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Comment by MereInterest | Hacker News Reader

In addition to this, I like considering things that should be entering the public domain. Using the initial copyright length of 14 years, renewable for an additional 14, anything published in 1987 should be entering the public domain in the upcoming year.

* Predator

* Robocop

* The Princess Bride

* Dirk Gently's Holistic Detective Agency, by Douglas Adams

* Watchmen, by Alan Moore

* Hatchet, by Gary Paulsen

These should all be open cultural works, ready for new writers to use as a basis. Ready to be used as the backdrop for new stories. Instead, they are locked universes, only containing a small number of stories.

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That analysis is based on the assumption that the copyright term from the first US copyright act from 1790 somehow got it right for all time, even for forms of expression that had not yet been invented, and even though the economics of production and copying might vastly change.

Can you justify that assumption?

Right.

And the World in general, and scientific, artistic and cultural creation in particular, have only gotten faster and faster since then, so we can only assume that copyright terms should be much shorter than originally thought up in the eighteenth century.

So maybe 28 years should be a wild upper bound.

I don't think that's true. You can create more elaborate works in less time thanks to technology, but you could sketch or compose a copyrightable work in minutes a century ago.

  There once was a property case
  which was wildly absurd on its face
  A camera, an ape
  and an unforeseen jape
  fell outside copyrightable space

^ 3 minutes of creative work. Refers to http://www.pri.org/stories/2014-08-07/internet-goes-ape-over...

Now this is not such a great thing that it deserves protection until 2084+my remaining lifespan, but my point is that verses of this sort could have been composed and committed to paper in 3 minutes in 1814 just as easily as in 2014.

There's a interesting essay by Stephen Breyer, from before he became a Supreme Court justice, that comes to the opposite conclusion.

He points out that because technology was slow in the 18th century, there was little need for copyright. When a new book was published, for example, by the time those who would make copies could set up their presses and go into production most of the market for the book had been satisfied by the original publisher. The faster things get, the stronger the case for copyright.

That would give a case for a stronger copyright, but not a longer copyright. I would imagine that any 18th century competitor would be able to set up their printing presses within a year at the most. Currently, with 21st century scanning and printing, it could be done effectively immediately. Therefore, the only difference between the situations is within that first year.

Certainly, this argument suggests that copyright should be strengthened relative to its 18th century form. However, this strengthening should not be in lengthening copyright terms, as the only difference is within the first year, which is covered under either copyright term.

I am not arguing for an elimination of copyright. It is necessary as a starting incentive. However, in its current form, the length is far too long.

How would you suggest strengthening copyright? Penalties are already draconian in some cases. Should there be universal Internet surveillance and the dispatch of a SWAT team at the first sign of any violation?

The theoretical method of strengthening doesn't matter. And it's not vs. current law; current law is already stronger.

The important thing is that lengthening is not appropriate.

> Should there be universal Internet surveillance and the dispatch of a SWAT team at the first sign of any violation?

This is not possible, which is precisely why

> Penalties are already draconian in some cases.

This is probably also why the simplest way of strengthening copyright in the Internet era is by lengthening terms. Most other alternatives would infringe too much on personal privacies.

In the law, copyright has already been strengthened quite a lot. From here the only way to strengthen copyright is to increase public support of it. Shortening terms to something reasonable could help.

That makes the case for having a non-zero copyright term, but says nothing about how much longer than a lifetime is appropriate.

> The faster things get, the stronger the case for copyright.

If that's an accurate summation, Breyer is describing an effect and asking us to assume it's desirable.

But if you compare it to the stated intention of the copyright clause: "To promote the Progress of Science and useful Arts" the opposite conclusion should be drawn. Zero-cost duplication and transmission raises the benefit of works entering the public domain. So that should happen sooner and with less friction.

http://arstechnica.com/uncategorized/2007/07/research-optima...

With copyright's explicit purpose of "promoting the sciences and useful arts", one can derive the ideal length. It must be long enough that there is incentive to create, but not so long that future generations cannot use it as a platform. Based on this professor's calculations, 14 years is ideal. 28 years, then, should be perfectly sufficient.

