Thursday, August 18, 2005

Choreography and Alternatives to Copyright Law

Given all the attention copyright law gets, one would think copyright protection is of vital interest to creators of original works of authorship. The copyright industries are fond of pointing out the relative importance of their industries to the GDP, and indeed they are important. This too might make one believe copyright protection is pervasively important. How can one measure the importance of copyright protection though (without going into the scope or extent of that protection, which is obviously also an important question)?

One way, an imperfect one, is to look at copyright registrations, since for U.S. works, registration (or rejection) is a prerequisite to bringing suit and for all works it is a prerequisite for getting statutory damages and attorneys fees. In FY 2004, the Copyright Office received 614,235 claims and registered 661,469 claims (the larger number being attributable to the processing of claims received in FY 2003 as well). More copyrighted works are created in part of one day in New York City alone. Not more economically valuable works necessarily, and that's part of why registration figures can't supply a complete answer. But 600,000 plus works a year is a very small number (and that number also includes registrations for foreign works).

Even within the 600,000 plus figure, the numbers are heavily weighted toward some groups and away from others. The fine arts are one example of a class of works that have, historically, been underrepresented in registrations. Choreography is another. The Register of Copyrights' 2004 Annual Report lists registration numbers for the broad class of performing arts, a class that also includes music, motion pictures and other audiovisual works, and other dramatic works. This class represented 170,512 registrations in FY 2004. More detailed breakdowns are given though in the number of registered works transferred to the Library's collections. Here, while the category includes dramatic works, it does not include music or motion pictures and other audiovisual works. Only 1,115 registered dramatic works , choreography, and pantomimes were transferred to the Library.

This very low figure corresponds to the legal literature on copyright and choreography, which repeatedly notes choreographers' decision not to rely on copyright and to instead develop their own "community" system of protection, protection believed to be better suited to choreography and providing better protection. The community system works in large part because of the concentration of choreographers in New York City, the tight-knit nature of dance companies, and the reputation within the community enjoyed by choreographers.

In brief, the dance community recognizes the choreographer's right to control his or her works even after they have been performed. Where a dance company different from that for whom the work was originally written wishes to perform the work, the choreographer ensures that the company is capable of performing the work and that it will ensure the integrity of it. A formal license agreement is entered into. This sounds like contract law, and it is. But the recognition of a choreographer's interest goes well beyond this, including rights of attribution where the work is revised, and a right to withdraw the work from performance. Interesting discussions can be found in Barbara Singer, "In Search of Adequate Protection for Choreographic Works: Legislative and Judicial Alternatives vs. the Custom of the Dance Community, 38 U. Miami L. Rev. 287 (1984) and Leslie Wallis, "The Different Art: Choreography and Copyright," 33 UCLA L. Rev. 1442 (1986).

The choreography example may be unique, but one wonders what form of protection, if any, the vast majority of copyrighted works not registered each year rely on, and whether amidst all the debates on copyright we are fussing about the tip of the iceberg.

21 comments:

Anonymous said...

Prof. Patry--

One way, an imperfect one, is to look at copyright registrations, since for U.S. works, registration (or rejection) is a prerequisite to bringing suit and for all works it is a prerequisite for getting statutory damages and attorneys fees. In FY 2004, the Copyright Office received 614,235 claims and registered 661,469 claims (the larger number being attributable to the processing of claims received in FY 2003 as well). More copyrighted works are created in part of one day in New York City alone. Not more economically valuable works necessarily, and that's part of why registration figures can't supply a complete answer. But 600,000 plus works a year is a very small number (and that number also includes registrations for foreign works).


Of course, this indicates that the US has been led astray, and is granting copyrights in a detrimental fashion.

Copyrights should only be granted where they provide a necessary incentive to create and publish a work. Otherwise, they'd be granted for no actual purpose at all, incurring a public harm without any public benefit, since the work would've been created and published regardless.

While we can't perfectly get inside the head of every author, a strong registration formality is probably the best system for causing the incentivized to identify themselves. Those that care about copyright will jump through some modest hoops to get a copyright. Those that do not, generally will not, and so can be left unprotected. Admittedly, there will be some errors -- people that want but don't need a copyright, and people that need one but are too unware to get one -- but this approach is probably the most accurate one. Simply granting copyrights to everyone for anything has a tremendously higher number of errors, for getting those last few proper grants, and is simply a foolish approach.

