132 Comments on “Two Tweet Threads About Copyright”

1. Ahh yes: “This is how I think so obviously everyone else does too”, probably my least favourite viewpoint. And yes, until it is possible for writers to live by writing copyright is their best chance of getting to that point I think. As you said, it’s not a perfect system but making it worse won’t help.

2. Amen! And who are we to argue with the father of the gods, however casual he looks?

3. Some things about the threads have really bugged me.

   1) You addressed this in your post, but repeating for the people in the back.

   Someone in one of the tweet threads floated the idea that copyright should be pegged to the life of the author, and once the author is no more, the book goes into the public domain. This seems hideously unfair to the families of the authors who die young. We can argue about the length, but I think some provision should exist so authors can leave something to their families.

   2) Suppose an author wants to leave royalties to an institution, e.g. J. M. Barrie’s gift to Great Ormond Street Hospital. In cases like that, I’d be perfectly happy seeing a separate provision in the copyright law, saying it’s okay for anyone to publish the book, as long as they give a cut of proceeds or make a donation to the designated charity.

   3) Courtney Milan posted some good thoughts about the problem with copyright and orphaned works. Maybe we could solve two problems at once going forward by having authors designate a recipient like Great Ormond Street Hospital, where royalties could go if the author was born N-many years ago and no other copyright owner can be determined.

   I’m happy to be corrected if these ideas are stupid in a different way than the earlier stupidities.

4. Amen.
   I once was hired to make illustrations for chapter headings for a Middle School SciFi book by my publisher. She wanted to pay me $10 and no copyright earnings. Lets not get too far into this no longer existing publisher.
   I gave her the standard answer of all illustrators: it took me my entire life up to this moment to develop the skill you are buying. A whole life is not cheap, thank you. Yes, I make it look simple. That’s the magic isn’t it?

   Copyright royalties in my view are for more than the work you see, the months or years it took to write/ create/ illustrate. It is the whole life, education, effort of the artist.

   Damn straight we should be able to feed and clothe our families and provide for them if we should shuffle off the mortal coil before them. The same spouse that helped support my education deserves the royalties.

   Want content to fiddle with? Make some.

5. Damn right.
   I just attended an online conference for the centenary of a romance novelist called Georgette Heyer, who died in 1974. She spent over 50 years writing for money, not just because she liked it, but also because she was supporting, at various times, her widowed mother, her husband and child, and her brother and other family members, as well as herself. Writing was her business, and her family’s control of the copyrights after her death also allowed the family to control the use of her works.
   Say what you like about the draconian restrictions imposed by the estates/families of writers such as Samuel Beckett and Martin Luther King Jr, but they should have the right to control the use of the work, particularly in the case of King, who was murdered before the age of 40 and whose works are already twisted by bad-faith actors.

6. I think you might have feelings about this issue.

7. Ahh yes: “This is how I think so obviously everyone else does too”

   Also known as “The Alex Lindsay Viewpoint“. One of the many things that make him so insufferable as a podcast guest or host….

8. The anti-copyright crowd always remind me of Ayn Rand followers — as well as the folks who make a living off The Lost Bag Swindle — in that they all seem to share a feeling that their fellow humans are prey fit for the taking.

9. The long duration of copyrights has negative effects in technical publishing, where (with rare exceptions) there is no long tail. (I’ll give you Knuth’s The Art of Computer Programming as a technical work that DOES endure.) Things like technical manuals and software for old computers remain legally restricted despite the fact that there is little or no commercial value for that content. But there are hobbyists who would enjoy working with it and are held back by copyright.

   I think here is a strong case for shorter copyrights for technical writing. The devil is on the details: how do you determine which works deserve the longer duration and which do not? Fiction vs non-fiction is one line, but some non-fiction has a long shelf life.

   One possible way to address it would be to bring back copyright re-registration, at least for non-fiction works. Require papers to be filed at the ten or fifteen year mark, along with a modest fee. The owners of most of the kinds of works I’m talking about wouldn’t bother.

10. In reference to your comments a writing as your business…

    My daughter makes her living designing and crafting custom jewelry. I’ve told her that what most impresses me is the business skills she has developed; I always knew she had natural artistic talent, and that plus her (very expensive) education gave her the chops for the product. But the business skills don’t come natural.

    Her response was that she knows many people who are much more capable than she is at the jewelry side, but who never developed decent business skills and could never make a go of living off of their talent.

    I’d expect that writing, like all other creative endeavors, requires as much business acumen as it does creative ability if you’re going to make a decent living at it.

11. Even assuming, for the sake of argument, that the US could withdraw from the Berne Convention (and thank gods nobody thought of doing that last year) and could set all its own rules… let’s say the copyright was set to 30 years if the work was “inactive,” as someone I will not name hypothesized. I don’t believe that the clawback provisions would survive, because once you start tinkering with something like that, sharks gather, and writers are rarely sharks. So the publisher claims they have “active” inventory (probably digital), so they graciously renew the copyright on the author’s behalf (in trad publishing they filed it to begin with, usually)–does anyone seriously think they’ll allow a provision to let the author claim their rights back a mere five years later stand? I don’t. Writers would lose all the way around.

    When I was in library school I used to get into flaming rows with my one of my professors about the problem of orphaned works and the library’s habit of just assuming the copyright owner couldn’t be found, so they had the right to treat such works as public domain. Hell the no, say I.

    Thank God for Berne, also say I.

12. Question for people who judge that copyrights should last decades: I’d be interested to know how you feel about patents lasting a much shorter period of time (20 years, depending).

    (I am not offering an opinion about the appropriate length of copyrights.)

13. Just to add a bit more ammo to your arguments, Neil Gaiman has two of his works currently being serialized which would not be making him any money if copyright expired just 30 years after publication. Both Good Omens and Sandman where first released over 30 years ago. I’m sure the studios behind both series are making tons and tons of money and it would be horrifically unfair to Neil to deny him of any compensation.

    And that’s Neil f-ing Gaiman we’re talking about here. These works have been praised since they were released. He has been praised for all this time as well. His fans have been waiting for these series for years and years, and yet it took over 30 years for a studio to come in and make them. If the studios knew 30 years was all they needed to wait, they’d just always wait. That would be detrimental to the fans, not beneficial. Sure, they’d be able to make legal copies of U$10 books, but I’m sure most would rather pay U$10 for a book if that meant having it filmed decades sooner.

14. I think copyrights should be shortened quite a bit; something like life+25y or 75y, whichever is shorter. But:

    Agree about this being unlikely, considering there Berne convention, and
    I do live in a country with universal healthcare, pensions, free education (so eg kids to authors dying young will be able to go to the university etc, which makes things much much easier.

15. I always wonder about the motivation of the short-term copyright crowd.

    Unless it is an absolutely fantastic work, it isn’t going to be published unless there is a profit to be made.

    If a person is lucky, it might be picked up by Project Gutenberg and Google Books.

    Note that Project Gutenberg states they have “over 60,000 titles. Google estimates that there are approximately 130 million books in the world (https://mashable.com/2010/08/05/number-of-books-in-the-world/). My guess is that most of them are beyond their copyright and are in the public domain. If being in the public domain is so valuable, where are all of those books?

16. I agree that life should be the starting point, and something beyond is pretty much required (next of kin) – and again agree and like 25 years.

    I also think that for both patents and copyrights, people should always retain at least 5% – that they cannot be made to sell or transfer 100%, and to prevent unwanted “side-effects”, the 5% share is never bequeathed or otherwise transferred, but is accrued in some fund for starving writers/inventors or such.

    Silly thoughts I know, but one can dream.

17. The public domain is a pretty great thing! It lets people build on things that are part of our shared cultural heritage. Authors making money is also a great thing! I don’t want to take away royalty checks that an elderly author is relying on to keep herself housed in her old age.

    I’d like to find a better balance between allowing creators to make money for reasonably long periods of time, and allowing things to fall into the public domain quicker when they’re out of print and not making anyone any money anymore.

    Right now, there’s a ton of work out there that is still covered by copyright but not being marketed to anyone anymore. In many cases it’s hard to even find out who owns the copyright to ask them for permission to use the work. Maybe this problem will fade in time as more works are distributed digitally from the beginning, which pretty much nullifies the cost of keeping an older work “in print.”

    Setting aside the practical difficulty of renegotiating the Berne Convention, I’m not sure what the optimal balance even would be. Maybe some sort of requirement to keep registering your copyright periodically? If you can’t be bothered to fill out a form every decade or two to keep your copyright, maybe it’s a sign you’re not too concerned about losing revenue over it?

    This might come with some sort of escalating fee structure: no charge to protect a work for the first decade or two, but the copyright renewal cost would increase each decade after that. Not too expensive during the typical lifetime of an author, but if you get to the century mark and want to keep protecting something that a long-dead ancestor made, only that very rare work that’s still selling lots of copies will make the fee seem worthwhile.

18. @Ben V:
    I think the motive is purely profit, the desire to make money off someone else’s efforts.

    For an example: about once a month, somebody posts a bunch of Doc Savage novels as available upon Amazon Kindle, usually with either copied original cover art or block letter cover art. Now, Doc is still held in both copyright and trademark and has until quite recently, still been in print. So he is in no sense a publishing orphan.

    Their business plan is: copy these novels for nothing — it was digitized by a pirate firm called Black Mask a few years ago — copy them, post them, and take whatever money comes in as 100% profit. Maybe you sell only a handful of copies. But multiply that times the number you put online and multiply that by the dozen or score or hundred other authors whose works you are pirating, and you could be looking at a thousand dollars or more (or less) a week.

    Pretty good money for selling something that doesn’t belong to you.

19. I have a few points I would like to
    1) the copyright system is starting to be horribly abused in ways that it was never intended. I am watching the Oracle Vs Google lawsuit with dread. the concept that a API could be copyrighted seems like a stretch.
    2) The terms of copyrights should be bound to the works when they are created. E.G the terms granted to Sherlock Holmes were retroactively extend 3 times after the works were created. The estate of Arthur Conan Doyle is still suing over them 90 years after his death.

20. Mark Twain wrote ironically on this subject, see https://americanliterature.com/author/mark-twain/short-story/petition-concerning-copyright

    In his “Petition Concerning Copyright” he suggested that if it was fair that copyright passed into the public domain aft 42 years (as the term then was) then real estate should do likewise. In short he favored a perpetual copyright, writing:

    “The charming absurdity of restricting property-rights in books to forty-two years sticks prominently out in the fact that hardly any man’s books ever live forty-two years, or even the half of it; and so, for the sake of getting a shabby advantage of the heirs of about one Scott or Burns or Milton in a hundred years, the lawmakers of the “Great” Republic are content to leave that poor little pilfering edict upon the statute-books. It is like an emperor lying in wait to rob a Phenix’s nest, and waiting the necessary century to get the chance.”

    Now this neglects the public good that the public domain offers, and I don’t favor a perpetual copyright. But it is worth considering as a counterbalance to those who advocate for a very short copyright term.

    I do think that the pre-Berne system (in the US) of offering a fixed term after publication to all work (which was 95 years under US law just before the Life+70 term went into effect) was better. It meant that one only had to determine the year of publication to know if a work was protected, and that the problems of determining if the rights-holder was still alive would not apply. (This problem is often significantly harder for photographs than it is for written works.) It would also avoid the unfairness that an older writer’s work has less commercial value, because the copyright term is shorter, than the similar work of a younger writer, and that the family of a writer who dies prematurely are deprived not only of the writer’s potential future work (and of his or her living presence) but of the otherwise expected term of earnings. A flat 100 year term would offer a reasonable level of protection, it seems to me. In many cases this would offer more than a Life+70 term. I believe that an earlier version of the Berne conventio0n offered member countries the option of a flat term provided that it was at least 50 years long.

    There is also the issue of orphan works, and of commercially unavailable works. I would favor charging a small tax, say $10 per year, on works first published more than 50 years ago. If the tax was unpaid for 5 straight years, say, the work would enter the public domain. This would deal with out of print works — if the authors or publishers thought they had any significant commercial value, they would pay the tax. and keep them protected. The tax form would also provide contact info for the copyright holder or an agent, to be disclosed in the Copyright Office records, thus obviating much of the orphan works issue.