Oh, dear - that substantially overstates the conclusions drawn in the paper itself: http://rufuspollock.org/papers/optimal_copyright.pdf

The author warns that estimation of the ideal term depends on a number of imponderable factors like 'cultural decay' which are necessarily estimated, as well as discount rate for economic returns on copyrighted works. After considering a range of possibilities for these parameters through the medium of a probability density function, he observes that the median of the distribution is about 15 years - in other words, there's a 50% probability of that being the optimal term. The mode is about 20 years, ie the most likely suggested term for any random sample of the input value ranges.

Going on, 'From the underlying cumulative distribution function we can calculate percentiles and find the 95th percentile at just under 31 years, the 99th percentile at 39 years and the 99.9th percentile at just over 47 years. This would suggest, that at least under the parameters ranges used here, one can be extremely confident that copyright term should be 50 years or less – and it is highly like that term is under 30 years (95th percentile).'

So while this paper is great find, I think you need to walk back your conclusion significantly.

Also, we need to be very careful about the initial assumptions on which the theoretical foundation is based: 'C is a variable denoting production costs of ‘originals’ (authorised reproductions) and U a variable denoting the production cost of ‘copies’ (unauthorised reproductions).'

The author is essentially modeling the case of works-for-hire commissioned by a publisher and put on the market more or less immediately. His utility function aims to optimize the production of copyrightable works while maximizing public welfare (in terms of access to the largest possibly number of works), but it's important to note that he's using production in the sense of distribution of an already-created work by a rightsholder. This doesn't address things like creation time which may or may not be affected by technology (whereas technology has a huge effect on the reproduction of costs), or delays between creation and publication (which as I've observed elsewhere in the thread can be substantial).

After a traffic survey, the speed limit of the road is often set to the 85th percentile of speeds that people actually choose to drive on it.

I propose that each genre of copyright-able work be subjected to a statistical analysis, to determine the number of years at which 80% of the total lifetime revenue of a work has been collected. Set the base copyright term for that genre to be the 80th percentile of that number.

So you might see that 80% of fiction novels earn 80% of their revenues within 10 years or less (invented numbers). If that were the case, set the default free copyright term to 10 years. Obviously, some outliers will be late bloomers, so perhaps you make a reasonable accommodation for those by granting renewals that each last 5 years, for a flat fee plus a modest percentage of the earned revenue, which then increases with every renewal.

That would work just fine for the stated purpose of promoting the useful arts. But I suspect that copyright is now also being used for the purpose of eliminating same-owner competition from older works. For instance, why watch the newest Disney animated film when you could watch any of them older than N years? Why play Gameseries 7 when you could also play Gameseries 1 through 6? So perhaps also add a "quashing and abandonment" clause, wherein if the owner refuses or is unable to license or sell copies for N years, the work enters the public domain.

Given those reasonable ideas, I think maybe the founders were just guessing, and they probably didn't guess correctly for 2014.

I'd say copyright terms should probably be shorter today than in 1790, since the speed of publishing and distribution has increased significantly. Five years should be more than enough time to profit from a work.

If I'm a publisher, that gives me every incentive to string you as an author along for 5 years and then publish without paying you anything. Lots of projects take longer than 5 years to reach the market - think of novels rejected by multiple publishers, film scripts trapped in development hell and so on. Copyright terms begin on creation, ie when the work is fixed in some medium - not when it's first published. try considering cases other than big commercial success stories that make a lot of money in a short time.

But doesn't each subsequent edit constitute a separate copyright? The publisher might be able to publish the first draft, but they wouldn't have the rights to subsequent drafts and revisions.

Of course, my understanding could be completely wrong, and revisions might not constitute a separate work.

You're assuming the author is constantly revising and improving the work. If I massage your ego enough while running out the clock I could probably save myself a lot. Of course, the market would change and authors would offer shorter options and so on; I'm just pointing one perverse incentive that would become available.

It just seems like a stretch to me that they'd be able to string an author along for five years after being given the final draft. After a year without progress I feel like most authors would try another publisher.

Publishing deals often revolve around exclusive options. Also, publishers often wants to bring in a third person as an editor, market a book or a film at a particular time during the annual release cycle and so on - often for entirely legitimate reasons. It's not that publishers are inherently morally worse tha autheros, just that their interests aren't perfectly aligned, and short copyright terms shift the incentives strongly in favor of the publishers because they have more economic resources than the typical author and can better afford to play a waiting game.

