One Day After Occupy The Internet, SCOTUS rules 6-2 Congress can RE-COPYRIGHT public domain works

[Leopolds Ghost]

The Man has come to town, people. And this is what happens when the Man comes around.

[font face="Times" size="6"]Supreme Court Gives the Go Ahead for Re-Copyrighting Public Domain Works[/font]

http://gawker.com/5877740/supreme-court-gives-the-go-ahead-for-re+copyrighting-public-domain-works?tag=copyright

You've got to be kidding me. The US Supreme Court ruled Wednesday that Congress can remove works from the public domain and re-copyright them in order to bring the the pieces into compliance with international copyright schemes. Yeah, because that doesn't run completely against the spirit of copyright law or anything.

For one reason or another, the American copyright protections of many famous, foreign works—including H.G. Wells' Things to Come, Fritz Lang's Metropolis, Prokofiev's Classical Symphony and Peter and the Wolf, Shostakovich's Symphony 14, Cello Concerto and everything by Igor Stravinsky—moved into the public domain despite still being copyrighted overseas. To "correct" this issue, Congress passed legislation in 1994 that would move the works in question back to protected status and comply with the Berne Convention, an international copyright treaty.

This week, the Supreme Court ruled on a case brought by a coalition of educators, performers, and film archivists who rely on public domain works such as these for their livelihoods. If these pieces are place back under copyright, this group (like everybody else) simply can't use them. However in a 6-2 ruling—Justices Stephen Breyer and Samuel Alito dissenting—the Court ruled that bringing these works into agreement with the international treaty did not violate the First Amendment rights of those people using the works as they are now (no, those folks will just have to pay licensing fees to perform), nor does it set a precedent for Congress to eventually push for perpetual copyright protections.

In his dissent, Justice Breyer stated that the congressional legislation,

bestows monetary rewards only on owners of old works in the American public domain. At the same time, the statute inhibits the dissemination of those works, foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books - books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world.

As Anthony Falzone, executive director of the Fair Use Project at Stanford University commented, the ruling "suggests Congress is not required to pay particularly close attention to the interests of the public when it passes copyright laws." Well, yeah, it's Congress. They don't need to read bills and amendments, they don't need to represent their constituents. They just need to ensure hard-working people like Igor Stravinsky gets the royalty checks he needs so desperately. Hey, a guy's gotta eat—especially when he's been dead since 1971.

NO MORE LEFT OR RIGHT, PEOPLE. NOT IN THE HALLS OF POWER. OCCUPY.

[leveymg]

1. Vat? You vant to read Der Shakespeare or hear Herr Mozart? Major Credit Card or Pay Pal.

Or, you can watch the version performed by Alvin & the Chipmunks, brought to you by Verizon. Enjoy the performance, FREE, NOW. Commercial message will end in 23 minutes.

[Ellipsis]

2. Is that the Black Rabbit of Inlé in your avatar I spy?

[Leopolds Ghost]

5. Yeh, I thought I'd go back to my DU2 avatar (Black Rabbit) and switch things up a little.

(existing art, modified. I did a DU specific version too if you want it -- http://tinyurl.com/dubunny ) I did it over on DU2.

[font face="Helvetica"]"The enemies of the 99% turned and fled. They vanished into the night; and that is why no rabbit who tells the tales of El-ahrairah can say what kind of creatures they were or what they looked like. Not one of them has ever been seen from that day to this."[/font]

[Pab Sungenis]

3. Actually, the decision makes sense.

The Constitution gives Congress the power to grant and regulate copyright, and this decision confirmed it. If we want to restore sensibility to our copyright system we need to get Congress to do it.

One thing that needs to be made clear about this decision, however, is that what prompted it wasn't another Disney/Sonny Bono power grab. This is about foreign works that had they been American would still be under copyright, but because of nasty little loopholes in our laws had fallen into the public domain. The Berne Convention provides protection for those works, which is as it should be.

Here's a good example from the past: did you know that Gilbert and Sullivan never made a single cent off of American productions of any of their works prior to The Pirates of Penzance? U.S. Copyright Law used to force all works by foreigners into the public domain immediately, and over a hundred "pirate" productions of HMS Pinafore sprung up across the U.S. after the show became a hit in London. Gilbert and Sullivan had to mount the Broadway production of Penzance themselves before the show opened in London to make any money off of it stateside. (There was only one perfunctory, unrehearsed, matinee show in the seaside town of Paignton to secure British copyright the afternoon before the show opened in New York.)

The Berne Convention is what prevents these kinds of things from happening today. It also protects our works overseas. When we bring pressure on China to reign in the wholesale piracy of our copyrighted works there, the Berne Convention is what we use. It protects our intellectual property as much as it does those of foreign nationals. It also provides for something that U.S. law on its own actually doesn't: the assertion of moral rights and the ability to surrender your copyright and place something in the public domain by yourself. The entire "Creative Commons" movement wouldn't be legally possible without the Berne Convention.

Another thing to consider: the Berne Convention only allows for copyrights (other than in the country of creation) to be protected for 50 years after the death of the creator, or 50 years period in the case of films or video productions. Countries can extend that protection further for foreign works but not longer than the laws of the country where they were first published. So France can't unilaterally extend their copyright protections to 175 years and declare that Steamboat Willie will be protected until the 22nd century. (Although a few Republican congressmen with Mouse money in their pockets might try that themselves.) One of the works in question (The Rite of Spring by Stravinsky) will re-enter the public domain in 2021 when its French copyright expires, not in 2066 like some critics of the decision have claimed.

