OOP Material vs Public Domain

[Neal Pomea]

Do you think copyright holders should hold copyright for out of print material for the term of the life of the author plus 70 years? Or does this seem unfair to you?

If material is out of print, it cannot be acquired or copied by the public save through institutions like libraries and archives (and in the case of music, through radio. Radio?? How foreign to many of our young people today!). The public cannot enjoy the benefits of copyrighted works while they remain unavailable. Why should copyright holders be allowed to hold onto these rights for such long terms?

The very phrasing of an earlier poll question on piracy certainly tended to lend itself to accusations of theft and immorality by the downloading music fan. But what about the practice of hoarding one's copyright for very long terms and leaving so much music unavailable? Isn't that something like theft from the public?

Ok, this was worded in a pointed way, but I am curious to know whether in this copyright war, how many of you see ONLY the side of the musicians and music companies (copyright holders) to the exclusion of the right of the public to these creations (public domain).

[Rooster_Ties]

I voted for the "28 years, with the option to renew for another 28 years".

But, truth be told, I think it would be best if there was another option to renew for a 2nd (or 3rd, rather) 28 years -- so there's be up to TWO options to renew for "another 28 years".

That way active copyright holders would get nearly 90 years of protection, but inactive holders would (through their inaction) allow their property to fall into the public domain in as little as 28 years.

The specific example I was thinking of when deciding how to answer -- was this obscure Milt Ward LP I got on eBay recently, which appears to have been recorded in 1976. Assuming the copyright was not renewed, then it would have been in the public domain as recently as 2004 (and then would have been fair-game for reissue by anyone -- hello Dusty Groove!!).

But if the copyright holder had wanted to pursue it -- it could have been protected for as much as 84 years, allowing for protection until 2060 -- provided it was renewed a second time in 2032.

Who's with me on this suggestion?? Chuck??

Edited January 24, 2006 by Rooster_Ties

[Joe G]

I haven't seen Chuck online since is signed off with "Have nice futures".

[Soulstation1]

iirc

he was around yesterday

[Neal Pomea]

When the copyright office called for responses on what to do about orphaned copyright works (in my terms, withheld from the public), this was one reply about how the copyright law as now stated hurts us:

http://cyberlaw.stanford.edu/archives/STM%...han%20Works.pdf

I would never have been as generous as this article. I voted that a total of 14 years' unavailability sends it to the public domain.

[Rooster_Ties]

I haven't seen Chuck online since is signed off with "Have nice futures".

Yikes!!

[Claude]

Same as the term of copyright (life of author + 70 years)

I guess you mean the current copyright duration on sound recordings, which is 70 years from the date of performance (50 years in Europe).

That is the copyright on the recorded performance. The copyrght on compositions or lyrics lasts 70 years after the death of the composer/author (same in Europe).

I think a better alternative to reduced copyright duration would be a sort of compulsory licensing system that obliges rightholders to license out material that they don't want to keep in print themselves.

[mikeweil]

I think a better alternative to reduced copyright duration would be a sort of compulsory licensing system that obliges rightholders to license out material that they don't want to keep in print themselves.

obliges is the key word here!

[The Magnificent Goldberg]

I think 70 years after the death of the author is too long. So is 70 years after the creation of the recorded work. The purpose of copyright laws is to help people earn a living from their copyrighted work. People's normal objectives in earning a living are to support themselves and support their immediate family, which often includes parents. Only in relatively few cases in which misfortune removes a generation from a family do people have the objective of financially supporting their grandchildren.

Fifty years seems to represent best the period in which people would normally expect to be working to support their family.

Works that are out of print are no different to those that are in print, to my mind. Fashions change. What is not exploitable today may be exploitable tomorrow. Hip Hop is an excellent example; huge numbers of out of print records have been sampled. To quote one instance, the complete version of James Brown's "Funky drummer" was out of print from 1971 to 1986. Clearly 14 years is too short a period.

