In my classes in IP law and copyright, I sometimes have difficulty conveying to students the “cost” side of the copyright regime. That is, though we often make reference to implementing the right copyright “balance” in our law, I think students (and others, for that matter) are often uncertain as to exactly what is being balanced against what. The benefits of a copyright regime are pretty obvious – if you give people a property interest in their creations, they’ll be able to work out market arrangements to receive compensation for them; knowing that in advance, they’ll create more works of art than they otherwise would absent that protection, and we’re all better off as a result. That’s easy enough to see. What’s harder to see is why that principle should ever be limited – if protection yields more creative works, why won’t more protection yield more creative works (to the benefit of all)? Why not make copyright perpetual, and copyright rights as broad and as deep as possible — won’t that get us even more creative works to enjoy? [That's a viewpoint that many in Congress apparently share, as copyright protection has indeed gotten longer and longer and deeper and broader over the past 50 years or so -- helped along, I suppose, by those stacked bundles of unmarked hundred dollar bills left in Congressional anterooms by representatives of the "copyright industries" -- hey, don't sue me, that's just a joke).
A story in yesterday's New York Times caught my eye, and -- unfortunately -- it furnishes a perfect illustration of why copyright is not an unalloyed Good Thing. The National Jazz Museum (who knew there was such a thing?) has apparently acquired a true treasure trove of early jazz recordings. The collection -- nearly 1,000 discs! -- was recorded in the 30s and 40s by William Savory from on-the-air radio broadcasts, and includes performances by Lester Young, Benny Goodman, Coleman Hawkins, Lionel Hampton, Billie Holiday, Teddy Wilson, and many others of the great names of jazz (from the greatest era of jazz). Savory, apparently, is something of a legend in recording engineer circles, and many of the recordings are of stunningly high quality (and many of the performances masterpieces).
If you're like me, and consider American jazz of the 30s and 40s to be one of the great artistic outpourings of all time, the story induces something like a swoon of ecstatic delight. When I read something like this:
Coleman Hawkins’ original version of “Body and Soul” is a landmark recording, in a class with “West End Blues” or “A Love Supreme.” On the [publicly-released] “Body and Soul” record, he plays only two choruses, because of the time limitation imposed by 78 r.p.m. records. But here, in a live performance a few months after the record’s October 1939 release, Hawkins stretches out, playing five increasingly adventurous choruses. By the last, he has drifted into uncharted territory, playing in a modal style that would become popular only when Miles Davis recorded “Kind of Blue” in 1959.
. . . I get pretty excited, as I do when I read that the collection also contains live performances of a Goodman-Wilson duet on “Lady Be Good” (with Wilson playing harpsichord!), Lester Young and Herschel Evans on “Tea for Two,” Charlie Christian playing electric guitar with the Goodman sextet in a 1939 performance of “Shivers,” the Count Basie and Duke Elllington bands’ performances at the 1938 “Carnival of Swing” on Randalls Island, . . . all previously unreleased. Oh, lordy – you’ve got to be kidding me! And listening to the excerpts from the recordings here, if anything, makes me even more delirious – this is truly great stuff by some of the greatest musicians that ever lived. It’s only slightly less exciting than reading that somehow, by some miracle, recordings of Beethoven playing the Hammerklavier Sonata, or Bach improvising on the theme from the Goldberg Variations, have suddenly surfaced . . .
So needless to say I can’t wait to hear the reissues. But alas, that may never happen. As the original article noted (with additional commentary here), the potential copyright liability that could attach to redistribution of these recordings is so large — and, more importantly, so uncertain — that there may never be a public distribution of the recordings. Tracking down all the parties who may have a copyright interest in these performances, and therefore an entitlement to royalty payments (or to enjoining their distribution), is a monumental, and quite possibly an impossible, task, and it may well be that nobody steps forward with the resources to (a) undertake the efforts required and (b) take on the risk of liability. Because copyright is a “property,” rather than a “liability” regime, you can’t just go ahead with redistribution, wait for those who have an interest to surface and prove their interest and then to pay them their fair share of the proceeds — copyright holders get injunctions, and injunctions mean they can “hold you up” for far more than their “fair share” of the proceeds. (The egregiously high statutory damage provisions of the Copyright Act, which provide for damages far in excess of any actual damage suffered, also serve an in terrorem function here for anyone considering taking on this task).
It’s not just that copyright protection lasts absurdly long, still protecting recordings made more than seventy years ago; it’s that copyright, inherently, operates to the detriment of the public when applied in retrospect, to works that have already been created. Lester Young, alas, can no longer be incentivized to produce these performances – they’ve already been created. We won’t get any more brilliant performances by Teddy Wilson if we protect these works. All we – the public — get from applying copyright here is a restriction on our ability to encounter magnificent works of art. Now of course, copyright is only ever applied in retrospect, and if we always ignored it when applied to already-existing works it would cease to exist, and would therefore no longer serve its incentivizing function prospectively.
And there’s your copyright balance; what we seek is a way to give creators enough of an incentive to create, but not too much, because too much gives us, the public, too much of an impediment to actually enjoying the works that have already been created.
ruuffles says:
One can always hope for another bradass87 to surreptitiously copy the music while pretending to listen to Lady Gaga. Then he can hire Blago’s lawyers to stack the jury with jazz aficionados.
August 18, 2010, 11:20 amAnderson says:
I’m so confused. How is this Obama’s fault, and how would firearms remedy the situation?
… Ohhhh, David Post. My bad. Carry on.
August 18, 2010, 11:23 amChris Travers says:
I think this is a good example. Consider further the damage that perpetual copyright would do if it had been implemented five hundred years ago. Who needs to read Shakespeare when you can read Stephen King?
August 18, 2010, 11:27 amMark M says:
I disagree. It seems to me that copyright has always been about giving publishers and incentive to publish. People were making art for thousands of years before copyright ever existed. If copyright disappeared tomorrow, people would keep making art. Maybe less, but I’m not sure how anyone can argue about what the “right” amount of art is for the marketplace to create, especially when they’re arguing in favor of a such dramatic government intervention as copyright.
Publishing, on the other hand, is mostly a for-profit venture. It needs copyright to exist. So when you’re talking about copyright balance, the issue is about publishers, not artists.
August 18, 2010, 11:27 amEMB says:
Another huge cost of copyright is in its restriction of derivative works (which suffer a similar hold-up problem). This is especially true of genres (e.g. jazz) that rely a great deal on derivative works.
August 18, 2010, 11:30 amChris Travers says:
I am a self-published author and a software engineer. Most of what I do involves copyright.
I disagree that it is not about authors today because increasingly, the artists are also the publishers. Technology is providing more avenues towards self-publication. While I’ve had articles printed in third-party magazines, my book and all my software is self-published.
Even absent this link, however, I’m working on several re-issues of public domain books I am hoping to reprint including “Some Notes on Anglo-Saxon Medicine” by Henry S. Wellcome (this is actually an interesting book– it was originally published as memoranda for an AMA lecture in 1911, and has been republished a few times since, but always badly marketed and it always goes out of print, but I think with better marketing and with an introduction that explores the value of the work, it may be a good project). A small publisher can reprint such books very easily and make a reasonable profit doing so. Note, I am not taking this on as a small project: I’m adding an introduction, footnotes, a list of additional resources, etc. However, with copyright, there is a necessity to negotiate with the artists in terms of a share of the profits.
