Six messages:
On 11 Sep 1998, Michael Scarpitti <MScarpit[_at_]asnt.org> wrote:
>
> On 10 Sep 1998, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
> >
> > The public generously leaves Macy's department store with an indefinite
> > term of ownership.
>
> Yes, but Macy's is not a literary work. Similarity has to exist before
> comparisons can be drawn, Mr Henderson.
The similarities exist in (A) protection of owners rights by law, (B) investment and return on investment in using those rights to serve the public, (C) response of the public that provides economic benefit to the investors and owners, (D) economic and intangible benefits to the public.
The differences of "literary" vs. real property have a bearing only on the application and execution.
Albert Henderson, Editor, PUBLISHING RESEARCH QUARTERLY <70244.1532[_at_]compuserve.com>
On 09 Sep 1998, Timothy Arnold-Moore <tja[_at_]mds.rmit.edu.au> wrote:
>
> Albert Henderson <noblestation[_at_]compuserve.com> wrote:
> >
> > Your argument jumped the track when you claimed "works ... are
> > public property." That is not true. My creations are not public
> > property. My creations are mine. I can destroy them without
> > penalty. I can determine if, when, how many copies may be
> > published and how many times they may be performed. I have no
> > obligation to the public. The public has no say.
>
> This is true until the work is published. Patent very clearly gives a
> monopoly to exploit your creation, but only in return for you publishing
> the details. Copyright less clearly but just as effectively provides
> the incentive for you to make your creation more widely available, by
> recognizing your limited exclusive rights to exploit your creation.
> Sure you could protect your property by keeping it to yourself or
> destroying it, but the public pays you (with a limited monopoly) for
> access to your creation.
This is only the law as it has developed, not a natural law or one handed down by Moses. Rights are inherent to the author, since the author always has the option of destroying or otherwise withholding the work without penalty from society.
I am told that the concept of fair use originated in 1841 in the U.S. It was not recognized by the legislature until 1976 after more than a dozen years of lobbying by libraries with the new plain paper copiers.
Maybe the law will abandon fair use and terms one day in an effort to bring order and restore health to the dissemination of research. The proliferation of "library photocopying" as a fair use has certainly devestated the market for authorized publication, clearly demonstrated by a variety of statistics. PHYSICAL REVIEW, called by its publishers the 'premier' journal in physics, sells half the number of copies today that it did 30 years ago -- even though the number of institutions and the number of scientists has substantially increased!
It is well documented that librarians calculate the number of "uses" of a journal times the cost of a photocopy to establish a decision whether or not to subscribe. Since the effect on the market is key to whether a photocopy is "fair use" or not, I suspect section 108 might deserve repeal.
Albert Henderson, Editor, PUBLISHING RESEARCH QUARTERLY <70244.1532[_at_]compuserve.com>
On 09 Sep 1998, Joseph Liu <liu3[_at_]law.harvard.edu> wrote:
>
> On 9/8/98, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
> >
> > On 02 Sep 1998, Joseph Liu <liu3[_at_]law.harvard.edu> wrote:
> > >
> > > By contrast, copyright law gives authors certain limited rights as
> > > an incentive to produce creative works. (Note that this is *not*
> > > a justification for real property protection because real property
> > > already exists). Moreover, once produced, a copyrighted work is
> > > not scarce in the way that land is scarce. Rather, it can be
> > > copied a million times and enjoyed by a million different people
> > > without depleting the original supply of that work.
> >
> > I think your theory is relies on form rather than substance.
>
> No, in fact, the difference is substantive. I've pointed out that
> copyright confers limited rights in order to promote creation and
> dissemination works and that this is not a justification for real
> property. The two bodies of law serve very different purposes, and
> analogies between them therefore must be drawn with care. You have
> offered nothing to rebut this.
See my response, regarding similarities, to Mr Scarpetti above. Clearly, you are preoccupied by the law and its peculiar language as it has been developed and not with the dynamics of investment, ownership, and the exchange of economic and intangible rewards expressed in my plain English.
Copyright confers protection of exclusive rights, by the way, not rights.
> > Obviously counterfeit copies dilute the value. The owner of real
> > estate without fences that is routinely used by trespassers loses
> > its value too.
