Well there are a number of points I would like to make here, and I respect everyone's right to their own opinion. -------- Original Message -------- Subject: RE: Intellectual Property issues From: David Dyer-Bennet <dd-b@xxxxxxxx> Date: Mon, March 02, 2009 10:41 am To: List for Photo/Imaging Educators - Professionals - Students <photoforum@xxxxxxxxxxxxxxxxxx> I'm trying to avoid getting side-tracked on issues that I think you're wrong on, but which aren't the big important issue, since that's big enough to occupy any amount of time we want to put into discussing it. On Sat, February 28, 2009 22:39, mark@xxxxxxxxxxxxxxxxxxxx wrote: > > Property 1. a possession 2. Something tangible or intangible to which > its owner has a legal title Intellectual Of or pertaining to intellect > The ability to think abstractly or profoundly. Actually intellectual > property is a bit like any other property, but the only real difference is > how it comes into existence. If a man goes out and builds a canoe with > his own two hands, its his. It is his to control. There are no > situations where someone can steal it and claim ownership or whoops. He > can pass it down to his son, and his son to his son and no one ever > questions it. At no point in that canoe's life can anyone come and say, > ok the guy that built it is dead and its been over 75 years so anyone that > wants to use that canoe can do so for free without permission from anyone, > including the builders family. In fact that family would likely be left > standing on the bank watching. You don't take the ownership of a home > away from a family because the man that built it has been dead for over 75 > years. It is all a possesion to which one has a legal title. The historical basis of the patent and copyright systems has always been to create a NEW short-term right for the creator, to allow them to profit from their creativity more than they could before, in return for their creation becoming part of the public domain at the end of that term. Even cursory research into the history of patents and copyrights makes this very clear. Before the 18th century, there was no copyright. This didn't, obviously, prevent there from being a thriving literary and dramatic and musical scene, but as technology improved and those things became more important to society, and the technology for reproducing and transmitting those works got more available (printing and trade), society started to feel that the people creating these works they liked so much weren't being treated decently. So they invented a completely new kind of right, never before considered -- a specific right *to make copies*. Which was called "copyright". Before the 18th century it didn't matter because the vast majority of the population couldn't read or write. It is hard to worry about what someone writes when no one could read it. No it didn't prevent a thriving musical scene (my degree is in music education but haven't used it in decades) because at the time because all music was performed live. Music composed was often composed for use by the performer and the musician was often in the employ of a patron. Yes there were written copies, but back then the sale of music in printed or recorded form was practically non existent. Historically, your view of copyright is simply false-to-fact. The people who invented copyright did not see it anything like the way you apparently do. I am aware that my system was not how it is, but it should give FAR GREATER protection than far less. The book is in fact a possession just like the canoe; the copyright doesn't change that relationship. Copyright adds a NEW right; copyright prevents you from making another copy of the book, or even a substantial part of the book *during the term of the copyright*. > The only real difference between that canoe and a book, is one was created > with the man's hands. The other was created with his mind and soul. > Which has more value??? How its treated legally is a joke. Its not an > abstract. The thought process itself might be abstract, but once its > becomes a product such as an image or book, it is not an abstract at all. > It can be touched, handled and sold or given away just like any other > property. Yes, and copyright does not control the handling of the physical book that can be touched, handled, and sold or given away; it controls the *contents of* the book, a much more abstract entity. Not really more abstract, but I give you the point about the book being able to be given away in its physical form. Still its the contents that matter. The copyright for a theater piece though does control a great deal about how a performance can be done and agreements for performance can restrict photography as a condition of performance. Just because history has allowed something to be copied after a period of time does not mean it should be allowed. You can sell a Mustang you bought, and with the right equipment I would think it would be perfectly possible to build another or build parts for sale to others. Yet Ford would likely not be so thrilled at that without getting authorization. > Being in copyright doesn't mean you can't do anything with it. Quite the > opposite, and the big companies know it. It does mean you can not do > anything with it FOR FREE!!!! You might buy a copyrighted product just as > easily as you buy a canoe. If I, as a publisher, want to publish a book, and that book is in copyright, I have to find the copyright owner and get permission. This isn't an issue for *new* books; the copyright owner is the person submitting the manuscript (sometimes via an agent), so you've got him right there to negotiate a deal with him, and for him to benefit from the deal. This is copyright working properly. However, suppose you want to