So copyright provides some protection for artists against publishers. When these get out of balance, it screws everything up. I think that’s the point of Prof. Post’s article.
August 18, 2010, 11:41 amByomtov says:
As I understand the current regime, (and I may not) it seems to discourage collaborative work. If several people can have a copyright interest in a work, and any one of them (or their heirs) can decide to be a PITA about it, then that creates a risk that the other holders may not be able to get reasonable payoffs for their work.
Is that correct?
August 18, 2010, 11:42 amyankee says:
The “cost” side of the ledger should also include the disincentives for the creation of new works created by the copyright regime. Because liability attaches to any “derivative” work, pretty much everything on youtube other than cute cat videos exists only at the sufferance of Big Content. Some of this stuff could get the fair use defense, but do you want to hang your hat on something as hopelessly subjective as fair use?
Fortunately, for the most part Big Content has decided it would not be economically desirable to sue every creator of mashups, new music videos, fanfiction, and fan art, beause the creators don’t have much money and it would be bad press. But Big Content still holds it all hostage.
August 18, 2010, 11:43 amfederal white collar criminal says:
Aside from the hold-up problem, trying to create compilation or other work that is derivative of multiple copyrighted works also suffers from an “anti-commons” problem, where property rights are too fine-grained. Because securing permission from each property owner carries substantial transaction costs, many efficient compilations will never be produced.
The starkest example of these transaction costs is the phenomenon of “orphan works.” A potential solution that keeps with our existing non-registration regime would be to switch to a predictable liability rule — perhaps with a maximum royalty as a percentage of revenues — if the holder does not periodically register and provide accurate contact information.
Of course, this problem is not unique to copyright; patents suffer from this to an even greater extent.
August 18, 2010, 11:44 amCassandra says:
“they’ll create more works of art than they otherwise would absent that protection.”
Copyrights are actually for the authors in the sciences, not for inventors who make discoveries in the useful arts, for which we have patents. (US Constitution, Art. I, Section 8)
August 18, 2010, 11:48 amJoe T. Guest says:
I hope you didn’t copy that from the Las Vegas Review Journal. Their partners at the bottom feeding Righthaven LLC would have emailed you service of process by now…
August 18, 2010, 12:06 pmrichard says:
Listening to those excerpts makes me drool (especially the Teagarden solo with Armstrong and Waller). One way of solving the problem is to revise the copyright term for older recordings but still have some royalty payable which would be put in a common fund for the copyright holders to make claim to. That way the recordings could be made available to the public but the artists or their heirs could still get some money. (Not all the artists featured on these recordings are dead. There are some living members of the Basie and Ellington bands as well as some of the other bands featured in the these recordings).
And one factual correction in the notes regarding the excerpts – they make reference to Christian’s solo in the Goodman recording (not included in the excerpt) bearing a resemblance to the sound of the Bob Wills band and speculating that the recordings could shed light on a “subterranean kinship” with Wills in light of Christian and Will’s mutual Oklahoma background. The kinship is not so subterranean. Les Paul has written about going to see Wills at a dance in Tulsa in 1938 (when Paul was recording under the name Rhubarb Red) and being introduced to Christian in the audience. Christian and Paul joined the band to jam on some tunes.
August 18, 2010, 12:11 pmpete the elder says:
This reminds me of the national geographic case from a few years ago, where they were sued by a photographer after republishing their back issues on CD-Rom. It would probably be impossible for them to track down everyone who has contributed to them over the past 100 years, but the National Geographic won the case so we can buy it now on DVD or cd-rom instead of having to track down and store 1200 paper magazines.
August 18, 2010, 12:14 pmGLAdetariba says:
Bern convention
[Term of Protection: 1. Generally; 2. For cinematographic works; 3. For anonymous and pseudonymous
works; 4. For photographic works and works of applied art; 5. Starting date of computation; 6. Longer
terms; 7. Shorter terms; 8. Applicable law; “comparison” of terms]
(1) The term of protection granted by this Convention shall be the life of the author and fifty years after
his death.
(2) However, in the case of cinematographic works, the countries of the Union may provide that the term
of protection shall expire fifty years after the work has been made available to the public with the consent of
the author, or, failing such an event within fifty years from the making of such a work, fifty years after the
making.
(4) It shall be a matter for legislation in the countries of the Union to determine the term of protection of
photographic works and that of works of applied art in so far as they are protected as artistic works;
however, this term shall last at least until the end of a period of twenty-five years from the making of such a
work.
(5) The term of protection subsequent to the death of the author and the terms provided by paragraphs (2),
(3) and (4) shall run from the date of death or of the event referred to in those paragraphs, but such terms
shall always be deemed to begin on the first of January of the year following the death or such event.
The international protection is higher than american law but for films
August 18, 2010, 12:18 pmWhich countries are more productive?
1Ler says:
Really solid empirical piece on the creativity incentive value of copyright. Read the abstract if you’re short on time.
http://www.vanderbiltlawreview.org/articles/2009/11/Ku-et-al.-Does-Copyright-Law-Promote-Creativity-62-Vand.-L.-Rev.-1669-2009.pdf
August 18, 2010, 12:20 pmChris Travers says:
My understanding (from my work on collaborative software projects) is that it depends greatly on the type of copyright interest. If it’s joint ownership, I think that would be incorrect. OTOH if it is a piece of work in a larger compiled work, then yes it would be absolutely correct. I don’t know how it works with derivative works, however.
In my industry (FOSS software development) the norm is to play it safe, get buyoff from all copyright interest holders whether or not they are legally able to make a fuss, etc. simply because even where it would be legal to ignore them, it’s BAD politics to do so.
August 18, 2010, 12:28 pmClayton E. Cramer says:
It would help a great deal if fair use actually was defined. It isn’t. There is no hard and fast rule. In some cases, the courts have actually found that copying entire magazine articles for a noncommercial, research purpose is “fair use.” But fair use is only a defense at trial–and if you had a noncommercial use, you will spend tens of thousands before you even get to trial–thus opening the doors for non-productive copyright trolls to get rich and destroy lives. I’ve talked to defendants who couldn’t afford representation–and are thus going to end up in default judgment on $75,000 for copying ONE newspaper article. It is a shame that groups like EFF aren’t interested (or incapable) of dealing with suits like this.
August 18, 2010, 12:32 pmrbj says:
Perhaps because humans don’t live in perpetuity? Are you really going to work hard at being even more creative just so your great, great, great, great, great grandchildren can sit on their behinds and collect royalty checks?
I don’t mind rewarding creative people with copyrights, and even allowing them a chance at passing some of the reward onto their children (though I think the last, Disney backed extension is ridiculous)but at a certain point you shouldn’t be controlling things from the grave. There’s a rule against perpetuity for real property, we should have one for intellectual property as well.
August 18, 2010, 12:45 pmClayton E. Cramer says:
Take a look at the case law on copyright. It is all quite clear that copyright isn’t like property. It exists for the benefit of the society, and only secondarily for the benefit of the copyright holder. When there is a conflict, the needs of the society take precedence.
