LWN: Comments on "Appeals Court Gives Google A Clear And Total Fair Use Win On Book Scanning (Techdirt)"

the ultimate, primary intended beneficiary is the public

Jonno — Fri, 30 Oct 2015 17:49:06 +0000

> Berne is actually 50 years, and NOT life+50
Actually the Berne convention requires "Life + 50 years" for most works (if the identity of the author is known, otherwise "Publication + 50 years"), though for photographic works the minimum is "Creation + 25 years", and for cinematographic works the minimum is "Publication + 50 years" (if published within 50 years of creation, otherwise "Creation + 50 years").

However the Berne convention does not give any rights whatsoever to the performers of a work, only to it's authors (in case of music the composer and lyrics writer). The Rome convention added similar rights to performers (technically this isn't copyright, though it is often called that), but only requires "Creation + 20 years".

That said, TRIPS raises all minimums to 50 years, and while not all Berne signatories have signed TRIPS, all WTO members have, so that probably covers every reader here...

the ultimate, primary intended beneficiary is the public

Wol — Thu, 29 Oct 2015 14:31:06 +0000

Berne is actually 50 years, and NOT life+50.

We have a bunch of rather annoyed artists who are alive and well, and who are miffed that their creative works from the 50's and 60's are falling out of copyright ... :-)

(Musicians, not composers or authors ...)

Cheers,
Wol

the ultimate, primary intended beneficiary is the public

dlang — Wed, 28 Oct 2015 15:32:54 +0000

even with extrememly long lifetimes, having to renew copyright every decade or two (with some noticable but not giant registration fee) will be more of a bother than it's worth for the vast majority of works, even while the author is alive.

In any case where the lifetime of the 'next generation' is a problem, the lifetime of the author will be a problem shortly afterwords (with the next generation of authors). So it's not a problem I think we have to specifically address now.

the ultimate, primary intended beneficiary is the public

madscientist — Wed, 28 Oct 2015 15:09:13 +0000

I think if we're going to change this we need to be more forward-looking. The reality is that life expectancies are always rising, and some people think we're on the cusp of changes in understanding that could increase them significantly. Just saying "lifetime of immediate descendants" is not taking these advances into account: there should be some cap on that as well; something like 20 years after death of the author would be my preference but probably you'd have to bump it higher to get agreement.

the ultimate, primary intended beneficiary is the public

dlang — Wed, 28 Oct 2015 14:33:18 +0000

defining "parasites on the society" is not as clear as you make it out to be.

If a parent makes an investment that pays returns over the next 50 years and passes that to their children, does that make them parasites? what if the parent passes the same money as a lump sum?

There have been many cases where famous people have struggled to finish autobiographies at the end of their life to have something to pass on to their children. Why should it matter if it's a lump sum or royalties paid over many years?

Now, the question becomes what reasonable limits to this are. The proposal of one generation after the author (descendents who were alive while the author was can extend the copyright was the proposal I saw) seems like a reasonable compromise that lets someone support people they know without extending it insanely.

remember that this proposal is coupled with copyright being short but renewable instead of extremely long. If copyrights need to be renewed every decade or two, most works aren't going to get renewed and will fall into the public domain MUCH faster than the life+50 of the Bern Convention, let alone the life+90 we currently have in the US

the ultimate, primary intended beneficiary is the public

jezuch — Wed, 28 Oct 2015 13:52:57 +0000

> people commonly work hard so that their children can have a better life...

Well, yes, but I doubt anyone wants their children to become parasites on the society :) At least I wouldn't; all I want for *my* children is a good start, and only that. And I would expect that the society itself would consider it bad as well. This is a balancing act, obviously, but the current situation is quite absurdly advantageous to copyright holders (and their descendants).

the ultimate, primary intended beneficiary is the public

dlang — Wed, 28 Oct 2015 08:32:27 +0000

people commonly work hard so that their children can have a better life, giving the artist's children the ability to keep renewing copyright on works that are important enough to care about santisfies that goal, without locking everything up. Works that aren't commercially significant become available faster, and it's still better than "life + 90" continually extended.

the ultimate, primary intended beneficiary is the public

jezuch — Wed, 28 Oct 2015 08:25:54 +0000

> Maybe allow the creators descendants - who were alive when the work was created! - to extend it too.

And thus reward them for... what?

the ultimate, primary intended beneficiary is the public

giraffedata — Sun, 25 Oct 2015 19:57:51 +0000

Arguably, the likelihood of an extension being granted after the author's death would affect the price in any sale of rights to a third party, and thus be of benefit to the author while still alive.