As a creator myself, and a firm believer in copyright, I think the Berne Convention is reasonable. And I think our copyright laws ought to be brought completely in line with it, including the 50 year limit instead of the Sonny Bono inspired 95 years. If I had my way, we'd start scaling back protections in 2018 (when the first of the works affected by the Mickey Mouse Protection Act start entering the public domain) to 75 years, then in 2030 or so to 50 years.

[Nuclear Unicorn]

4. A very nice summation

There is certainly room for debate about the wisdom and consequences of the decision but it is not the SCs job to adjudicate sensibility. It's the job of the American people to decide what is sensible for their society and to make those decisions legal through their elected representatives. Those represetnatives have the power to do just that under the Constitution.

Frankly, I don't see Justice Breyer's dissent as reasonable within terms of Constitutional argument. OK, I get it, he doesn't like it but that doesn't make it UNconstitutional.

[Leopolds Ghost]

8. Either something is in the public domain or it is not. This is really one of the basic tenets

Of "liberal classical model" of economics and society.

The fact that people would lightly dismiss it, as they lightly dismissed the Mercantilism of the Romneycare bill and call it a liberal idea, makes me wonder.

[Nuclear Unicorn]

14. There can be a thousand reasons why this might be a bad law

But that does nothing to change the fact it is a constitutional law. Congress has purview to regulate copyrights and patents, which they did, for good or ill. COngress can also legislate that a pound is 17 ounces, instead of 16 ounces. That would be stupid and burdensome but they have the authority to set weights and measures.

But it does no good asking the SC to overturn a law just because there is an argument for it being stupid and burdensome. If congress acts within its authority the law should be upheld. If you're dissatisfied with the law then working for its amendment or repeal is the key to changing the situation.

[Leopolds Ghost]

35. It is not about burdensome. You are claiming it is not a rights violation to seize public property

And give it to a private party? I guess you had no problem with the similar Kelo ruling then.

[Leopolds Ghost]

36. Also, these works have been in the public domain for 50 years or more.

[Pab Sungenis]

85. Through a loophole in the law

not by the conscious abnegation of the rights by the rights holders. The film remained under copyright overseas.

[Leopolds Ghost]

6. This is about PUBLIC DOMAIN. The concept of public domain is being shattered.

Once in the public domain, other people have rights to use it. This is about taking away the rights of people to, for instance, distribute copies of the Moroder version of Metropolis, which the German rights holders want to destroy all copies of. Do you feel they should be given the right to sieze title to a derivative work, commissioned by an artist many years after the death of the original director, and destroy all copies of it? That is the situation with Metropolis.

Note that this went to SCOTUS because a Federal court wrote a strongly worded decision AGAINST the concept of taking works out of the public domain and taking them away from subsequent rights holders and giving them back to the original rights holder -- much the same as when people in my liberal hometown seized two houses for use as a parking lot, and decided to give one house to the more "deserving" of the two families that were scheduled to be evicted. (the less deserving family who lived in said house was black, of course, but that's a separate issue).

As for "nasty little loopholes", for all the complaining that he did, JRR Tolkien would have never become a cult hit in the US among the 60s counterculture if it hadn't been for a copyright error allowing his works to temporarily slip into the public domain in the 1960s. He would have remained an obscure and underappreciated novelist like William Morris.

This is about destroying the concepts of safe harbor (aka the public library rule) and public domain.

Thare can be no compromise on issues like those that are central to the concepts of traditional LIBERAL SOCIETY as envisioned by establishment thinkers, never mind civil libertarians or the left.

Also keep in mind that Shakespeare was not protected by copyright. Clearly that was a dark time for producers of art.

[Pab Sungenis]

11. You either support the rights of creators or you don't.

And if there are no protections for creative works then one of the main impetuses to create is destroyed.

And as for your claim

Also keep in mind that Shakespeare was not protected by copyright. Clearly that was a dark time for producers of art.

Shakespeare never profited off of his plays. They weren't published until seven years after his death.

[Leopolds Ghost]

34. You support privatizing public domain works. Nuff said.

The Founding Fathers would be

[Pab Sungenis]

52. No, I don't.

I support recognizing and enforcing the copyrights of foreign nationals.

[bemildred]

7. +1.

All property - including intellectual property - derives from the government and is defined by law; consequently the Congress may do literally whatever it likes and can get away with when it comes to property. That's part of why elections matter.

[Leopolds Ghost]

9. I'd go further but I'm not sure I should...

The thing about property is that it is not so much theft, as it is a purely social concept created and manipulated by society -- in this case, the corporations who run everything these days. (We can't pretend otherwise when the top 1% controls 80% of the property, never mind wealth or income. 80% of all new buildings built in the US are owned and developed by five companies -- several of whom are privately held -- and sold to the top 5 or 10%.) The radical peasants revolts that spurred the Enlightenment in Europe wanted to restore the principle of the commons, an ancient tradition that modern Americans regard as communistic. If that's the case, then it's odd that that makes the religion of most Americans "communistic". Of course then they turn around and say "well I'm not religious, I'm just a sensible producing member of the 53% that wants to protect my investment." Here's the thing: I don't get royalties for manual labor. The principle should be fairness and equity -- the original definition of equity being just that. Hence the difference between "property" and "equity".