August 18, 2010, 12:52 pmJust Dropping By says:
It’s not just that copyright protection lasts absurdly long, still protecting recordings made more than seventy years ago; it’s that copyright, inherently, operates to the detriment of the public when applied in retrospect, to works that have already been created. Lester Young, alas, can no longer be incentivized to produce these performances — they’ve already been created. We won’t get any more brilliant performances by Teddy Wilson if we protect these works.
This is a point that SCOTUS needs to be clubbed over the head with next time Congress extends copyrights on existing works and I’m irked that Lessig did such a poor job on arguing that point back in 2002 during the Eldred v. Ashcroft case. I would certainly agree that Congress has the constitutional power to declare that, on a going forward basis, artists need a greater incentive to create new works and that copyright terms for such works should be extended, but the total amount of art/music/literature/etc. created in the year 1939 is fixed and can never be expanded no matter how long Congress extends copyright terms for.
August 18, 2010, 12:57 pmD.T. says:
Seems the same incentives would apply to those who create useful items. I’ve often wondered under what theory should artists should expect a longer property interest than should inventors? Or companies who own copyrights over companies who hold patent rights?
D.T
August 18, 2010, 12:58 pmLongCat says:
I think a more sensible solution would be for copyright to expire fairly quickly, but to allow holders to renew their copyright perpetually with a increasing fee each time. This would allow those who are still actively deriving value from their old copyrights (Disney and the like) to continue to protect their interests but allow stale works such as the jazz recordings to pass into the public domain. This lets valuable exclusive use continue without holding-back use of unprofitable works.
August 18, 2010, 1:14 pmSeaDrive says:
Another example is the documentary Eyes On The Prize. Wikipedia has some info: http://en.wikipedia.org/wiki/Eyes_on_the_Prize
I can see where the Congress would be loath to let Mickey Mouse fall into the public domain given the huge, actively managed, continually invested-in industry based on the Mouse et al, but there should be some way to keep neglected art before the public.
August 18, 2010, 1:14 pmmatt d says:
As always on copyright threads, I propose my solution:
Unregistered works, copyright good for 10 (20? whatever) years.
Registered copyrights good for 20 years. Extensions available every 10 years, with fees doubling (tripling, 150%-ing, whatever) for each reregistration.
200 year limit to keep things constitutional.
This would provide full protection to valuable works which continue to be marketed and generate revenue, but allow the 95% of works that are basically forgotten after a few decades to go into the public domain. Any artist living on his royalties could continue to do so, though eventually the increasing reregistration fees will cause reregistration to become uneconomical, and the author’s grandchild had better find himself a job.
Also limits incentive of Disney, et. al., to bribe senators for a further destructive 20-year increase every time Steamboat Willie is about to drop out of copyright.
-m@
August 18, 2010, 1:16 pmdearieme says:
The copyright regime of twenty or thirty years ago seemed pretty serviceable until predatory bastards and corrupt politicians (a subset of same) in the US and Germany upset the applecart. Jazz fans in particular must feel “God rot ‘em”.
Anyway, thanks for the pointer. In return, I recommend a CD; my copy was received last Christmas. Young, Eldridge, Dickenson, Wilson with rhythm from Green, Ramey and Jones: “Jazz Giants ’56″, LHJ10330. It includes lengthy, lovely versions of “I Guess I’ll Have To Change My Plans” and “I Didn’t Know What Time It Was”. Scrumptious.
August 18, 2010, 1:23 pmStrict says:
“they’ll create more works of art than they otherwise would absent that protection, and we’re all better off as a result.”
Why do more works of art make us all better off? I’m not being facetious.
August 18, 2010, 1:24 pmThe River Temoc says:
It seems to me that copyright has always been about giving publishers and incentive to publish. People were making art for thousands of years before copyright ever existed.
A good point, but art needs distribution channels. How does art get distributed beyond a very small local base (e.g., poetry readings, jazz cafes, etc.) without publishers?
August 18, 2010, 1:26 pmDoug Shaker says:
I like Matt D’s solution. The major problem seems to be abandoned works, works that there is no clear owner from which one can obtain permission. Works that have a clear, but unwilling, owner, seem to be a much smaller problem.
I imagine that there could be other ways of implementing the concept of an abandoned copyright, but Matt D’s seems workable. And, man, I want to hear those recordings.
August 18, 2010, 1:28 pmMaybe we should create a special corporation to publish the recordings, so that if someone sues it, the damages can go no further than the value of the corporation itself.
required says:
You’re kidding right? On the multi-millennial scale we are at an unusual point where the cost of reproduction is much less than the cost of creation, for most of those thousands of years the cost of reproducing a work was so high that the cost a new work of art was not significant (and artists were the primary publishers of new works). But we no longer live in 232 a.u.c. and have to deal with a world in which reproducing an existing work is many orders of magnitude less than the cost of producing a new work.
August 18, 2010, 1:41 pmmatt d says:
Sure. I used to see the exponential growth in fees in my scheme as a key feature, but I think that frequent reregistration alone would mostly solve the abandoned works problem, at least. The exponential fee growth mostly operates on the margins of what’s worth reregistration.
Another abandoned-works solution would be a scheme of statutory licensing for works older than N years, with reregistration (again) to extend N. Let anyone publish the jazz tapes if they put the royalties in escrow. I like my other solution better, but I think that could be made to work.
-m@
August 18, 2010, 1:59 pmyankee says:
See, e.g., here. I suppose Google could be considered a “publisher” but its distribution role is very different from that of a traditional movie distributor. Even without Google’s free hosting service anyone can set up a website and distribute essentially unlimited copies of their novel, video, drawing, recording, or what-have-you at virtually zero cost.
August 18, 2010, 2:12 pmAT Garvin says:
There’s also the problem that pre-1972 recordings also are covered by state copyright and common law, often with no expiration into the public domain. This is a lingering problem with reissues of recordings of 78rpm and even wax cylinder recordings, going back to the earliest recordings in the 1890s, though the risk is mostly ignored by the labels that make re-issues.
August 18, 2010, 2:13 pmChris Travers says:
The copyright office just suggested that copying entire software operating systems for the purpose of jailbreaking devices like the iPhone was fair use. (Of course, the copied operating system replaces the copy of the same licensed operating system so there is no net market loss.)
Question:
How would this work for derivative works?
I mean, if work A is derivative of work B and work B is derivative of work C, it’s possible (though not necessarily true) that work A is derivative of work C too. If work B falls into the public domain before work C, then does this affect elements in work B which are derivative of those in work C? How does it affect the elements of work C incorporated into work B?
August 18, 2010, 2:15 pmDennis Nicholls says:
According to Art. I sec. 8 para. 8 copyrights may be granted for “limited Times to Authors”. I don’t remember any cases that conclusively defined what that phrase meant. But extending copyright past the death of the author is constitutionally suspect. The Constitution permits Congress to pass a copyright act to grant exclusive rights to authors, NOT to anyone else. I’d argue that any laws permitting the assignments of copyrights to author’s heirs or even to publishing companies exceed Congress’s authority under para. 8.