Copyright terms begin on publication as far as I know. In any case, an author should probably look at the contract details before assigning a copyright to somebody else.

Copyright (in the US) begins when a work is fixed in a tangible means of expression. For example this comment is copyrighted as of 4:28PM PST on 23 December 2014, even if it appears in book form at a later date.

They're good points, ones I've made in the past. But, I think the issues are surmountable.

For example the case of presenting drafts to publishers could be considered to be a certain class of limited disclosure and the works could be treated as still private and non-public. Then a similar system to patents could be used whereby the publication, the [licensed and purposive] presentation of matter to the public domain, would be the key date.

Such a copyright system would focus on the protection of business interests of producers (i.e. authors, etc.).

In parallel I would maintain moral rights on a similar basis to the current copyright terms. They would start at production, last for life + some-years, and cover at least the right to be named as author of your own works and other similar rights that prevent libellous edits being issued and such.

To pay for the system one could use the Statute of Anne's model of requiring payment for a second equal term. I like the 14+14 model; it still favours the author strongly IMO but allows works to enter the public domain when they are still culturally significant (to allow their effect on cultural development to be maximised). A 28 year term isn't quite a full career and so there is less sense that we're dissuading 'artists' from continued production.

Under my formulation the statute would not protect works that could not fully enter the public domain, those with DRM say. To allow companies to use DRM they would need to submit a free-libre copy of their work which could then be released when the term expires (or put keys on deposit that could decrypt the works, or what have you). Copyright is a bargain with the people, rights holders need to uphold their end of that bargain too.

There's much more that I could flesh out, but I doubt anyone would read it here ...

>That analysis is based on the assumption that the copyright term from the first US copyright act from 1790 somehow got it right for all time

If anything it should be shorter. So if you're open to re-negotiating this duration, I move that we reduce it to 3 years, all-inclusive.

Furthermore, I move that DRM-ed works be made ineligible for all copyright protection. You either get DRM or copyright, but not both.

Finally, I move that corporations can be sued to have their copyright privileges revoked for a period of no less than 50 years if they are caught destroying or interfering with works that should eventually enter the public domain. No more dumping film reels in the river because the warehouse costs are inconvenient.

But, if you don't want to put this on the table to be negotiated, then perhaps we can live with 14 years. Up to you.

If only. I'm not sure how one defines what the 'right' term is - some artists don't find their audience straight away, and it would be a shame if someone's work were to become wildly popular after years of obscurity, while the author languished in poverty with no way to legally benefit. So I'm not opposed to 'life of the author' terms for individual creators. On the other hand I see no reason why a dead author's survivors should enjoy the proceeds of both the estate (if any) and economic rents for an additional average human lifespan (ie the 70 years provision in the US and other jurisdictions).

Where a work is the creation of an artificial corporation - like a motion picture, which is almost never the sole creation or intellectual property of an individual - I feel a shorter term should apply. After all, a corporation enjoys full legal rights of contract etc. from the day of its 'birth,' and its 'needs' are highly attenuated compared to those of a person - typically a small annual fee to maintain registration and fulfillment of an obligation to file a tax return. Its commercial 'life' might therefore be thought of in terms of a business cycle or some standard established in law, like some multiple of the traditional 6-year laches term in equity law - a limitation on the time in which civil claims can be made.

There was an interesting case about this earlier this year, in which the Supreme Court held that the doctrine of laches did not apply in copyright claims, because the statute displaces it: http://patentlyo.com/patent/2014/09/federal-supreme-holding....

...so anything like this would have to be put in place by Congress, which means the property interest of the general public with continue to come dead last for the foreseeable future.

I would want to have data regarding the profit made by books within the first year after publishing, and the profit made in all years afterward. Unfortunately, I have not been able to find such data from a quick google search. I would expect that the vast majority of books make the majority of their profits immediately, with relatively few sleeper hits, as you describe.

I would rather not have copyrights tied to an individuals lifespan, but rather be sufficient that they catch the majority of the sleeper hits. I could conceive of an author, knowing that they have a terminal disease, writing one last book, the proceeds of which are intended as an inheritance. If copyright only lasts until the death of the author, this would be impossible.