This is particularly so, as copyright basically provides economic benefits, and any artist that can't treat copyright as a business has no business having copyrights. No one finds it unfair that business owners should generally have to look into simple legal prerequsites for setting up corporations, preparing their tax filings, etc. Simple formalities such as registration in order to get a copyright, deposit, etc. are such low hurdles that no intelligent person could complain about them.

The attacks on our excellent system of formalities over the years indicates to me that there are a lot of reckless idiots at work in the field of copyright law. It's important that we kick them out before they can do any more damage to the public -- especially damage that, as here, benefits no one and is really nothing more than harming people for the hell of it -- and fix the system; perhaps even improve it. (e.g. software formalities are far too lenient)

William Patry said...

In a paper written for the John M. Olin & Economics Working paper Series at the Nuiversity of Chicago, available at:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=319321,

and entitled "Indefinitely Renewable Copyright," Judge Posner and Professor Landes undertook an analysis of the data for registrations and renewals over the last 100 years. They also did a comparison of trademark renewal rates, and recall here that there is a renewal requirement in 15 USC 1058, but may be indefinitely renewed (hence the title of the paper). The comparison yielded this data: between 1934 and 1991 (in 1992 renewal became automatic for copyright) trademark renewals average 28%; copyright renewal was exactly half, 14%.

Posner and Landes also calculated what they believed the economic life expectancy was, and here the difference was a life expectancy of 15.4 years for trademarks and 14 years for copyright, even though the trademark term was infinite, potentially, and the copyright term limited.

Anonymous said...

Prof. Patry--
That's an interesting paper, and I'll have to take a look at it. It's nice to see how indefensible copyright terms seem to be. May we assume, in light of this, that you oppose CTEA and other lengthenings of the terms?

However, based on your post, it doesn't seem to really relate to the need for strong formalities to weed the authors from the pikers right from the get-go.

William Patry said...

Anonymous:

I did oppose CTEA, but I also oppose formalities.

Anonymous said...

Prof. Patry--
Why oppose formalities? As I see it, we need to make them universally manditory with regards to US copyrights.

Registration, as already noted, is an excellent way of reserving grants of copyright for works where such a grant is actually worthwhile. It's not perfect, but there are fewer errors than a grant-to-everyone policy. Maintaining contact information also helps to avoid the orphan works problem.

Making terms very short, and requiring formal renewals would also cut down on the orphan work problem -- either a copyright is renewed in a couple of years, with updated contact information (perhaps some sort of chain of title included) or else the then-annoying copyright expires. This is a lot better than the very long terms of late.

Depositing helps to preserve works, as well as to improve the LoC's collection.

Providing notice is important in a world where there are both copyrighted and public domain works, since the public deserves the right to assume that works are in the public domain by default (since works should be, see registration supra). The date helps determine the expiration as well, though this could be improved with some tweaks to the notice requirement.

None of these formalities seem even vaguely difficult to deal with. Ordinary personal income taxes are probably more of a chore, and I don't see artists getting exempted from that requirement. Businesses that create, publish, or license works will likely maintain a docket for themselves or their artists/licensors, having a vested interest in doing so. Hell, an extra couple of bucks with the registration and the CO could even send a postcard (I wish that the PTO would adopt a policy along these lines).

Only the most unprofessional of artists might have difficulty with this, but if they're truly that disorganized I doubt that they'd be in any shape to exploit copyrights to begin with. Many might not even care, and that's fine too.

So what's your objection? What could possibly be bad about formalities?

William Patry said...

Anonymous:

My objection to formalities is that they sweep in too many people who genuinely want copyright protection and deserve it, but who don't have the knowledge or staff to comply. Large corporate copyright owners do, so the effect of formalities falls disproportionately on individuals.

The difficulties of compliance are, I think, much greater than you would believe. When I worked in the Copyright Office I had really sad calls from widows who had filled out a renewal requirement, and filed it on time, but had filled it out incorrectly, thereby invalidating it. Notice under the 1909 Act was fairly rigorous, and there was the manufacturing clause requirement too, a very arcane area.