August 18, 2010, 2:22 pmerp says:
If it wasn’t illegal at the time to record from the radio, don’t the recordings belong to the estate of William Savory to with as they please?
August 18, 2010, 2:23 pmChris Travers says:
On a multi-millennial scale copyright protections are an anomaly. They started only maybe 300 years ago. I’d note that a thousand years ago, or two thousand years ago, not only was there no copyright protections but that artists were still the primary publishers of new works.
August 18, 2010, 2:32 pmJRL says:
Isn’t that why god invented service by publication? Does that not apply here? IANAIPL
August 18, 2010, 2:34 pmbilly q. says:
But Disney does.
August 18, 2010, 2:35 pmPhilippe says:
I would urge you to listen to this presentation comparing the fashion industry lack of copyright and their ability to create.
http://www.youtube.com/watch?v=zL2FOrx41N0
August 18, 2010, 2:39 pmbilly q. says:
As a constitutional matter, what do you think would happen where a company makes the work?
August 18, 2010, 2:40 pmJustin says:
Given the disregard most 20-somethings have for copyrights on music and movies, I’m shocked that contemporary law students are so overwhelmingly on the side of copyright.
August 18, 2010, 2:45 pmAultimer says:
Works made for hire have their own (overly long) duration, apart from the scheme for authors.
August 18, 2010, 2:48 pmK. Chen says:
Copyrights should give the creator a source of income, the creator’s children some financial security, and the creator’s grandchildren nothing (that’s their parent’s job).
August 18, 2010, 2:53 pmGeoff Nathan says:
While I totally agree that these recordings deserve to be in the public domain (with some kind of automatic scheme for paying whoever has a legitimate claim to some royalties if they’re still alive) we all know that absolutely nothing is going to happen, and they’ll just ‘rot’ in a closet, as has the documentary mentioned earlier. Sad, but the political reality says otherwise, especially given the current power structure with the Democrats in thrall to the entertainment industry (not that it would be any better with the opposition…)
August 18, 2010, 2:55 pmbilly q. says:
That’s what they have, but I think he’s making a prescriptive claim, not a descriptive claim.
August 18, 2010, 3:03 pmDennis Nicholls says:
I’d argue that companies CANNOT make a work: only natural persons make anything. Copyrights should be limited to natural persons, with any company they work for getting the equivalent of “shop rights” in patent law – e.g. an unlimited non-transferrable license.
August 18, 2010, 3:19 pmKamal says:
Regardless of what is desired, information is free, and can’t be protected. Trying to fight against that is a loosing battle. When you have artists embrace the fact that the content of their art is not protectable, they start innovating, and you get people like Trent Reznor starting new business models. Now that he has rejected the major labels, who don’t provide anything and suck up a lot of money, he releases his music, officially, on the pirate bay, and his website. How can he do this? Doesn’t providing the music take away the incentive to be creative? No. Creativity doesn’t need money as an intensive. Such “creativity”, when examined, is derivative and corporate in nature. Look at Fred Durst, a person clearly in it for them money. What, his music sucks? Surprise!
No, Trent has made money from touring and releasing bonus packages that provide value.
Even during his tours, he would only tour in venues where he could get the venue to agree to allowing everyone to film the concert. You can download multiple bluray quality releases that the fan community has put together. Contrast this with large labels who preemptively sue ‘john does’ for bootlegging before the concert even starts.
The idea of imaginary property is flawed, and unenforceable. The more you try to enforce it, the more people will start relying on encryption and anonymity services. It’s a loosing battle, so stop trying to create clever new ways to let executives and lawyers pocket a lot of money.
Look at the fashion industry. It is indisputable that the lack of IP protection to designs allows for some of the most rapid innovation of any sector. Once lobbies for the largest, and thus least creative, of these companies are able to convince conservatives that we need these protections to help big business, we will see a decline in creativity in this sector as well.
August 18, 2010, 3:30 pmM. Gross says:
Well, let’s be honest, we’re here today because the court screwed the pooch on Eldred v. Ashcroft. Considering it was 7-2, and Stevens is no longer on the court, I don’t think we’re going to get any help from the judiciary any time soon.
August 18, 2010, 3:35 pmrkw says:
When people talk about the excessive length of various copyrights, I am reminded of Spider Robinson’s short story Melancholy Elephants http://www.spiderrobinson.com/melancholyelephants.html
August 18, 2010, 3:40 pmhtom says:
This is so sad, both for the artists, their estates, and our ears. The recording companies … their losses in this I am going to celebrate. They demanded the money and the control, and now they can have neither, just as we can’t have the recordings. All lose. What could be fairer?
August 18, 2010, 3:46 pmmatt d says:
Chris Travers asked about my reregister-every-ten-years-with-exponentially-increasing-fees scheme:
IANAL, copyright or otherwise, so I’m not sure how derivative works, er, work in modern copyright law. Off the top of my head, if the author of A has some copyright interest in work C before B goes into public domain, he’d still have it after. I think it’s a small enough problem to just let judges work it out. After all, if the author of C is making enough money to make it worth reregistering, probably he’s paying enough royalties to B for B to keep up his registration, too. If not, it’s small money and won’t end up in court anyway.
-m@
August 18, 2010, 3:55 pmMark M says:
Oh, I absolutely agree with you and Post. I was more suggesting that our traditional copyright model is horribly outdated, partly by technology, as you point out. Personally I would love to abolish copyright but establish a tort of plagiarism.
August 18, 2010, 3:56 pmrequired says:
You must have missed the anniversary of modern copyright law, 300 years old last April 10th with The Statute of Anne. While modern copyright law is only 300 years and change old, copyright protections did exist prior to that in various forms, a grant of exclusive right to publish was given to the Spira brothers for Venice back in 1469 for an example. Confusion can exist because, prior to 1710, what copyright protections as did exist were entwined with trademark rights, guild rules, royal patents, government monopolies &c and not a separate, easily identifiable class. Modern copyright protections are quite modern, but that doesn’t mean there were no protections of the rights of artists before then, just not something which can easily be identified as copyright protections.
Modern copyright came about because of the change in relationship between the cost of producing a new work of art and the reproduction of an existing work occasioned by the invention of the movable-type printing press, whereas previously a new work-of-art cost little more to produce than a the cost of reproducing an existing work-of-art after the invention of the movable-type press the cost of a new work-of-art became significantly higher than the cost of reproducing an existing work-of-art. To continue the creation of new works-of-art something had to be done to make creation of new works-of-art a viable trade and modern copyright law was that something. There was probably an earlier form of copyright protection that was created by the changed relationship of costs with invention of the fixed-type printing press and right now we are in new territory once again with electronic publishing which can have a cost of reproducing existing works of near zero. .
That said, I did not introduce looking at copyright on the multi-millennial scale. I pointed out the absurdity of introducing such a scale to discussions of copyright. The solutions of the past are of limited guidance when the situations are of limited similarity.
August 18, 2010, 4:09 pmBob says:
Fortunately the much shorter patent term is more of a limit on that problem. However, the hide-and-seek problem also works the other way with patents: finding someone who infringes your patent, for certain kinds of patent.
