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Public Domain Day
Today is Public Domain day and James Boyle reports:
In Ray Bradbury’s 1953 classic, Fahrenheit 451, a “fireman” is a man who burns books “for the good of humanity.” Written at the height of the Cold War, the book paints a shockingly dystopian picture of a culture at war with its own printed record, one deeply infused by Bradbury’s love of books. When the book was written, Bradbury got a copyright term of 28 years, renewable for another 28 years if he or his publisher wished. Most authors and publishers did not bother to renew — very few have a commercial life longer than a few years. That meant that about 93% of books and 85% of all works from 1953 passed into the public domain within 28 years. But Bradbury’s book was a commercial success. The copyright was renewed and as a result it would have been entering the public domain tomorrow — January 1, 2010 — Public Domain Day.
You could reprint it, make a low cost educational version, legally create a braille or audio book edition, even base a new film or play on it. All without asking permission or paying a fee. But copyright law has changed since then. Copyright terms have been twice retrospectively extended. Now, Fahrenheit 451 is not slated to enter the public domain until 2049.
Posted by Tyler Cowen on January 1, 2010 at 12:18 PM in Books, Law | Permalink
Comments
Not clear why anyone should ever lose their property-rights in their creation!
Posted by: DesiAvenger at Jan 1, 2010 12:35:16 PM
Intellectual property rights are artificially created by the state. Because ideas can be copied at low cost, ip is inteded to reward the production of new ideas more than they would otherwise be rewarded:
"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;"
This gain for the creators is a loss for everyone else. That's why it's temporary.
Posted by: Alex J. at Jan 1, 2010 1:17:59 PM
"Not clear why anyone should ever lose their property-rights in their creation!"
It's not clear to you that there should be any limits to the state-imposed monopoly of intellectual property?
What planet are you from?
Posted by: MattM at Jan 1, 2010 1:21:06 PM
He's from Planet Apple. Duh!
Posted by: BoscoH at Jan 1, 2010 1:31:05 PM
All property rights (in our world) are created by the state; why is my right to my book any more a monopoly than my right to my boat or land? You have things stylized in a false way.
Posted by: DesiAvenger at Jan 1, 2010 1:40:32 PM
In any case, the question is whether it was a good thing. Probably not, since it was an ex post facto incentive.
Posted by: gc at Jan 1, 2010 1:44:17 PM
The property rights system we have was the product of experimentation over many generations. It was found that allowing property to ever fall into the public domain caused more harm than good, because land that is unowned tends to be abused and undeveloped due to abandonment, where-as IP did not, because IP that is public domain tends merely to be copied by others, not abandoned by its natural owners, which in the case of copyright are often already dead and therefore received all the incentive from their IP that they are ever going to get.
Posted by: LoneSnark at Jan 1, 2010 1:48:10 PM
We're somehow not mentioning that Ray is still alive, still active, and that the complaint here is that Ray isn't losing control of his own work — remember that once a work is in the public domain, you can do anything with it, including reworking it, say, as a pro-Fascist porn movie — during his lifetime. I know from personal experience that Ray is extremely kind to people who want to derive works from his work; it doesn't seem terrifically objectionable to have the copyright laws prevent him having to see perversions of his work during his lifetime.
Posted by: Charlie Martin at Jan 1, 2010 2:03:00 PM
robust intellectual property laws work the same as robust real property laws. the tragedy of the commons in real property works the same as the tragedy of the commons in intellectual property. the recent extensions for copyright (although one can disagree gently with the length of the last extension) are great public policy ideas. successful originality is human (and America's) killer app. - more (wise and moderate) ip protection, not less!
Posted by: todd at Jan 1, 2010 2:27:40 PM
Assuming the property is worth a fixed perpetuity of income (a very generous assumption since most properties have a short commercial lifetime), then after one doubling-time (for whatever discount rate you choose), the net present value of the income the property-owner has already derived from the property is equal to the net present value of the remaining perpetuity. In other words, it takes only one doubling time for the public to pay the property-owner what the property is worth to the public in the public domain.
The 14-year terms of the early patent and copyright acts are reasonable. The legislators that drafted them may have had the assistance of someone who understood accounting. While patent terms have remained reasonable, copyright terms have not.
Posted by: Cyrus at Jan 1, 2010 2:37:01 PM
It was found that allowing property to ever fall into the public domain caused more harm than good
For Disney, maybe. Would we really be better off if we had to pay Shakespeare's heirs for every production of Hamlet, and if they could veto remakes?
successful originality is human (and America's) killer app
IP laws that are too strong stifle creativity. Every nontrivial computer program violates all sorts of software patents, most of which should never have been issued. Large players get around this by cross-licensing each other's patents, small players constantly have the threat of lawsuits hanging over them, and patent trolls can profitably extort payments by threatening expensive litigation. This isn't good for anyone except lawyers.