I accept that a formality-free system results in protection for lots of works people don't want protection, but in an ideal world (the one we are talking about)that would be taken care of by a short duration of the right (not possible in the real world due to treaty obligations), exemptions or fair use (both possible to some degree in the real world. The latter was the subject of the article Judge Posner and I wrote about and which is the subject of the orphan works proposals).

As for the Library, when I worked for Congress, I did a study of what they select for their collections from Copyright Office deposits and it is not the stuff that people litigate over; moreover, it is a dirty little secret that the deposits for many published works are "pulped," to use the venacular, that is destroyed. Others, including unpublished works are lost. And the Library has been known to abuse its Section 407 power to demand copies of extremely expensive rare limited edition books.

Its a very imperfect system, and I appreciate fully the downsides to no formalities, but my sympathies lie individuals, who in most areas tend to get screwed.

Anonymous said...

Prof. Patry--
there was the manufacturing clause requirement too, a very arcane area.

Well, I think that we can ignore manufacturing. Effectively subsidizing the US printing industry is not something that copyright reformers seem to be interested in, and it's far from being on the same level as the other formalities.

My objection to formalities is that they sweep in too many people who genuinely want copyright protection and deserve it, but who don't have the knowledge or staff to comply. Large corporate copyright owners do, so the effect of formalities falls disproportionately on individuals.

The difficulties of compliance are, I think, much greater than you would believe. When I worked in the Copyright Office I had really sad calls from widows who had filled out a renewal requirement, and filed it on time, but had filled it out incorrectly, thereby invalidating it.


I don't feel especially moved here, I'm afraid. Aside from how bankrupt any argument about copyright policy that involves widows is (as it is part of how we end up with long terms), you're essentially arguing in favor of incompetency. It's like arguing against the statute of frauds or signatures on wills because some people don't engage in serious issues properly.

A copyright registration is work easily handled by paralegals, summer associates, and others low on the totem pole in the vast majority of cases. If a work produces an income stream over the remainder of its life worth caring about, the investment in doing it right is not too large by any means. We're not talking about a lot here.

Even for people who do it themselves, more assistance from the CO would be a fine thing, and I have no problem saying that they don't do enough to help artists in a manner accordant with their actual mission. Nevertheless, it's important that there be a bar, and that the bar be capable of excluding people.

I accept that a formality-free system results in protection for lots of works people don't want protection, but in an ideal world (the one we are talking about)that would be taken care of by a short duration of the right (not possible in the real world due to treaty obligations), exemptions or fair use (both possible to some degree in the real world. The latter was the subject of the article Judge Posner and I wrote about and which is the subject of the orphan works proposals).

Well, the ideal world would involve only people that needed a copyright seeking one, and a way of perfectly verifying that all of them, and no one else, got one. What I'm talking about is a world we could be living in, if we returned copyright to the realm of sanity. Since Berne (stupidly, natch) is just as against formalities as it is reasonable terms, I think that both goals are of equal achievability, once we put Berne and its ilk in the trash where they belong.

Exemptions are all well and good (and I'd like to see something like your proposed 1008, but for everything engaged in by individuals noncommercially), but they're just never going to be broad enough. Preventing unworthy works from getting copyrights in the first instance is the superior solution.

moreover, it is a dirty little secret that the deposits for many published works are "pulped," to use the venacular, that is destroyed. Others, including unpublished works are lost.

I know that, and I'm against it. Of anyplace, the LoC has the greatest opportunity to keep everything it receives in its collection. I would love to see a requirement that they keep far more than they do now, and are funded appropriately. Please don't think that their current practices are a good attack on deposit; it just shows us that strengthening deposit isn't enough by itself.

And the Library has been known to abuse its Section 407 power to demand copies of extremely expensive rare limited edition books.

You're faulting the Library for being a Library? Sure, most of what we're concerned with are intangible works, not material copies. But there's value in the copies too, and this seems like proper behavior.

Plus, if they run out of storage space, they could always require deposit of a suitable architectural work. (This is just a joke; architectural works shouldn't be copyrightable)

Its a very imperfect system, and I appreciate fully the downsides to no formalities, but my sympathies lie individuals, who in most areas tend to get screwed.