I used to search the shelves of drug stores etc. regularly for anyone who might have infringed my U.S. pat. 5,336,446. (I noticed now that it’s expired, the new formula of Calgon Bubble Bath probably comes within my claims. I would’ve licensed it real cheap if they were just waiting!) I could do that because of an amendment in the middle 1970s to the FFDCA requiring ingredient labeling of cosmetics, but before that it would’ve been prohibitively expensive for me to do such checking; it’s also possible that non-cosmetic uses were made of my composition-of-matter patent, and I wouldn’t know.
Similarly, how does someone know whether a piece of patented program or even copyrighted computer code is in use somewhere? The patent is published, and now even the application is (removing one problem leading to unaware infringing) but the product can have secret workings.
August 18, 2010, 4:20 pmVolokh’s David Post: The High Cost of Copyright says:
[...] My reply: [...]
August 18, 2010, 5:09 pmChris Travers says:
I’m actually all for downgrading our copyright system to equalize it with our patent system. 17 years should be enough for anyone.
August 18, 2010, 5:10 pmepeeist says:
I’m a former IP lawyer, and I thought much the same thing when I read the story. If I recall correctly, copyright issues (music was licensed for TV broadcast not video) kept the PBS award-winning documentary on the Civil Rights movement, “Eyes on the Prize” unavailable for many years, when it would have been quite beneficial for e.g. classrooms.
I live in Canada, and at least here (and the U.K.) one can obtain a licence (from a government regulatory body…) for “unlocatable copyright owners”. It’s still an impediment, but less of one, and makes it possible to (without fear!) deal with a work; makes more sense to me than the current U.S. situation.
August 18, 2010, 5:21 pmrequired says:
Might work, might not. Unlike the patent system (which has it’s own problems), once a work-of-art is created the cost to reproduce it is minimal and the major costs creating new copies come from the copyrights, while usually the cost of patent royalties is only a minor part of the cost of products produced using the patent. Unless a book or movie or whatever copyrighted work is of limited topicality and refers to current events, a 17 year copyright could easily result in publishers simply holding on to works until the copyright expires, then distributing it for a fraction of the price they would have to charge for a copyrighted work while making more profit. The ratio of cost-of-invention/creation versus cost-of-production/publishing is not the same for copyrights and most patents.
August 18, 2010, 5:27 pmrichard says:
>If it wasn’t illegal at the time to record from the radio, don’t the recordings belong to the estate of William Savory to with as they please
No. Savory had the right to record but the act of recording didn’t give him a copyright in the performances on the recordings. Those copyrights would have belonged to the performers (common law copyrights since federal copyrights in recordings didn’t come into effect until many years later) or to the assignee of the artists(the standard recording contract had the performer assign copyrights in all recordings made during the life of the contract to the record company) or, if the performer was employee like a member of the Ellingtion band, to the employer (Ellington). This can be a very complicated question with no clear answer (I’ve litigated these issues several times) and the costs of litigation is sure to exceed by many times the financial value of the recordings.
August 18, 2010, 5:28 pmrichard says:
Chris Travers wrote:
I’m actually all for downgrading our copyright system to equalize it with our patent system. 17 years should be enough for anyone
So if I write a hit song at 20 and make a hit recording of it, I lose all rights to it when I turn 37 and then anybody can issue my recording or perform my song without paying me anything? I don’t know a single artist who would agree with that. The current rules may extend the life of the copyright too far (and don’t provide a solution in the case of partially abandoned recordings like the treasure trove here) but your “solution” is far worse than the current situation.
August 18, 2010, 5:33 pmStephan Kinsella says:
I made a similar point in my article There’s No Such Thing as a Free Patent. In fact there is no evidence to substantiate the utilitarian claim that IP is necessary for innovation or that it even generates net innovation and creativity. There is no doubt that patent and copyright distort and skew the innovation and creativity that occurs–some types of creativity are suppressed, others are incentivized. Even if IP does generate net creativity and innovation (even if you ignore the skewing and distorting), there is no proof that it’s worth *other* costs of the patent and copyright systems. See http://blog.mises.org/10217/yet-another-study-finds-patents-do-not-encourage-innovation/. And there are unending cases of clear abuse, waste, or injustice: see http://blog.mises.org/11600/the-patent-copyright-trademark-and-trade-secret-horror-files/. The cost is immense and real: http://blog.mises.org/7223/what-are-the-costs-of-the-patent-system/.
There are principled, moral reasons to oppose patent and copyright: see my article The Case Against IP: A Concise Guide. For those who advocate a copyright system on utilitarian grounds, the onus is on them, and they have not satisfied it.
The law students are told that we have to find the right balance–the assumption is that we need *some* copyright law, even if the balance has gone “too far”. But this assumption itself is unjustified: there is no reason to think that ANY copyright law at all is justified. In fact, it is not and should be abolished.
August 18, 2010, 5:38 pmEMB says:
I just don’t understand, grammatically speaking, how two justices could conclude that the “A well regulated Militia being necessary…” clause substantially limits the rights granted by the 2nd amendment, yet neither part of “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors…” conveys any meaningful limitation on the powers granted by the copyright clause.
August 18, 2010, 5:42 pmEMB says:
Your evaluation of “worse” and “better” here seems to be based on factors other than the intended purpose of copyright (as specified in the constitution).
If you write a hit song at 20, the question we’re supposed to be asking is not what feels right to you and your colleagues, but rather what will provide the best incentives to you to create more hit songs afterward. The answer to this question isn’t at all obvious, and I suspect it varies a great deal from medium to medium (e.g. I suspect the optimal copyright term duration would be much shorter for sound recordings than for novels).
August 18, 2010, 6:04 pmerp says:
Reply to richard:
I’m not a lawyer, so I don’t get it the logic of it.
They’re not being passed off as the original recordings and at the time, there were no copyright laws covering taping radio shows.
It would be a shame for these unusual and unique recordings to be locked up in a vault someplace inside of being made available to to music lovers. Their release might stimulate (sorry for using the S word) a renewed interest in the music of the 30′s and 40′s and lead to increased sales of the original recordings of that period.
August 18, 2010, 6:18 pmNo Comment says:
so put it on youtube from offshore and see who sends takedown letters. negotiate with them. simples. the best music is always free anyways. see, eg:
farceswannamo.com
August 18, 2010, 6:33 pmMLS says:
It seems that Mr. Post takes some degree of umbrage at opposing views. Removing them, however, is in my view poor form.
August 18, 2010, 6:50 pmMark Scarberry says:
I wonder whether members of the Volokh Conspiracy think that an exercise of eminent domain here would be for a public purpose. That is, suppose the federal govt decided that it was in the public interest for the recordings to be made available, and thus decided to “condemn” them and pay the copyright holders “just compensation” (per the Fifth Amendment). The govt then would own the copyrights and would be able to issue and sell CDs. Some kind of compensation process could be set up in which those who claimed an interest in the existing copyrights could appear, make their claims, and argue for a particular level of compensation. (I don’t know much about them, but weren’t there similar procedures used during the Depression when large amounts of land were condemned for public works projects such as dams?)
But if we think that eminent domain can only be used for a public purpose, would there be such a purpose here?
On the other hand, perhaps some form of statutory licensing scheme with escrowed license payments (as previous commenters have suggested) would make more sense. But isn’t that also a form of seizure or condemnation of existing property rights?