The link on orphan works reveals the large range of material that is not created for the purpose of anyone earning a living; or an ongoing living, in the case of wedding photographs and similar material. I doubt whether copyright in this type of material should be owned by the photographer anyway - surely it should be owned by the family, so they they are able to prevent public use of private material. The same applies to private letters. But it isn't clear to me that any of this type of material should be subject to commercial copyright. There ought to be a different legal system for protecting this type of material.

MG

[Neal Pomea]

But, truth be told, I think it would be best if there was another option to renew for a 2nd (or 3rd, rather) 28 years -- so there's be up to TWO options to renew for "another 28 years".

But if the copyright holder had wanted to pursue it -- it could have been protected for as much as 84 years, allowing for protection until 2060 -- provided it was renewed a second time in 2032.

Who's with me on this suggestion?? Chuck??

Thanks for your suggested compromise but wouldn't this actually lengthen the term of copyright?

If I am an author who creates a work this year, and I die this year, under the current law my work would be copyrighted for 70 years after my death. Under your suggested renewal terms, my work could actually remain in copyright an additional 14 years, 84 total.

Cheers (but NOT to my death!)

[Rooster_Ties]

The aim of my suggestion had as much to do with author rights, as the rights of the public.

(Again, to recap my suggestion -- a work written in 1950 would be up for its first renewal in 28 years (1978), and its second renewal in 28 more years (2006), then automatically falling into the public domain in 28 more years (2034). Though it could easily have fallen into public domain either in 1978, or again in 2006 – if the author either chose to not renew, or failed to renew.)

This would mean that inactive copyright holders would "allow" their works multiple options for falling into the public domain (benefiting the public, in terms of potential greater legal access to obscure music!! - since anyone could then reissue such titles).

And overall, 84 years is a pretty long time -- even longer than the "70 years from the date of authorship" rule, but somewhat less than the average "70 years from the death of the author" rule.

And having multiple renewal options (or you could think of them as "requirements" from the perspective of the copyright holder), copyright holders would have to stay on top of things (somewhat), or else the public would periodically (every 28 years) get a crack at anything left inactive (or "forgotten", if you will).

You could pick any number, really -- every 20 or 25 years -- and set up a maximum number of renewals -- say 4 or 3. (So 4x20=80, or 3x25=75.) All I want is something that would let more stuff fall into the public domain a more quickly (especially obscure stuff and/or stuff with limited commercial potential) -- while completely respecting the right and need to let active copyright holders retain their rights for a "relatively long time".

Any problems with this suggestion that I'm overlooking?? -- logistical or otherwise??

Edit: Or if 84, or 80, or 75 years is too long -- then how about 3x20=60 years?? (Though personally I don't have a problem with somthing in the 84-75 year range.)

Edited January 26, 2006 by Rooster_Ties

[RDK]

My beef is more with orphaned works... or more generically those works which are not profitable enough to exploit by the rights-holders and end up languishing because no one can legally utilize them even for free.

I actually don't have much of a problem with anyone - RCA with Elvis recordings or Disney with Mouse cartoons - retaining copyrights and exploiting them for as long or as much as possible (though obviously some limit should be required). Provided, that is, that they actively use their creations and keep them available for others to access. I also believe that "fair use" restrictions need to be relaxed in some instances, such as for documentary filmmakers (anyone remember the "ring tone" issue?).

[Neal Pomea]

Thanks, RT! This seems like a reasonable proposal.

However, I think Claude's suggestion for required licensing of material would make it stronger. I can foresee frivolous re-registration for out of print material in the 28th year of the term based on the claim that there conceivably MIGHT be a time in the future when the work can be commercially exploited again. Instead of the public getting a shot at abandoned works only after 28 years, I can think of scenarios in which this length of time would be too entirely too much and result in loss of cultural memory and identity.

Public rights may have to be more specifically defined, as well.

I like the idea of required licensing for some uses, but these uses would need to include more than the ones we currently mean to be covered by fair use (a scholar's or journalist's right to quote, a parodist's right to make comments, etc., reproduction of small portions of works, etc.)

I can cite examples but they would not relate to the general interests of this board.

[medjuck]

I guess you mean the current copyright duration on sound recordings, which is 70 years from the date of performance (50 years in Europe).