reprint a story from Amazing Stories from June 1935. Since the magazines bought first serial rights, finding the successor corporation to the original publisher won't help, they don't own the rights currently. So what you've got to work with is the name of the author (which may be a pseudonym). Some of them are still alive, maybe, or at least their children are still alive and remember their parent's glorious writing career. But sometimes it's a couple of generations and namechanges down the road. So the net effect of the work still being in copyright is that the work cannot be included in a new anthology; or at least that the editor has to be willing to do a lot of work to find the rights holder. Much of the art that's important *to me* is not the big-name obvious hugely popular stuff. Ok at one point a copyright had to be renewed. Personally Id have no problem requiring only a current method of contact to solve that problem from this point on. An indefinite copyright as long as you have a valid contact for the work. Now for the old stuff, Id have no problem at all missing out on one of those Amazing Stories if the person that wrote or representive couldn't be contacted. There is plenty of work out there from people that can. Mind you, I'm not saying the editor should be able to "steal" the work. In fact, the way some editors have handled this (it involves taking a legal risk) is to set aside the same payment rate they're giving to other rights holders that they can find in a trust account to be claimed by the author whenever they come forward. So far as I know, no author has tried to sue for the amount being inadequate, so we don't know what would happen; that's the risk I mention. If it's a rate that lots of other equally-prominent authors are accepting, perhaps the court will protect the editor in this case. But this is an example of how copyright makes works unavailable. Copyright is NOT benefiting the author if it is not causing money to flow from publishers to that author! Similarly, many authors would like to quote some poetry or song lyrics in chapter headings or in the body of the text. Turns out that the courts think as little as one line of a multi-page poem is protected by copyright. And some of the estates are asking for $50 to quote one line of poetry. My wife has had to deal with this; from some poets, when she could find them, she got permission cheaply or for free. Others wanted a high enough rate that she felt she couldn't afford it, and removed the quotation or found another. In both cases, it was a massive amount of work. Lesson learned: try to keep popular and classical poetry out of your story, because it's very hard to find who has the rights, and sometimes they have unreasonable demands. What's the result? Less-realistic dialog! Song lyrics and poetry are very important to some people, and if those people appear in a story, and you don't use recognizable real lyrics for the period, it can be a problem. This is an example of how long copyright terms interferes with the "conversation" that is art; when the song lyrics inform society, society then quotes those lyrics. But due to copyright, a writer portraying recent society has to be very careful about that. (One friend, an award-winning poet and author, wrote her a complete set of chapter heading verses for one book, for free.) Regardless of the pain, its their work. IF the poet says ok for free, its their choice. IF they want to accept a small sum, fine. If the poet wants a large sum, no one has to pay that amount. Its the free market at work. It should be their call regardless of how big of a pain it is for a publisher. I don't buy its less realistic dialog, but it would be different. In fact it might be more creative. My favorite books were out of print for about a decade at one point, and my understanding was that it was largely due to people being unable to find the rights holder; several groups had wanted to reissue them. Some of my favorite books I picked up long after they were out of print. One was by old Lucky Lindy, and a couple of them by my favorite author Will Rogers. Much of what Will wrote is just as valid today as it was in the 30s. They were picked up in flea markets, used book stores, antique shops and any of a host of places that should be checked out an any opportunity. For most authors, their big problem is NOT people stealing their work; their big problem is people NOT KNOWING THEY EXIST. Ask John Scalzi and Cori Doctorow! Now I am not going to disagree with you there, but photography and the net creates a situation where stealing of work is as easy as a click or two. If there is a way to stop it, I haven't heard about it. Pictures you take wind up on websites ect and photographers have this habit they really struggle to break. Its called eating and to eat they need to get paid. Historical societies and even just clubs doing archiving have copyright problems, too. For example, we got articles and artwork from various people guests and other members to go in the program books for Minicon, a science fiction convention run by the Minnesota Science Fiction Society Inc. We have archive copies of these program books in our paper files. More recently, we've been wanting to put new and old program books on our web site, to make our history more accessible to people. Well, golly, we arguably don't have the rights to publish those articles and images on the web. Some of the people we can still find (and we've never been turned down when we found somebody and asked about this). Some we can find the heirs of. And some we can't find anything. (Obviously we've thought of asking for this permission in advance on NEW program books!) So the existence of the copyright makes it hard to keep this history visible. There's no