[bemildred]

13. Property is OK in it's place, when it serves the public good, but it is not absolute, or permanent.

When it serves the few at the expense of the many, the many have every right to make changes to remedy the problem (always respecting the Constitution of course.)

[Nuclear Unicorn]

15. "All property - including intellectual property - derives from the government"

No it doesn't.

Government is derived from the people, the same people who create and own property. The people choose to create government to protect their property and if the people want to they can unmake their government or alter its form as they see fit. The people also support government with their labor because if they stopped paying taxes en masse the government would cease to function.

[bemildred]

16. OK, "All property - including intellectual property - derives from the people" then.

Same difference.

[Nuclear Unicorn]

17. Property derives from the person that created or purchased the property

Government enforces that ownership.

[bemildred]

18. Piffle.

Property is a legal fiction. Imaginary. Not physically observable. One is free to claim whatever one likes and attempt to enforce that claim oneself. If you want society at large to get involved, you have to resort to government and the provisions of the law.

[Nuclear Unicorn]

19. piffle your piffle

Again, the government is derived from the people who want their property claims enforced.

If a person builds a house it is their property until that person chooses to sell it at which point it becomes the property of the person buying it. Any other person seeking to take that house can be arrest and prosecuted by the government constituted by the builder and buyer. They are the ones who elected the representatives to codify their claims and they are the ones who authorize agencies to arrest, try and imprison offenders.

You can claim it's all a legal fiction but I'm guessing you'd be calling the police if someone stole that computer you're sitting at or moved into your house unbiddden.

[bemildred]

20. The government is derived from ALL the people, not just the propertied classes.

You do appear to be admitting the people can do what they like with property, that property does derive from the will of the people, so I won't argue further about that.

[Nuclear Unicorn]

21. People can do what they like with *THEIR OWN* property

You seem curiously eager to avoid any verbiage that might imply private ownership of property. Just because I might be able to collect 51% to 99% of the votes in our community doesn't mean I should be allowed to seize what you own. Democracy has its limits if the majority seeks to terrorize a minority. Government is first and foremost constituted to protect our rights.

[bemildred]

22. And "the People" can do what they like with anybody's property.

And we do, all the time too.

[Nuclear Unicorn]

23. That may be nothing more than the tyranny of the majority.

"The People" could also vote to forbid Jews from owning real estate, engaging in commerce or holding professional licences and thereby seize their property. That too has historical precedence. Again, "democracy" has its limits. The first obligation of government is to protect rights.

[bemildred]

24. Yep, there are no guarantees.

But, I'll take majority rule over rule by the propertied every time.

[Nuclear Unicorn]

25. How about we take the rights of all people equally as our first priority.

What wrong with that?

[bemildred]

27. Could you elaborate on what you mean?

I don't really know what "take the rights of all people equally" is supposed to indicate here, unless you mean it literally.

Taken literally, I'm fine with it, equal rights for all.

[Nuclear Unicorn]

28. Yes, I do mean it literally

But I don't see how you can reconcile your claim to agree when your previous post states very clearly that you'd tolerate the oppression of political minorities so long as it allowed to you do deny equal protection to "the propertied." I'm not even sure what "the propertied" means because you obviously own property.

[bemildred]

31. LOL. A straw man AND two non sequiturs.

[Generic Other]

55. And after you are gone, no one will hear of your work for 50 years

and then no one at all. Who will trademark the silence?

[Pab Sungenis]

56. Not necessarily.

My estate can continue to disseminate my works. And would receive any benefits thereof.

Something need not be public domain to be appreciated and disseminated.

[Generic Other]

63. Your works most likely will line birdcages in the future

Most public domain stuff no one cares about as it is. Just antiquarians and historical preservationists who donate time to preserve forgotten works. Now they will be prevented from salvaging even more work. What is left will revert to copyright holders rather than creators who are long dead. Mostly benefiting corporations who see a few bucks to be made.

All art is derivative. As is all writing. Creators build on the works of those who came before them.

West Side Story is a derivative rip-off of Shakespeare's derivative rip-off of Greek mythology. I am glad for the existence of all three.

The works of artists and intellectuals are not created in a vacuum. They are only being kept in a vacuum by too-rigid copyright laws.

I create works to be seen. I build on the works of others. That is the story of human evolution.

[Pab Sungenis]

75. You are considerably overreacting.

This decision does not destroy the public domain. It does not re-copyright anything created in the United States. It just recognizes that certain works, which have always been under copyright in the countries they were created, can still be considered under copyright in the U.S.

[Generic Other]

79. I already think the laws are too extreme

I am a collage artist. I build on other people's art. I believe in a concept of Fair Use far more liberal than that allowed in the law as currently written.

Not meaning to overreact. This is my default position. Also, not meaning to imply your specific work will end up under birdcages. In fact, I hope you make a fortune in your lifetime. I just don't want to be harassed on your behalf by corporations after you are dead.

[Pab Sungenis]

87. No offense taken at all.

I never thought you were saying anything about my work.

[Leopolds Ghost]

10. You know, when I posted about SOPA in late Nov/early Dec, it got few replies.

And half of them were folks saying they don't have a problem with the Protect IP act
or that people against the law didn't know what they were talking about or that it was
purely an "Anonymous" hobby horse for people who supported online piracy.