Understandable, if very shortsighted. The public at large has a lot more individuals in it. In fact, it even encompasses the same set of individuals -- the artists -- who can benefit from other artists, retelling their stories, and performing their music. If your handful of widows can't manage to fill out of a couple of forms, I'd rather that they suffer the penalty than the 300 million other people in this country.

billb said...

What term would you propose if we didn't have treaty obligations? Also, what's to stop us from withdrawing from said treaties?

William Patry said...

Anonymous:

You state that copyright registration work is easily handled by paralegals, summer associates, and others low on the totem pole, and it is - at companies. My point was that companies can and do take care of themselves, so that formalities are principally an issue for individuals. The Copyright Office can help out and does an excellent job of doing so. But we are assuming the unusual situation, one where people know about the requirements of the copyright law and how to get advice. That usually doesn't happen, at least depending on the formality.

For example, if you had a rigorous notice requirement for published works as we used to, not only would many people would not know of the requirement but those who did still might have trouble figuring out what publication means, what the correct placement and form of the notice is, whether you have to put a notice on revised versions, etc. That's why I said it is easy to underestimate the difficulties with formalities. And I don't think the rest of us suffer much, if anything from helping individuals.

As for the Library and very rare books, I was referring to cases where the publisher or author doesn't register, and, under 407 the Library demands copies. I love the Library and it is a treasure, but it is still a government agency, and I don't see why if it wants things like that it shoudln;t have to pay for it, rather than exercising what is a form of eminent domain.

Billb asked what my ideal term be. I would go for, in an indeal world, life plus something like 20 years.

billb said...

What about works for hire?

And, just, FYI, I'm a proponent of a return to 14+14.

William Patry said...

Billb:

Yeah, I do feel differently about work for hire. My views on individuals comes from a belief that one should have the right to exploit your work during your life time and be able to provide some income afterwards to your immediate family, since individual creators may not have pernsions, 401Ks, etc.

For work for hire those considerations don't come into play for me. In an ideal world, I would go for a shorter term, tied to some type of empirical analysis based on recoupment of expenses and profits. I'm sure Judge Posner and Professor Landes could help out

billb said...

How do you feel about the public domain? That is, do solely economic arguments drive your conception about the length of copyrights, or do you believe that a vibrant public domain is important and/or that valid arguments invoking the public domain may be made to influence copy copyright terms?

Under your model of shorter terms for works for hire do you think that we would see less works for hire and more exclusive licensing deals, thereby effectively negating the shorter time limit? Would such a move be a good thing?

How about collective works? Should an author be allowed to list his 12-year old daughter (or granddaughter or great-granddaughter) as a co-author in order to maximize the term of the copyright? Do we deny something important to heirs of very old authors by using the life of the author in the term?

Sorry, did I just ask too many questions?

Anonymous said...

Prof. Patry--
My point was that companies can and do take care of themselves, so that formalities are principally an issue for individuals.

And my point is that while formalities should be easy for authors to comply with themselves, there's nothing like going to a professional for useful, yet relatively inexpensive advice. If someone cannot be bothered to spend a modest sum on a lawyer, and can't figure it out on their own, then I think it's safe to say that the work must not be economically valuable to them, and that the best solution is for it to enter the public domain. If it was important to them, they would've cared enough to do more.

figuring out what publication means

Well, I do think that 'publication' ought to be significantly broadened and simplified. Public performance, for example, seems to me to be a form of publication. Essentially, I think of an unpublished work as being like a trade secret, and I'd like to see a return to the 1909 method of dealing with published, unregistered works.

And I don't think the rest of us suffer much, if anything from helping individuals.

On the contrary, all copyrights are inevitably harmful to the public. They are monopolies limiting our freedom of expression, and acting as a brake on the growth and health of our culture. There's a reason that Jefferson would have considered them to be an embarrassment to the public.

Some copyrights, however, can provide benefits greater than their ills, and so their existence is justified. But where a copyright provides too little if any benefit to outweigh its own harm, it is pernicious. Even a copyright that yields no net benefit to the public is best done away with, as the same effect could have been achieved with less work.

As for the Library and very rare books, I was referring to cases where the publisher or author doesn't register, and, under 407 the Library demands copies. I love the Library and it is a treasure, but it is still a government agency, and I don't see why if it wants things like that it shoudln;t have to pay for it, rather than exercising what is a form of eminent domain.