money to be made here that I can see; we're *spending* money (or volunteer hours) to put this history on the web. But because it's under copyright, we need to be very very careful how we proceed, which uses up volunteer time. Yes is does eat up time, but you are exactly right you don't have the right to publish without permission. Maybe they will grant you permission every single time, but every single one of those creators you do publish should have the right to say no. Even if they say yes, they deserve to know how their work is used without finding it some day on google. > That's what this current orphan works is > about. It really isn't about old photos. It is much more about the > attitude of let see let's find an image we like, don't pay the > photographer, strip the metadata, and then if caught say whoops it was an > orphan work. How are you going to prove who stripped the meta data anyway > unless you are awfully lucky? I think it's too easy to claim you found it unattributed under that bill. But I think that "orphan works" is a huge problem, and that it is mostly caused by the absurd extension of copyright duration that's gone on in the last 30 years. My preferred solution would be to just roll back the copyright term. No its that extension of copyright that can be a real retirement fund for a creator. As long as a valid contact for the rights holder exists, it such last forever. Now frankly I just don't believe it is anywhere near the problem many of the people and big companies pushing the bill would like to portray. They see a possible revenue stream with little or no expense and a way out if they make a mistake. > Art will not end. As a matter of fact you can not copyright an idea. It > is the mind that finds art and if there were more protection for ones work > once done, the economic prospects of those creating new art just might be > enhanced to the point that more people can see enough of a return on the > investment of time and money that it could start a new age of creation. You can't copyright an idea, but still, you can't publish your own story about Gandalf, Bilbo, and Frodo, either, without either the permission of the Tolkien estate or if it's a parody (see Bored of the Rings). True but it was a Tolkien creation. A parody is fair use, and editorial comment about a work is too. If you wrote another addition to the series, they should be compensated and be ok with it. Art is full of cross-references -- quoting poetry, referring to architecture, catch-phrases from TV shows, and so forth. Visual art very often includes other elements that could, under a full-blown "copyright everything" standard, be copyright themselves -- architecture, plants (either by the person who developed the breed, or by the person who grew the particular specimen, or both), clothing, and so forth. Such a regime would totally change art, and make it much less interesting, because the interaction between artists would be blocked. > How any photographer or the creator of any type of IP could support any > form of orphan works legislation is beyond me, but Id be happy to hear > your point of view and debate it in a civil and adult manner. May I suggest that "how any x could support y is beyond me" is already getting to or past the boundaries of this civil adult discourse we're hoping for? I am going to agree with you that this was poorly worded. I am puzzled at the idea, but with an open mind I am willing to be educated. Yet I can not see any way such a position helps anyone with a valid copyright. My social group includes lots of musicians, writers, and artists of various sorts, people who make some or all their money from their arts. You know how much it would hurt music if band B had to negotiate specific terms with band A each time they wanted to "cover" one of their songs in performance or on an album? I've already talked about the issues with quoting bits of popular culture in stories. My wife has published 6 novels, with two more coming out in the next two years. I've talked to lots of these people about copyright over the years, and participated in even more widespread electronic discussions. Copyright as it has become in the last few decades is doing tremendous damage to the arts, and to the careers of young struggling artists. It's helping mostly big corporations that manage to own the rights to art they didn't create (since corporations never create anything). If band A wrote the song band B wants to use, why shouldn't band A have the final say as to whether or not it happens. Music won't be hurt, in fact the size of the pie might actually increase dramatically. In fact there is an organization called ASCAP that used to deal with many of those types of situations but again it wasn't free. If band A wants to allow band B to use their work great. I'm NOT against copyright overall. I'm very much in favor of creative people being paid for their creativity. I just think the current system is not very good at it, and the changes in my lifetime are nearly all BAD changes. I've sold a number of photos commercially, including illustrating an entire book at one point. And my actual day job is software development, which depends in some areas on IP law as well. I've thought about this stuff quite a lot over the last 30 years (I started reading up on copyright law for photos around 1976). -- David Dyer-Bennet, dd-b@xxxxxxxx; http://dd-b.net/ Snapshots: http://dd-b.net/dd-b/SnapshotAlbum/data/ Photos: http://dd-b.net/photography/gallery/ Dragaera: http://dragaera.info One thing that never has been a strong suit is things that change rapidly, and the net has in just a few years changed the medium of IP in ways no one could have predicted just a few years ago. Keeping up with the changes is going to be a challenge.