Mark Scarberry
August 18, 2010, 6:52 pmPepperdine Univ.
Michael says:
Copyright was less restrictive in Germany than in England in the late 19th century which Spiegel posts contributed to rapid German industrialization.
August 18, 2010, 7:18 pmrichard says:
I’m not a lawyer, so I don’t get it the logic They’re not being passed off as the original recordings and at the time, there were no copyright laws covering taping radio showsIt would be a shame for these unusual and unique recordings to be locked up in a vault someplace inside of being made available to to music lovers. Their release might stimulate (sorry for using the S word) a renewed interest in the music of the 30’s and 40’s and lead to increased sales of the original recordings of that period.
There were copyright laws in effect (common law copyright) just that the federal copyright law didn’t apply to sound recordings. That was later changed.And its not that these recordings won’t be available at all- your’e going to be able to go to the National Jazz Museum and listen to them. Would I like them to be available for download and purchase? Yes. Would I buy a lot of them if they were available? Yes. Are they ways of changing the copyright law to make them available. Yes. (I’ve suggested a system whereby they would be allowed to be distributed with royalties to be put in a fund for claimants – somewhat analagous to the mechanical royalty system for songs (anybody can record a previously published song as long as he pays a royalty, specified in the copyright law, to the holder of the song’s copyright).
Do I think that making this available would lead to increased interest in this great music? No. I’m a record collector and music fanatic with a special interest in old jazz, blues, hillbilly, rockabilly, etc. Me and folks like me consider this stuff to be great. The rest of the world doesn’t care. That’s unlikely to change. Currently, there are discs and discs of Young, Holiday, Basie, Ellington, Christian, etc. Having more music by them is great but it isn’t going to mean significantly increased sales.
August 18, 2010, 7:33 pmrichard says:
I think a great incentive for writing songs and becoming a professional musician is that you’ll be able to receive the benefits of your creative work during the lifetime, at least, of your professional career. If you only get the benefits for a portion of that, I think it is more likely you’ll find a more financially rewarding career than being the composer of songs.
August 18, 2010, 7:36 pmThat Which is Seen and That Which is Not Heard | Think Tank West says:
[...] adjunct scholar David Post writes on the Volokh Conspiracy blog about the sticky copyright wicket facing some impressive jazz recordings from the 30s and 40s. I get pretty excited . . . when I read that the collection also contains live [...]
August 18, 2010, 7:50 pmWilliam Krick says:
Oppressive copyright laws have killed sampling as an art form. The 1980s and early 1990s were full of classic hip-hop albums from artists like Public Enemy and the Beastie Boys. Some time in the 1990s, the publishing companies started trying to extort excessive licensing fees from artists using short samples that were mere seconds long. As a result, the artists gave up and started licensing single songs where they “sampled” the entire tune.
Check out this article in Spin magazine…
http://www.spin.com/articles/sampling-dying
…and this excerpt from Wikipedia…
August 18, 2010, 8:04 pmhttp://en.wikipedia.org/wiki/Sampling_%28music%29
Rich Rostrom says:
copyright, inherently, operates to the detriment of the public when applied in retrospect, to works that have already been created. Lester Young, alas, can no longer be incentivized to produce these performances — they’ve already been created.
But other artists, potentially working now, may see that these works are protected and generating benefits for the heirs of these artists. I think this would be an added incentive to produce new work.
August 18, 2010, 8:37 pmrhhardin says:
Intellectual property is a political right, not a moral one; and the data suggest that supposed benefits to creativity do not exist, and we’d be better off without it.
Michele Boldrin podcast page here on the topic. Free (!) online book.
August 18, 2010, 8:47 pmgrooft says:
US Constitution (http://www.house.gov/house/Constitution/Constitution.html)
Article I, Section 8, Clause 8: 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;
Note the LIMITED TIMES to AUTHORS (copyright) AND INVENTORS (patents)
Originally, this was not greater than two 14-year terns (if renewed). Thanks to the ‘Sonny Bono Copyright Extension Act of 1998′ and Disney lobbying copyright is currently only 120 years on corporate authored works. And we shouldn’t see a new extension act come up and pass via (unrecorded) voice vote until 2019.
Thankfully, it is unconstitutional to not have copyright expire. Thus, the 2019 extension act will be necessary to keep Mickey Mouse properly licensed to Disney.
August 18, 2010, 9:30 pmMichael says:
Link to Spiegel asserting an advantage to a looser copyright tried again.
August 18, 2010, 11:31 pmchiMaxx says:
richard:
Or you will create MORE songs and demand more compensation for them since the period from which you can count on profiting from them is so brief. Should a “one-hit wonder” be abe to count on being compensated for that hit for the rest of his life?
August 19, 2010, 12:47 amchiMaxx says:
It always struck me as particularly sad that Collodi got nothing from Disney, since Collodi’s “Pinnochio” had ascended to the public domain in the few years that had passed from its publication until the time the Disney movie was made, but the Disney movie is still locked in the chains of copyright.
August 19, 2010, 12:54 amSamuel Hora says:
Well written! Btw another huge cost of copyrights (and patents for that matter) is the damage to the structure of the market as the artificially created incentives cause malinvestments in ventures that wouldn’t be so profitable in an unhampered free market. So while it is true that copyrights may encourage artists to create more (and consequently consumers to spend more on their creations), it is questionable whether “more art” (and more money redirected to it from other possible uses) is really what is needed. Without copyrights this question would be left to the consumers to answer every day. With copyrights however the power to answer is held by the bureaucrats crafting the laws.
August 19, 2010, 2:20 amChris Travers says:
Sure. That’s the tradeoff of copyright isn’t it? To build the public domain? It also has the added impact of creating a clearer incentive to produce new works, does it not? At most I think it should be two terms of 14 years, as our Founders established. But I assume you would say that is bad too, right?
Pretty much all software I write is released under open source licenses. I would be happy to have my books released under reasonable copyright terms but I’m not going to do that if the system is encouraging me not to.
I do think that we should generally have the expectation that copyright lasts less than a lifetime, ideally quite a bit less.
August 19, 2010, 2:44 amChris Travers says:
I don’t think copyright should even last a lifetime, not even a career-term. It worked fine for a long time as 28 years. There’s no reason why that’s too short except for the interests of folks like Disney.
August 19, 2010, 2:48 amAldomeir says:
“…recorded in the 30s and 40s by William Savory from on-the-air radio broadcasts …”
Here is an additional rub… Who actually owns the copyright…the artist(s) or the radio station(s) that broadcast the music or even the organizer(s) of the venue. Most (if not all those radio stations and organizers) are probably either out of business or purchased by some company. And was there any identification as to what radio stations broadcast which recordings?
This is not looking good for buying a copy of the recordings any time too soon.
August 19, 2010, 3:03 amGray says:
Ain’t that a right wing blog here? This posting sounds so surprisingly reasonable!