Posted by: Brian 2 at Jan 1, 2010 2:39:45 PM
The reason intellectual property and real property are treated differently is because they ARE different. If I steal someone's real property, then the original owners don't have it. If I took their boat, then they don't have that boat. If I took their land, they don't have that land. If I "steal" someone's intellectual property, they still have that idea. I am simply using it as well. It's no longer win-lose, but win-win.
In other words, when Caveman X "steals" the idea of fire from Caveman Z, Caveman Z loses nothing. He doesn't all of a sudden become cold in the night. Caveman Z still keeps warm. Caveman X now is warm also.
Because new works of intellectual creation take time and money to develop, IP laws were put in place to make sure the original creators were compensated for that expense and could get a profit from it. The original copyright terms were of more than enough time to make sure the original creator (and/or their heirs) were compensated.
The extensions of copyright terms aren't intended to benefit the original creators or innovators. They are intended for corporations to continue using works created by others. The people who thus benefit are not the original creators in any way. Instead, they are a group of people who want to monopolize the use of someone else's idea. It's not about adequately compensating the creator. It's about the greed of non-creators who simply have more lawyers.
Posted by: Chris Durnell at Jan 1, 2010 3:24:48 PM
"Copyright terms have been twice retrospectively extended." Isn't that meant to be unConstitutional?
Posted by: dearieme at Jan 1, 2010 3:45:08 PM
cue thomas jefferson
Posted by: babar at Jan 1, 2010 3:46:29 PM
that caveman story sounds like an argument for "efficient theft"
Posted by: DesiAvenger at Jan 1, 2010 3:51:39 PM
But we can still burn the book, right?
Posted by: rob at Jan 1, 2010 4:44:30 PM
It's a travesty that the supreme court didn't rule retroactive extension unconstitutional. The copyright clause begins with the subordinate clause "To promote the Progress of Science and useful Arts...". If that clause has any meaning, it must mean that Congress has the power to grant copyrights only insofar as it promotes production. But a retroactive extension can't promote the production of more works in the past. Congress does not have the power to do this. The court, in this case as in many others, shirked its responsibility to limit Congress's law-making powers.
Note that this argument applies even if you are an intellectual property absolutest and believe that copyright should be foverer. It's about what the constitution says, not what is morally right.
Posted by: David Wright at Jan 1, 2010 5:04:21 PM
I once had a professor whose biggest pet peeve was that authors weren't paid royalties when people checked books out of libraries. (I think they are in the UK). He brought this up angrily when someone in class mentioned they had checked out one of HIS books from the library.
Posted by: rob at Jan 1, 2010 5:34:37 PM
I just realized that someone could short sell a book by borrowing it from the library, selling it, then buying it back in the future, hopefully at a reduced market value which is enough to cover the late fees.
Posted by: rob at Jan 1, 2010 5:37:11 PM
As a software developer for living, I curse the day when the US administration created "software patents".
The whole concept is actively stifling software innovation in half of the world, only being profitable for patent lawyers (that might have been the original intent: after all, the political class in the USA is over-lawyered).
a) Idiotic, trivial or absurdly vague concepts (like "mouse cursor") get patented every day. This is not going to get better, because it is totally beyond the abilities of the patent bureaucracy to distinguish real algorithmic breakthroughs from the above mentioned.
b) Companies are forced to keep an expensive legal department to check possible infringements, and to patent something themselves in order to have a counter-set of patents (the logic: if company X sues company Y for infringement of idiotic patent XPat1, then Y can sue X for infringement of idiotic patent XPat2, and so they are both better off not suing). This has very real effect on the cost of the resulting software products, as well as on profitability of said companies.
c) The 20-year long patents are absurd in IT, where technological cycle of innovation is 3 years or less. It kills productivity in a big way (yes, "todd"!) because people are forced to reinvent the wheel (=necessary algorithms) over and over again.
It seems that America got rid of royalty in 1776 just to inflict another royalties on itself in the 1990s. The solution is still the same: off with them.
As for copyrights, their perpetual extension is awful. I do not really see why copyright for anything (books, music, software) should extend over 10 years from the date of publication. Why should people 2 or 3 generations removed from the original author of some work still collect royalties for his work? Sounds like ye olde feudal aristocracy to me.
I think that rise of Chinese pragmatic approach will kill the old IP system anyway, but I can't wait for it to happen. The West is stuck on stupid with the current system.