That is the copyright on the recorded performance. The copyrght on compositions or lyrics lasts 70 years after the death of the composer/author (same in Europe).

Are you sure? That would mean that anything recorded before 1936 was now pd.

BTW Most book contracts state that if the book is not in print the rights revert to the author.

[Rooster_Ties]

I can cite examples but they would not relate to the general interests of this board.

Go for it. I know there are probably more than a couple folks here who would be glad to delve into the nitty-gritty details.

[Rooster_Ties]

I think a better alternative to reduced copyright duration would be a sort of compulsory licensing system that obliges rightholders to license out material that they don't want to keep in print themselves.

Sounds like a great idea in some ways (perhaps), but is a "compulsory licensing system" something that's even remotely possible??

And if I were a copyright holder/owner, would it be at all reasonable to be forced to license something out (to anyone!!) - simply because I didn't want to keep something in print?? Me thinks this could be quite a can of worms.

I could think of lots of "for instances" -- like a record company releasing a bunch of stuff by an artist, that the artist didn't want released in the first place. Then that stuff goes out of print - but then anyone could force the owner of the material to license it out.

And would this apply to movies and TV shows too?? George Lucas HATES his Star Wars Xmas special (aired on CBS originally, I believe), with a passion. I believe he would personally spend a hundred-thousand dollars or more if he could destroy every single copy that exists anywhere on earth. But, because he won't release it on DVD - he could be forsed to license it out.

Quite a can of worms. Though I can certainly see a number of benifits too, from a "public" perspective.

Edited January 27, 2006 by Rooster_Ties

[Neal Pomea]

My beef is more with orphaned works... or more generically those works which are not profitable enough to exploit by the rights-holders and end up languishing because no one can legally utilize them even for free.

I actually don't have much of a problem with anyone - RCA with Elvis recordings or Disney with Mouse cartoons - retaining copyrights and exploiting them for as long or as much as possible (though obviously some limit should be required). Provided, that is, that they actively use their creations and keep them available for others to access. I also believe that "fair use" restrictions need to be relaxed in some instances, such as for documentary filmmakers (anyone remember the "ring tone" issue?).

That is close to what I would say! My main concern is "abandoned" works that languish in a limbo of unavailability and cannot be utilized, even for free.

Your comments about fair use are interesting. I am not familiar with the ring tone issue, but I do see some problems with fair use as usually interpreted by our courts.

You probably know that I operate a "rogue" Web site on preserving Cajun music. Some here would probably say illegal, pirate and immoral. Actually, I have enjoyed good relations with copyright holders and have been offered moral support as well as permission from a surprising number of artists who wish to have their works available and appreciated. My relations with two Cajun record companies are cordial, and I have a license from them to provide 30 second clips of all their works, for educational purposes.

Where the limit of 30 seconds came from, I have no idea. If you know anything about a 3 minute Cajun single 45 recorded in the 1950s and 60s and long out of print, the typical pattern is a melody and bridge played on the French accordion or melodeon, followed by a sung verse, then a lead by a pedal steel guitar, a fiddle, then the melody and bridge again by a French accordion, another sung verse, and another chorus of melody and bridge by the accordion. In 30 seconds you would not even reach the bridge, most likely, much less the remarks of the steel guitar and fiddle. In any case...it's rather hard to preserve our cultural memory with these kinds of restrictions by record companies hoping someday to enter the digital age and collect a windfall should an unexpected surge of interest in Cajun music create a demand and yield a return on investments they made 40+ years ago (sic)

I would like to see some relaxation of what we understand to be educational institutions and missions. Frankly, at my own expense and with no gain, my Web site has practically operated as a digital archive and library for rare Cajun music, going far beyond what the universities and cultural associations of Louisiana are doing. But I have no license to be a library or archive, and no state court would recognize me as such. I would appreciate the meager protections and exemptions those institutions enjoy.

Someone more imaginative than I can come up with a model for non-profit digitization and distribution, I am sure.

Cajun music is not jazz. It is a modest genre of interest to few. It is not taught in schools. No one ever said it is America's great cultural contribution to the world. It is handed down orally from musician to musician, and its small catalog of recordings on 78s, 45s and lps may not seem like much, but they are important elements of the cultural memory of Cajuns. Woefully monopolized by record companies originating in the late 40s and 50s.