August 19, 2010, 5:34 am:D
But, seriosly, indeed, to retroactively put much higher copyright protection on the work of artists who died long ago is ridiculous. Who knows if those musicians and writers wouldn’t have actually put their stuff into the public domain if they had known that overbearing laws would prevent people in the 21st century from accessing their work? And in practice, even for newer stuff its often too difficult to figure out who has the copyrights. Too many companies have shut down, and too many artists vanished from public view. This sh** piece of legislation obviously was written without any thought for the real life consequences and for the interests of the public. Thanks to the Disney corporation for this idiotic law!
jmb says:
Lester Young, alas, can no longer be incentivized to produce these performances — they’ve already been created. We won’t get any more brilliant performances by Teddy Wilson if we protect these works.
Well, those guys are both dead, so they can’t be incentivized to produce anything. If that’s your point, fine, but it sounds to me as though you want the point also to extend to still-living creators who “can no longer be incentivized to produce these performances” because “they’ve already been created.”
That is a different point, and I don’t agree. True, a still-living creator can’t be incentivized to produce something he’s already created, but he certainly can be incentivized to produce something new, and the protection afforded to the existing work can serve as such incentive.
August 19, 2010, 10:19 amCopyright: The High Cost of Copyright | Science Report | Biology News, Economics News, Computer Science News, Mathematics News, Physics News, Psychology News says:
[...] http://volokh.com/2010/08/18/the-high-cost-of-copyright/ [...]
August 19, 2010, 10:42 amAnon23 says:
Addomeir sez:
As a live broadcast that was never a “published” phonorecord (as the term is used in the Copyright Act), I believe the copyright in the particular performance itself could be the life of the performers (each and every one of them) plus 70 years. Could be a while. I see no reason it would be the radio stations or the venue owner.
The compositions (underlying songs – sheet music, if you will) could be in the public domain without effecting the copyright in the performance.
August 19, 2010, 10:43 amlosantiville says:
On the other hand…
Since all the good writing in the history of mankind was produced before January 1, 1923, copyright is irrelevant for writings and the cost/barrier imposed by copyright makes the early public domain works at once cheaper and more valuable and worthy of continued preservation and reading than the later copyrighted works.
Just kidding in part..
Copyright junkies find: So I’m listening to a radio ad for the New York Times and am told that if you subscribe you have access to the TimesMachine that lets you access “all of the NYT from the first issue of September 18, 1851, through The New York Times of December 30, 1922″ with original look and feel. AHa the public domain part of the archives. But what happened to the December 31st 1922 issue? Is it copyrighted?
August 19, 2010, 10:54 amMark M says:
Oh, so people are in favor of the government helping them make money? Who knew. Artists want perpetual copyright so they have perpetual income. That doesn’t mean they should get it. The last people you should ever ask about copyright are artists.
If there would be less art with less copyright, so be it. There’s nothing special about pop songs versus widgets.
August 19, 2010, 12:01 pmA. Criminal says:
And there’s your copyright balance; what we seek is a way to give creators enough of an incentive to create, but not too much, because too much gives us, the public, too much of an impediment to actually enjoying the works that have already been created.
Posting FLACs or 320 MP3s to some Russian servers would solve all the copyright problems. Lawyers’d miss out on the spoils, though.
Making money from recorded music was impossible until about 100 years ago, then technology made it possible; maybe technology will make it impossible or less feasible in the future.
August 19, 2010, 12:40 pmchiMaxx says:
But, jmb: But if we reverted to a shorter term for copyrights, so that the rights in youthful works typically did end within the artist’s lifetime, wouldn’t the impending termination of protections in a copyrighted work act as an even-greater incentive as an artist to create new (or derivative) works. (“If I’m going to lose copyright protection next year on that hit I recorded/best-seller I wrote 27 years ago, maybe it’s time for a new recording of it with a fresh arrangement/sequel.”)
This certainly works with patents in the pharmaceutical industry–or is it a coincidence that months before a lucrative medication loses its patent protection, the company that created it usually comes out with a new and improved version with a new name and a new patent term (“improved enteric coating means that this medication is taken just once a day, while the competitive drug must be taken four times a day”)
August 19, 2010, 1:11 pmFilm school grad says:
“Tracking down all the parties who may have a copyright interest in these performances, and therefore an entitlement to royalty payments (or to enjoining their distribution), is a monumental, and quite possibly an impossible, task…”
Disagree. My first job out of film school entailed just this type of work.
I tracked down the provenance of images used in a series of educational videos for a corporate client. We appropriated hundreds of images, historical and contemporary. I identified the producer of each one, determined whether or not it was in the public domain, and offered payment and a contract when it was due. With one exception, all the image creators (mostly photographers) were thrilled to be contacted, and expressed appreciation for the modest recognition and compensation ($25 to $100 per image) we offered. I was one of two staff people who worked on this project for a period of about 8 months, both of us were modestly paid. It was interesting and gratifying work.
August 19, 2010, 1:19 pmVlad Konings says:
Evidently, Congress has decided that the phrase “limited Times” in the Copyright Clause means only that copyright must expire sometime before the heat death of the universe. Is there some other basis, traditional or otherwise, for interpreting what “limited” means? I would have thought “lifetime of the author” would be a good guide.
I find it appalling that unique, iconic photographic images from the Second World War, such as Rosenthal’s famous Iwo Jima picture, are still under copyright. Yeah, there’s fair use, but, as Clayton Cramer points out, no one really knows what it means.
August 19, 2010, 1:51 pmJack Brabble says:
So many ignorant thoughts contained in one blog entry and oh so many, but not all, comments.
Artists own their work. You pay for that work, whether through a publisher or from the artist directly.
Period, end of story.
OR… you don’t get to enjoy that WORK. Because making things, making ART, writing novels, writing plays, taking years and years of constant and persistent work that turns into experience, all of that takes DISCIPLINE and WORK.
This is all bullshit, its all smoke and mirrors so that everyone can get everything for free and the roar of “ENTERTAIN ME!” can persist in the culture of extreme greed and irresponsibility.
So go use your time in your lives wisely, and help others, make the world a BETTER place each day with your actions, and quit whining that you can’t read some author you want to read or hear music you want to hear. Maybe that artist never wanted millions of other people to partake of his art.
Sick of this ‘discussion’ about copyright. The artist makes work. You pay for it. Period. Whether you get to partake of it is the artist’s choice, when that artist publishes his/her work with a publisher or on their own.
Quit whining that you can’t use someone else’s hard work for your own use. Stop it. Go make something yourself that you want to hear or see. Just stop complaining that you can’t get stuff for free.
No one is entitled anything, ever.
Thanks.
August 19, 2010, 2:47 pmmarcel says:
it seems that “mosaic records” will release (parts) of the “savory collection”, according to this article:
http://artsbeat.blogs.nytimes.com/2010/08/17/the-savory-collection-likely-to-hold-more-surprises-for-jazz-fans/?scp=2&sq=savory&st=cse
August 19, 2010, 4:50 pmchiMaxx says:
Gee, Jack Brabble:
So what of the constitutional assumption that after some period of time, creative works should lose their shackles of copyright and ascend into the public domain, where they can not only be freely enjoyed but used as the basis of derivative works by other artists? Shouldn’t works eventually become part of our common cultural heritage, or should we take your absolutist view of copyright and be robbed of the works of Shakespeare and Moliere and all derivative works based on their plays because no one can track down their heirs or legal assigns to secure the rights for performance or derivative works?