This also has the benefit of ease of use, for people writing derivative works. Comparing the current date with the date of first publication would be enough to know whether the book can be legally used as a backdrop setting.

You could end up with all sorts of confirmation bias by taking that approach - for example, works of abstract philosophy are going to be swamped by the number of publications on current events, fashionable ephemera and so forth. Likewise, the visibility of artistic work is typically a function of the amount of money spent on marketing, so the longer it takes to build an audience the less time there is to reap any commercial rewards of authorship. Artistic works are not fungible; if I want to listen to some relatively obscure artist like Arovane then I'm not going to be satisfied by listening to Justin Bieber instead. Why should the commercial lifetime of the less popular work be judged by the sales behavior of the more popular? The extremely popular work, which is usually designed to pull in as much income as possible as fast as possible, already earns a great deal more than the less popular work. Predicating the allowable timeframe for earning revenue on the best performers would be a double whammy.

You wouldn't reduce Olympic running competitions only to the 100 meter dash and dismiss marathon runners on the grounds of their inability to compete in the short track event.

There's no reason copyright has to be the same for every medium, genre, or type of originating entity.

The interesting part about Watchmen is that DC duped Moore out of the rights to the comics (and later made some pretty bad prequel comics), which deteriorated their relationship. You still hear him talk about it in interviews today. If I'm not mistaken a similar thing happened to the creator of batman. While public domain doesn't give Moore back his rights, I'm sure he'll rest a little easier knowing DC doesn't own his series anymore.

So create a new story. You can't copyright plot.

There are stories that can be richer as a result of easier characterization.

If a character adopts the name "King Arthur" as an alias, that immediately tells you something about the character, because King Arthur is a well-established character with well-established traits. We do not need to say that the character is lawful or just, because that is implied by the similarity to King Arthur.

Similarly, I might want a character to take the name "Frodo Baggins", to imply loyalty and perseverance. However, use of that name, part of general culture for the past 77 years, would be copyright infringement.

28 years isn't even long enough for the author to die. As a creator, I want to maintain my copyrights at least as long as I live.

I say go make your own backdrops, your own universe.

28 years is long enough for a child to be raised on newly published works, then grow up to make their own stories. The child who play-pretends as Sherlock Holmes or as The Dread Pirate Robert should be able to grow up and write those stories.

How do we know that is even beneficial? Why can't the child create her own characters?

It's a warm and fuzzy statement you make, but what's the argument about why this is good, for child or society?

http://arstechnica.com/uncategorized/2007/07/research-optima...

The purpose of copyright is explicitly stated to be "to promote the sciences and useful arts". Copyright's temporary monopoly over works is designed to compensate the author for having written them. Without public domain, there is no advancement, as future authors cannot build upon earlier works.

If I ever reference the sword Excalibur, or the outlaw Robin Hood, or the raising of Lazarus, I am using cultural references. Under the reign of permanent copyright, these references, which can enrich a work considerably, would not be allowed. In 100 years, authors will not be allowed to make reference to Harry Potter, or Frodo, or Luke Skywalker, a great cultural loss.

It's a bit pedantic of me, but I think your argument has presented has a lot of holes. You can always write original work that doesn't depend on existing cultural references, and the ability to reference things is not as limited as you suggest. I can write an publish a book tomorrow in which a character reads a Harry Potter novel and muses on the content. What I can't do is write a book featuring Harry Potter, boy wizard, as a character, unless it's some sort of parody - but in that case I may well have to expend money and legal effort on defending against a lawsuit while a court decides whether the derivative work falls within some permissible exception.

Incidentally JRR Tolkien died in 1973 so you'll be able to recycle characters from Lord of the Rings to your heart's content in 29 years as long as the law doesn't change; you just won't be able to use the footage from the movies or quote the script insofar as it differs from the novel. A literary parody has been around for a few decades already, I think it's called Bored of the Rings.

> Without public domain, there is no advancement, as future authors cannot build upon earlier works.

Uhh, literature does not work like technology. Authors can and do create entire universes out of whole cloth. Of course, they will be influenced by countless other works, but copyright has no bearing their unless it's a barefaced rip-off.

In fact, I would guess that most creators want to create their own work rather than build on top of others'. Firstly, because of ego, because the work would be all their own. Secondly, this allows the maximum amount of creative ability without being shackled by a backstory that they had no influence on.