Posted by: Marian Kechlibar at Jan 1, 2010 6:19:37 PM
Marian, I agree with you for the most part, particularly regarding software patents, but why shouldn't the author of a book get royalties from it for at least as long as they live? What if the work becomes much more popular 25 years after its initial release? Would authors be as motivated to try to write works that would still be relevant 25 years hence if they knew they wouldn't get paid for it after only a few years?
Posted by: rob at Jan 1, 2010 6:29:17 PM
IP rights are too restrictive now. Look at what can be created with public domain works - Disney loved making animated movies adapted from public domain stories, Pride and Prejudice and Zombies was favorably reviewed (although mostly for its innovative technique), etc.
Meanwhile, we can only get a taste of what remix culture could produce using more recent works through sheer luck - The Beatles Love Album (samples from 130 tracks into an album of 26 songs) wouldn't have come ever emerged if Cirque de Soleil founder Guy Laliberté wasn't already friends with George Harrison. We could see an explosion in creativity if we made licensing compulsory. Or if we ended copyright protections after 54 years. Or made copyright extension opt-in instead of opt-out.
A lot of my friends are patent attorneys and patent examiners in the mobile telecom industry - and it's widely believed even within the profession that patent law is overly burdensome on technical innovation. I feel the same way about copyright and artistic innovation.
Posted by: Shane at Jan 1, 2010 6:33:39 PM
Firstly the ban on ex post facto laws only applies to criminal law not civil law. You cannot criminalise an act which was legal at the time it was taken. Copyright is civil law. Secondly in any event the extension means that an act which would have been lawful was now unlawful. Even when, as in the UK, the copyright extension was applied to works that had already come out of copyright the making further derived works was unlawful any editions or derived works published in the interval remained lawful and could remain in print without needing permission. There is no ex post facto element in the law and activity that would have been lawful remained unlawful for longer. The relevant action is the making of the copy not the original work, if the original work was in copyright at the time the copy was made then permission is needed.
Posted by: Brett Dunbar at Jan 1, 2010 6:35:22 PM
there was a brief period when digital mediums outpaced the rule of law. There is one break, the "amen break", that effectively spawned an entire music genre (and subsequent knock offs and gentrifications in Jeep adds and pharmecuticals and PowerPuff Girls themesongs) before copyright violation laws were drafted putting an end to it. Although this video is long, it is thoroughly researched and very informative. This is the 6 seconds of music that *almost* managed to escape into the public domain
http://www.youtube.com/watch?v=5SaFTm2bcac
Posted by: farmer at Jan 1, 2010 6:39:05 PM
Rob: being a classical music freak, I notice that some of the best music ever written was composed way back in time, when no IP restrictions applied. My theory is that really great artists do not produce their works because they want to make money of them; rather, they produce their works because they have to; their internal pressure of living inspiration simply forces them to put things on the paper.
In my view, having a constant number like 10 or 20 or 25 years since the day of publication is more practical and workable. For start, you do not have to inquire whether the artist is still alive or no (try finding a Chinese artist with name like Huo Jiu, or an American artist with name like John Black - not every author is a celebrity. People move, change their names, and leave no publicly visible trace). Second, it protects the family of the author from struggling in case that the author produces his opus magnum, and drops dead immediately after, a la Mozart.
Posted by: Marian Kechlibar at Jan 1, 2010 6:43:43 PM
Marian, you do make a good argument.
I suppose JD Salinger would have had to keep writing...
Posted by: rob at Jan 1, 2010 6:56:38 PM
What if IP owners had to pay for extensions to the copyright after some fixed period? It would make figuring out if something was still in copyright a little trickier, but it would surely mean that a lot more stuff got freed up earlier rather than later.
Posted by: Steve M at Jan 1, 2010 7:14:47 PM
which must be why the movie ('66 version) is on Turner Classic movies tonight.
Posted by: Jeff in Indy at Jan 1, 2010 10:48:04 PM
Am I correct in thinking that despite the constant push to extend copyright terms, thanks to the wonders of the internet in reality people are always able to access works via countries with the shortest copyright terms? This isn't very good from a legal or ethical perspective, I guess, but it gladdens my heart to think that the people constantly pushing to extend copyright terms will always be fighting a losing battle against the international nature of the web.
Posted by: iphone Hülle at Jan 1, 2010 11:55:58 PM
I notice that some of the best music ever written was composed way back in time, when no IP restrictions applied. My theory is that really great artists do not produce their works because they want to make money of them; rather, they produce their works because they have to;
Are you sure about this?
My understanding is that much classical music was paid for by commission or patrons. Composers did not compose for free. They were merely compensated up front.