It's not eminent domain. The Library has no 407 rights unless there is a copyright, so it's still part of the quid pro quo. If artists don't like having to pay for the monopoly they've been granted, they're free to have their works reside in the public domain. You seem to be advocating their having their cake and eating it too. Only if the 407 right applied to uncopyrighted works would your criticism be valid.

My views on individuals comes from a belief that one should have the right to exploit your work during your life time and be able to provide some income afterwards to your immediate family, since individual creators may not have pernsions, 401Ks, etc.

This is an unusual statement, since the study you're citing indicates that such a long copyright term will simply not accomplish your goals, save in extremely rare cases. And I've yet to see you argue that the study is flawed in its findings.

Copyright is the worst system for providing for loved ones ever devised. It does not work. The scenarios involve are these:

Most works have no copyright related economic value ever. Leaving these copyrights behind is useless.

A tiny fraction of works have some copyright related economic value. But as we know, this is usually both immediate and short-lived. In such cases, the artist himself typically wrings out all of the value. If he left the cash to his family, that would be fine. If he invested it wisely, that would be fine. Expecting that the rock will magically yield blood after he's dead is the height of irresponsibility, and I'm sad to see that you're lauding it, rather than denouncing it.

Only a tiny fraction of those works have long-term copyright related value. But as before, the value is typically mostly realized at the beginning. This means that again, the author who takes his income and does something responsible with it is far superior to the author who naively assumes that the well will never run dry. They have the means to secure their loved ones' future reliably. They have no need for long term copyrights to do it for them. They already made a lot of money, after all.

If you actually care about widows and orphans, you would advise authors to get life insurance policies, annuities, invest carefully (Shakespeare, who had no copyrights, bought land and was a credit to his family). Expecting that copyrights will provide in the long run is as foolish as telling an author with an advance check in hand to go out and spend it all on lottery tickets. The likely payoff is probably similar, in fact.

I absolutely cannot stand people discussing copyrights as an alternative to or equivalent of pensions or IRAs or the like. Copyrights do not work in this capacity. They are not reliable. They are not how you provide for your family's future. And policy arguments based on such beliefs can only be dismissed out of hand.

William Patry said...

Anonymous:
Hopefully we can respectfully agree to disagree. I think that people who create works that others value should be paid for their work, and should not have the government doing what it can to take that ability away with the other hand. I think that if I work, as I have, for 15 years on my latest treatrise, without pay from anyone and without help from anyone, that if I die my wife and twins should be able to enjoy some economic value from that work. The public who did nothing to help me write the work or support my family has no inherent right to say just because I have died, its theirs for free.

Anonymous said...

Prof. Patry--
The public who did nothing to help me write the work or support my family has no inherent right to say just because I have died, its theirs for free.

Of course they do. There is an inherent right of expression, which even encompasses verbatim repetition. An author seeking a copyright is ultimately asking the public to sacrifice their inherent right, so that the author can then attempt to charge them for that which they could have done themselves. It is only because there may be even greater benefits stemming from this that copyright is ever tolerable. It is essential to continually ensure that the public benefits from having copyrights, and this requires consideration as to the degree of copyright, and whether no copyrights would be better still.

Frankly, I'm surprised that someone so well versed with the text of the statutes would forget that they clearly grant a temporary, limited right of exclusion to authors. This construct that only makes sense if the public is indeed possessed of inherent rights. If they didn't, authors wouldn't need a grant. If they didn't, the public would have to be granted their rights to public domain works, or exceptions, rather than having the authors' rights whittled away, with the unspoken fact that the public gets everything else.

It's quite unnecessary for the public to pay you in help or in cash money. They're paying you with a copyright. And better yet, they get to dictate the terms of the copyright, including when it expires, all for their own benefit, because you have no other options for getting a copyright*.

The most that an author could do would be to hold out, and not create a work without a copyright more to his liking. Maybe he does so out of mere petulance, or because he really cannot afford to make a go of it otherwise**.