Culture can't exist without reuse and adaptation.

The natural state of affairs would be that anyone is free to see or listen to (etc) some content, and then make marks on paper, or patterns of bits, or sound waves that are more or less faithful copies of that.

Copyright is unnatural. It's not worth hashing out the arguments for or against it, or for or against any particular length, here. But the onus is clearly on supporters of long copyright terms to show how the benefits offset the downsides of restricting everyone else's freedoms in this way.

I am somewhat sympathetic to your position, but couldn't you say that about inventions? Do inventions not become richer when the culture at large is allowed to build on them (at least within a relatively short period of time)?

Stories are sometimes different, but I imagine that forcing the public at large to always start from scratch (or at least from a largely static landscape of compositions) precludes a lot of good works that we can't predict in advance. e.g. sampling in electronic music either uses really old music or doesn't bother with the law until an act gets big.

At the same time, an author wants to benefit from and maintain creative control over how their work is used. I'm kind of interested in the following question: If copyright expires after the author's death, why do we respect their wishes in life but not in death? Just because they won't be offended when they're dead? Or is it because we regard their ideas as property and dead people can't own things? In which case, why can't it be passed down through the family in perpetuity and thus be restricted as long as the owners wish for all time?

I feel like the right balance is some reasonable fixed term rather than the life of the author since both of those scenarios feel wrong to me.

>Do inventions not become richer when the culture at large is allowed to build on them (at least within a relatively short period of time)? //

Yes, and that is what patent terms aim to do. The monopoly is there to allow inventors to profit and so to continue to develop and invent. The monopoly is initially exchanged for the explicit disclosure of the invention. Without this deal the public domain would remain sparse as in order to profit (or really 'in order to break even' in many fields of endeavour) inventors would otherwise tend to choose to keep their inventions secret and deprive the public domain of the knowledge of how the invention is worked.

Now, of course the development cycle of almost all patentable things has shortened with increased technology and industrialisation. So patent terms in many areas are probably a bit too long as well. But patents protection can realistically be an order of magnitude shorter term than some current copyrights will prove to be, and certainly with no less work put in to the creation.

The passing along of stories through generations and evolution of those stories is one of the things that historically made us human beings. It is intrinsic to all of human culture.

you're assuming all work finds a publisher and success in the market. There are numerous examples where the opposite occurs. For films in the US, scripts which are offered for sale are typically registered with the Writer's Guild for purposes of establishing copyright (indeed most producers will refuse to look at a script that is is not WGA-registered, in order to avoid legal disputes). But it often takes a script years to go through development and get turned into a movie - oscar-winning Dallas Buyer's Club floated around Hollywood for 20 years before production and release, and there are many other example: http://en.wikipedia.org/wiki/Development_hell#Films Should the writer of Dallas Buyer's Club only be allowed to receive royalties until 2020, insofar as they can be traced to the 1992 script?

Meanwhile, the stories of authors who published to indifference only to see their work become popular many years later are too numerous to mention. Many artists sacrifice their economic wellbeing on the altar of their artistic endeavor, and in matters of individual copyright ownership it's not unreasonable to take that into account.

The term for royalties doesn't have to be linked to the term for copyright. If all scripts already pass through the WGA, they could impose conditions on producers for royalties even after the script is out of copyright. They could use NDAs to prevent producers from stealing scripts. If there is one thing Hollywood shows us, it is that collective bargaining is a very powerful tool.

> As a creator, I want to maintain my copyrights at least as long as I live.

You are free to want whatever you like, though many other creators recognize the desirability of shorter copyright terms.

However, the purpose of copyright law is not to give creators whatever they want. It is to provide limited exclusive rights in order to promote creation. This is literally written into the US Constitution:

"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."

http://en.wikipedia.org/wiki/Copyright_Clause

Congress and I shall go on wanting I guess.

Congress is corrupt and inept. More so - if possible - in this case than in general.

I don't think should should be downvoted for this. A 'life of the author' standard is inherently limited and reflective of human realities (see my comment elsewhere for a distinction between human and corporate authorship).