That's a good argument that a law is constitutional if it extends copyright to well after the author's death for anything people create after the law is passed. But Lessig was arguing about the aspect of the law that operates retroactively. It's really hard to spin that as something that benefits the public. Maybe you have to look at it as a package deal and say you can't have just one aspect of a law be unconstitutional and that the future incentives help the public more than the retroactive giveaway in the same law hurts the public.

the ultimate, primary intended beneficiary is the public

Wol — Sat, 24 Oct 2015 10:38:16 +0000

Actually, if you look at the evidence, rather than at the rhetoric, no extending copyright does NOT increase the value. Pretty much any real value resides in the first ten years or so.

imho, copyright should be reduced to the Berne minimum of 50 years, and the CREATOR given the option of extending it, ten or twenty years at a time, after that. Such extensions obviously would have to be registered, although I would also add that the legal presumption would be that if the author is alive, they have extended it.

Maybe allow the creators descendants - who were alive when the work was created! - to extend it too.
Cheers,
Wol

the ultimate, primary intended beneficiary is the public

mips — Wed, 21 Oct 2015 16:43:08 +0000

The most obvious case is works by authors who are already dead, where nothing in our power could possibly cause them to create anything new

Arguably, the likelihood of an extension being granted after the author's death would affect the price in any sale of rights to a third party, and thus be of benefit to the author while still alive.

the ultimate, primary intended beneficiary is the public

rgmoore — Tue, 20 Oct 2015 16:28:04 +0000

I don't think he made that argument exactly, and I don't think that's exactly the argument that the court is making in this case. The copyright clause of the constitution is supposed to be a balancing act. If there's no copyright, the creators have little incentive to create because they'll be copied immediately and won't profit from their creations, and the public loses out because of the lack of creativity. If copyright is permanent, things never go into the public domain, and the public loses out because they're stuck paying the creators' heirs in perpetuity. What the court is saying here is that the eventual passage into the public domain is and expected benefit (not the only or even the primary expected benefit) from copyright law, so the simple fact that something will go into the public domain can't be used as an argument against it in copyright law.

In Eldred, Lessig made a couple of arguments. One was that extending the term for something already under copyright couldn't encourage new creations; it's just a give-away to the current copyright holder. The most obvious case is works by authors who are already dead, where nothing in our power could possibly cause them to create anything new. The other argument was that the continual extension of existing copyright meant that they were no longer for limited times, and Congress was effectively creating infinitely long copyright 20 years at a time.

the ultimate, primary intended beneficiary is the public

paulj — Mon, 19 Oct 2015 21:18:45 +0000

Didn't Lessig already make that argument before the Supreme Court in the Eldred case, and lose?

the ultimate, primary intended beneficiary is the public

Wol — Mon, 19 Oct 2015 14:53:18 +0000

> > and even though we think the length is stupidly long, it's still a fixed period.

> It's not fixed, because it depends on the life of author, but I suppose "everybody dies" is enough to argue it's limited.

But this court recognised that the *intended* beneficiary of copyright is supposed to be the Public, indirectly through the Public Domain. If copyright gets extended again, allegedly "to benefit authors", then this ruling is ammunition to say that the extensions are actively obstructing their constitutional purpose ... :-)

Cheers,
Wol

the ultimate, primary intended beneficiary is the public

Otus — Mon, 19 Oct 2015 08:01:18 +0000

> and even though we think the length is stupidly long, it's still a fixed period.

It's not fixed, because it depends on the life of author, but I suppose "everybody dies" is enough to argue it's limited.

> It's not that long until Disney goes back for another extension (2019 or earlier correct??)

January 1 2019 would be when works published in 1923 that haven't yet go into the public domain. However, Disney's "important" copyrights are from a few years later, so they might not be in quite such a hurry.

the ultimate, primary intended beneficiary is the public

dlang — Mon, 19 Oct 2015 02:31:00 +0000

The courts aren't supposed to make laws, only interpret them.

There has already been a court-based attack on the mickey-mouse extensions to copyright, and it lost because the requirement is that the copyright be for a period of time, and even though we think the length is stupidly long, it's still a fixed period. It's going to require changes to the law through congress to get this changed, not attacks on the law via court cases.

We really should be gearing up for it now. It's not that long until Disney goes back for another extension (2019 or earlier correct??)

the ultimate, primary intended beneficiary is the public

Wol — Sun, 18 Oct 2015 21:14:39 +0000

Let's hope somebody uses this to bring an attack, through this court, on the Mickey Mouse Copyright Act :-)

Cheers,
Wol

Appeals Court Gives Google A Clear And Total Fair Use Win On Book Scanning (Techdirt)

dlang — Sun, 18 Oct 2015 01:50:14 +0000

There is one other possible step. There is the option of appealing for a re-hearing at this level, but with ALL the judges at this level being involved, not just three.

unlikely when the three give such a clear ruling, but a possiblity.

Appeals Court Gives Google A Clear And Total Fair Use Win On Book Scanning (Techdirt)

wblew — Sat, 17 Oct 2015 22:27:47 +0000

From the original article, the "next court" seems to be the Supreme Court.

It might not be easy to get it heard at the US Supreme Court...

Appeals Court Gives Google A Clear And Total Fair Use Win On Book Scanning (Techdirt)

ncm — Sat, 17 Oct 2015 17:26:15 +0000

A total win until appealed to the next court, that is. But the judges' statement is welcome, and helpful precedent.