    I see the point that Shirley Dulcey makes about technical works, but it would require a change to Berne, which seems unlikely.

21. Shirley Dulcey beat me to it on technical documents, but even beyond that, probably 99% of everything copyrighted stops earning money within ten years of publication. Accordingly, having a simple and cheap (like $1) reregistration process every twenty years or so would have the benefit of preserving copyrights for creators who believe their work has future earning potential while releasing everything else into the public domain.

    But, like the rest of it, this would require a revision of Berne, which is improbable.

22. I would note that the TRIPS agreement requires that WTO members have a minimum copyright term of 50 years. So changing to a 30 year copyright term would require the US leaving the WTO as well as leaving the Berne Convention.

23. Not going to comment directly on how long copyrights should be, but address some of your arguments more generally.

    We don’t decide public policy by asking the people it most directly impacts, we ask all of society. So unless you want to argue some group of like interests constitutes a majority of society, we don’t need their agreement. Though as a practical matter this means any changes would only apply to new works.

    There are a lot of policies where the debate is actively harmed by assuming the status quo is reasonable. The defense budget, police, taxes, minimum wage, health care, etc. People argue against transformational change that is needed because it would be too much change, but that just leaves us in a broken system.

24. I have three thoughts on this:. First for those who think 30 years is enough time for a work to make money, why is Disney (allegedly) screwing over Alan Dean Foster over Splinter of the Mind’s Eye?

    Second, why are we even having a debate over individual copyright? I mean for my adult life, the poster child for copyright abuse has been a large corporation I need not name. It’s the corporate copyright that should be a concern, not individual.

    Third, what individual was being targeted by this?

25. Corporations limited to 75 years for their copyrights?! Not if the Mouse and Warners have anything to say about it…

26. Huh, well, I actually learned something new about American copyright law today, which is that it’s even longer than I thought it was in some instances.

    Specifically, John said this: “currently in the US [copyright is] Life+70 years.” And I thought, “Hey, I don’t think that’s right. It’s 95 years from date of pub, or life+70 years for unpublished works.” The reason I thought this is that I am, in fact, an academic who is currently working on a decades-long project to critically edit the works of a famous philosopher who died in the 1940s. In that sense, I had better have the copyright law down, or I could be in some serious trouble!

    But as it turns out, John is right, it’s just that the length he quotes only applies to works created “on or after January 1, 1978.” Ah, well, that explains why I thought I knew different. My guy died in the 1940s, so the new law isn’t relevant in my case.

    Returning to the main discussion, though, I’d like to think we can all agree that (1) authors need to be adequately compensated for their work, which includes robust copyright laws and lengths, and (2) the public domain is a good thing, too. If everyone agrees on both those things, then it ultimately just becomes about wrangling some arbitrary numbers, with much based on where your interests lie.

    I know that as an academic, I’d definitely like to see some of these terms shortened a touch, because it makes it easier to do the work I’m doing (in which we have the full support of the subject’s grandson… but not Macmillan!).

    I could also claim (truthfully!) that I publish books as well, and hence also have an interest in keeping copyright terms longer, but since they’re academic books for a fairly narrow audience that sell only in the hundreds, that would be a pretty disingenuous argument. I don’t make a living–directly, at least–on book sales, though universities are more likely to hire me if I publish more.

    I do think that the idea that a copyright could expire before the author is… weird? And kind of upsetting? It just doesn’t seem right that other people should be able to directly profit off your work while you’re still breathing, not to mention publish derivative works.

    But I think it’s also true that it’s unfair to tie copyright only to the author’s life, for cases when the author either dies young, or simply creates something late in life.

    On the other hand, with the current ridiculous lengths we’ve got on copyrights now, there are cases where great-children of artists (or big corporations) are still collecting royalties–which was never the aim of copyright, to directly support the fourth generation of someone’s family.

    I suppose if I had to propose what I see as copyright lengths that balance the imperative of adequate creator compensation with the good of public domain, it might be something like: 50 years OR life of the author+10 years, whichever is longer.

    In this case, someone who dies ten years after creating a thing still has forty years of copyright that will help support their spouse and/or other family. And in the case of a creator who makes something early in life and lives a long time–say work created at age 25, dies at 85–they could end up getting 60+10 years of copyright. Or even longer. Personally, this seems reasonable to me. But reasonable people may disagree.

    I will mention, as an aside, that I’m not sure I understand why copyright and patent terms are such different lengths. My father is an electronic engineer who designed an extremely successful glassbreak sensor (e.g. for home security systems). Guess how long a patent term is at max? Twenty years from date of filing. It’s a far cry from 120 years or life+70 for copyright.

27. Thinking about it, I can see an advantage of Life + X copyrights. If, say, Our Host dies from a bad burrito tomorrow, all of his works enter the public domain together X years later. This means, for instance, future creatives and their lawyers don’t have to deal with fighting over whether or not a VR-sim adaption of Old Man’s War inappropriately uses content from The End of All Things if that one is still under copyright for a few more years.

28. Corporate copyright ownership is broken. And almost none of what John writes above applies to corporate owned copyrights.

29. As a creator, I agree with you

30. Who wants to see a Scalzi v Doctorow cage match?

31. “Require papers to be filed at the ten or fifteen year mark, along with a modest fee.”

    “…the 5% share is never bequeathed or otherwise transferred, but is accrued in some fund for starving writers/inventors or such.”

    “This might come with some sort of escalating fee structure:”

    “I would favor charging a small tax, say $10 per year, on works first published more than 50 years ago.”

    “Accordingly, having a simple and cheap (like $1) reregistration process every twenty years or so…”

    It’s worth noting, I think, that when people want to take rights away from authors to benefit the public, it’s often suggested that the authors be the ones to pay for it, rather than the public.

    But one of the things these modest fees do is they put a burden on poorer writers, who may not have the money to protect their back catalogue regularly, while large companies like Disney could have a full-time department paying what to them is pocket change to reflexively hang onto everything.

    And lest you think, “Aw, what’s $10 a year?” or “What’s a dollar?” — think about short fiction, columns and other such output, and how many freelance writers have many, many, many works they’d have to protect or lose. Think about spending that time and paying that $10/year or dollar per item on WHATEVER, if John wants to protect his work over time.

    The people who can’t afford that time and money are often going to be the people who most need to hang onto their rights.

    And think about the bureaucracy it would take to run that registry, handling I-don’t-know-how-many thousands of registrations per year and maintaining them, and the cost to the public — because while those fees may be a burden on poor creators, they’re not going to be enough, especially since you’re going to want to track the stuff that didn’t get paid for either, so you can know if it’s available.

    Even that 5% that goes to the fund for the indigent is 5% that the creator might like to have their family get, but we’re presuming to take it away from them out of the goodness of our hearts, even though that money’s already being taxed normally.

    I would say let’s not dump extra work and extra costs on creators — JK Rowling can afford to staff it all out and won’t miss the money, but on the other hand, if Rowling lost all her copyrights tomorrow she’s still set for life. She’s not the kind of writer who needs that potential trickle of income from long-tail copyrights.

    There are doubtless other ways to handle orphan works or out-of-date tech manuals than to take rights away from all authors (unless they can pony up). Design something that works for those situations, rather than burdening every author just to get at a subset of works.

32. “I’m not sure I understand why copyright and patent terms are such different lengths. My father is an electronic engineer who designed an extremely successful glassbreak sensor (e.g. for home security systems). Guess how long a patent term is at max? Twenty years from date of filing. It’s a far cry from 120 years or life+70 for copyright.”

    Because patents and copyrights cover different kinds of things.

    On the one hand, patents are often more crucial — if we had to wait 120 years for penicillin to go into the public domain, that hampers researchers and harms the public much more than if we had to wait that long for James Bond. The public domain needs that stuff sooner.
    If you patent a process that allows solar radiation to be collected and stored by a chip, then anyone who wants to do that has to license the process from you, even if they came up with it independently. You’ve got a monopoly on the whole thing.

    But if you write a book about hobbits on a quest to dunk some dangerous mystic bling in lava, well, people can’t reprint your book or make a movie out of it without securing permission. But they can still write a book about halflings out to feed some dangerous mystic bling to the ice gnoles — what’s protected by copyright is that particular story, not the underlying plot structure. Tolkien gets a monopoly on his particular specific expression of those ideas, not on piece of science that can be used a zillion different ways.

    I’m sure there are other reasons, but those two illustrate the basic idea, I hope.

33. I am in favor of shortening the copyright term, I don’t know what number I’d pick, maybe 75 years or life of the author, which ever is longer sounds about right.

34. Travis:

    “We don’t decide public policy by asking the people it most directly impacts, we ask all of society.”

    This is, well, an interesting theory of looking at how public policy gets made here in the United States at the moment.

    To remind everyone, this is almost entirely a moot point because of the Berne Convention.

    That said: If you could reduce copyright terms without running afoul of Berne (which you can’t), if you can’t convince creators to go along with it (and you largely won’t; see above for why), you’re going to have a very very very hard time getting any limits to copyright passed in Congress. Not only will you be up against individual creators, you will also be up against all of their guilds and unions, as well as the associated industries that rely on copyright, as well as some rather large corporations with huge libraries of copyrighted material, each with very well funded political action committees. Not to mention that creative people have, strangely enough, quite a lot of sway in the field of public opinion. Then there are the legions of IP and entertainment lawyers, who would challenge the constitutionality of the change. Basically, given how politics works in the US, any attempt to substantially reduce copyright protections would get crushed before it even gets going.

    This is what I mean by you need to convince creative folk.

35. I’m one of those folks in favor of a registry and renewal system, for various reasons. It makes it easier to identify and contact rightsholders if they have to make themselves known now and again. It makes things that authors don’t care about retaining copyright to go into the public domain that much faster. (There are different kinds of creators and motivations, and in particular those who make their living by selling their creations have different motivations than those who create primarily for other reasons. There are lots of important creators in both categories.) Also, as the US renewal system used to work, renewal provided an opportunity for authors and their families to take back rights they had signed away previously to others.

    As our host points out, though, the Berne Convention prohibits requiring renewals or other formalities during the copyright terms it prescribes. And to be fair, the folks who came up with Berne had reasons not to like formalities. Historically, there were various ways under the old US copyright system that you could lose your copyright by mistake, sometimes as soon as you published, if you didn’t observe the formalities correctly. And the formalities that the US required just gave you copyright here– imagine having to figure out how to also satisfy formalities in all the other countries in the world, each of which might have its own subtly different rules.

    However, many countries, the US included, now have copyright terms that run longer, sometimes a lot longer, than what Berne calls for. If scaling back terms to the Berne minimums isn’t viable now, it is still possible to try a registration/renewal system for those extra years, without contravening Berne. It could make a number of copyrights a little shorter, and for proponents of registration and renewal systems, it could be an opportunity to demonstrate whether such systems could be implemented more fairly and efficiently on a global level now than they were the first time around.

36. “I don’t know what number I’d pick, maybe 75 years or life of the author, which ever is longer sounds about right.”

    One of the basic reasons for life-plus is that if copyright terminates with an author’s death, you’re taking away their family’s income the moment they lose someone theoretically close to them. It’s mean. Giving authors some time to provide for their family after their death, as pensions usually do, helps to make that loss less devastating.

    Another reason that I keep thinking about, but maybe it’s just me, is that if, say, Harry Potter was going to go PD just as soon as Rowling dies, then you know there’d be people who would want to “free Harry!” from her control by poisoning her digestive biscuits. Not to mention movie studios who (a) don’t want to pay millions for the rights, (b) don’t want to have her telling them what they can and can’t do and (c) don’t like that Warners got there first, anyway.

    If Rowling’s death wouldn’t free Harry for another ten or twenty years, then there’s much less inducement to murder.