Either way, it's of no great concern. It's an unavoidable fact that any reasonable system of copyrights will fail to incentivize every author for every possible work. In the end, there is a simple cost/benefit analysis. Some works are just too costly. The copyright terms needed to get them to be created are too much. It's a shame that they aren't created, but that's how things are, and we're better off without them.

Incidentally, I don't like life terms at all. I'd like to see terms of a few years, tops, renewable a few times (except for some classes of works, which would not be renewable). Of course, merely discussing term length doesn't mean much -- the scope of protection, what works are protectable, in whom rights vest, etc. are all also important. I think that it's important that any particular copyright ends rapidly enough that it won't burden later generations, and that it be as short as possible, while still incentivizing as much as possible.

If the aforementioned study is accurate, then a 14 maximum would probably be about right.


*Well, you do have the option of perverting the system, and this is precisely what the relevant industries have done. But this is just what I'm opposed to.

**I myself would like to rearrange the stars in the sky into original constellations. However, the copyright laws needed to provide me enough of a promise of reward to do it would be so expansive that they make the dreams of copyright maximalists pale in comparison. No one cares, however, and it is absolutely proper that they don't cater to me. Likewise, we must not cater to any artist that wants more than it would serve the public to provide.

FlatironDante said...

Anonymous:

You wrote Of course they do. There is an inherent right of expression, which even encompasses verbatim repetition. An author seeking a copyright is ultimately asking the public to sacrifice their inherent right, so that the author can then attempt to charge them for that which they could have done themselves.

Based on the last sentence I quote above, I assume that you are worked up about copyright in software, though I admit I could be wrong. If you are talking about protection of software, then that is a much smaller discussion than copyright as a whole and I agree that your argument has some attraction.

If, on the other hand, you are arguing that any member of the public could paint like Picasso or write songs like Brian Wilson, then I have to disagree (though I will admit that such works are very rare).

If you are arguing the latter, and your position is that Brian Wilson should be happy that he got paid for Pet Sounds until 1994, I'd like to know what you think would happen if we cut off copyright for authors capable of such great works? Would they be content to let their next masterpiece go into the public domain after 28 years or would they create the works in a way that the works become private luxuries, closely held by artists and only available to those willing to pay via contracts? I think there's a good likelihood that we would see the latter, at least as to the class of works made by established artists, and I think the world would be worse off if those artists had to keep their works as trade secrets to protect their value. Imagine the non-disclosures and the entrance fees to which one would have to agree if one wanted to view the next Picasso's works. And what would the market be for access to the next J.D. Salinger book if his best alternative to make money was the trade secret route? It would make Chateau d'Yquem or Krug Clos du Mesnil look like a bargain. In the absence of copyright, smart (and/or greedy) people would come up with some other way to make money and it wouldn't be rich lawyers like me and Bill P. who would miss out, it would be the next generation of artists who would never hear those great songs or see those great paintings. And I think we'd be worse off as a country for it.

Anonymous said...

flatirondante--
Based on the last sentence I quote above, I assume that you are worked up about copyright in software, though I admit I could be wrong. If you are talking about protection of software, then that is a much smaller discussion than copyright as a whole and I agree that your argument has some attraction.

If, on the other hand, you are arguing that any member of the public could paint like Picasso or write songs like Brian Wilson, then I have to disagree (though I will admit that such works are very rare).


I am discussing copyright generally. Software does require some slightly special treatment, I think, in particular with regards to formalities, but it's not really what I'm interested in in this thread. Incidentally, I have a high regard for computer programmers, and while not a great deal of what they do falls within the realm of copyrightable subject matter (especially allowing for merger) I think you might not be doing them enough credit. Not everyone can program elegantly.

Anyway, I was chiefly thinking of reproduction et al when I was writing the relevant passage. It's true that not many people can create a painting on the level of a Picasso. But lots of people can copy it.

Picasso didn't need a copyright to prevent people from producing their own equally good paintings. But he did need one to prevent people from making their own copies of what he had done. As this left an unsatisfied demand for copies of his paintings, he could then have copies sold, for his own benefit.

Of course, the aesthetic merit of works is actually something that I think is best ignored with regard to copyright policy. There are no good standards for judging this, after all. In fact, I suspect that new artistic movements, still in their infancy, tend to be found especially bad by those with some sort of emotional or reputational investment in earlier mature movements. Look, for example, at how various generations of late have responded to the music of other generations.

