On Fri, 30 Jul 1999, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
>
> On Thu, 29 Jul 1999, John Lederer <johnl[_at_]ibm.net> wrote:
> >
> > (3) The loss of a requirement for a notice of copyright made a major
> > transformation in the law from "all is permitted that is not forbidden"
> > to "all is forbidden unless permitted". The result of course is
> > widespread disobediance -- intentional, inadvertent, by necessity, or
> > by commonsense -- of the law.
>
> I think the notice was a U.S. innovation
> not shared by the rest of the world. Isn't that
> why it was dropped when the U.S. signed Berne?
My lay understanding is that dropping the notice was a compromise with the Continental European view of copyright which is much more in tune with the "born copyrighted" approach, which in turn views copyright as a natural property right of those who create works. I've been told that many who hold the Continental European view believe in extending copyright for perpetuity.
I ask the copyright scholars here to clarify this, as my understanding may be flawed. Are there any copyright scholars in the world who are advocating perpetual copyright terms? (It is an interesting aside that those who hold Ayn Rand's philosophy of Objectivism not only believe in perpetual copyrights but hold to the extreme view that even *ideas*, and not just the tangible fixation of those ideas, is tangible property and should be protected in perpetuity! I was floored and scared when I heard an Objectivist give this opinion. Once one opens the door to copyright being a "natural right", it is just a short step to the Objectivist view, with grave ramifications for our civil liberties and even way of life.)
> > (4) The extension of terms to increasingly long periods in the midst
> > of technological,economic, and social changes that argue for shorter
> > periods merely increases the tension.
>
> There are two sides to the argument. Greater investment,
> particularly in creations aimed at mass audiences,
> supports longer terms and better protection.
The problem with most "political" thinking, and something which is much worse here in the States, is a dichotomous view on everything; that there are only two sides to everything, which in reality does not hold water. Reality has many sides, many facets, many colors, and not just two.
Let me propose a third, and I think more sane approach to copyright law, that I believe will reasonably satisfy all sides, but it may require accepting a different underlying philosophy to copyright. So let me share mine before I describe in detail my proposed approach to copyright protection.
I do not share the view that copyright is some sort of natural property right. I base this on the observation that no work truly stands alone and is 100% independent of other works. All works made today have a pedigree of influence of ideas and even tangibility from prior works, and one can trace these roots back into the Public Domain. Thus a work stands on the shoulders of others, "giants" if you will, with the Public Domain being the foundation that holds it all up. There is something unique added to a new work, of course, and it is this newness and tangibility that is the creator's unique contribution to society. But the influence (drawing from the well) of what is *owned* by the Public (the Public Domain) is everpresent.
Thus, I believe it is incorrect to grant full "property" rights of something to somebody which does not wholly belong to that person since that somebody took ideas and even tangibility from others and what the Public owns. Rather, I see copyright as being a contract between the Public and the creator: the Public will grant the extraordinary protection of copyright for a period of time in return for the work becoming the property of the Public after that time.
This contract is made by the Public for the Public's good, not the good of author. That is, the Public extends copyright as an incentive, a "contract for hire" if you will, for the Public to add to its Public Domain for its sole benefit, and that is and should be the *only* reason for extending copyright (exclusive use) protection in the first place. I think this view is not too different from the philosophy behind the copyright clause in the U.S. Constitution, at least from my reading of it.
With this contractual view of copyright, the Public is the one in the driver's seat regarding copyright terms. It can pretty much do as it pleases without any restriction to a "natural right" philosophy. It can set a 1 year copyright term, or a 1000 year copyright term (although I think the U.S. Constitution would not allow this long of a term). It can add fees, it can require a creator register the work, it can require the creator to stand on his/her head for one hour and recite the Pledge of Allegiance over and over again. :^) To reiterate, and this is important to repeat, it is the Public which decides whether or not to grant copyright protection to a creator's works -- it is not a natural right of any sort, nor should it be, not can it be.
Anyway, with this background, and establishing that we can think creatively since we now are not tethered to any "natural right" view, let me present my current thinking of the nuts'n'bolts of what I think is good copyright law for the benefit of everybody: the Public, and the creators of new works.
Full and free copyright protection similar to what we now have would be extended to a *registered* work, intended for publication, for a short period of time to be determined. I believe this period of time of free copyright protection should be no more than 15 years from the moment the work is published, with a grace period of copyright protection granted for a maximum of two years from the time it is published to the time it is registered. If the work is not registered within this grace period (it could be registered before publication), the work is considered abandoned and reverts to the Public Domain. Registration would be free, or have a very minimal charge, and electronically expedited, so those with short works of no economic value to them, such as Usenet posts, would at least be given a 15 year protection at little or no cost to them, but it does require them to consider enough value in what they created to go through the registration process, which must include submitting an unencrypted and unblacked out copy of the work for archival (if a textual work, in ASCII/Unicode plain text or XML tagged text), and later public availability once the work reverts to the Public Domain.
At the expiration of this free period (which I believe should be no more than 15 years), the copyright term can be extended for an additional longer period of time (I believe an additional 60 years), but a yearly fee must be paid to the copyright office, the funds of which will directly go to the Copyright Office to administer the registration process and to administer, protect, and store the archive of submitted works, and to make each work which reverts to the Public Domain to be publicly available on demand (with certain restrictions and/or fees for certain massive works such as movies, tv programs, sound recordings, etc.)