August 19, 2010, 5:16 pmexplodingbbq says:
Does that include artists and their copy protections?
August 19, 2010, 5:27 pmChris Travers says:
Not only that but every time someone says “All’s well that ends well” in a book, the author would have to track down the heirs to Shakespeare’s estate and pay!
August 19, 2010, 5:53 pmJustin Levine says:
Jack Brabble – There are several problems with your analysis/rant.
The first concerns the issue of the public domain (which chiMaxx addresses in his comment from Aug. 19th at 5:16pm).
But there is an even more fundamental problem which you seem to ignore — the fact that no artistic work is truly “original” in an organic sense. Every creative work builds on elements from works that existed before it at some level of abstraction. If you have created any such works recently, I can guarantee you that you have utilized elements from other creators before you in such a way that you would not have legally been able to create your work had today’s restrictive IP regime saddled artists all along.
The fact that copyright prevents “derivative” works from being created without permission would effectively prevent the creation of ANY new works if we were to take your reasoning to its logical conclusion. It is far more complex than you make it out to be.
The key is to creative a system that maximizes both the creation AND distribution of new works. It is not enough to have a legal system that maximizes creation, only to have such works be accessible by an economic or cultural elite. Unfortunately, the current system is so out of whack that it is clearly retarding both the distribution AND creation of new works at the same time.
August 19, 2010, 7:55 pmStephan Kinsella says:
Justin, some good points. I don’t agree that the purpose of government or law is to create a system that “maximizes” creation etc. It is to protect property rights; to do justice.
And we have to abandon the crazy notion that there is something wrong with using others’ idea. This is just called LEARNING. This is what helps humanity progress; there is nothing wrong with it at all.
August 19, 2010, 7:59 pmEllen Martin says:
People are willing to pay for the artists’ works, we just hope to be charged something we can afford. This discussion on copyright is not whining but asking what to do when the artists are dead. (And there’s a case to be made for granting rights to Wm. Savory & heirs for his taste and expertise in choosing what to record and how.)
LARGER PICTURE: the single most effective incentive for most performing artists would be to Get Paid For A Gig, whether by tickets or grants or both, and paid rather more than what they get now. Many’s the musician who, while not a composer, literally breathes life into great pieces by recreating them night after night (if lucky) for not much more than the door. This would recognize the collaborative genres like jazz and dance, and make copyright a significant part but only a part (and therefore a less vexed and contentious part) of artists’ remuneration. Few things hearten them and inspire more creativity than getting applauded and paid for a performance.
(Paying artists more seems somehow to imply that the audience members also have jobs: another topic.)
August 19, 2010, 11:48 pmMark M says:
Funny, that’s not what the Constitution says.
To elaborate, the Constitution says that Congress has the power to give artists and inventors ownership of their work for a limited time.
Notice how they never have to say “Congress has the right to give people ownership of their own land in fee simple”. It’s assumed that you’re smart enough to know that artists DON’T own their work. However, it’s a good idea to let them make some money off of it for a bit, so we do that, since, after all, artists don’t actually own their work.
August 20, 2010, 8:38 amChris Travers says:
That’s not how I look at it.
Artists create. That work goes out and people see it. Some people may want to copy it. Once it’s made public, it becomes public property. That’s the way it worked for the majority of human history. However, that doesn’t work well for artists, and so society tries to pay artists back for their contribution, esp. where mass replication is possible. Copyright provides a way to essentially lease the work back to the artist for a time so that he or she can make some money off of it. Rights to fairly use the work however are still maintained by the public.
In other words, it is society granting some economic rights to the artist for a time. Not all economic rights are granted. For example, if you publish a novel and in my review I include a three sentence excerpt from that novel to show how the writing flows, that would seem to be something that could be done without asking for permission.
Similarly copying nearly all of Apple’s iPhone OS for the purpose of circumventing Apple’s control over the addon marketplace seems to me fairly clearly fair use too (IANAL, but the Copyright Register at the LOC agrees with me). Again, here is a right that the public maintains so that Apple cannot use their copyright to force you to only buy add-ons through them.
August 20, 2010, 11:00 amMark F. says:
Most composers don’t earn diddly squat for composing. Anyone who gets into this field for the money is a fool. 99% of the people who are involved in the arts do it for love, not money. Almost nobody earns a living at composition, yet there are still all sorts of good compositions being produced.
But you are making a utilitarian argument, not a property rights argument. One simply can’t own arrangements of musical notes (which are not scarce and not properly ownable)without interfering with genuine rights of physical property.
I.P. advocates are advocating a version of the Marxist Labor Theory of Value.
August 20, 2010, 7:30 pmmonkyyy says:
why dont they just release them via bit torrent with a few proxy’s?
its a pretty grey area and with lack of better comparasoin (and probably a insulting one at that)
the usa laws against terrorism on a much smaller scale (were basically anything goes intill the media causes a moral panic)
August 21, 2010, 12:18 amtaking away a few peoples “rights”(its in quotes cause i think those copyrights should have expired or something) for the greater good (the music i dont personally care for but others do, actually being heard)
Eli Byrne says:
“All we — the public — get from applying copyright here is a restriction on our ability to encounter magnificent works of art.”
Don’t “we the public” care about the (possibly poor) descendants of these great artists benefiting properly from the extraordinary contributions of their ancestors?
As a songwriter and performing artist I don’t feel copyrights create an incentive to produce – if they get me paid it they make it feasible. Now, maybe the real problem is that copyright laws were not broad enough in days gone by (or even now) to get artists royalties from the radio stations, whose whole attraction is playing the artists’ work. The old model was that the advertising value of being on the radio was payment enough in lieu of royalties – because the artists would make plenty of money through record sales.
Nowadays with digital reproduction hackers always besting the latest copy protection, how are artists to paid – in the present or the future?
One new model floated is that artists will get paid for live performances and all the piracy of their recordings should be regarded as advertisement for their live shows – but we all know how often venues go with DJs in lieu of live bands, so model doesn’t ring true either. I can’t see how to avoid good copyright law unless fans start spontaneously donating money to their favorite artists even when they can acquire their recordings for free.
Perhaps the National Jazz Museum should go ahead and release the recordings at market price and put all the profits in a trust fund that all the copyright stakeholders can fight over as long as they want.
August 21, 2010, 9:11 amHank says:
http://www.spiegel.de/international/zeitgeist/0,1518,710976,00.html
Did Germany experience rapid industrial expansion in the 19th century due to an absence of copyright law? A German historian argues that the massive proliferation of books, and thus knowledge, laid the foundation for the country’s industrial might.
August 21, 2010, 4:34 pmChris Travers says:
No. Why should they be entitled to free money?
That’s not the way copyright works though. You open yourself up to statutory damages if you do this. IOW one part of copyright is the right to say “I want to limit publication.” and even “I don’t want the new CD’s to compete with the LP’s in existance.”
Indeed if you go with “it’s valuable, so you should pay” theory, then it seems to me the law would have to require royalties be paid every time a book is checked out from the library, cited in a bibliography in an academic paper, etc. That strikes me as absurd and deeply counterproductive.
August 21, 2010, 8:17 pm