So we're probably better off having the copyright system remain neutral, and to encourage quantity, since it cannot manage to encourage quality, whatever that is.

I'd like to know what you think would happen if we cut off copyright for authors capable of such great works? Would they be content to let their next masterpiece go into the public domain after 28 years or would they create the works in a way that the works become private luxuries, closely held by artists and only available to those willing to pay via contracts?

Well, the other option is that they stop creating altogether. I do not think that a material number of artists will take their ball and go home, or seek alternatives to copyright. Note that as the objective of copyright is to promote the progress of science, we're allowed to rig things in the public's favor a bit.

In particular, I'd like to see copyrights and DRM attached to works by, or under the authority of authors, be mutually exclusive. I'd like to see the government encourage and possibly fund slightly DRM cracking attempts (of what would be public domain works, per the previous point) in much the same way that they might fund other forms of edifying the public. And I'd like to see the practice of EULAs in this general area invalidated.

Thus, authors who were willing to individually negotiate contracts, and who had a lot of faith in DRM systems that would be attacked might choose to opt out of the system. Others wouldn't have any options other than to quit being artists, and I think this is highly unlikely.

Copyrights, remember, are an economic incentive: with a copyright, you can recoup your costs, and maybe even turn a profit. Oddly, a lot of artists think they'll get rich, despite how uncommon this is, but I guess there's a lot of optimists among their ranks.

Even with short terms, of those few works with economic value, the vast majority of that value is recouped right away. If you make a movie, or a record, or a book, or whatever, you can pretty much rely on making 70-90 percent of the money you'll ever make within the first year of release. Possibly the first few weeks, even.

There are a few exceptions, but remember, they're the exceptions. Making policy around them would be like looking at one or two deaths by lightning and issuing everyone in the country personal lightning rods and rubber-soled shoes.

Even then, terms can still manage to be pretty short and we won't see a significant drop off in creation. The movie industry seemed to thrive under the 1909 Act. I don't think that it's gotten a lot better under the 1976 Act, in a manner attributable to that act. Ditto for the record industry -- Wilson didn't expect to get as much copyright as he could now, but it didn't deter him. Giving him more copyright won't help and it hurts the public, which likes to shop wisely.

And 28+28 is still probably more than we need. Software is the extreme example, but we could probably reduce copyrights to a few years and it wouldn't change a thing. My gut feeling is that a maximum combined copyright term (I favor lots of short terms, remember) would likely be 20 ± 5 years. It's economic analyses such as Prof. Patry referred to that indicate where it ought to be.

William Patry said...

First, I applaud flatirondante's taste in wine. You listed two of my all time favorites, but I rarely have them. At $375 or so a bottle for the Clos de Menil, its not an every day quaff. But I would never say I have an inherent right to drink it. I wish I did. And that is where I disagree with Anonymous. I am baffled why the public has an inherent interest in things I create. If I create it and keep it to myself I still have a copyright, and the public has diddly-squat. As Anonymous previously noted, the idea of a copyright bargain is a myth, but Anonymous still appears to cling to it.

I disagree that copyright is something terrible, that the public is giving up something the public otherwise owns. The public didn't create anything and I disagree that in most cases they could have. They didn't after all, and once we leave fields like law that don't involve much creativity, most people are incapable of creating the works that the public most enjoys. Before a copyrighted musical work existed there was nothing. By creating something an author created something that didn't exist and has added something to the public good; he or she has not taken away from it. The idea that copyright is somehow taking something away from the public is simply wrong (since copyright only protects expression).

And all the public contributes is money. That's not a creative act. We all spend money on lots of thing without thinking that by doing so we are being cheated out of something that really is ours anyway. If we did, paying $3 a gallon for gas would be even more painful.

How much we want to pay authors is in the end a function of the marketplace, not copyright, even if copyright was perpetual. The difference in price between a copyright classical sound recording with a musical composition under copyright and one not under copyright is zero, and that's true for sound recordings.For me a serious problem with term extension is not price but the inhibitions on derivative works. But it is true that over the long haul, too long a term interferes with price, and as a music student I bristled at the prices of French music publishers for scores by Debussy and Ravel and couldn't wait for Dover PD editions. But that is a systemic matter that will never be cured. There will always be works that are overprotected, and now with life plus 70, all works are, in my opinion. A term based on formalities doesn't work for me , though, for the reasons given above.
The House report to the 1909 Act stated that debates over term had existed from the inception of copyright and would likely continue forever too. Amen

Anonymous said...