It's funny how media attention gets people to focus on an issue even when
folks claim to want nothing to do with the MSM, they still only think about
the issues that the MSM considers important. It's a sure bet that if people
were violently disagreeing with each other about this issue on a cable news
show, we would be having a huge discussion about this here.

Do you guys view (e.g.) the Moroder version of Metropolis as piracy?

Because that is potentially no longer available to American viewers and can be censored
as piratical thanks to this ruling.

Wasn't there a similarly divided opinion here on blogs when the Supreme Court
ruled that eminent domain in favor of private developers was OK?

[Pab Sungenis]

12. A simple answer.

Do you guys view (e.g.) the Moroder version of Metropolis as piracy?

Yes. Moroder owns the music that he created based on the film, but not the film itself. He can do what he wants with the music but can't exhibit the film without approval from the rights holders. Which is as it should be.

[JackRiddler]

26. You are supporting a doctrine that awards property rights...

on a movie made 85 years ago, although today anyone who could be remotely described as one of the creators died decades ago.

The highly influential and popular Metropolis now belongs to world culture, not to whatever corporation imagines it can legitimately exert copyright today.

Next I'm expecting someone to tell me why I can't adapt a version of the Odyssey! And doesn't the Mouse own Hercules?

[Pab Sungenis]

29. There's a difference between something 85 years ago and something from thousands of years ago

like the Odyssey or the story of Hercules. Please don't exaggerate.

I agree that the current term in the US (life plus 95 years) is too long, but creators and their heirs deserve the right to benefit from the fruits of their labor.

Or what about Peter Pan? It's still under copyright in the UK and J.M. Barrie willed the rights to a Children's Hospital, and they reap the financial rewards of that. Should he have been prevented from doing that because once he died his rights would go away?

[Fumesucker]

30. It's intellectually stimulating for the poor to only be able to read the classics..

In the original Greek and Latin of course...

Imagine, a civilization where the wealthy are uneducated louts and the poor are classical scholars.

[JackRiddler]

32. Yes, he should have been prevented from controlling revenues...

75 years after his death. Oh, how cruel of me to say it!

You can always point to an example in which the money is used for a noble purpose. So what? It could also be used for a nasty one. It doesn't matter whether he willed it to the Children's Hospital, or to the Foundation of Arms Merchants For Starting New World Wars, because that is completely immaterial to the question of how long copyrights should extend.

Twenty years full protection dating from the creation of a work, whether the author is dead or alive, would cover most of the revenues that almost any work ever earns. An additional twenty of receiving a standard percentage of revenues if the work is reenacted/republished as a commercial venture sounds fair.

In Peter Pan you've picked an apt example. Today this character arguably has an even greater mythic resonance with successive generations of children than even Odysseus; of course, 75 years after Barrie's death, and with all of us having been exposed to his stories and characters since childhood, Peter Pan should belong to all of us. If I want to write a Peter Pan story, the Children's Hospital shouldn't be able to stop me (or demonize me for depriving little children of their chemotherapy, which would also be untrue).

[Pab Sungenis]

33. If you think that the length of protection is too long

(and I tend to agree) then lobby to change the law. Don't try to undermine the basis of copyright in the US itself.

[Leopolds Ghost]

39. The basis of copyright in the US itself is nothing like the Founders envisioned.

And is moving in the opposite direction thanks to this sort of supportive "yes, let's reprivatize public works" rhetoric.

[Pab Sungenis]

40. This is not wholesale privatization of public works.

This is acknowledging the existing copyright on foreign works that have not yet entered the public domain in their countries of origin. It's respecting foreign copyright.

Just as we can't expect other nations to respect the laws of war toward our soldiers when we torture and degrade theirs, we can't expect other countries to respect our copyrights if we don't respect others.

[Leopolds Ghost]

37. So you support the destruction of all copies of the Moroder version of Metropolis.

"but can't exhibit the film without approval from the rights holders. Which is as it should be."

This tells me everything I need to know.

BTW there is a doctrine known as "derivative work". As an artist yourself, you should know about it.
Entire fandoms are based on derivative work. Look it up.

BTW the rights holders have only sued for the destruction of MORODER's version, not any of the other innumerable fan-made
orchestral soundtracks for Metropolis.

Do you believe disparate treatment is the right of the rights holder?

[Pab Sungenis]

42. I understand derivative work. You don't.

In derivative works you do not own a copyright on the pre-existing material, only on the new material you created as part of the derived work. For example, I've been at work for about a year on a new translation and modern adaptation of Pirandello's Six Characters in Search of an Author (a Public Domain work both in the U.S. and the EU, having first been published in 1921). When I've finished it I can authorize performances of my version or sell copies. But I don't own the copyright to the original underlying work; I can't stop people from doing other versions, but I can stop them from using my words.

Now let's transplant this into the situation with Metropolis The German rights holders can't destroy Moroder's music, which is the only part of it he really created, they can just prevent him from exhibiting the film (which they hold the rights to) with it. He can put out CD's of his music for people to play along with another copy of the film, like the Rifftrax people do for films. The trick is that he cannot sell copies of the film itself, which is what he was doing. The rights holders still have a right to profit off of the film and his copies were taking away from licensed copies. And since the DVD's are priced more than the music CD's alone, it could be arguing that he was profiting off of the film itself instead of solely off of his derivative work: the music.