37. Ok, I agree, life + 25 years sounds reasonable, though the lowest it would go is life+50. And the current life+75 is kind of ridiculous.
    The main problem is copyright held by corporations, They should probably be limited even more. Maybe on transfer of a copyright, or for works for hire, whether to a corporation or not, it should be capped at 50 years from the transfer date. Copyright abuses aren’t being perpetrated by creators, but by corporations looking to wring every penny possible from works of long dead authors. You could say this would limit the creator’s possible income, but corporations aren’t paying a premium assuming they will still be making money over 50 years in the future. Corporations are actually much more concerned with the short term. By the time 50 years passes, most of those running a corporation are long gone from that corporation.
    On orphaned works, which are a big part of the concern of those arguing for copyright reduction, maybe something should be done, since it can be far too expensive to research and try to find the holder, and of course you can’t prove a negative here. Someone could spend years and thousands of dollars and not find a holder, and so include the work in an anthology or other work, only to be sued by an heir who was impossible to find. So maybe as a minimum start with a voluntary registry so holders can list their, or their agent’s contact info, so they can be compensated. If such a registry became widely used, searching the registry might become sufficient to allow republishing without years of research.

38. 75 or life, whichever is longer, is usually going to mean longer than life. In the rare case that the author wrote something at say age 20, and lives at least to 95 years old, there can’t be more than a handful of cases where the title is still relevant, much less profitably publishable, especially if the case is that they didn’t write more works as their life went on.
    Life or 75 is almost always going to be life plus some years.
    Life plus 75 which is what we have now is kind of ridiculous, with the only benefit being to corporations.
    I’m old enough that I could easily have had children, and even grandchildren. My ancestors who died around 1946 (75 years ago) were my great grandparents and great-great grandparents. They were born as far back as the civil war, and their works could have been locked up for as many as 6 generations of their descendants under current law. More if more ancestors were born when their parents were younger.

39. I am not going to argue about Copyright length. It has been argued well already. I just want to say that Project Gutenberg aside, it is in my interest for copyrights to do what they were designed for – to encourage new work. I re-read frequently, always have (wore out three paperback copies of The Lord of the Rings before I gave up, and bought hardcover) Still, I read more books that are new, at least to me. I really like reading new work. And if long copyrights encourage you to keep writing new work, I am all for them.

    Again, none of this applies to Corporate Copyrights. The corporations are not the creators (although employees may be) so they cannot be encouraged by copyrights. I tend to think that long copyrights for corporations are wholly evil. And how do you tell when a corporation dies anyway?

40. “And how do you tell when a corporation dies anyway?”

    Corporate-held copyrights (while too long, I agree) are not measured from the death of the corporation.

41. @kurtbusiek

    Oh, sure, I accept that basic premise. But there are also plenty of patents applied to things that aren’t penicillin (to put it mildly). And it’s also just interesting, speaking from a pure creator compensation perspective, that someone who creates something like a glassbreak sensor is limited to less than 20% of the exclusivity term given to artists/writers/”creatives.” I don’t think the world would have gone to hell if my dad’s glassbreak patent had lasted for 40 years instead of 20.

    Does this mean that all patents should be longer? Not necessarily, clearly. Maybe there should be a distinction between those inventions that are crucial to the public good and those that aren’t? I dunno.

    Some patents are undeniably stupid and/or overbroad. E.g., as a big gamer, I found Namco’s patent of mini-games during loading screens annoying:

    https://www.eff.org/deeplinks/2015/12/loading-screen-game-patent-finally-expires

    So there are clearly patents for “innovations” that actually just take advantage or pre-existing ideas for profit and lock them up for no good reason. There are some truly heinous patents out there.

    But for a genuine invention that is a true innovation, but not also crucial to the public good in the way that penicillin is? I think those inventors can reasonably look at 120/life+70 and go, “Huh, I seem to be getting a little screwed here.” Or the converse: “Boy, those folks over there are getting a bit too much!”

    In the end the length of term numbers are all pretty arbitrary. But I tend to think that most reasonable would agree that 120/life+70 is probably too long. That’s not to say it will ever actually be shortened–because once you grant people a thing, they are unlikely to then allow you to curtail it–but it probably should be.

42. In no particular order:

    Copyright (and patent) are both compromises in one sense, and Churchillian at that: “Exclusive intellectual property rights are the worst way of supporting the advance of the useful arts and sciences, except all of the others that have been tried in human history.” Go ahead, minimalists — claim otherwise… but be prepared to back up your examples of “better systems” by looking at what those systems suppressed at least as much as what they produced. Oh, you think there should be private patronage by the idle rich as the only means of supporting artists, and that would work because the Renaissance proves it? Start by looking at the regional distinctions in what works have survived/resulted in progress, and ask yourself whether it’s really true that all sculptors were born, lived, and died in Italy during the Renaissance… or, conversely, that no great music was composed in the greatest power in Europe during the Renaissance (Spain)… or, more to the point, that the parties with enough money to be reliable long-term patrons weren’t racist/sexist/etc. bigots. Or if it’s supposed to be direct government subsidy, let’s consider the prison terms imposed at various times on Shostakovich, Gorbanevskaya, and others (and those are just the ones we know about).

    Travis is right that we do, or are at least supposed to, consider the broad needs of society in making policy. But that’s not what we do. And in particular, the actual creators seldom have a seat at the table when establishing policy about the arts; at best transferees of the actual creators get a seat. We hear from Disney about the immense value of Moana and not from the composer of one of the iconic songs; hmm, didn’t he have something to do with some recent Broadway production, too? And that’s even before considering that there was (by inference) a nondisparagement clause in the contract between Disney and what’s-his-name anyway.

    Seeming tangent: The reason that patent terms are so much short is that patent covers an entire idea and all of its derivatives, but copyright covers only specific expression. This is an explicit bargain in European law going back to the early 1500s; I could bore you for days with specifics. Then, too, patent is shorter because it’s strict liability — it doesn’t matter whether the infringer knew about the patent — but copyright requires, well, copying to infringe (“independent creation” is a defense; it’s tough to prove, but happens all the time, as some of the big music cases recently have struggled over). These are all policy tradeoffs.

    (So is the measurement by the life of the author, and if you think that the first try of “life of the author plus nothing” didn’t give publishers incentive to have some authors murdered, let me point you to a number of entries in the All England Reports…)

    The bottom line is that starving artists don’t paint eternally respected still-lifes of daisies. They push up daisies, and thereafter don’t do anything. And in that sense, Our Host is understating the problem, because art is even crappier under all of the alternatives to expecting IP creators to successfully exploit their limited monopolies than most people are willing to contemplate.

43. “Maybe there should be a distinction between those inventions that are crucial to the public good and those that aren’t? I dunno.”

    Sadly, if corporations didn’t get to declare which was which, their lobbyists would influence the government choices, which would be less about the public good and more about letting the corporations make the most money.

    And patent would still be about monopolizing a process or design, while copyright was about a specific work, not a worldwide use of a trope or twist…

44. “It’s worth noting, I think, that when people want to take rights away from authors to benefit the public, it’s often suggested that the authors be the ones to pay for it, rather than the public.”

    Well…yes.

    Prior to copyright law the public had the right to copy new works from the get-go. The public gave up these rights to creators, for a limited amount of time, in order to create better incentives to create new work for the public to enjoy. That’s the reason for copyright. Give creators an opportunity to profit from their work beyond the first printing, and more good work gets created for the rest of us to enjoy. It’s a win-win for the creators and the public alike.

    This trade-off has its limits though. What books are being written today that would not be written if copyright expired after only 50 years? Past a certain point, extending the copyright term really doesn’t change the incentive structure for the creator. They would have created the thing regardless of any extra time added to the copyright. Beyond this point (and I think we’re well beyond it, for the record), it’s not a win-win anymore. The creator wins and the public loses. The public is already paying for these long copyright terms. Why should they have to pay more to reform it?

    If your grandfather wrote something 75 years ago and you want to keep control over it, you should at least need to declare that as your intention from time to time so that the public can use all the work where the descendants don’t actually care anymore. If you can give the public some money in exchange for that continued control, all the better.

    And in the case of works owned by corporations and their shareholders instead of creators and their families, I’m 100% okay with cutting off the money way sooner. Corporations are themselves something that the public created to serve the public benefit. We should be very skeptical about laws that allow them to profit at the public’s expense.

45. “Prior to copyright law the public had the right to copy new works from the get-go.”

    We haven’t been prior to copyright law for a long time. Prior to abolition, people owned other people. That doesn’t make it the place to start a negotiation about the way stuff is today.

    I think copyright should be shorter. (It won’t be.) But I think trying to get there by burdening poor authors and making them lose their rights before wealthy authors do is a crap idea.

46. Different field, same problem: everyone thinks that they know more about doing the job that I got a PhD to learn how to do and have done with a fair degree of success for over a quarter of a century.

    I feel your pain on that score.

    And I continue to be amazed by the argument that, because someone has a skill for creation, they somehow deserve less remuneration for their efforts that anyone else. Perhaps you’re to gain sustenance from the aethers?

47. Eric, prior to copyright law, the public didn’t have the ability to copy creative works.

    Further, priviligio extends back to about a decade after Gutenberg, and one really, really, really didn’t want to unlawfully copy a work covered by (for example) the English 1566 Statute… because alleged unlawful copying was a Star Chamber proceeding. Literally, as in “beheaded at the Tower of London after conviction.” No, there weren’t (a lot) of civil suits; it was the government cracking down instead, which makes it look to those who haven’t studied the history of copyright like there wasn’t a “copying right.” Locke thought it important enough that he ghostwrote many of the speeches before Parliament that led to nonrenewal of the 1566 Act shortly after the Glorious Revolution, and fifteen years later to the first “modern” copyright act in 1610-that-we-now-call-1609-thanks-to-calendar-reform. One of Locke’s reasons for doing so was his disdain for government control of the right to copy.

    So I’m afraid your premise is incorrect.

48. “We don’t decide public policy by asking the people it most directly impacts, we ask all of society.”

    As John points out, one can quibble with the wording. It is however an excellent point of departure.

    Copyrights and patents are market distortions introduced deliberately by public policy on the theory that public good results. While they decrease competition and raise prices, they serve as incentives to generate a supply of new and valuable works and useful ideas.

    I’m not at all opposed to regulating the markets in the public interest, but the aim is not (I hope) to create a new class of rentiers.

    This is perhaps just a roundabout way of saying, with @Bartlett, that I’d happily listen to Doctorow and Scalzi discuss this at length. I don’t know offhand whether that has already happened.

49. Just as the US left the Paris Agreement, it could leave the Berne Convention should it choose. It’s not like the World Copyright Force would show up with guns blazing.

    Having authors paid by copyright is the model we have now. It’s not the only model for how creative workers can be paid. Stage actors and orchestra musicians are paid per performance or by salary. When mathematicians prove new theorems, those theorems are used in further proofs by others entirely for free; there are no royalties for proofs. Plenty of illustrators do work for hire and do not retain the rights to their work.

    At the very least, looking at the tone of this article, I hope Scalzi recognizes how defensive and hostile he becomes when it looks like someone is threatening to take away something that he has, and maybe be more sympathetic to those who feel the same way when being told to give up their “white privilege” by people who don’t understand their lives.

50. I was being deliberately snarky but it would be an interesting conversation. I suspect their opinions on the matter might not be as far apart as people would expect.

    Mostly I’d just enjoy hearing the conversation between two people who are knowledgeable on the subject.

51. Practically, for all the reasons John’s outlined, things are unlikely to change much.

    But… just because something is well-entrenched in law doesn’t make it intrinsically right?

    If I ask an author, “why is it reasonable for you to maintain sole control, for multiple human generations, over a story you told?”, answering “it’s legal and you ain’t gonna change it” isn’t really addressing the question. “Otherwise I can’t make a career out of it,” is on-point, but there are loads of things humans enjoy doing that don’t get legal carveouts to support them as careers.

    Don’t get me wrong, I’m glad that our law supports and incentivizes creators by offering some amount of copyright protection, but its duration looks way out of whack to me: human nature is to tell and re-tell stories, to change them, mix them up, get creative with the things one has been exposed to. (Remixing and fanfic-type things go back a long, long way.) Our current laws deny that to all of humanity, for virtually all works made during a person’s lifetime. The only reason the scope of that tragedy isn’t clearer is that, by definition, we can’t see what hasn’t been made.

