Hey, what ever happened to copyright?
By Robert Nagle
Wow, did anyone notice that Lessig went to court last month? He argued in Kahle vs. Gonzales before the 9th Circuit Court of Appeals that the change “from an ‘opt-in’ to an ‘opt-out’ system of copyright alters a ‘traditional contour[] of copyright,’ requiring ‘further First Amendment scrutiny’ under the standard established in Eldred v. Ashcroft, 537 U.S. 186, 123 S. Ct. 769 (2003).”
The plaintiff’s brief is here , and here are Lessig’s thoughts afterwards (sort of confusing to read, because he’s responding to lots of commenters). Here’s an mp3 audio of the oral arguments (27 minutes long). Generally, Lessig sounds better prepared than the government’s attorney, and the questioning judges pressed both sides on how this case differed from Eldred. One judge asked the government’s attorney (at the 17 minute mark):
Question (Judge Schroeder): Is there anything in the legislative history to indicate that Congress was aware that in changing the system there might be some copyrights where there’s nobody there anymore who really enjoys the copyright right?
Answer (government attorney): I’m not aware of any discussion that specifically focuses on that point.
Ponder that. The government attorney acknowledges having no knowledge of any discussion by Congress about the consequences of moving from an opt-in to an opt-out system. That concession is unbelievable. Considering legislative history is often a key piece of evidence when judges interpret laws, and the government has basically conceded that the matter didn’t even come up.
The crux of the harm is here (found in the Plaintiff’s brief) (p21):
Tracing ownership for work published in 1930 and 1964, however, is infinitely easier than tracing ownership for work published in 1978 — at least if that work is no longer commercially exploited. For before 1978, at some point in the history of the copyright, the copyright owner had to register the work (either initially or at renewal). However outdated, that registry was an initial and crucial filter, separating protected from public domain works. After 1977, however, no registration is required. Copyright extends automatically to every creative work reduced to a tangible form. Thus, to clear rights for works created after 1977, an archive would have to determine the ownership of works that have never been registered, and that have no requirement of marking or notice. Thus, under the system that exists after 1977, it is only commercially available work that can be reasonably acquired and spread — since commercial availability presumptively points to the copyright owner. The balance of creative work — and the vast majority of creative work — remains locked up by legal regulation.
Lessig uses as an example a book published in 1930 (p 20-21):
In 1930 there were 10,027 books published. In 2001, only 174 of those books were still in print. Brief of Amici Curiae Internet Archive et al., Eldred v. Ashcroft, 537 U.S. 186 (2003), at pp. 12-13 (attached at Addendum). That means 9,853 books from this single year are out of print. Yet because published after 1923, all of these books remain within the scope of copyright protection.
If a digital archive such as plaintiff Internet Archive sought to make those out-of-print books available on the Internet, it would need the permission of the copyright owners of each work. (Electronic access, even if copies were not distributed, would infringe an exclusive right of copyright.) The archive would therefore first have to determine which of the 9,853 were still under copyright. That is determined by verifying which of the 9,853 books had its copyright renewed. The archive would then have to locate the current copyright holders for those works whose copyright was renewed. This part of the process could well be impossible. There is no list of current copyright owners. Nor is there any requirement that transfers be recorded.
Predictions: All of us on teleread favor some kind of copyright reform and gleefully predicted a few years ago that the Sonny Bono Act would be overturned. Egg on our faces! So when making predictions, I have to consider my (ahem) track record. However, the harms pointed out by the plaintiffs is obvious and tangible. And unlike the Eldred case, there are not substantial commercial interests opposing the measure. (Walt Disney really does not care about this case–although professional photographers seem to). My guess is that the plaintiffs will prevail in demonstrating that the traditional contour of copyright has been changed, requiring 1st Amendment scrutiny.
However, Congress already had been considering specific legislation to address orphaned works and will probably pass something in 2007. Lamar Smith is working on legislation to limit liability for libraries and nonprofits who are found to be infringing (more). That is substantially weaker than the Public Domain Enhancement Act proposed a few years ago (that’s the one requiring copyright owners to pay a tiny renewal fee). Unfortunately, the tiny $1 registration fee is still considered excessive by some.
The question is whether the legislative track will beat the judicial track or vice versa. Kahle vs. Gonzales has been preceding very slowly (especially if it makes it to the Supreme Court). A resounding judgment on Kahle v. Gonzales (even at the appellate level) might push Congress to consider measures that go beyond limiting liability and towards creating a user-friendly system to verify copyright registration.