And if they're trying to destroy all copies as you claim, then why did the German rights holders authorize last fall's theatrical and DVD release of Moroder's version? Because that's who released it: Kino International. Maybe they finally came to an accommodation with each other? That's the easiest way to work out these things: let the two interested parties come to a deal.

[Leopolds Ghost]

45. Your unusually at-odds personal interest on this (given the work you're rewriting) is duly noted.

My understanding was that Kino was the prior Moroder distributor, and was releasing it pursuant to an understanding that was reached after the Federal Appeals Court noted that it makes no sense to pre-privatize works that have been in the public domain here in the states for decades before Moroder commenced his version. Such deal would probably not have been reached if SCOTUS ruling had occurred earlier.

So, you picked a work that was in the public domain to adapt. So did these other people... what holds for one country does not necessarily hold for another. Unless you feel we should have common tarriffs too.

In any case, the purpose of the current wave of copyright extension is basically to end fair use by allowing private companies to sue anyone for publishing online derivative work.

[Pab Sungenis]

53. You're mistaken.

Kino is the distributor for not only Moroder's version but also for the authorized version of the film. They administer the copyright for the foundation that is the beneficiary of it.

As for your argument that "what holds for one country does not necessarily hold for another," are you making the argument that my works should receive no copyright protection in Germany? Or France? Because by arguing that we shouldn't respect Lang's German copyright or Stravinsky's French copyrights, you're saying that my work should be in the public domain in those nations as well.

As I've said many times in this thread and elsewhere, I'm against further copyright extension and have actually advocated rolling back our current copyright terms (see my essay here: http://cnx.com/?p=1693). But I am against the wholesale destruction of copyright like you advocate.

[Leopolds Ghost]

81. I don't advocate wholesale destruction. I side with the Federal Court on this

That pointed out the insanity of re-privatizing works that have been in the public
domain for years, and esentially trying to void people like Moroder's successor's
rights to put out their work on something that was already long in the public domain.

Hardly a radical stance.

[Pab Sungenis]

82. Denying Congress the right to pass copyright law

(which is what the reverse decision would have effectively been) WOULD be wholesale destruction.

The only way the Court could strike down this law would be to deny Congress the power to pass Copyright law.

[Leopolds Ghost]

38. And yet again I see that things here have not changed from things on DU2 prior to migration

When people forcefully dismissed my attempts to start a thread on the PROTECT IP act, claiming they either supported it or that it was fearmongering.

[Pab Sungenis]

44. The problem with PROTECT IP is not the intention

it's in the supposed remedies. Copyright and intellectual property rights need protection, but the mechanism they sought for doing so was bad.

I'm sorry, but I don't hold with people who think that there should be no copyright at all, or that people should be allowed to pirate others' works all they want. Creators have a right to profit off of their work.

[Leopolds Ghost]

46. You're tilting against straw men. The problem with PIPA very much was the intention

The intention of PIPA was to give corporate "content providers" (rights holders) the right to police websites for infringing material -- as defined by them -- including what you would see as fair use.

[Pab Sungenis]

50. I AM A CONTENT PROVIDER AND RIGHTS HOLDER.

I am not a Corporate conglomerate. I hold copyrights and see to their protection. I've gone after websites that have infringed on my material with quite a passion and will continue to do so. If a theater tries to perform a play I wrote, or someone tries to publish one of my novels without consent and without compensating me I WILL shut them down. I have the right and the law gives me the power.

The intention of PIPA was to allow rights holders (LIKE ME) to shut down infringers. The problem was its implementation and enforcement apparatuses, which would have gone WAY too far and WOULD have been destructive. That's why I lobbied AGAINST PIPA with my Senators: not because I don't believe in stopping piracy of copyrighted materials but because the proposed law would be like killing ants with thermonuclear explosions.

Your trying to conflate this decision (which, I have said and will continue to say, was right) with PIPA is the real straw man in this discussion. They had nothing to do with each other.

[Leopolds Ghost]

54. The intent of PIPA was to protect the owners of works valued at $2500 or more.

I appreciate that you are a rights holder. So am I, and everyone else who has ever
produced art. The difference is that you have the financial resources to market your
ideas, and hence protect them from others using them without compensation. Most
artists do not have that luxury. As someone who is involved in architecture and
graphic design, I have a different perspective on this -- architects pretty much
expect their work to be stolen. Witness the Freedom Tower debacle.

I don't have a problem with artists making sure they are compensated for their
material. But while we are on the subject of plays, I'm sure you're aware that
all the classic playwrights were massive thieves... and that movie screenwriters
are not allowed to work any ideas into their scripts that have been published
somewhere online, by anyone, even if it is for an established franchise... when
art is stifled in the name of trying to determine who "owns" an idea,
that's where I draw the line.

[Pab Sungenis]

58. You are a rights holder.

You can keep people from redistributing or profiting off your writing or your artwork.

Yes, the classic playwrights were notorious for adapting others' story ideas. Hell, it still goes on today. There are only so many stories, after all. Man vs. Man, Man vs. Self, Man vs. God and all that.

As for your screenwriter comment, you're mistaken. Ideas, concepts, and titles are among the many things you cannot copyright. That's why there are a lot of "me too" works that pop up when certain works are a hit, or are announced and expected to be a hit. What is copyrightable is plot, characters, and text. A more notable author than I could go write a novel about a Guardian Demon or a bunch of kids planning a school shooting and unless they lifted characters, plot elements, or text directly from me there would be no infringement.