The idea behind allowing a copyright extension is that if a work continues to have economic or other benefit to the creator of the work, that it is a good idea to allow them to continue to have exclusive use of it -- this maintains the incentive to creators of new works knowing that if their works are valuable, they will continue to see profit or other gain from the work for a long period of time.
The idea behind requiring paying a fee is to make sure works which no longer have economic or other value to their creators are reverted to the Public Domain. What the yearly fee should be (should it be fixed, or a tax based on revenues, or a mix of the two?), I don't know yet. Whatever the fee structure is established, must be to create a proper balance so works which are effectively abandoned immediately revert to the Public Domain.
The beauty of this system is that once established, Congress (and other countries using this system) would be loathe to extend the free copyright period since that takes away from revenues. It will also be loathe to grant too many free rides to creators/publishers after the free period. The only downside is that Congress may see $$$ in extending the yearly fee period to something indefinite. However, the number of works which will continue to generate significant revenue for centuries is infinitesimal, and one has to admit that if a work has that much long-lasting power, it is, in a way, benefitting the public who continue to pay for rights to access the work. The idea of copyright should not be to disallow continued profit, but rather to allow effectively abandoned works to immediately enter the Public Domain, rather than to be sat on for decades (and soon over a century) as they are now.
Regarding works not intended for publication (they are intended to be unpublished works), I don't believe protection should be extended to them *under the aegis of copyright law*, as that violates the purpose and reason of copyright: to benefit the public by adding to the Public Domain. Rather, I see using other forms of protection, such as Trade Secret Law, as the method by which our society grants protection to unpublished works and the ideas/processes they may contain. Just don't do it with copyright law.
Anyway, what I just proposed is simply a sort of strawman, to show that we can think creatively about copyright law that can benefit everybody. The actual terms of what I propose are not fixed in concrete in my mind, and there will obviously be things wrong with the specifics, and unusual circumstances I have not considered. Nevertheless, I believe there is a creative solution to the present-day problems with copyright law (including the stresses of the electronic era).
> > Copyright enforcement has already started to become a matter of bluster
> > and threat and selective enforcement. Few public agencies are willing
> > to take the political heat of enforcing the law, so its enforcement
> > increasingly becomes a matter for private associations formed by those
> > who benefit from the law.
>
> Enforcement is often based on a complaint. Last week a
> local flea market was raided. Hundreds of pirate videotapes
> were seized. Maybe that "FBI" warning on commercial tapes
> is real.
I see the need to allow raids and seizures of contraband, but this allowance can also be abused, as the recent Scientology raids on critics' homes showed so clearly. The judges who allowed these raids later said that Scientology misrepresented and overstepped their bounds, and the constitutional rights of the defendents were violated in the process. There's not too many places in law where a private party, backed up by Federal Marshals, can get a judge to allow a surprise invasion of your home, and search with impunity through all your belongings.
Thus, I see the need for Congress to tighten up somewhat on when and how such raids are allowed and conducted. Right now it's close to a free for all, and can be -- and has been -- egregiously abused. When I read what Scientology was able to do, and effectively get away with it with only a slap on the wrist, I get chills.
Your blind glee that the raids you described took place really troubles me, Albert.
> COPYRIGHT INDUSTRIES IN THE U.S. ECONOMY indicates $278 billion
> in value added in 1996 by the core group including motion pictures,
> computer software, music and recording and publishing industries.
> Adding the distribution of these products, the contribution to GDP
> was 5.68% or $434 billion. [Press release Feb 16, 1999. International
> Intellectual Property Alliance]
>
> Piracy was estimated at $12.4 billion outside the U.S.
I have seen these estimates of piracy, and have grave reservations about the real number, especially for software. I believe these loss numbers are inflated and inaccurate (based on a wrong methodology for determining what is a loss), and such high numbers are being used to scare Congress into enacting egregious legislation which is more than that needed, and which has grave ramifications to our civil liberties, such as the DMCA (I still am very troubled by the DMCA, despite its eventual support by some digital rights advocacy organizations such as EFF, and I believe its detrimental impact on our civil liberties will be made clearer the next few years.)
The stories of the Gestapo strong-arm tactics used by the Software Publishers Association on ISP's and others to try to stem illegal software distribution are very scary. They've become a law to themselves. For this reason, my publishing business will NEVER ever join the SPA or any other anti-piracy organization so long as they continue to use such strong-arm tactics against third-parties (and note that I have had one of my e-books pirated, so it's not as if I don't know what it's like to be the victim of piracy).
There is a rational approach to stemming IP piracy, and it is NOT by creating a "War on Piracy" akin to the insane "War on Drugs" we now are waging and losing (and losing our civil liberties as well.)
> They are working on it.
>
> I wouldn't worry.
I'm worried already. Our civil liberties are much more important than IP protection. IP protection is to serve the good of society, and our civil liberties, not become an end in itself at the expense of our civil liberties.
There is a sane and rational approach to IP protection, and we've greatly exceeded that already, such as the DMCA, and there's no end in sight to further erosions of our civil liberties by this insane "War on Piracy".
Jon Noring
<noring[_at_]netcom.com>
http://www.exemplary.net/omnimedia/bookstore.html
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