>
> I don't know where you get the term "value." In my post above, I was
> speaking only of scarcity and describing the state of things prior to
> any consideration of what the law should be. By introducing the terms
> "counterfeit" and "value" you are assuming the existence of legal
> protection, *which is the very question we are debating*. This is the
> classic intellectual property fallacy. The law does not protect
> intellectual property because it is valuable, as your statement above
> seems to suggest. Intellectual property is valuable because the law
> protects it. The interesting question, and the question you seem to
> be avoiding, is why the law protects it. I have suggested that the
> reason it protects it is in order to provide incentives for creation
> and broad dissemination of works (not because it is has "value"),
> reasons that are not implicated in real property protection. Once
> again, you haven't offered any explanation for why this difference
> is irrelevant, other than to draw more analogies to real property.
Wrong. Intellectual property, like real estate, has economic value because someone is willing to pay for it. The benefits are economic and intangible in both cases. The various laws simply bring some order to the negotiations. Scarcity tends to increase the value. Clouded ownership will tend to decrease the value in both examples. Legal protections for real estate encourage development that is in the public interest.
> > > By contrast, you can't copy or produce more land). Furthermore,
> > > for copyright law purposes, the more people who can enjoy the
> > > work the better. The whole purpose of the copyright grant (at
> > > least in the U.S.) is to facilitate production *and dissemination*
> > > of creative works for the benefit of the public as a whole.
> > > (Again, another interest for which there is no direct real
> > > property parallel).
> >
> > The law, then, is failing.
>
> Whether or not the law is failing at its intended purpose, all I want
> is for you to agree that this is its intended purpose, and that it is
> different from the purpose behind protecting land. Again, you have
> not explained why the differences noted above are not relevant.
I will agree to the extent that real estate laws facilitate development and marketing of land for the benefit of the public. I don't see much difference in effect of the law between the commercial success of Macy's and the Random House list. Both require capital investment, considerable human resources, and both return that investment by delivering benefits their customers who are ready, willing and able.
> > > The reason all of these differences are important is because this
> > > means that the proper scope of copyright protection is a much more
> > > complicated question than your analogies to real property suggest.
> > > On the one hand, we need to provide incentives for the creation of
> > > works; on the other hand, once they are created, we want to promote
> > > their widest possible dissemination. The tricky part is that these
> > > two interests exist in some tension. The greater the protection,
> > > the more works produced, but the less access consumers have to the
> > > works that are produced. These interests are not implicated in the
> > > case of real property.
> >
> > Not so. In commercial real estate, a "good location" attracts
> > investment of developers and tenants who then use that location
> > to serve the public. The more "traffic" the better they like it.
> > How is that so different from a publisher investing in a book?
> > Unfortunately, the present copyright law abuses the interests of
> > the publisher and author in ways that landlords and tenants would
> > not tolerate. The "exclusive right" is no longer exclusive.
>
> I'm afraid I don't see how this analogy is relevant. Like many of your
> other analogies to real property, you make it but don't explain it.
> Copyright protection, like protection for land, might attract investment
> and promote rational development of a given resource. But copyright
> protection also implicates *many other* interests that are simply not
> implicated in land (e.g. providing incentives for creating it in the
> first place, promoting broad dissemination because it is not scarce).
> Just because there are some ways in which intellectual property and real
> property are similar does not mean that there is no difference between
> them. (They both use the term "property," but surely that isn't
> sufficient). Your analogies focus on surface similarities, but you
> continue to ignore important differences.
You have failed to convince me that shallow differences in language and theory make much difference in the dynamics of investment. The law provides incentives not only for investing in land but in its subdivision, development, and marketing. How is this different from encouraging the production of and investment in creative expression? 'Tho tailored to a variety of applications, most of the the laws controlling property rights create the stability needed to foster economic opportunity.
Albert Henderson, Editor, PUBLISHING RESEARCH QUARTERLY <70244.1532[_at_]compuserve.com>
On 9 Sep 1998, Rod McCarvel <rod[_at_]seanet.com> wrote:
>
> On 8 Sep 98,, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
> >
> > On 2 Sep 1998, Rod McCarvel <rod[_at_]seanet.com> wrote:
> > >
> > > ...
> > > all sorts of musical works involve enormous numbers of samples.
> > > For instance, the Beastie Boys' "Paul's Boutique" album required
> > > the clearance of over 400 samples. Of course, this is perfectly
> > > doable for the Beastie Boys, with the services of a full-time
> > > attorney and the weight of Capitol Records behind them. It is
> > > considerably more difficult for an artist working in his or her
> > > basement.
> >
> > If obtaining permissions is too much work, try doing something
> > that is entirely original.