The reason screenwriters avoid using concepts they found online is to avoid the appearance of theft. And studios will often avoid concepts they see online to avoid the cost of a potential lawsuit, not because the law prevents them doing so.

[Motown_Johnny]

41. this seems like ex post facto to me

Once something is in the public domain it should remain there. The whole idea that you can go back and re-copyright something just seems wrong at the very core.

[Pab Sungenis]

43. Technically, it's NOT re-copyrighting.

It's acknowledging a continuing copyright in the country of origin. It's not moving any American-created public domain works back under copyright, and it's not issuing a new copyright to the foreign works in question.

[Leopolds Ghost]

47. But these works have been in the public domain in the US for many decades

However, apparently the rights of transnational corporations now supersede the jurisdiction of any one country.

[Pab Sungenis]

49. Transnational corporations have nothing to do with it.

In the case of Stravinsky (another creator cited in the case), the rights holders and beneficiaries of those rights are his grandchildren and the conductor Robert Craft.

As for Metropolis the rights are administered by Kino International, but benefit the Murnau Stiftung Foundation for film preservation and education.

And as I said, Peter Pan's revenues benefit the Children's Hospital of London.

Indeed, in all those cases, the copyrights are so long because they are held by or benefit the descendants and beneficiaries of the creators. Corporate copyrights are considerably shorter even today than those of individual creators. As it is right now in the United States corporate works are protected for 95 years period while works of individuals are protected for 95 years after the creator's death.

One example from my own field: Pogo by Walt Kelly. Pogo the character enters the Public Domain in 2038. The early Pogo strips (which were copyrighted by the Hall Syndicate, later transferred back to Kelly) will enter the public domain starting in 2044. The strips copyrighted by Kelly himself from 1952 onward (along with all his poems and prose works) all enter the public domain in 2068.

Truthfully, the majority of copyrights in this country (and around the world) are not under the control of transnational corporations. Or even large corporations. Films shot by Hollywood studios? TV shows produced by the networks or studios? Yes, those copyrights are owned by large corporations. But nearly every novel published has its copyright held by the author. Every major comic strip today has its copyright owned by either its creator or his/her descendants, as is the case with nearly every webcomic. (Mine is an exception because I assign my copyright to a corporation for administrative purposes, but it's a close-held corporation and not a conglomerate.)

Now if you want to argue that the 95 year length here in the U.S. is too long I will agree with you and lobby to have it reduced. I think the EU has a better number with 70 years. I think the original Berne length of 50 years is even better.

However you slice it, though, we need to respect the copyrights of foreign nations no matter what was the case before this ruling. Let's look at Russia. Russia/USSR didn't respect any foreign copyrights until 1973 and didn't sign Berne until 1995. So technically everything created in America before 1973 would be in the public domain in Russia today if the protections of Berne weren't in place. China didn't sign on until 1992 so everything created in the US before that would have no protection under Chinese law. Yet today our government is working with China to try and stop the wholesale piracy of American copyrighted material, something that wouldn't be possible without Berne.

But there needs to be copyright. And the Constitution gives the power to grant, administer, and regulate those copyrights to Congress. For the Court to rule other than as it did would undermine that authority and would risk all copyrights.

The Court made the right decision.

[Generic Other]

60. You are obviously very well versed on this subject

I am only becoming so based on making machinima.

I was incensed when I read that an American publishing company sued the Australian Olympic team for playing "Waltzing Matilda" at the Utah games.

I tried to imagine someone copyrighting "The National Anthem" or "Yankee Doodle."

I know some corporation (not the original creators) has copyrighted "Happy Birthday" preventing it from being publicly performed without paying fees for more than a century now. Hoarding intellectual property much beyond the creator's lifetime is theft of cultural property. No corporation should be able to lay claim to cultural property if they are not the creators of such intellectual property. Buying the rights should not grant them any special favors. Yet the corporations with rights of personhood continue to steal from real people.

The sad fact is that many great works will be lost in the scuffle because intellectual property only has value if it is remembered. Beyond our lifetimes, what we leave behind is the only trace of our being here. Work we aren't allowed to see, hear or read is work gone down the memory hole forever.

The only way to fight this hoarding of our cultural treasures is to look for those who wish to share their work openly. Treasure them.

[Leopolds Ghost]

62. The sad thing is most people care more about maximizing profit from their work than being emulated.

Traditionally, the purpose of great art was that others would emulate your work... the only reason artists were a traditionally liberal profession was because they were not mercantile. Like academics, they weren't out marketing themselves.

[Generic Other]

65. It seems so obvious what you are saying...why don't people get it?

The entire history of art from the moment our first hairy ancestor picked up a stick and drew a line in the sand...from the Lascaux cave painter to Banksy in an unbroken line of artists building on each others' work.

[Pab Sungenis]

67. Artists who want to make their work widely available can.

Part of the concept of copyright law is that the rights holder (in many cases the artist) can control how their work is used.

I mentioned Pogo upthread. Walt Kelly's estate owns the copyright on the phrase "We Have Met the Enemy and He Is Us." They don't usually charge for people to use the phrase but do control how and why people use it. Kelly was a famous leftist and the Kelly Family refuses to let the phrase (or the image of Pogo or any of Kelly's writings) to be used to advance right-wing ideology. This is as much their right (and I even think a greater right) than the right to profit.