I agree with you and don't understand the downvotes. If I create something, it doesn't belong to society and I should have the right to own what I create and use it or not use it as I see fit. Let's take the anti-copyright argument to the extreme -- I challenge everyone opposed to copyrights to make your private github repos public. It is the exact same thing. Weak IP protection leads to decreased incentive for innovation. We could take it to another extreme and eliminate private real property rights as well. I like your house, it has been in my street for years, it's a part of my street's culture, therefore I have the right to move in whenever I want. How is the written word any different than a creation made of bricks? Why would I spend years writing a novel and only get the right to benefit from it for some arbitrary amount of time? If I wrote it and I built it, then I should be the beneficiary of it. Why is that concept so objectionable? Just because someone wants to do something with Robocop, doesn't give them the right to steal the work of someone else. There IS a means to create derivative works; it's called licensing. When your startups open source all of their application code, then perhaps I might be more convinced, but until that happens, complaints about copyright are nothing more than hypocrisy. There's nothing stopping any of us from creating our own art.

In that case, why is there a societal obligation to protect the work?

Copyright is a trade between the author and society. The author releases the work to society at large, and in exchange, society provides a means to be rewarded for releasing it.

You can own a story entirely, so long as you do not release it. Then, nobody can take it from you, and you will never see those characters do anything beyond what you say they do. But if you want to share it with others, you must accept that they will eventually write things based on it.

> We could take it to another extreme and eliminate private real property rights as well. I like your house, it has been in my street for years, it's a part of my street's culture, therefore I have the right to move in whenever I want. How is the written word any different than a creation made of bricks?

This is a terrible analogy. If I take your house, I have deprived you of its use. If I make a copy of something you wrote, of what are you being deprived? Do you not still have access to your writing?

You expect to profit by selling copies of your work and you task the State with preventing me from doing so, thereby limiting my freedom to do whatever I want with my own physical property (my pen and my paper).

That's the nature of the copyright bargain, and everyone more or less agrees that it's a net gain for society. But do not lose track of what's going on here.

Not necessarily. what about taking an empty house, ie squatting? That's legal in some jurisdictions. On the flip side, when you infringe on someone's copyright you're depriving them of the right to the residual income from its resale (this applies more to infringement in the form of republication/mass duplication and offer of the copy for sale than making an individual copy, but there's a non-zero possibility that someone who helps themselves to a pirate copy of something for nothing because they can might otherwise have paid something to purchase it.

You expect to profit by selling copies of your work and you task the State with preventing me from doing so, thereby limiting my freedom to do whatever I want with my own physical property (my pen and my paper).

Not true at all. You can do whatever you like with your pen and paper, and it will even be copyright-protected. You don't sell with your pen and paper, you compose and/or copy with them. It's the commercial transfer of intellectual property that copyright laws regulate, not the act of creation as such.

The original analogy is flawed, but so is your counter-argument. The intangibility of authorship doesn't obviate its legal existence - otherwise whole classes of contractual relations would be impossible.

The equivalent to copying information would be building another house with equivalent materials that has the same floorplan as your house, not taking your house itself.

"right to the residual income from its resale" sounds like a very weird right to me, and doesn't really come from any sound ethical foundation. In fact, it's exactly the opposite for physical goods. If I buy a deck of cards, and then sell (or give) it to somebody else, I've technically deprived the creator of the deck of cards of residual income from resale, but they don't have a right to it from the first sale doctrine.

I make my living writing copyrighted works (software). I would be happy to let all the 20+ year old stuff slip into the public domain.

As an indie game developer I open sourced all of my published mobile games after I realized they wouldn't make a profit.

> 28 years isn't even long enough for the author to die

It is not supposed to. If you write a great best seller on your first shot and get paid for life, would you be encouraged to try and write another one?

Before copyright, artists lived under the wing of nobility which provided them with food and shelter in exchange for their creations. The problem with this system is there were not enough nobles around to finance all the starving artists. Also artists lucky enough to find a noble or king to finance them had to keep creating or get kicked out.

Copyright was supposed to provide the same kind of incentive: you can live of your creation for a little while, but you have to keep creating. Then congress defined "a little while" as life + 70 years and the Supreme Court somehow agreed ...

Edit: grammar

Edit2: added congress to the mix

You mean like you invented the idea of "warp" for space travel?

Every work of art is derived from previous works.

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