seen serious proposals for a 100% death tax: you die, and your property goes to the government, which then uses it to for the public good…including taking care of orphans, presumably.

I think that sort of discussion is beyond the scope of this post.😉

Oh, I also hear people say that authors are only able to create their works because of the society in which they grew up, and that the audience for their works exists because of society. The public paid for their educations, and the readers can read because of the school system. When people say that, I wonder…do they think someone who immigrated here as adult and then wrote a book should get a longer copyright term, because they don’t have to “reimburse” society for the public schooling?😉 Do we really educate people only as a loan for the good they can do society, and they should have to pay it back? What if someone calculated the costs of their education, then paid the government that money, then wrote a book…should they be entitled to longer copyright terms?

I’ve gone on quite long enough, but I do want to make one more point.

The 14 year term came about in 1787.

What was the intent of that length?

Presumably, it had something to with exploitation of the value of the created work, and the point at which it would benefit the public for it to be free to copy

I would suggest that neither of those are the same today.

There are so many more revenue streams today than there were in 1787.

One of the most significant is movie/TV adaptation.

Publishers, and authors, can make a great deal of money from licensing the rights for the kind of media adaptations which just didn’t exist in 1787.

If the copyright term was fourteen years, how often would a movie or television studio simply choose to wait fourteen years before spending significant money on the production? A book might not become popular for a few years after publication, which makes it a shorter time from interest to screen.

Of course, on the flip side, how many movie studios would pay $200m to make a blockbuster movie…when it would be free to distribute in fourteen years? I’m guessing you could say good-bye to movies like Star Wars:  The Force Awakens and Jurassic World  if the copyright term was significantly shorter.

At any rate, this is all a very complex topic. I’m not decided on anything (although, as I mentioned, I really don’t like life+ terms). There are people who have it as a matter of faith (they believe they will never change their minds) that copyright terms should be short, or that there should be no copyright, or that it should be permanent. I’m not one of those folks.

I know, as a writer myself, I’m probably emotionally prejudiced in favor of longer terms. I do feel like I should own my creations (although I 100% accept the idea of Fair Use, including where my own works are concerned). I can set aside emotional prejudice, though: I suppose that’s one reason I’ve been on three juries in the past ten years.😉

I’m very interested in what you think about this. I have no doubt many of my regular readers are skipping this one, and waiting for something lighter in the next post…which is okay by me. Others of you are deeply interested and will want to express your opinions to me and my readers. Feel free to do so by commenting on this post.

 

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* I am linking to the same thing at the regular Amazon site, and at AmazonSmile. When you shop at AmazonSmile, half a percent of your purchase price on eligible items goes to a non-profit you choose. It will feel just like shopping at Amazon: you’ll be using your same account. The one thing for you that is different is that you pick a non-profit the first time you go (which you can change whenever you want)…and the good feeling you’ll get. :) Shop ’til you help! :) By the way, it’s been interesting lately to see Amazon remind me to “start at AmazonSmile” if I check a link on the original Amazon site. I do buy from AmazonSmile, but I have a lot of stored links I use to check for things.

** A Kindle with text-to-speech can read any text downloaded to it…unless that access is blocked by the publisher inserting code into the file to prevent it. That’s why you can have the device read personal documents to you (I’ve done that). I believe that this sort of access blocking disproportionately disadvantages the disabled, although I also believe it is legal (provided that there is at least one accessible version of each e-book available, however, that one can require a certification of disability). For that reason, I don’t deliberately link to books which block TTS access here (although it may happen accidentally, particularly if the access is blocked after I’ve linked it). I do believe this is a personal decision, and there  are legitimate arguments for purchasing those books. In this particular case, text-to-speech is not available, but that will be due to a technical issue. The “text” is actually part of the illustrations, and not available to TTS.

This post by Bufo Calvin originally appeared in the I Love My Kindle blog. To support this or other blogs/organizations, buy  Amazon Gift Cards from a link on the site, then use those to buy your items. There will be no cost to you, and a benefit to them.

9 Responses to “Concepts of Copyright”

  1. Lady Galaxy Says:

    In the hopes that I’m not violating anybody’s copyright, and at the risk of receiving a ticket from the grammar police, I’ll use quotation marks to say, “If it ain’t broke, don’t fix it.”

    • Bufo Calvin Says:

      Thanks for writing, Lady!

      No copyright risk with a short phrase like that, although something could be trademarked. If it was trademarked, though, you’d have to be competing in the industry for which it was trademarked…that’s my understanding.🙂

      There are a lot of people who would say it is broken…and that orphan books are an example of that.

      However, I’d also say there’s a difference between fixing something and improving it.

      The media market has been changing so much, particularly in terms of the ease of production and distribution. That may prompt a(nother) re-examination.

  2. Phink Says:

    I think 100 years is a nice even number that is very fair and it’s easy to see when it ends. I was curious though so I looked up Margaret Mitchell’s death date and she died the same day as Elvis but in 1949. That means I have 3 more years from this fall to write my Gone with the Wind sequel without any consideration to the original author or to copy her book in order to hand out as cheap Christmas presents.

    • Bufo Calvin Says:

      Thanks for writing, Phink!

      Sorry to disappoint, but Life+70 was not retroactive.

      GWtW will become public domain in the USA in 2032.

      Books with a proper copyright notice first published in the USA between 1923 and 1963 and renewed appropriately have a 95 year copyright term (that was simple, right?).😉

      Since GWtW was first published in 1936, it has protection through the end of 2031.

      So, in another sixteen years, we’ll probably see versions with much harder language on some famous lines…we’ll also see ones with really poor production quality.

      On the other hand, we’ll probably see exquisitely produced editions for free…

      • Phink Says:

        That’s bad news. I was so looking forward to Scarlett and Rhett v. Zombies in three years LOL.

      • Bufo Calvin Says:

        Thanks for writing, Phink!

        Yes, and Mr. Darcy and Rhett discussing Scarlett and Elizabeth…or, for that matter, Rhett could be Mr. Darcy’s son…

  3. Man in the Middle Says:

    FYI: Lawyers are getting involved. Here’s a new law paper on freedom of expression versus intellectual property rights just mentioned at the Instapundit blog: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2716892

  4. Man in the Middle Says:

    And if the law article link I just posted is longer than you’d like to read, here’s the same attorney discussing it on the Popehat legal blog: https://popehat.com/2016/01/23/marc-randazza-immoral-scandalous-trademarks-intellectual-property/

    • Bufo Calvin Says:

      Thanks for writing, Man!

      I’ll use the full version…I have a relatively long commute tomorrow, so I can listen to the PDF in the car with EZ PDF Reader.

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