I have a similar approach with my writing. Except for my novels (obviously) and online distribution of my comic strip (which I have contracted out to Universal Uclick to profit off of it) I let my stuff be distributed, but reserve the right to control where and why it's published. Two notable conservative websites have dedicated hate groups aimed at me because of that.

[Leopolds Ghost]

74. I don't have a problem with that, but it gets tricky. Copyrighting a phrase? No thanks...

And in any case I'll have to continue to disagree with you on the merits of re-copyrighting work that was in the public domain in the US, where they stated it was in the public domain and now is not. That seems to go against the concept of public domain, as the Federal Appeals Court ruled.

[Generic Other]

77. And you should rigorously protect your rights if you like

in your lifetime. Go ahead. Make a buck. Make all the bucks you want. If I have never seen or read your work, tough luck there's a buck lost. Maybe I never will hear of you or read your work because after you die, someone who cares less than you will toss your work aside if they can't keep making a buck off it. Maybe you have protected your legacy and nurtured your fame and fortune. Probably you have protected yourself so well, no one has ever heard of you. (I am being hypothetical here).

In the short term, you win. In the long term, I think not. By the time some of the cartoonists are in public domain, no one will know who they were or why they mattered. Including Walt.

[Pab Sungenis]

64. "Waltzing Matilda" and "Happy Birthday."

"Waltzing Matilda" was copyrighted by Carl Fischer Music, a major publisher of sheet music. Their copyright actually expired three weeks ago so the song is now, finally, in the Public Domain worldwide.

"Happy Birthday To You" is under dispute because the melody dates back to 1898, but the commonly used lyrics were copyrighted in 1935. Warner Chappell Music (which used to be part of Warner Brothers but was sold off a while back) owns that copyright and can get royalties if it's sung publicly or in a film. The copyright expires in 2030. Because the melody was pre-existing it could be the case that instrumental renditions are fine but vocalized ones aren't, similar to the situation with "Morning Has Broken" whose music is public domain but whose lyrics are under copyright until 2035.

As for transfer of copyrights, they're an asset of a creator's estate. The heirs should be able to do with them as they see fit. If a corporation wants to buy a copyright and the owners are willing to sell, then it becomes a question of contract law. "Happy Birthday" isn't such a case, however; it was a work for hire by a music publishing company.

I'm sorry, as well, but just because something is under copyright doesn't mean it will never be performed. Rights holders can license productions, performances, re-issues, for whatever amount they negotiate with the interested parties.

[Generic Other]

68. How much does it cost to sing "Happy Birthday"?

I am paying a middle man for right to read, listen to or perform my cultural heritage even after the creator of said content is dead. That is the issue. And the middlemen decide what we read, see, hear or are allowed to perform even when they don't care anymore. As long as they can censor and suppress the new material and force you to pay exorbitant licensing fees.

The creator of "Waltzing Matilda" received under 5 bucks for writing it. I am not sure what the old ladies who sold "Happy Birthday" got from Warner. Warner
should not still own the rights to perform this song in public. The pharma industry does not allow unlimited renewals on patents. Generic drugs are no different than public domain rights.

I do not dispute your right to your own intellectual property. I do object to corporate ownership of IP licensed by the creator or not. You want to sell the rights fine. But that means you lose them. Someone else owns them. That someone else should not be protected as you were.

[Pab Sungenis]

71. The ladies who wrote "Happy Birthday"

(actually the foundation they set up because they died childless) get about $1,000,000.00 annually from royalties, according to Snopes.

What they charge is negotiated, but I remember reading somewhere that the average fee to use it in a film or TV show is somewhere around $700.00.

The rights are administered in the U.S. by ASCAP and the Harry Fox Agency, so if you have a license from either of them you can perform it and the royalties come out of your license fee. I handle finance for our local community theater and any time it's used in a show I note it on our ASCAP performance record.

As for corporate ownership, are you arguing that a work's copyright should expire if it is sold to a corporation?

[Generic Other]

73. How much does Warner earn threatening people for performing the piece in public?

No one can sing it on TV without paying. No one can sing it in bars and restaurants without paying. They can't sing it on videos of their kids' birthdays without being threatened for violating copyright, even though the non-commercial use of the song does not harm the original creator in any way. Why should Warner have the right to continue to profit off the song? I bet it earns way more annually for Warner than it does for the dead old ladies. And that is the point. It should not. They should not have the same rights as the original creator. The license to rip people off should have a limit.

In the digital age, they are probably not going to be able to enforce these "rights" anyway.

[Pab Sungenis]

76. They don't go after non-commercial use.

They only require a royalty for commercial use. And if the bar or restaurant has an ASCAP license, they can sing it without additional expense.

The royalty split for the song is 50% to the publisher (who hold the copyright) and 50% to the creators.

And if the dead old ladies had sold their share of the copyright outright, that would have been their right and their choice. As I asked, are you arguing that copyright should expire if someone tries to sell it to a corporation? If so, then that's destroying the value of the copyright since no one will purchase something they can't profit off of.

[Leopolds Ghost]

78. ASCAP? You mean the organization that threatens venues like the one I work(ed) at

Now we're getting somewhere.

If they don't pay royalties in the event that said venue might host cover bands,

which is why so little live music is performed in restaurants anymore -- it's
exceedingly expensive to pay AS|CAP and BMI's legalized extortion racket --
which is little different than the Mafia.