>
> I am not sure I understand what you mean by "entirely original".
I mean without quotations that deserve the courtesy and legal requirement of obtaining permission to publish them.
> Do you mean created in a vacuum, with no detectible influence from
> any pre-existing work? If so, I have never in my life encountered an
> "entirely original" artwork or work of authorship. Shakespeare stole
> plotlines wholesale, and in turn they were stolen from him just as
> brazenly. Dvorak and Ives quoted extensively from folk songs. Roy
> Lichtenstein recreated comic book panels. Every rock band has
> appropriated riffs from Chuck Berry, Bo Diddley, Robert Johnson, and
> others. The chorus to Bob Marley's "Buffalo Soldiers" is a direct
> cop from the Banana Splits' theme song.
Do you know whether or not permissions were cleared? Do you know if Banana Splits decided to enforce their rights?
There are reciprocal agreements among many publishers to waive fees for limited quotations, by the way. This makes clearing easier.
Regarding use of generic material, I have heard critics praise Louis Armstrong and Charlie Parker for their use of a phrase that can be found in many exercise books. Generic material that can be used skillfully is still generic. What makes it exceptional and unique is its context.
> What *is* original is the way that a true artist uses his or her
> influences to create a unique expression. Stravinsky said that "a
> good composer does not imitate, he steals". (Interestingly, T.S.
> Elliot said almost exactly the same thing, and said it first.)
> In the hands of a skilled artist, collage can be the medium for
> wonderfully original work, composed entirely from found fragments.
> This, I submit, should not require the full-time services of an
> attorney -- as was required in the case of "Paul's Boutique" -- and
> if the law of copyright holds otherwise, well, "the law is a ass".
Stravinsky was kidding of course and speaking of swiping ideas and techniques rather than note-for-note quotations. These folks were talking about embracing an idea without copying the expression.
The skilled collagist, such as the late Romare Bearden, who actually used the expressions of others, should be respectful of copyrights.
I agree the law can be wrong. In this case it is right.
Albert Henderson, Editor, PUBLISHING RESEARCH QUARTERLY <70244.1532[_at_]compuserve.com>
On 10 Sep 1998, Joseph P. Riolo <riolo[_at_]voicenet.com> wrote:
>
> For many people, library is now a center for entertainment. It is
> no longer seen as a preserver of old and new knowledge. So, the
> libraries have to compete with other forms of entertainment for the
> attention from the population. There is a book titled "Civilization
> of Illiteracy" by Mihai Nadin. I have not read the book but if we
> are in the direction of becoming more illiterate in the future, it
> is no wonder that libraries will become smaller or extinct.
>
> In summary, photocopier and fair use has nothing to do with the
> scarcity of many books. It is the market.
So who will preserve the findings of research, a massive work product of activity that doubles in voloume every 15 years or so? I think it the use of good taxpayer money -- near $80 billion for science; $15 billion for "academic" research -- to produce chaos makes little sense.
You might like to read my article on the Incoherence of science policy in SOCIETY (Sept Oct issue).
Albert Henderson, Editor, PUBLISHING RESEARCH QUARTERLY <70244.1532[_at_]compuserve.com>
On 9 Sep 1998, Michael Scarpitti <MScarpit[_at_]asnt.org> wrote:
>
> Albert Henderson <noblestation[_at_]compuserve.com> wrote:
> >
> > My creations are not public property. My creations are mine. I
> > can destroy them without penalty. I can determine if, when, how
> > many copies may be published and how many times they may be
> > performed. I have no obligation to the public. The public has
> > no say.
>
> No they're not. They're "shared" property which you have (for a
> limited time) the exclusive right to copy. If they were "all yours",
> you wouldn't need to publish them, would you! It is the sharing of
> them with others that gives IP its peculiar value and status.
> Imagine writing novels for no-one to read. Making music only for
> yourself. (Beethoven did not even get to hear his own works!, but
> others did. He would think your proposal absurd.)
You should be aware that the rejection rates of most publishers exceed 90 per cent.
Anne Frank had intended her diary for her eyes only, according to the New York Times 10 Sept 98 p. A1,6. If she had survived, it probably would never have been published. This was her absolute right. Her heirs had other ideas. But they also had the right to suppress it, or parts, which they have done.
Albert Henderson, Editor, PUBLISHING RESEARCH QUARTERLY <70244.1532[_at_]compuserve.com>
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Received on Mon Sep 14 1998 - 15:00:19 GMT
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