    I’m a creative professional, but I work in a field (there are a number of them) where the core essence of what I’m creating is not covered by copyright or other IP law. I don’t think that’s a well-balanced situation either, but it leaves me pretty skeptical of claims like “Life + N years is basically a requirement”. It’s what some folks have, and what they’re used to, but that isn’t by itself a justification. (“We’ve planned our lives and retirements around the status quo” is more of one – yanking the rug out from under people is a sh*tty thing to do – but that’s a case for avoiding change that is both drastic and sudden, not an argument of merit.)

    Do I want my favorite authors to be able to make a living writing? Sure do. Do I want that at any cost? Not really. In a wishing-world, I’d like to see a robust social safety net plus UBI – so that an author who sold literally nothing wouldn’t be homeless, starving, or uninsured – and copyright terms short enough that adults could create freely using the stories and experiences of their youth.

52. This is kind of off the main topic, but since Disney is a convenient whipping boy, I’d just encourage people to watch the documentary The Making of Frozen 2 to see the love and dedication and incredible effort that goes into making some of these things.

53. I like Life+25 (or 75, whichever is longer).
    Seems reasonable enough and prevents vultures from hoping to see you die soon. (That should be reserved to haters anyway.)

    That being said, I also see problems and parallels with patents.

    (Gross oversimplification coming!)
    It seems weird that if you invent the cure-all pill, you get 25 years (in theory, in practise it’ll be less because you need to realize you’ve got the pill, and you probably patented the formula the moment you saw it was useful) to make money off it, but if you manage to re-order “la di da” in a new way, your grandkids will still be able to earn money.

    Maybe the problem for both isn’t the term length, but the hangers-on – the trolls.
    Patent trolls are a thing. I’m sure there’s copyright trolls as well (large corporations come to mind).

    With all this stuff – copyright, patents, trademarks – all of them seem similar to me, the problem usually is that someone tries to cheat others, and in the end everyone loses. The owner of the IP cannot assume non-malicious intent because they constantly have to defend themselves, so they get overly aggressive.
    That is IMO the root of the problem. Someone above mentioned Oracle – stuff like that shouldn’t happen, and it can’t be solved via term lengths.
    Clear guidelines would be required, but it’s an infinitely complex issue, so we’re trying to find simple solutions.
    I think term length is too simple a solution to work.

    Unfortunately I cannot offer even an idea of how to solve this. All I can do is throw out my thoughts and hope that they are useful. Maybe not only as bad examples, even.

54. 2) Suppose an author wants to leave royalties to an institution, e.g. J. M. Barrie’s gift to Great Ormond Street Hospital. In cases like that, I’d be perfectly happy seeing a separate provision in the copyright law, saying it’s okay for anyone to publish the book, as long as they give a cut of proceeds or make a donation to the designated charity.

    It’s worth noting that Barrie’s gift to GOSH did require a specific exemption to be written into UK law (§301 and Schedule 6 of the Copyright, Designs and Patents Act 1988) to allow their rights to be extended past the expiry of the copyright, and that only happened after a major public outcry.

    IDK if or how it would be possible to create a general exception to allow similar gifts without requiring a specific one for each gifted work.

55. Eric: “human nature is to tell and re-tell stories, to change them, mix them up, get creative with the things one has been exposed to. (Remixing and fanfic-type things go back a long, long way.) Our current laws deny that to all of humanity, for virtually all works made during a person’s lifetime. ”
    People can do that in a wide variety of ways without actually using someone else’s story/character. Nobody has to use Philip Marlowe to tell a story about a world-weary hardboiled PI. Countless Holmes pastiches have commented on Holmes without using him, back before it became legal (despite what the Doyle estate says) to use him. The “Irredeemable” comic and the Brightburn movie both use Superman without actually using Superman.
    So I disagree with your rationale.

56. Fraser: I get what you’re saying, but I think Eric R also has a good point. The whole idea of copyright law relies on a host of social infrastructure and cultural attitudes and assumptions.

    E.g., I’m an academic who works at the intersection of philosophy and theology. So of course I tend to immediately think of biblical cultures, or the ancient Greeks, or other ancient cultures with oral traditions, before the printing press was a thing, and when literacy was relatively rare. The whole notion of copyright in such a context is absurd and makes no sense. The idea of someone “owning the rights” to any character would have been a meaningless concept. The priestly class, or the keepers of stories, could and did invent competing narratives about important cultural figures/characters (real or imagined), and while they may have been disagreement about which stories were “true,” they wouldn’t have claimed to own the character. Similarly, the idea of doing a pastiche of a god like Zeus, rather than just tell a story about Zeus–with all of the cultural weight that figure carried, versus a newly-created one–would have been a non-starter.

    Specious example? In the sense that we can’t return to an era before the printing press, sure. But I do agree with Eric that one of the core traits of humans is that they’re story-tellers, even if it’s just to come home and grouse to your spouse about your day at the office, and it’s natural for people to tell, re-tell, re-combine, and transform stories. Hell, kids do it all the time: they come home from a Marvel movie and pretend they’re Captain America or Scarlet Witch or whoever, and have a grand time re-inventing the ending to the Infinity War. Granted, they’re not then writing down the results of their play sessions and selling the results as novellas, but “fan-fiction” of this kind comes very naturally to people.

    In any case, I’ll grant that copyright or something very like it seems now to be a necessary component in our own cultural context, and so this is a pretty academic sort of point I’m making. But there is an alternate universe in which human society developed differently, and copyright did not become a thing. And for as much good as copyright does, as Eric says, we are losing something in the bargain, something which we can’t see because it mostly doesn’t exist.

57. I wrote my book 20 years ago, so I am a bit outdated.

    As it was a niche topic back then (IT security, who would care about that?), I organised printing and distribution together with my co-authors. In 4 editions we sold about 20.000 copies. Not bad, but luckily I didn’t have to live from writing ;-).

    After about 5 years the commercial value became NIL. Another release (which would have required a major update) would have cost us time and effort we all didn’t have.

    So we gave away the source files (Word & PDF) for free and allowed other to copy it at their hearts content. The benefit of enforcing the copyright was minimal (probably zero) compared to the (not insignificant) benefit other still got from a free copy.

    But this was only possible as we didn’t have any intermediaries (e.g. publisher).

    Concerning copyrights I am torn:

    On one hand it is perfectly clear that if John writes a book, only he (or people designated by him) shell profit financially from his works.

    On the other hand I do not think the long duration of the copyright really benefits society. Too many works are in danger to get lost in the dark years between the end of commercial value and the expiration of the copyright.

    My suggestion to merge both interests would be to retain the copyright but expand on the “fair use” exemption when the content is no longer actively put on the market (e.g. no more reprints).

58. Well said, Mr. Scalzi. Owning the copyright to photos I took 30+ years ago is how I have continued to control how and where those photos appear …. and ensured that I get paid when they get used.

    It has also allowed me to have photos removed from websites that refused to pay me for my work …. and allowed me to collect a paycheck from certain Fortune 500 companies that used MY work for THEIR benefit without my knowledge or consent (paying only after I complained about their unauthorized use and provided proof of ownership). Why should other entities – but not the artist – benefit from the artist’s work while the artist is alive?

59. This whole controversy really annoyed me, partly because I associated it with the concurrent flap about the Dr. Seuss books. There the copyright holders were exercising their right to control the books, and Republicans were howling that they should be able to say what happened to them.

60. Martin, copyright holders already have the ability to allow their works to enter the public domain before their copyrights expire. They can do it voluntarily through formal methods such as Creative Commons and by informal means such as not enforcing their copyrights against people using their works without permission.

61. That cat is looking very judgemental.

62. @Dave: I know, I did that.

    But there are ten thousands of works were the author is dead or disinterested and nobody is any longer getting any commercial values out of their work. In such cases, the copyright becomes the concrete shoes for the intellectual payload.

    In such cases I would plead to extend the “fair use” to all nonprofit use of the work.

63. @Dorothy A Windsor.
    Yeah, we went through the last copyright yellfest when Paramount shutdown the Xanar StarTrek fan project [because it was a scam, mainly] and it was a lot of whiny grimdark fan Trekkies who were demanding that copyright be stripped and handed to them. It gets exhausting how it comes around every couple of years because some loudmouthed idiots don’t like how rights holders are handling a property.

64. In most of the US, electrity prices are regulated. Companies are given a max price they can charge per kwh. And if a company can’t make a profit at that price, some other company will. As long as enough companies are generating electricty at that fixed price, as long as enough companies are making a profit off electricity, and everyone is getting their electrictiy, then we know the price is high enough, even if some company is grumbling that its too low for them to get into the electricity market.

    In Texas, the price per kwh is not very regulated. That’s why people saw $17,000 electrical bills durign the power outage. That’s what happens when the electrical power companies set the price.

    copyright is a government-regulated market, created by the US Constitution to Advance the Arts.

    Copyright doesn’t exist to make authors money. It offers authors an avenue to possibly make money, through copyright terms, but that isn’t the goal. The goal is to ADVANCE THE ARTS. The duration is the cost. They payoff is the public good getting new art, new books, new works. As authors pushed for longer and longer terms, SCOTUS ruled that a term that lasted in perpetuity did not balance with the public good of advancing the arts.

    We do not have creators alone set the duration of copyright terms. That would be like having the power plants alone set the price of electricty. It’s a government regulated market. The governmetn sets the price, and people pay the price. And so, the people AS A WHOLE should set the price.

    Whether it is regulated electrity or regulated copyright durations, the price should be as low as possible, but just high enough to get the job done.

    if there are enough electrical plants, the price per kwh is high enough. If there are enough creators, the price in duration of copyright terms is high enough.

    Mark Twain, great american author of some of the greatest american novels, wrote most of his works under a 42 year copyright term. And, he made a ton of money doing it. Lost it all in a Nigerian Prince scam, but that’s his problem, not copyright’s problem.

    So, we know its quite possible for some of the greatest authors of the time to find incentive to write under a 42 year term, and we know its quite possible for an author to make a TON of money under a 42 year term.

    The question then, is would 42 years be enough incentive to get enough creators to create. Would John Scalzi write under a 42 year term? Maybe not. But copyright terms arent’ set to satisfy every single author. Because we know at least some authors want terms that last for infinity. Maybe John writes for the long tail. That’s fine. But its up to the government, and therefore the PEOPLE AS A WHOLE, to decide whether to pay for that long tail or not by deciding how long to set copyright terms in the first place.

    And maybe some creators drop out of the business because, god damn, the year it takes me to write a book, I need way more than a century to make that time and energy back. But that’s like setting electricty to 15 cents per kwh and some corporations decide to NOT get into the business of generating electricty.

    we don’t need EVERY POSSIBLE AUTHOR to create works. We just need ENOUGH. Because if we satisfy EVERY author, we already KNOW that SOME authors insist on infinite terms.

    So, we as a people whose government creates and maintains this governmetn-regulated market should have a discussion every once in a while about how we regulate the market, and whether or not it is advancing the arts, or simply focused on making money for creators with no regard to the cost it might have on the public. and the longer the terms, the greater the cost on the public.

    copyright terms should be as short as possible, but just high enough to get the job done.

65. The current system is bordering on “in perpetuity,” which is where I start feeling like maybe it’s a pinch too long ;) It especially feels this way in regards to a certain corporate-backed mouse. If it were trimmed back to life +25 or even life +50, it would seem a little more reasonable.

66. Renewals are a terrible idea.

    First, because creators are human. I find it hard to believe nobody proposing short-term-plus-renewal has never forgotten to cancel a subscription in time to stop a monthly charge, or repeatedly fax/mailed/emailed important paperwork to a business only to be told ‘sorry, we have no record of receiving that’.

    Now multiply that by a writer who has to manage copyright renewal for multiple works. One miscalendared date, or one notice that gets munged on the sender’s or receiver’s end, or deciding that this month it’s best to keep the lights on instead of paying for Short Story #24 to renew, and copyright ends.

    Second, because (as with so many of these arguments for short copyrights), it will work to the advantage of huge corporations, who have far more ability to exploit public-domain works than virtually any creator will.

67. A couple of notes:

    ” 179 countries including the US are signatories to the Berne Convention”

    And the US was not a member of Berne until 1989. Somehow, unfathomable as it seems, we survived just fine before that with our own copyright terms much shorter than they are under Berne.