Of course you can refuse to pay the fine on the grounds that you don't host
cover bands and aren't responsible even if they did, in which case they will
sue you to have your "music license" revoked. Fortunately, we already fought
to prove that we were covered under one of the limited exceptions (being a
nonprofit arts space) for which a "music license" (limiting what sort of music
you can play) was not required. But that is government license, additional
layer. The private licenses are separate.

This is why folk music doesn't exist in this country anymore. It can't, legally, in the sense of "traditional" shared music.

And the local musicians detest AS|CAP and BMI, btw.... musicians see exactly zero
of said royalties -- bricks and mortar royalties for private "licenses to allow on-site
music" (you pay AS|CAP and BMI separately if/when each of them threaten you) all
gets divvied up according to the top-grossing performers, divided by their contract
with the record company, with the record companies (rights holders) getting the rest.

[Pab Sungenis]

86. Ah. Now we get to your hatred of copyright.

The reason ASCAP and BMI exist is to collect royalties for songwriters.

Cover bands don't write their own material. They use other people's songs. You object to the songwriters who actually wrote the songs the bands sing from profiting off of their work. You seem to think that the performers should be able to perform whatever they want with no one else getting paid for it.

You also don't understand how ASCAP and BMI actually work. Venues with licenses, which includes radio stations, provide performance reports quarterly stating exactly what was played. Radio stations pick representative weeks and other venues provide full reports. THIS is how royalty payments are made.

[Pab Sungenis]

88. Oh, you might also want to look into

the Fairness in Music Licensing Act of 1998 before you start declaring about extortion of bars and restaurants.

[Leopolds Ghost]

61. Since Congress (regardless of what other countries do) envisioned copyright as a few decades at most

I.e. within the lifetime of the author, or ending on his or her death,

I am afraid I'm going to have to very much disagree with you about the implications of this.

What does Craft and the Stravinski kids get out of this? An inherited windfall, nothing more.
I imagine they're part of the hard-working 53% ...

[Pab Sungenis]

66. Congress envisioned copyright, before we signed the Berne Convention

as being 75 years for corporate copyright and life plus 50 for individuals. This was provided for in the 1976 Copyright Act. Before that copyright was for 56 years if you filed for automatic renewal after 28.

The Berne Convention requires copyrights to be at least 50 years for works-for-hire and life plus 50 for individuals. The EU harmonized their copyright laws to be 70 or life plus 70.

Berne calls for the law of the lesser duration, which means that while the U.S. must respect foreign copyrights, the U.S. can't extend copyright protection here longer than the nation where the copyright was granted. So most of Stravinsky's works will pass into the public domain in 2041, not 2066 as they would have if he'd copyrighted them in the U.S. On the other hand, the U.S. also can't force the EU to honor our 95 year copyright term, so works from before 1942 or from individuals who died in 1942 are in the Public Domain in Europe even if they aren't here.

[Leopolds Ghost]

69. Again, you're ignoring the fact that these works are in the public domain in the US.

Unless you believe that the EU is sovereign over US, this is no different than Britain coming along and telling some African nation they have to follow Britain's laws on where to draw their borders.

Besides which, Congress envisions effectively indefinite copyrights. So what Congress envisions today is a moot point. When I say Congress envisioned, I mean when the concept of copyright was set up in the US. It was not intended to last for such insane periods of time.

[Pab Sungenis]

72. Sigh. Let's try this one more time.

We signed a treaty in 1988 called the Berne Convention. It requires respect for copyright laws of other signatory nations.

Under the Constitution, treaties ratified by the Senate are part of the Supreme Law of the Land.

In 1998, Congress passed a law bringing U.S. copyright law into harmony with the treaty we signed.

The Supreme Court this week ruled that Congress had the right to do so because it has the power under the Constitution to regulate copyright.

This has nothing to do with sovereignty. It does not make the EU sovereign over us. In fact, as I pointed out elsewhere, Congress could lower the length of copyright in the U.S. to 50 years like it was in 1976 and the EU could not keep American works under copyright within its borders longer. We can't extend our protections longer than the country where the work was originally copyrighted, either.

As for duration of copyright, at the time the first copyright law was drafted in the U.S. the average lifespan was somewhere in the 50's and copyright was for 28 years. Clearly, the intent was for copyright to last for the majority of the creator's life, and probably after the creator's death.

[Leopolds Ghost]

80. Constitution is supreme law of the land. You can't confiscate the common weal (public domain)

And 28 years is perfectly fine.

I'd even go with death of the author, since I believe in Death Of The Author theory anyway.

[Generic Other]

83. But they steal it by the inch

Our public institutions. Our public lands. Our public domain.

Corporate thieves everywhere.

[Pab Sungenis]

84. Supreme Law.

Article 6, Section 2, of the Constitution. My emphasis.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

We signed and ratified the Berne Convention. It is a valid treaty. It is part of the Supreme Law of the land. We are bound to it until and unless we abrogate it.

[Generic Other]

70. Wow what a mess

Seriously. So other countries in Europe have far more sense than we.

[Odin2005]

48. This pisses me off to no end!

[Pab Sungenis]

51. For what reason?

Please elaborate.

[Odin2005]

57. I mean this insane desire to control the Internet in the name of "IP Rights".

[Pab Sungenis]

59. This has nothing to do with controlling the internet.

This is about protecting copyrights of foreign nationals, not the internet.