Prof. Patry--
I am baffled why the public has an inherent interest in things I create. If I create it and keep it to myself I still have a copyright, and the public has diddly-squat.

Not quite. If you create a work and a copy never enters the hands of anyone else then it's essentially moot. You don't need a copyright to exclude people under that circumstance.

Once others have access to the work, however, if you do want to exclude them from doing certain things, you'll need a copyright. The power to grant a copyright ultimately stems from the people who are burdened by it. It must, in fact, as it directly conflicts with other of their rights, more fundamental ones, but is an acceptable trade-off under the right circumstances. Which brings us to the most puzzling thing you've said:

As Anonymous previously noted, the idea of a copyright bargain is a myth, but Anonymous still appears to cling to it.

If you're referring to me, I don't think that the copyright bargain is a myth. In fact, I think that it is the only way in which copyright can possibly be tolerated. I think that we've presently been deviating from it, but that only means that there are problems, likely with people who are manipulating matters for their own benefit. You can't point to the current system as an attack on the idea any more than you could point to a rotten voting district to attack the idea of democracy.

I disagree that copyright is something terrible,

I think that copyright has inescapable harms, but that these can be outweighed by even greater benefits. This is why I don't advocate abolishing copyright; it can do a lot of good. I just want to reform copyright so that it lives up to its potential.

that the public is giving up something the public otherwise owns.

This still fails to jibe with the mechanics of copyright. An exclusive right against the public is the height of pointlessness unless the public has something to assert that exclusive right against. If the public didn't already have rights pertaining to the work, there would be no need to grant copyright to the author.

By creating something an author created something that didn't exist and has added something to the public good; he or she has not taken away from it.

I agree completely, but that's not quite what we're talking about. Creating a work, and copyrighting a work are not the same thing. Creating a work does add to the public good. Copyrighting it subtracts from it. It is essential, therefore, to set up the system so that we get the most added to the public good for the least taken away.

How much we want to pay authors is in the end a function of the marketplace, not copyright, even if copyright was perpetual.

And it's rather outside of this discussion, too. I'm interested in the quid of copyright for the quo of creative works. Copyright does hold a potential of making money, which is how it incentivizes, but how much, and how likely the payoff are market functions. So I wonder why you raise the point.

William Patry said...

Anonymous:


What I meant about the myth of the copyright bargain is that the public gets access to the work in exchange for the author getting protection. But since one gets protection for unpublished works without ever having to bring them to market that rationale is a myth. I agree of course that if the author doesn;t bring the work to market, he or she hasn't gained anything. But protection must be grounded on something other than bringing it to market if you don't have to do so. A property right is usually defined as a right to exclude so being able to exclude people from publishing your unpublished work is still a right that is granted in return for nothing.


I don't think that copyright subtracts from anything and I don't think the public "has something to assert [an] exclusive right against," whatever that means.As to the first point, there was nothing before the author created, and now thanks to the author solely, there is. that's all a plus, even if a part of that plus is that the public has to pay to use it. 3-1 is still more than zero. A negative number would occur only if there was a PD work that the public then had to pay to use.

It is certainly true that there is no federal common law right, but prior to 1978 there was state common law right, and thus it is hard to say that we the people affirmatively even gave rights; they simply existed, whether on a natural rights theory (the most likely source) or somewhere else. But those rights didn't exist as part of any bargain. And since performance wasn't a publication, one could show your unpublished work to hundreds of millions of people and still retain common law rights.

I too though would like the copyright system to work better, and in fact fear it is beyond repair because of the terrible inbalance caused by term extension and the DMCA. The system barely worked before 1998 but since then, to me, at least, it doesn't.

Anonymous said...

Hi, Thank you for having this info on the web. I enjoyed your post. If you may have any interest in
debt consolidation
then I know where you may get your solution. For your comfort, I have enclosed the link, so if needed you can visit the site. Thanks again for your lovely blog. credit