    “You want things in the public domain quicker. Okay! But what do I get for agreeing to this”

    Here is the thing authors don’t get about copyright law. To quote the Sorceror Supreme: “It’s not about you”.

    Copyright isn’t meant to satisfy the individual author. It doesn’t exist for what you GET. That’s not why it exists. Copyright exists, and its clearly stated in the US Consittuion, FOR THE ADVANCMENT OF THE ARTS.

    The world might get along just fine without any particular author’s novel. if one author wants to rage quit because copyright doesn’t give him everything he wants, copyright from the US Constitution, doesn’t care. It’s about the PUBLIC GOOD.

    The public carries a burden in the form of respecting government created copyright monopolies, only, and I mean, ONLY, in exchange for getting a greater benefit out of it in the long run, the public good.

    If terms were shorter, and MORE works were produced, then the Constitution would likely suggest that would advance the Arts more quickly, EVEN IF it meant authors made less money.

    Berne convention be damned. If terms are too long, if it weighs too heavily on the public good, then it is unconstitutional. And again, the US survived without Berne for nearly 2 centuries just fine.

    AND if you wish to worship at the house of Berne, then you must acknowledge why we joined Berne in the first place: BECAUSE DISNEY PAID LOTS OF MONEY TO THE GOVERNMENT.

    Not because it was right, or moral, or the best solution for the public good, but because Mickey Mouse was about to enter the Public Domain. That’s the only reason the US changed over to follow Berne copyright in 1989.

    Disney paid to extend copyright and got us into Berne. End of story. That’s like the fox guarding the hen house. That’s like Texas power companies charging someone $17,000 for electricity.

    Berne is neither a moral high ground, nor is it an unmovable mountain.

    “Basically, given how politics works in the US, any attempt to substantially reduce copyright protections would get crushed before it even gets going.”

    By Disney. By the creators. By the people who make money off copyright terms. By the foxes guarding the hen house.

    The reason it would get crushed is not because shorter terms are immoral. But because shorter terms make less money for the corporations, the guilds, the organizations who will pay millions of dollars in political donations to keep terms long.

    Again, not the high-road moral argument here.

68. The pre-1976 copyright law was compatible with the Berne Treaty and a term of 56 years did not leave countless artists destitute.

    I for one am sad that I will probably not live to see the festival of Becket plays that actually screws around because the dead hand of his estate still enforced strict adherence to his stage directions. The world has to wait until 2059 to start remixing and experimenting with his work. I think that is a real lost as barely anyone who knew the man and his context will be alive to play a role.

    One just has to look at all the reuses of great works that are in the public domain to see how fruitful it can be. “Emma.” was a lovely balm at the start of the pandemic; Shakespeare adaptations are a genre unto themselves. There is a real cost to society when so much culture is locked up for so long.

    Now, should we prioritizing creating a just welfare state in the US first? Definitely. But a copyright term that does a better job of balancing incentives for new work and possibility for remixing old would be a good thing.

69. I’m going.to have to be arrogant on this one because I am right. When sanctimonious, I rule by fiat.

    A practical product (such as medicine), a process which improved material conditions for one or many, or an innovation which makes affects people in a measurable, tangible way has a time limit for exclusive use or exploitation.

    An amusement, no matter how amusing, gets a perpetual copyright, which can be sold at the discretionnof the copyright holder.

    So: CRISPR, thirty years of patent to recoup investment, whether the investors are non-profits or multi-national leviathans.

    Redshirts? It’s Scalzis until death, his designated recipient(s) until they sell or die and pass it to their designated recipient(s), a commodity to be traded until such time as noone cares anymore. Yes,.I chose Redshirts because it involves by inference another IP. Infringement is in the eye of the copyright holder.

    If you really want to write a sequel to Dune, call the copyright holder and pay a fee to use the IP, or write something else.

    Humanity has a right to expect life-saving medicine or life-enhancing pharmacopeia. Humanity does not have a right to 400 cheap editions of I, Robot, or a Mickey Mouse porno.

    I HAVE SPOKEN!!!

70. sorry, but this must come from playing the copyright game at its easiest level. For most authors (and authors must include all in this discussion, video, audio, software, whatever else) the practical copyright term is 0 (zero).

    It is not enough to have a law, you also need the means to go to court to enforce it and that includes not only in the country where you live, but also in every other one as well. As now almost everyone is an author (tweeting, FB posts, blog posts, tiktok…) but probably 99.9% do not have the money or time to sue anyone else even 30 years of copyright is a number that is mostly disconnected from reality.

    On the other hand there are the abandonewares and creations which should have been in public domain but the author just didn’t know that copyright are automatically assigned or didn’t care. Some of those things can be made useful but it is usually very hard to find the author and get an explicit permission and therefor no law respecting people will use it because no one likes to have a chance to be sued. (the 3 deprecated dr sues books are probably a great example here, whatever you think about the act and the reasons for it, it is ridiculus that no one can print it any more)

    And seriously, do authors expect to make money for life+anything? Few years ago I bought a collection of andre norton stories on amazon for 1$. You could probably not buy them for that price when she was still alife, but now while some continue to be a great fantasy, most have aged badly and there is no reason for anyone to pay to read them especially since the modern fantasy fits better the current culture so why would any YA want to read norton?
    No matter how succesful an author is, it takes a big commercial entity to create adaptations and/or promotions to keep old content relevant enough for people to want to pay for it if it is not in the canon. How many authors can actually create something that will be considered canon? how many “golden age” scifi authors generate any meaningful money from their works?

    Napster had distrupted the music industry and made copyrights mostly irrelevant there (they are relevant for the classics, but for current pop music can be limited to 5 years without any one noticing the difference), pirate bay done the same for movies and tv shows. Books avoid the distruption because of libraries and amazon made books accesable and relatively cheap, but the idea that somehow book are immune from the “everything is avaialable for no cost” movement just because it didn’t happen yet, seems to me to be short sighted. Authors need to capitalize on their success while it happens, assuming that books will keep producing income in the future do not seems to be a smart thing to do.

71. One thing I don’t like about current copyright laws is that as a Canadian whose government signed on to a free trade agreement recently, our copyright terms are getting extended. This means that starting next year, no new items are going to enter the public domain for twenty years. Most of these extended items are probably not making money for their creators anymore, but the general public is no longer going to be able to re-work or freely access tham.

72. “I get annoyed when people who clearly don’t know my business opine about my fucking business”

    Copyright is a government-created business. Copyright is a government REGULATED business. More to the point, copyright is a government created MONOPOLY . And like any monopoly, there is opportunity for abuse.

    And at that level, its not your “fucking business” anymore. Its OUR “fucking business”.

    This brings to mind the guy holding the protest sign “keep government out of my medicare”, or the newspaper headline that reads “objectivist reluctantly calls fire department”. Or the great libertarian Elon Musk railing against government intervention while basing an entire business model off of government subsidies..

    Copyright in the US is not a human right. Maybe in europe. But here, it is an economic trade. We the people subsidize creators with a temporary monopoly in exchange for it benefiting us in the long run with new creations. And it is OUR business, as part of we the people, to examine this trade once in a while to make sure we’re not getting fucked by the monopoly it created.

73. Something I don’t often see in these arguments / discussions is thinking about alternative approaches to copyright, rather than just rehashing the “longer! shorter!” tug-of-war. (“Rabbit season!” “Duck season!”)

    E.g.:

    • Full copyright protection for X years, followed by required fixed-price licensing for Y years (so the creator no longer has creative control, but does continue to get income).

    • Similar to the above – a period between “under copyright” and “public domain” where work can be used freely with certain restrictions (eg, non-commercial with attribution, a la CC).

    • Copyright protection based on income instead of – or in addition to – time. It’d probably be a nightmare to define/track, and would work poorly for huge creative endeavors like major motion pictures, but “copyright is retained until the work has earned at least $X” guarantees creators some amount of money.

    • Copyright is retained similar to the present for individuals and sole proprietorships, but more starkly limited for corporations (which don’t age the way humans do, so requiring that they produce truly novel work rather than retaining multigenerational rights is a lower imposition). Duration could scale downward as corporation size scales upward, though this would invite shell-company shenanigans.

    • A fixed schedule of licensing costs that decay over time – starting at millions up-front and a hefty % of profits; dropping over the years to thousands up-front and a smaller %, eventually down towards nothing and the public domain. You could always negotiate better terms with the creator. Doing a true sliding-scale would be a tracking nightmare, but decade-long windows (“20-29 years: $X and %Y”) seem less difficult.

    • Copyright expires sooner, but the original creator automatically gets a bunch of trademark-like / truth-in-advertising rights designed to guarantee that only they can present themselves as the original creators / only their creations can advertise themselves as the original article, or rights that marketplaces which carry derivative works must also carry (or link to?) their products.

    I’m aware some of these are ridiculous / have major flaws (it’s a quickly brainstormed list), but I feel like the same could be said of our current system, and sometimes it’s worth stepping sideways to look for possibilities from new angles.

    (And I’m sure there are people who’ve thought about alternate possibilities far more than I have, and looked deeply at their viability / lack thereof. I just don’t see it come up much in conversations like this one.)

74. For those working but not producing ‘IP’. They still have families to support etc. This is managed by pension funds and life insurance. To me this makes the question of early demise and support for family post-demise a somewhat invalid argument to make.

    So instead, I look at copyright as attempting solving the issue of working on and selling something in a media that is so easily copyable. To whit: the producer of the product should be able to earn a fair amount for their work. With something like books (and music/tv/film) the released ‘product’ is eminently copyable. As soon as the producer makes a sale, they could find themselves competing for the next sale with everyone they’ve already sold it to.

    In my understanding that is where copyright comes in. This leads to the question of why are copyright and patent so different in this regard? Is it purely down to end product vs. the instructions on how to produce an end product?

    If copyright was more akin to patent and was limited to a much shorter time span from date of first publication, then presumably creators would be looking for a comparatively higher price for the initial product rather than planning on the long tail keeping money coming in for effectively, based on the creator’s life, ever.

75. @Eric R – please consider that the reason those “alternative paths” often don’t come up in copyright discussions is that the discussions so often stem from somebody announcing that copyright is way too long and we should just make it some arbitrarily shorter time period, perhaps even zero.

    Zooming out somewhat, there is an existing, longstanding, complex, and well-established set of copyright laws. Perhaps the reason people are not routinely suggesting ‘throw it out and start over’ is not that they are hidebound and need a fresh approach, but that they are realistic?

76. @ Bartlett
    That’s certainly the way I took your comment, and I feel much the same.

    I’d say there’s quite a lot of space between their positions on this topic, but at least they live in the same reality, which is a prerequisite for a profitable discussion.

    (One could add Brad Delong to the mix, make it 3-way. If we’re playing Fantasy Copyright Legal Team.)

77. My general view is that as long as anyone is making money off of original creative content, some of it should go to the content providers, regardless of age or income.

    However, once the said content provider has passed away, I a legal settlement in some form (say, a lump sum payment to the surviving family) is adequate, as ruled by a court, and then it should be public domain.

    I don’t want to go into “whatabout-ism”, but seriously think about how many people die without any compensation to their families. An industrial accident? Not exactly at the top of most people’s radar.

78. Two points I especially agree with”

    “Life+25 (or 75 years, whichever is longer). This way I can profit from my work, and so can my spouse if I die before her. My grandkids can work for a living. Corporations: 75 years.”

    Yes. It has to be “Life+”: you’re entitled to the benefits from your work. I draw the line at such things as the estate still determining what related materials can be written 75+ years after the author’s death.

    ‘“But society benefits from public domain!” Sure! AND they’ll benefit even more if I can live comfortably to create more things to go into PD later.‘

    Of course. I’m sure we can all name good authors who barely make it on their royalties now. If we shortened copyright, they’d slip back below the poverty line.

79. A couple of the comments brought up a question I find interesting: should the restrictions on derived works last as long as the protection of the original work? The latter is the lack of freedom that a lot of the people that want shorter copyrights are opposed to.