Posted by: anon at Jan 2, 2010 1:34:53 AM
While I somewhat agree with a lot of the anti-patent comments, I think there are some benefits to a corporation profiting from a book even after the writer is dead. A person only has a finite lifespan, but a corporation can theoretically "live" forever. Even if the company is sold off, there is still residual value in its existing copyrights. By allowing a corporation to benefit for 200 (500, infinity) years, they can offer a larger upfront payment to the writer during his or her lifespan. It effectively allows writers to be paid the present value of the infinite stream of payments their works will create.
Posted by: forager at Jan 2, 2010 1:55:19 AM
If you look at copyright law in totality, 99% of work authored in the US is orphaned work within a decade with no possibility of determining the real copyright holder. Thankfully, 98% of copyrighted material is uninteresting, but the 1% that is, is in a no man's zone where the copyright prevents any publication at all, as the author does not hold the rights and the corporation which holds the rights is lost in the world of defunct firms, transferred rights, mergers and breakups.
Of the published works, at least 90% are out of print, but obtaining the right to publish exceeds all possible revenues from sales of a reprinting even if the rights are granted for the cost of granting the rights. The cost of finding the copyright holder and convincing the copyright holder they actually hold the rights to a commercially worthless property is far in excess of the non-commercial value of reproduction.
And the most disturbing change in the past quarter century has been the conversion of academic journals from a means to freely distribute free authored works to advance the arts and sciences into a restricted for-profit warehouse of works with very limited availability. Most academics find it necessary to violate the terms under which they submit their papers in order to advance their careers: "ungated copies" of paers is a violation of the copyright they have been forced to transfer over to a for profit in exchange for having their work published without any compensation, and sometimes after paying for it to be published, with the publication and giving up their rights being effectively a condition of employment. Publish, and give up your rights, or perish, in the world of academia.
Why is a five page monograph worth $10 from say jstor, or even more like $35 from the greedier journal publisher.
Posted by: mulp at Jan 2, 2010 2:40:11 AM
So that’s a few more authors whose intellectual property (wit, imagination, ingenuity, creativity and sheer hard slog) you can pinch without having to break sweat yourself or put your own grey matter (if fitted as standard) in gear.
Posted by: luxury villa bali at Jan 2, 2010 3:57:09 AM
RE: Orphaned works, why not allow a prospective publisher to "advertise out" the unknown owner? This is common practice for some forms of real property. For instance when an old corporation cannot find a sufficient number of its stockholders but needs to dissolve, it advertises in publications near the last known addresses of the stockholders. If no one responds after a set period of time, they lose their title to the stock. It would be simple for a national database to be set up for this purpose, so that works would no longer be lost to this limbo.
Posted by: JP White at Jan 2, 2010 3:41:01 PM
Brett Dunbar wrote: "Copyright is civil law."
So what's up with everyone's favorite ten seconds of mandatory DVD introduction? I refer of course to:
"FBI WARNING. Federal Law provides severe civil and criminal penalties for the unauthorized reproduction, distribution, or exhibition of copyrighted motion pictures, video tapes, DVDs or video discs. Criminal copyright infringement is investigated by the FBI and may constitute a felony with a maximum penalty of up to five years in prison and/or a $250,000 fine."
Posted by: Ken at Jan 5, 2010 3:51:14 PM
If anything, copyrights should be much, much shorter, precisely because it is an incentive to create new art. For the most part, a copyrighted work provides most of its value in a very short timespan: Let's look at a videogame or a movie for instance: How many movies from the 20s are really providing any significant revenue today? How many videogames from the 80s can you buy at your local store? Heck, their price drops dramatically under a year after release. However, they are copyrighted until the cows come home.
Do we really expect that the possibility of revenues due to the original implementation of pacman in 2050 make a difference in a developer's willingness to create a game? The game development business would be exactly the same if copyright lasted 5 years, but the availability of said games, and their value to the world at large would be increased if they were on the public domain. The situation is such that many companies consider the infringement of IPs that old just not worth pursuing.
And let's not forget about the costs of just tracking who owns a copyright: Google, in their book scanning initiative, ended up having to give up on actively looking for who was the IP holder of each work. After all, rights are bought and sold. With the current laws, and without an expensive registry for copyrights, not unlike property registries in parts of Europe, the end result is that hundreds of thousands of copyrighted works become abandoned: A book is out of print, it becomes impossible to track the IP holder, and therefore impossible to reprint. Isn't this an economic loss, as opposed to allowing someone to use the abandoned IP?
Posted by: hibikir at Jan 7, 2010 4:38:34 PM