December 30th, 2006 at 6:47 am
Not 100% on topic, but I have an issue with the Public Domain Enhancement Act that I’ve never seen addressed.
Let’s say I write a daily newspaper comic strip. When that first strip comes up for renewal I have to allow the characters into the public domain of pay $365 in renewals that year. The next year it doubles, and so on. If I was only a moderate success and depended on sales of my collections in my retirement I’d be out of luck. In fact the more work I had produced the worse off I’d be.
December 30th, 2006 at 7:41 am
Jay, it could be argued you would need to renew only one strip to keep the rights to the characters. (There is a lot more I could say about this, but I am afraid I don’t have the time at this point.)
“Ponder that. The government attorney acknowledges having no knowledge of any discussion by Congress about the consequences of moving from an opt-in to an opt-out system. That concession is unbelievable.”
That wasn’t really what was said, but it is significant nonetheless.
Since the US is a signatory to Berne, and international treaties typically trump federal law (there’s some discussion about that too, as federal law is defined to be on equal footing with treaties in the US constitution), there’s a good chance Kahle/Lessig will lose this case, unless they indeed manage to convince the court that the Bono law is unconstitutional. A tack Lessig tried before, and lost.
December 30th, 2006 at 7:51 am
“Congress already had been considering specific legislation to address orphaned works and will probably pass something in 2007”
I thought this has already been torpedoed by the photographers?
“However, the harms pointed out by the plaintiffs is obvious and tangible.”
I read somewhere that judges typically find against smelly hackers, but for elderly librarians. The harms pointed out in Eldred were also obvious and tangible for those willing to open their eyes. I do hope Lessig learned from his previous case, and has shed some of his naïvety.
“Walt Disney really does not care about this case–although professional photographers seem to).”
Skimming through the text after the link, these photographers seem to be very sensible.
Dutch copyright law has a provision that those portrayed in a photo may have copies made without paying the photographer. A very sensible measure that would take most of the sting out of a orphan works act. After all, the biggest problem with orphan works for the man in the street is that he cannot have his wedding photos reprinted.
December 30th, 2006 at 2:02 pm
Branko: I didn’t mention it in my piece, but the main “sympathy case” Lessig said he had was the story of people who couldn’t make copies of old photos at Walmart/Kinkos because the photographic studio had gone out of business. International law/treaties are not really given great prominence in US law (in fact, there’s a whole movement calling for US judges to ignore it), although Congress typically makes laws that are compliant with it (they made a law that implemented its provisions in 1989). Interestingly, Berne was cited only once in the whole appeal(although after googling, I see that you are right in saying that Berne said that “protection must not be conditional upon compliance with any formality.” However, I’m guessing it is talking about works copyrighted in another country (i.e, if a work is copyrighted in Botswana, you don’t need to do the paperwork to receive copyright protection in other countries). I’m guessing; I really don’t know the answer. Anyway, the US certainly didn’t eliminate the validity of the registration protocol for works before the Berne Convention was signed by the US in 1989; so we are mainly talking about what happened before it was signed.
Aha, I just found a statement on the Public Domain Enhancement site that seems to back up this guess–see Q11:
Jay . You raise a really good point about what would require the fee. First, as I mentioned above, formalities were essentially eliminated after 1989, so for current creators, it’s not an issue. It applies only to works produced under the old registration regime. However, what about comics or works published serially in a publication instead of all at once? This is fine print that Congress has to worry about when the will is finally there to do something.
December 30th, 2006 at 2:06 pm
Branko One more thing. Yes, the Orphaned works bill appeared to stall in September, but I think it came more as a result of the 2006 election than anything else. It’s definitely on people’s agenda (the Copyright Office released a study analyzing the problem last year), and hopefully a Congress controlled by Democrats will pass something more sane.
December 31st, 2006 at 12:02 am
Jay, it could be argued you would need to renew only one strip to keep the rights to the characters.
My understanding is that once a work enters the public domain, derivitive works could them be made. So let’s say the main character of my hypothetical comic strip appeared in every strip. If just one of those strips fell out of copyright then derivitive works featuring that character could be made (as long as they only referenced the now public domain strip).
I think trademark law would come into play there, but for a single person operation it might be too expensive a fight to have.
I am in favor of things going into the public domain after a more reasonable ammount of time than what we have currently, but I feel the PDEA fails to take into account fields where you have a large body of works (photography, short stories, comics, serialized works, etc.) I tried posing the question in the past elsewhere, but I’ve never seen it addressed.