    If we DO shorten the restriction on derived works, I think it’s important to have some standard language that makes the distinction clear. So you could publish something like “My Work” with the subhead “a Bugs Bunny story” in smaller type, along with something on the cover (in print large enough to read) saying “Bugs Bunny is a registered trademark of Warner Bros. This book is not produced or authorized by Warner Bros. The character is used under rights granted by .”

    Over in the world of music, I’d like to see some form of compulsory licensing that covers the production of mashups. (Most of them currently violate copyright blatantly because the licensing to make them legally is impossible.) The requirements would be something like this: the derived work must sound sufficiently different that it cannot serve as a substitute for the original work, there would be set rates for major elements (base tracks, riffs used throughout) and minor elements (short inserted clips that appear once or a limited number of times), and a ceiling of 50% of royalties for the mashup (if the set rates exceed that number, payment for all the elements would be reduced proportionately, recognizing that there are diminishing returns when songs use a large number of other elements). The last would cover artists like Girl Talk who make new creations ENTIRELY out of sampled clips, often from 20 or more songs in one composition.

80. I hear what the host is saying and cannot really disagree. But also while copyright might protect you and your publisher from other publishers and companies and creators it definitely doesn’t hold up well against the fact that every work is digitized and is available for free. Not legally but if a person decides they want it they can find it. So those arguing for shorter copyright terms can do a run around if they choose as long as they are aware of consequences.

81. Greg London:

    “And at that level, its not your ‘fucking business’ anymore. Its OUR ‘fucking business’.”

    All the more reason for him to know the fucking business then, isn’t it? Otherwise he looks even more like an ass.

    Otherwise, Greg, I see you’ve resurfaced after a long absence merely to be pointlessly argumentative again. Yay?

    Mark K:

    So your argument is “People can pirate, and things get old, therefore copyright doesn’t matter?” Well, see, I’ll just give that the consideration that deserves, thanks.

    Bruce:

    “The pre-1976 copyright law was compatible with the Berne Treaty and a term of 56 years did not leave countless artists destitute.”

    One, I would want citations for US’ pre-76 copyright being Berne-compatible, and two, find this argument less than compelling inasmuch as I myself was able to write a book based on material that was in the public domain due to the originating author committing suicide because he feared destitution, and his heirs not knowing how to renew copyright. Anecdotal, to be sure, but on point to your argument.

    Hyman Rosen:

    “Just as the US left the Paris Agreement, it could leave the Berne Convention should it choose. It’s not like the World Copyright Force would show up with guns blazing.”

    One, the Berne Convention is a congressionally-ratified treaty, whereas the Paris Agreement was (and is once again) an “executive agreement,” so, no, actually, we can’t leave it “just as” we left Paris, i.e., by a fucking moron making an executive action. It would require congressional action, which is a far higher bar. Two, leaving the Berne Convention would in fact require leaving the WTO (look it up, I’m not going to do it for you), which would essentially destroy the United States economy and would require a rather significant enforcement on US trade by the remaining signatories, so your snark about the “World Copyright Force” with its guns blazing is more wrong than you know, and is just one reason why we’re not going to leave the Berne Convention anytime soon.

    Basically, you’re wrong, and you’re wrong twice, and you should actually know things before you comment.

    Everyone:

    Not to harp on it, he said, harping, but, again, the Berne Convention is not going anywhere anytime soon. Please calibrate your solutions and arguments accordingly.

    Also, apparently I’m in a snippy mood.

82. A few thoughts:

    First, as John notes, this is largely (entirely?) an academic exercise. The US is not going to withdraw from the Berne Convention, and the Berne Convention is not going to be altered in any serious way, especially not in a way that drastically limits authors’ rights.
    It is worth noting that the basis of copyright law in the United States is not any kind of moral right of authors in their works–in fact, until passage of the VARA, the US didn’t recognize any kind of moral rights at all. The basis for US copyright law is instead found in the Copyright Clause of the US Constitution, which states “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 “limited Times” requirement has seemed to me (and to many) to have become stretched closer and closer to the point of being meaningless by the various extensions to the term of copyright in the US as it sought to “harmonize” its laws with those of other Berne signatories. It used to be a running joke among us lawyers that the next extension was due whenever Steamboat Willie was about to enter the public domain. I do hope that seemingly endless trends of term extensions has now come to an end. Certainly authors have been much more successful than inventors at extending the life of their intellectual property protections–the 1790 Patent Act gave inventors a 14-year term to their patent rights, and that number hasn’t increased much–it now stands at 20 years from the date of application (which generally works out to 17 or 18 years or so).
    I do think that some additional changes to copyright law in the US ought to be considered (along with a massive overhaul to the Copyright Office’s online computer systems, though that’s a rant for another day). I’d suggest two areas to start: First, it would be nice to see the US adopt some kind of “orphan works” legislation that permits the use of works which may be subject to copyright but for which the copyright holder cannot be located after some required level of due diligence. Many works that might get more exposure don’t because the rights to them are unclear. Second, it would be nice if there was a clearer mechanism for authors to reclaim their rights in a work after 35 years. The current system is based on the old copyright renewal requirement, which no longer exists, and the timing and rules for giving notice of reclamation are arcane enough that even rights holders for well-known works are liable to mess them up.

83. So, Herbert got DUNE published in 65. The first movie came out in 84. Does this yabo think everyone who watched that movie went to look for Herbert’s LATEST book? The book was 18 years old when they made the movie – not the longest tail, but not the hot new thing either. Herbert died in 86 – does this yabo think that the new DUNE movie should be royalty free? The producers will be so happy…

    PS – I’m still the same goof ball who bought the book as a teenager, who went to see the 1984 movie, who watched the 2000 mini serieses (es), and who really wants to see the latest rendition. And DUNE is older than I am.

    PPS – PAY THE WRITER

84. Eric, copyright already has a bunch of really weird and specific laws like that. If you make a song and i want to create a derivative, i can pay you a fee based on how many copies i intend to make and you cant say no. Its called a cumpolsory license.

    Fair Use has a bunch of oddball corner cases.

    Sean: “why are copyright and patent so different in this regard?”

    If you patent a steam engine, and i patent an improvement to your engine, you cant use my valve and i cant use your engine unless we work together.

    If you write a novel and i make an improvement to your story, you can make the exact same improvement i did and get copyright to it as long as you can claim you did it without seeing my version.

    Thats why all authors, whether they support fanfic or not, tell readers to NOT send them copies of their fanfic. So they can end run any derivatives.

    If you black box design my steam valve, you still infringe my patent. If you blackbox my fanfic, you avoid my copyright.

    Patents essentially force patent holders to work together. Copyright allows authors to disregard other peoples improvements.

85. @Greg London compulsory licensing for songs only covers, well, cover versions of songs, not mashups or sampling. There may be some transformative fair use defenses, as with the Acuff-Rose case involving Pretty Woman, but by and large if you want to do anything but a straight up cover of a song you need permission.

86. @Greg London

    I don’t believe your trademark/patent equivalency is working. You remind me of a amateur night comedian who keeps repeating his punch line because eventually, the dummies in the audience will get his brilliant joke.

87. David Gustafson:

    Be more polite, please.

88. My apologies, both to host and guests.

89. Kevin, yes. My point was simply that there already are some weird little corner cases in copyright law like Eric was suggesting. Satire is another one. But Weird Al always gets permission anyway.

90. David:”I don’t believe your trademark/patent equivalency is working”

    I didnt mention trademark at all. I mentioned patents only a bit, but for the vast majority of patents, i dont have much problem with them. So, if my posts arent “working” for you, maybe its because you didnt read them?

    Also, a lot of copyright conversations are religious in nature. since your first post speaks of anyone daring to shorten copyright by even a single day to be Ayn Rand acolytes, i think its pretty clear you worship the god of copyright and all others follow the devil.

    Honestly, its not that complicated. If the government wants something done, they pay the lowest bidder. But if you worship at the altar of “copyright is an infallible god”, you would be very upset by someone nailing a thesis to your church door suggesting shortening terms by even a single day.

91. the Berne Convention is not going anywhere anytime soon. Please calibrate your solutions and arguments accordingly.

    Well, no. I’d say that is definitely not a useful point of departure. Unless I’ve entirely misgauged the subject, which is certainly possible.

    There are many things in this world which are not optimal and will not be changing any time soon. I will avoid giving examples. But starting from the status quo seems like an odd choice unless we are already agreed on the goal, and just discussing tactics.

92. @Kevin Grierson The Acuff-Rose ruling specifically covers transformative works of parody. It does not cover transformative works (like Girl Talk, who I mentioned in a comment earlier) that are not parodies.

    You are correct that there is currently no form of compulsory licensing that covers things other than straight-up covers. (Though some stretch the boundaries; are things like the Melodicka Bros covers in very different moods than the originals covers or parodies?) And even then it does not cover RECORDING those covers, only performing them for a live audience. Recording a cover requires permission, which is why covers of Prince songs are scarce.

    My comment did not argue that current law covers transformative use of samples. It argued that we should consider introducing a new law that does, because current law is failing to allow for an important type of creative work. Right now mashup artists have the choices of discontinuing what they do, limiting it to live performance only, or being pirates. I believe that is not the optimal outcome of copyright law and that we need to think about new legislation to cover their creations.

93. Wondering if we should aspire to lifetime earnings for everyone. I’m a development engineer and I don’t keep getting paid for my life time for my work product…perhaps we should make that the default.

    Would make things like tradesmen more secure if every year the work they did resulted in a payment from those who were using the result.

    Interesting thoughts…why should this be different for authors than for everyone else whose work does not keep paying them year on year? Perhaps a plumber’s family should be able to get payments for 50 years after their passing from everyone who uses the pipes they soldered…

94. Seconding Jan Murphy above about the Courtney Milan thread on the topic, especially orphan works. Really excellent and interesting reading.

95. tl;dr

    F you, pay me, and continue to pay me for a reasonable amount of time, say life + 25.

    No one has the right to copy someone elses’ creative work. There seems no reason at all for anything to fall out of copyright within the originators’ lifespan.

96. Chris:”F you, pay me, and continue to pay me for a reasonable amount of time, say life + 25.”

    But the entire crux of the conversation isnt whether authors should get paid for a reasonable amount of time, but what the definition of “reasonable” is here.

    Even the post that Scalzi raged against was saying authors should get paid. Just that it should be for 30 years. Almost no one argues for zero copyright.

    So how does one come up witha litmus test for what is reasonable that doesnt come down to “ill know it when i see it”? Or by fiat?

97. Around 1910, Samuel Clemens testified before Congress about a bill that would have extended copyrights (then 42 years) to life plus 50 years (the bill failed). Clemens argued that while out of the 250,000 books published in the US each year (!), only a tiny number would still be read more than 42 years later, it was unfair to the craftsman. Suppose, he said, you built a house and 42 years later, the government said, “Time’s up–we own it now.” He felt that 50 years would be enough for his grandkids, and after that, well, his descendants can take of their own affairs. This story can be found in his wonderful autobiography. Interesting how some things don’t change (and some do, eventually). Keep fighting the good fight, John!

98. @Shirley Dulcey I was responding to a later comment that implied that compulsory licensing was the solution to the issue you discussed. I agree it’s not. You statement that only live performances are covered by compulsory licenses is not, however, correct. The compulsory license granted under 17 USC § 115 is for phonorecords, not live performances, which require a performance license. These are generally purchased through rights associations such as BMI or ASCAP but the fee is neither compulsory nor statutory.

99. @Kyle Wilson – owning a copyright to a work does not mean that anyone will ever buy the rights to print that work, or buy copies of that work if it is printed. So, no, writers are not guaranteed “lifetime earnings”. They’re not guaranteed earnings at all.

    Are you proposing that, like software developers or plumbers, writers get paid a guaranteed fee for writing regardless of whether anyone uses their work?

100. Ah, thanks for explaining what that Tweet stream was about.

     Zeus’ pose of magisterial sleepy indifference to particularly questionable arguments is always the right answer.

     I shall need to check the comment thread above to see how the issue of corporations as copyright holders is discussed. Do the same arguments against shortening copyright apply here?

101. @mythago not at all. Just that we change things so work for hire is no longer a normal thing. If an electrical engineer is involved in creating something they get paid every time a device containing that bit of design is manufactured for lifetime + 50 and the same for every other creative work.