[The Magnificent Goldberg]

Cajun music is not jazz. It is a modest genre of interest to few. It is not taught in schools. No one ever said it is America's great cultural contribution to the world. It is handed down orally from musician to musician, and its small catalog of recordings on 78s, 45s and lps may not seem like much, but they are important elements of the cultural memory of Cajuns. Woefully monopolized by record companies originating in the late 40s and 50s.

Doesn't matter that it's not jazz. In a hundred years, people might be saying the same things about jazz. What you're doing with Cajun music is as important as anything in the musical world. We shouldn't let bits of the world's cultures fall through the cracks just because there's no profit.

In Britain, Ace Records have released quite a lot of that material, so there must be a market, at least for a proportion of it. I bet your site gets a fair few hits from Britain.

MG

[WD45]

Very interesting article about this whole topic, but as it relates to books here. This translates somewhat to the discussion here>

[Neal Pomea]

Thanks for the link, Groundskeeper! I read it with great interest. I used to work in publishing and am familiar with issues from that angle, and now I am an academic librarian looking at things from yet another angle. Then I am an enthusiast for old, "obsolete" music, too, and concerned for the survival of my ethnic culture. The more hats we wear to the table, the more complex the issue becomes.

I chuckled at the comments after the article, particularly the one recommending a 5 year copyright term, and the one that tried to argue that the arts like music and literature would have been better served NOT to hop on board the copyright regime (copyright will expire) but instead to stick with state piracy laws and such, which do not let their protection expire. It was a boneheaded history of judicial activism under nearly all our administrations that stretched the original copyright clause, "To promote the progress of science and the useful arts" (think patents for inventions) to make it cover popular entertainment and folk music alike, even recipes!

Think of the founding fathers and then of our esteemed members of Congress and our courts. We mustn't bother their pretty little heads with complex issues like this!

Another of my two cents

Edited January 27, 2006 by It Should be You

[RDK]

Think of the founding fathers and then of our esteemed members of Congress and our courts. We mustn't bother their pretty little heads with complex issues like this!

A chill just went up my spine thinking what the current administration might do with this issue should it ever interest them...

[Neal Pomea]

The U.S. Copyright Office has issued a report with its recommendations for handling "orphaned" works. Report at http://www.copyright.gov/orphan/

I am still trying to digest it. Librarians and archivists' initial reaction is negative since they subject to infringement lawsuits should, after diligent search, copyright holders later surface.

[Claude]

The EU commission has just issued a proposal to codify the existing EU directives on copyright duration into one text. This codification procedure cannot be used to make changes on substance.

So I guess an adaptation of the protection duration on sound recordings (from 50 to 70 years, as in the US) is not on the agenda, despite the lobbying of the record companies.

But the proposal has yet to be adopted.

[Daniel A]

I guess you mean the current copyright duration on sound recordings, which is 70 years from the date of performance (50 years in Europe).

That is the copyright on the recorded performance. The copyrght on compositions or lyrics lasts 70 years after the death of the composer/author (same in Europe).

Are you sure? That would mean that anything recorded before 1936 was now pd.

I'm quite sure he's sure, because that's the way it is!

[Claude]

I was too early in my previous conclusion.

This has just been said by the EU Commission in their Work Programme for 2007:

Finally there is the question of the term of protection for sound recording and its role

in fostering a more competitive EU phonogram industry. Currently, the term of

protection for performers and producers is fifty years from the time of a recording.

The question is whether this should be extended possibly to match the USA which

offers 95 years’ protection.

Performers feel that they are entitled to greater protection, at least for their own

lifetimes. The European music industry claims an extension is vital for its

competitiveness. The results of an impact assessment will be available by the end

of 2006. We are consulting all stakeholders during this process with an open mind.

http://europa.eu/rapid/pressReleasesAction...&guiLanguage=fr

It seems there is some intense lobbying going on, in the perspective of some very successful pop recordings (Beatles, Rolling Stones, Elvis, etc) entering the public domain in Europe.