Jay
December 31st, 2006 at 2:55 am
At the risk of seeming obtuse, why is it so important to prevent derivative works? If I make a Dilbert cartoon, how many people are going to want to give me credit anyway? I have a lot of problems with the concept of derivative works, but that’s an article for a different day.
December 31st, 2006 at 7:50 am
Jay Penney wrote:
“My understanding is that once a work enters the public domain, derivitive works could them be made. So let’s say the main character of my hypothetical comic strip appeared in every strip. If just one of those strips fell out of copyright then derivitive works featuring that character could be made (as long as they only referenced the now public domain strip.”
The _It’s a Wonderful Life_ example that appeared here earlier would appear to argue against that reasoning. (Remember, there the movie copyright expired, but most people acknowledge that it’s not public domain, at least not completely, because it’s a derivative work of a story that’s still in copyright.)
If that reasoning applies, then the critical renewal is for the *first* comic book or strip of the series (or the first including particular characters).
Mind you, I’ve also seen some compilation videos of cartoons claimed to be in the public domain that use characters that I’m pretty sure are still asserted to be in copyright. That doesn’t quite fit the reasoning above, since if the characters are in copyright, I’d expect the cartoons using them are not PD even if the copyrights to the specific cartoons in question were not renewed; and if the characters are *not* in copyright, I’d expect to see folks making new cartoons based on them without legal worries, and I don’t see that. But maybe the law here has been clarified since I saw these compliations; anyone know?
December 31st, 2006 at 8:28 am
“My understanding is that once a work enters the public domain, derivitive works could them be made.”
I don’t know where you got that understanding.
The only person I’ve ever seen make this claim is Lauren Vanpelt, a law student, in a student paper called “Mickey Mouse - A Truly Public Character”. I have yet to see any copyright lawyer or judge agree with her, though, and if you read the paper you’ll notice it relies on some pretty intricate reasoning. Shoot down one of these arguments in a court of law, and the whole set comes crumbling down. (IANAL. TINLA.)
Of course, she might entirely be right. To my knowledge, no-one ever tested that defence in a court of law, and when somebody will, the defence might be upheld. A PDEA could try and account for that possibility.
(IANAL. TINLA.)
December 31st, 2006 at 9:54 pm
I think I got the idea from the fact that multiple companies were publishing books in the Oz universe, but they could only refer to events that happened in the original series up to a certain year because those stories were not PD.
I think the reason you can compile PD cartoons and not make derivative works is because the characters are still Trademarked (trademarks do require active use to be upheld).
I thought “It’s a Wonderful Life” was PD for a time, until the early 90s (based on the precedent set in the Rear Window case).
IANAL either, so maybe I’m probably confused.
January 1st, 2007 at 8:17 am
Oz is a different case, because there the *original* stories are public domain, their copyrights having expired due to sheer age rather than nonrenewal. (Actually, the copyrights of all the published books written by Baum have expired by now.) So since the foundational texts are fair game, then folks are free to riff off them as they please.
The situation appears to be different when you have later copyright-expired works (due to issues like nonrenewal) derivative of earlier copyright-not-expired works, as in _It’s a Wonderful Life_ et al.
This issue will complicate further when copyrights that start expiring are “life plus” copyrights rather than “fixed term” copyrights. If copyrights expire more or less in the order they’re secured, derivative work issues tend to work themselves out, since the original work expires before the derivative. But if the author of the original died later than the author of a derivative, things get complicated. (Of course, the same issues come up with renewed copyrights, as we’ve seen, but at least there nonrenewed works tend to be more obscure.)
January 1st, 2007 at 10:43 am
From a different angle:
In the US you don’t have moral rights, but authors still feel like they are their works’ parents. They’re their works, even if copyrights have expired. I can well imagine that authors don’t want others to touch the worlds and people they came up with.
Also, a character or a world can be a franchise. One can not-mind that old works that have served their purpose return to the public domain, yet still want to control the world and the characters. In other words, distribute the old stuff all you want, but don’t change a comma, and no derivatives. There are even CC licenses that will let you stipulate such conditions for in-copyright works. And Richard Stallman formulated such ideas even earlier in discussion about copyright.
The whole point is moot from a legal standpoint. “Protecting” your world is not what US copyright is about. Nevertheless people will argue for changes in copyright law based on what is the best for their fictional worlds, so it might be a useful strategy to phrase law proposals in such a way that authors feel at ease with them in this respect.
And then there is fan fiction…