     For tradesmen you’d keep paying if the item was in use. Buy a house and every year you own some money (probably a small amount to each tradesman) to every person whose work is still embodied in that house. Remove the work or tear the house down and the payments would stop.

     These would ensure that their kids and grandkids could continue to make money from their hard work as long as the work product was still in use.

     Won’t happen, but seems like a fair equivalent to an author’s grandkids continuing to make money from work they did 80 or 90 years earlier.

     I agree that copyright is needed, just thinking that we might want to consider that everyone might want the right to keep making money from things they worked on years before if those things are still being used productively…

102. [Deleted because, Greg, this isn’t a thread to advertise your wares — JS]

103. @mythago I wasn’t saying anyone was hidebound; just that there are two competing views – one creator-centric, one society-centric – which mostly tend to argue over what duration is the best compromise between the interests of the two, and that it’s entirely plausible some alternate approach might be able to produce a better compromise between those viewpoints than any simple shift of duration.

     And yes, practically speaking, those hewing strongly to the “creator” viewpoint have basically no reason to compromise, because there’s a well-entrenched system of copyright that is stable, predictable, and serves them quite well. That doesn’t mean it’s right: history and modernity are full of stable, predictable, satisfactory-for-those-served systems which weren’t – or aren’t – fair, or just, or healthy for society at large.

     As John has pointed out several times, things are not likely to change anytime soon. That doesn’t mean people who think the current system is out of whack shouldn’t (a) bring up that belief and try to support it with argument, and (b) discuss what a better system might look like.

104. “That doesn’t mean people who think the current system is out of whack shouldn’t (a) bring up that belief and try to support it with argument, and (b) discuss what a better system might look like.”

     While you’re imagining an impossible world, can I have a pony? I’ve always wanted a pony.

105. I like mythago’s earliest comment that some people would forget to renew copyright. I remember our teacher telling us that the Ronson corporation had forgotten to renew their cigarette lighter patent.

     As for people thinking the status quo is a reasonable norm: Yes, they do. As a teenage nerd who read history it frustrated me that my peers commonly thought the world had started the year they themselves were born, with no need for them to consider things from the point of view of the older generation.

     An old episode of Bonanza had Charles Dickens touring the west. This when the U.S. was ignoring his copyright. He disagreed with “normal,” explaining to the cowboys that it was like rustling his cattle, after he had suffered to raise them during blizzards and such.

106. @Eric R –
     People tend to argue about the current duration of copyright because it’s the thing that’s most obviously out of whack and driven by corporate self-interest, rather than out of some principled desire to set an appropriate framework for managing the property rights a creator has in their own work. And because ‘length of copyright’ is a simple and straightforward part of the issue.

     The suggestion that creators adore the current system and have no reason to compromise rests on the fallacy that creators are not part of “society” and would have no interest in a more relaxed system – which can’t really be squared with the claim that more lax copyright would encourage derivate works, mashups, fanfic, and retellings. Which, presumably, would also be done by creators.

     The ‘we could come up with a better system’ discussions remind me of the same-sex marriage debates of yore, when inevitably someone would announce that marriage itself was the problem and we should maybe consider tossing it out completely and starting with a new system from scratch.

107. @David

     There’s these guys named Gandhi and MLK who would like a word, I think.

     I’m not saying that copyright is evil, or even bad, broadly speaking. But you seem to be saying that if ATM there’s no realistic path for change of a non-ideal system, we shouldn’t even try to discuss or imagine something better. Cynical much? Bad systems that were even more entrenched than the current overlong copyright system can and have been overthrown, and it didn’t happen by people being quiet just because a solution wasn’t practical or easy, it happened because they were insistent and wouldn’t shut up about it. So… maybe don’t be snarky to someone who’s just honestly trying to think of alternatives and imagine a better world?

108. I’d just like to say that maybe comparing entrenched systems that ruined millions of lives and caused incalculable harm for centuries to an entrenched system that causes minor inconvenience at times isn’t quite the winning argument some seem to think it is.

109. And I’d just like to say that mocking people for having the gall to want to discuss an alternative to something–even if it’s not currently practical–isn’t quite the winning argument some seem to think it is.

110. Being a performer and songwriter in the filk community who has penned a few parodies, I find discussions like these fascinating.

     A few posters have at least hinted at the key issue, which is what to do about derivative works, parodies, satires, etc. If there were a way to make those things clearly legal while still insuring the original copyright holder retains the appropriate rights and makes money off the deal, the folks I hang out with wouldn’t be so upset about the current state of copyright law in the US.

     The problem we face is that as things stand right now parody basically isn’t legal unless one gets the express written consent of the copyright holder or can afford the lawyers to argue one has stayed within the bounds of Acuff-Rose (e.g. a parody must comment on the original in some way).

     But, your average parody-writing filker would be delighted to pay an appropriate fee for the use of a tune, whether it’s simply the current mechanical licensing rate or something established by the purpose. So it seems like there should be a way both sides can win – the parody-writer gets legal cover and can make money off a parody, and the original songwriter (or other creator) gets their cut as well.

     Not to mention that a well-crafted derivative work or a sufficiently witty parody/satire may lead one to seek out the original work. Which turns the argument about a derivative work somehow harming the original on its head. Heck, I can rattle off a list of SF/fantasy novels I’ve checked out and bought because someone wrote a song that piqued my curiosity.

111. @Kyle Wilson, I think you’re meaning this as some kind of gotcha by claiming that since it would be absurd to pay royalties to a plumber, writers need to stop whining about making money off their writing when they’re elderly?

     You do understand that “work for hire” is a thing in copyright law as well, and that a staff journalist or an employee programmer who is doing what your plumber does – preparing a work for hire to spec – doesn’t retain rights they can leave to their grandchildren?

     And you do understand that there really isn’t anything prohibiting a freelance plumber or engineer for contracting exactly as you propose – instead of full payment for the job you hired me for, smaller (or no) payment up front and you’ll give me a small fee periodically when you use the results of my work, for a fixed period of time?

112. @scalzi:

     Presidents, in practice, have been able to withdraw from Congressionally ratified treaties. Whether the President Constitutionally has the power to do so is somewhat of an open question. However, in the case of the Berne Convention, (s)he will undoubtedly have the power to do so, because unless Congress changes copyright law such a withdrawal will have no practical effect. (And, if Congress does change copyright law in a way inconsistent with Berne, it will have been deemed to ratify or effect such withdrawal anyway.)

     In addition, as you note, the TRIPS agreement of the WTO incorporates the vast majority of Berne.

     Normally, violating the WTO agreements is economically painful. However, this is only true if you are harming other countries. If America chose to reduce copyrights for American authors below Berne requirements while leaving them intact for foreign authors, the consequences in an economic sense would be essentially nil.

     So, in practice, Berne/WTO is not a binding constraint on what America chooses to do with copyright on many of the works people care about.

113. @mythago No, not really, just that many creatives in engineering and science have no real choice. They cannot negotiate that option realistically. Without enabling legislation there is no way a contractor (STEM or tradesman) could do as you suggest with any possibility of success.

     I hear that authors need 80+ years to pay back their investment and also potentially cash in on unexpected successes in the market decades later rather than 30 or 40 years. Some claims suggest this is because their kids and grand kids need to be supported.

     Other creative endeavors don’t offer that option as there is really no realistic way in the current system for an engineer, scientist or tradesman to negotiate to choose long term revenue over a short term paycheck. It would be rather nice to be able to look forward to an annual check (for my daughter as well after I pass away) from work I did many years ago if it is still in use in pieces of equipment being manufactured by someone.

     I do find the life + many years term for copyright to be a bit much. Won’t change for reasons mentioned above so perhaps we could find ways to offer other fields a way to opt in instead. Interesting thing to think in theory about at least.

114. I’m a first-generation American, and I could make a case that I might never have existed were it not for literary rights and copyrights.

     My grandmother, with whom I was very close, was a very successful novelist in Germany between the World Wars–sort of “The Danielle Steel of the Weimar Republic.” She adapted a (bestselling) novel of hers in the late 1920s as a stage play. and sold all the stage and film rights for a one-time fee of $35,000–admittedly, big money for the period, but peanuts considering that after the play (translated) was a major success on Broadway, it became an Oscar-winning movie, not to mention a Tony and Olivier winning musical 50 years later…from none of which she got a cent.

     On the other hand, that $35K let her leave Europe just in time to avoid the Holocaust–she was very proud in later life that her books were burned by the Nazis; hence my comment that I might otherwise never have existed.

     What kept her and her family (including my father, then a teenager) going once they got to the US, however, was the continued royalties, both from her earlier novels and those that she continued writing until 1960 (in English after World War II). My dad was ultimately able to make his way on his own, as have I–but at least for him, those royalties were always there as a safety net. As it happens, there’s been a resurgence of interest in her work in Europe (where some copyrights run longer) in the last few years, and I still get the (very) occasional (very) modest royalty check from there…just lagniappe, but no less welcome.

     I could also comment on the idea of more limited copyright periods for technical writing. In the late 1960s, I was naive and hungry, but ideally qualified to translate a highly-acclaimed German manual on flying gliders, as I could speak the language and was a glider pilot myself. I happily accepted a few thousand dollars for the project–enough to finally have a glider of my own–with no concern for future royalties. Hell, if every English-speaking glider pilot in the world had bought the thing–which they didn’t, in droves–it might have sold 10,000 copies. In the last few years, it’s reappeared, from a different publisher, and apart from a few changes all my text is there, verbatim and uncredited. I have no idea whether the new publishers even contacted the old one, much less me. Frankly, all I can feel at this point is mild annoyance–it’s certainly not worth my time to try (probably unsuccessfully anyway) to do anything about it.

     Where to draw the line? Were I a fiction author, or even a nonfiction one at the level of, say, John McPhee, I’d probably want to see continuing royalties for myself and at least the first generation of my descendants. As a technical writer in a “niche” field, on the other hand, looking at limited immediate sales and even more limited future ones, I’d probably be willing to get smaller, or no, royalties in exchange for a larger advance or even larger yet one-time deal.

115. I’m sick to death of false dilemma arguments in copyright and creative-rights matters. To pick just one from above, any argument about copyright is most emphatically not “two competing views – one creator-centric, one society-centric.” There’s a strong mixture there; there’s no universal as to either “creators” or “society” (let’s see, now, where would we put Chihuly? someone mentioned Weird Al, where do his original works like “One More Minute” put him?). And that’s one of the less disingenous false dilemmas; just think for a moment about A Confederacy of Dunces, or the works of Georgia O’Keefe, or… oh, never mind, this sort of argument too often ends up reducing to “my own experience/preferences should be the default.” Which is, itself, a false dilemma.

116. The folks telling creators they don’t need copyrights are the same folks telling people that if it’s on the internet, they can take it for free . . . including web code. My IP attorney and I beg to differ.

117. Jaws: ” most emphatically not “two competing views – one creator-centric, one society-centric.””

     Sure there is. It is the difference between selfish decision making and moral decision making. What’s best for the author? versus What’s best for everyone? What’s best for everyone is 30-50 years. It pays enough to get people to write but allows works to go into public domain soon so that derivatives and such are allowed and monopolies dont become overbearing. What’s best for authors is infinite copyright.

     Various are making the following argument: “the Berne Convention is not going anywhere anytime soon. Please calibrate your solutions and arguments accordingly.”

     Yeah, no. The Electoral College is embedded into the United States government like a tick. It would take an amazing feat of democracy to get rid of it. It is, like Berne, “not going anywhere”.

     And yet, its perfectly reasonable to point out that the EC is a nightmare, totally undemocratic, and the reason we got the two of the worst presidents in recent history who lost the popular vote and would not have gotten into the white house but for the EC.

     Suggesting we can’t say something is broken until we have a solution that fits some arbitrary deadline is just trying to stop people from pointing out what’s broken.

     Copyright is broken. Terms should be set as low as possible but just high enough to get the job done. No one needs life-plus-70-years to do any job, except possibly jobs that involve getting shot at.

118. For what it is worth, Matt Yglesias is both a published author of books himself and a beneficiary of copyrights of books published by his grandfather and father. So, unlike Lee, he is not commenting on the issue from the point of view of not being a beneficiary of our copyright system.

     He has written a much more detailed consideration of the issue here, where he lands on an opinion that is much closer to yours:

     https://www.slowboring.com/p/dr-seuss-ip

     He suggests a copyright term of 28 years or life of the author, whichever is LONGER, which is a difference of, at most, 25 years from your opinion. That seems like a difference of “close enough to negotiate.”

     His tweet about 30 years was partly based on the fact that, in the US, copyright protection originated with a 14-year term that could be renewed for another 14 (for a total of 28).

     Other points he makes that I think are valid: 1) Retroactive extensions of copyright protrections are bad, because they don’t serve as an incentive for anyone. 2) Apart from how copyright protections with books that sell and generate revenue are managed, there is (IMO) a real problem with how copyrights of the vast majority of published works that do not generate revenue are managed.

119. Quill:

     So the argument here is a president has a (constitutionally unproven) way to unilaterally leave a treaty, so long as Congress adheres scrupulosity to the terms of the treaty? This is real “Six year old telling mom they don’t HAVE to clean their room before cleaning it up anyway” energy, and a line of thinking which I admit is probably very much in line with Republican power dynamics at the moment. But it’s also a long way around of saying that as a practical matter, no, a president can’t unilaterally leave a Congressionally-ratified treaty, because the country would still be bound to the terms of the treaty the president loudly declared it was no longer part of.

     Likewise the “a country can fuck over its own copyright holders as long as it doesn’t fuck over anyone else’s copyright holders” argument is one I wouldn’t spend much time on, particularly as it relates to the US, which we should not forget already provides longer copyright terms than Berne requires. Leaving aside the practical difficulties of only fucking over one’s own creators in a world of deeply embedded international copyright trade (not to mention the ease of large multinational corporations to simply evade a fucking over on copyright), the impetus for the US to fuck over a major component of its economy and source of its “soft power” across the world is simply not there.

     So both of these scenarios you suggest, which I should note I do not cede to passing a real world legal sniff test, would at the very best be “technically correct, the best sort of correct,” but also in the real world a deeply moot point, because a) we’re not gonna leave the Berne Convention at all, b) if the US did, it wouldn’t be for a 30 year copyright.

     Michael:

     As other people have noted, “life of the author” gives impetus to run over your favorite creators with a car so you can get their works for free. This is joke, but only barely. A “cool down” period after a creator’s death seems reasonable (and, incidentally, it benefits the spouse/partner/children).

     Also, as noted in the original post, I’m not at all swayed by the “copyright used to be shorter” argue. Yes it was! And 28 years (14+14) was too fucking short, if you ask me. Likewise 56 years (28+28). I’m on record as 75 years or life+25, whichever is longer. That strikes me as a good balance.

     (But again, this is all moot inasmuch as, all together now, we’re unlikely to change or leave the Berne Convention.)

     The issue of orphan works doesn’t require changing copyright lengths. It could be solved by creating a policy for works where the rights holder is (after research) unclear, in which a publisher could pay a statutory royalty to an organization which keeps the royalty amount in escrow, so that if a rightsholder does show up, they can get the benefit of the copyright, and the public still has access to those works. But “let’s build a rights clearinghouse with statutory royalties in escrow” is much less sexy than “let’s cut copyrights,” in terms of gathering people’s attention.

120. Scalzi: “the impetus for the US to fuck over”

     Woah, woah, woah. You just assumed complete bad faith about EVERY SINGLE person making ANY KIND of argument that would reduce copyright IN ANY WAY.

     And yet, –I– am the one being “pointlessly argumentative”?

     Come on, man. Did it ever occur to you that maybe, just maybe, the public is getting “fucked over” as you so elequently put it, RIGHT NOW? That maybe copyright is too much?

     You talk about your long tail, you talk about Berne, you talk about corporations and writers guilds defending copyright, but you don’t really acknowledge that copyright comes with a PUBLIC BURDEN.

     SCOTUS already ruled that infinite copyright would be too high a public burden, so we know it is a legally recognized concept. How would you know if the PUBLIC BURDEN of LIFE-PLUS-70-YEARS was too high, other than to maybe, I don’t know, listen to the public about it? Maybe, I don’t know, NOT assume anyone suggesting reducing copyright is just out to “fuck you over”?

     I mean, if the US ever did reduce copyright terms, it would most likely NOT apply to current works. When you wrote your book last year, we the people promised you life-plus-70-years as payment. We would still honor that payment. If we reduced copyright terms, it would only apply to NEW works made after the law is changed.

     But this is important, people suggesting shorter copyright terms aren’t doign it just to fuck you over. we are not sitting in front of our computers thinking, “whats the best way to personally fuck over John Scalzi? I know, I’ll eat his long tail and take money away from his grandchildren 69 years after he’s died.”

     That’s not what this is. We’re looking at the public burden that comes from copyright and trying to balance it with rewarding creators enough that they are willing to create.

     Copyright is a balance between writer reward and public burden. Folks suggesting reduction in copyright are saying the burden is too high right now, that the public is getting “fucked over” right now. Taking people who are trying to fight for the public good, and recasting them as merely trying to fuck you, John Scalzi, over personally, isn’t going to find a balance.

121. I am of the mind that copyright terms are just too long as they currently exist and changing the duration would be tough, yet if the US truly wanted to make the change they could. I think we should go back to how it worked before that the copyright term is much shorter but there is a chance for the owner to file for an extension. So I would make it 50 years with the ability to file for an additional 25. There is an administrative burden on the creator to manage the extension, but if you truly want to have it protected then the creator needs to affirmatively show they want the protection to continue. This should help a bit with orphaned works which are a particular pain in the ass for researchers and more and more archivists.

     I do not agree that copyrights should persist past death, however. The basic premise is to have a monopoly on your work and incentivize the creators to make more things. How do you incentivize someone that is dead to make more works (unless you are Tupac)?

     Yes, there is the argument about setting up the family/descendants economically, but that created the rent-seeking scenario we have today where the descendants keep pushing for longer and longer terms so they can keep milking a work they had no hand in creating. The intent of IP is not to set up the family, it is to incentivize the creator.

     Tangentially while on the topic of copyrights, we need to reform DRM which through the DCMA essentially creates a right in the bundle that never expires. Yes, that’s right, the copyright term might expire but anything locked behind DRM is off limits unless the copyright owner releases it with no DRM protection.

122. Repetitive bloviating for self-promotion purposes aside, has anyone tried to summarize in objective, factual terms why the current term of copyright is “too long”, and what would be the benefit of either shortening it, or getting rid of copyright entirely?

     Is it so someone else can create derivatives of the author’s work, e.g. use the same characters? Why does anyone think this would be a good idea? Also, at what point does “public burden” enter the equation?

123. Greg London:

     “Woah, woah, woah. You just assumed complete bad faith about EVERY SINGLE person making ANY KIND of argument that would reduce copyright IN ANY WAY.”

     Nope.

     Also, Greg, step off the thread. Your tendency for shoving your response needle into the red is in full effect and exhausting. Also I notice you putting the URL of your self-promote-y thing into your URL field after I told you this isn’t your self-promotion thread, which I find annoying. In fact, you’re in moderation indefinitely from here on out.

124. Sometimes “being right” is painful. Like Mr London proved one hour and ten minutes after I groused about false dilemmas dominating arguments about copyright… by invoking one of the classic false dilemmas of “policy” as if it supports his (being excrutiatingly polite here out of respect to our host: ill-reasoned, unresearched, self-interested, and counterfactual) position. Which, itself, is not even coherent enough to constitute a “position” on the wide range of materials that engage with “copyright.”

     Boundary conditions matter (ever heard of a “divide-by-zero error”? how about “Y2K”?). But they’re seldom rigid when it comes to human behavior, and virtually never rigid in the arts… else no Redshirts. Or The Magnificent Seven (one of the half-a-dozen-or-fewer Westerns that don’t send me screaming from the room). And without rigid boundary conditions, there is no rigid dilemma, either.

     The less said about how Mr London’s position inverts itself regarding truly original historical research and insight presented in prose, the better. Which, again, demonstrates the falsity of the dilemma.

125. Jaws, et al:

     I’ve already invited Greg London off the thread, so it’s not fair to continue that line of discussion without him being able to respond. So let’s go ahead and table any further responses to his comments, please.

126. @Kyle Wilson: I guess I’m not understanding why there is no realistic option now to do as you would like with your own work, or what legislation you propose that is necessary? Is it really that such arrangements are impossible, or are they just impractical?

     I get the sense that you are focusing on one part of the discussion (i.e., the potential financial benefit of a ‘life plus’ copyright term) and saying, shoot,, who WOULDN’T want to get paid for decades, why do writers think they’re so special when I can’t do that with MY work? And that really misses the full picture of the discussion about copyright.

127. DH’s grandfather was a well-regarded writer and screenwriter in the 30s and 40s. The copyrights for his work eventually came down to DH; we receive perhaps $1000 every 6 months for usage of Grampa’s works, mostly overseas. After DH kicks the bucket, the rights will pass to our nephews, making it, at that time, probably close to 100 years worth of copyright. Is holding a copyright for nigh on 100 years appropriate? Especially for what is a relatively small payout (but might make the difference one month between paying the rent, electric bill, or starving?) The family is still directly benefitting from it, no matter how little. so YMMV.

128. Copyright gives both moral and monetary control of a work. Gaiman would be upset if Good Omens was produced without paying him. He would be much more upset and livid if Good Omens bastardized his work without his input.

     Copyright applies to more than just writings. It applies to software as well. The distinction between a patent on computer engineering and the copyright on software is much more blurry than between a patent and a copyright on fiction.

     So while I could accept Scalzi’s 75 or Life+25 (whichever is longer) for fiction copyrights, that seems way too long for software. The world would be a much better place if Windows 95 was out of copyright. The impact to Microsoft would be minimal, but there would be significant communities that would benefit.

129. Not quite sure why others are so eager to reap (rape? auto-correct seemed pretty adamant there) the benefits of a writer’s creations for free, to make money for themselves… Thanks for the Scalzi Cat Pic… Have a nice day

130. (Sorry, Gracious Host, cross-post, didn’t see the “invited to go elsewhere” notice, got interrupted while typing.)

131. I thought it was life + 95. You know, to protect the Rat. Sonny Bono’s only accomplishment as a politician.

     But the Constitution is unambiguous about the purpose of copyright, and protection of the author’s interests is incidental. The purpose is to “promote the progress of science and the useful arts.”

     The Berne Convention certainly complicates that, and I don’t think anyone at the time really understood the extent to which it subverts the Constitution. But the Supreme Court weighed in a few years ago with the opinion that a “too long” time existed, but took no position on how long that was.

     BTW, Berne applies only to works distributed to other member states. It does not apply within your own borders. So when you say Berne requires a minimum of life + 50, that is partially wrong. It only requires that for authors from other countries. Each individual country is still free to impose whatever restrictions it sees fit on domestic authors. Sure, that would create a messy system of inconsistent laws that, likely, only large corporations with teams of lawyers could navigate, but it is not prohibited. Berne did not amend that part of the Constitution.

132. @scalzi: The point is that the constraints on changing copyright law in the US are political, not really a matter of international law.

     In practice, given that strong copyright is a core interest of large media companies and that tech companies, who were the strongest advocates of weakening copyright law, now have other issues to focus on and are thought of less well, copyright “reform” seems even less likely.

     What I think should be the law (for what it’s worth):

     (1) If we keep the Berne “no formalities” rule to retain copyright (and there are good arguments for doing so), we should determine copyright without reference to the life of the author (i.e. it should always be a fixed term from publication). This avoids the need to ascertain whether the (possibly obscure) author is still alive and avoids the odd result that how the copyright is originally obtained (in corporate or individual form) alters the duration.

     (2) As to how long this term should be, I would tend to think 50 or 60 years is probably about right.

     (3) Retroactive copyright extensions are, bluntly, an abomination and they should never be allowed. Those who have significantly benefitted from them (Disney!!) should be subject to punitive taxation on those profits. (And yes, I am tempted to void all copyrights on mice, but that is not good policy and some mice are more innocent than Mickey.)