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Speaker: Losing cultural treasures under the TPP

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  • HORansome,

    So, I asked this question on Twitter and I'm going to ask it here: I'm the author of the book "The Philosophy o Conspiracy Theories" (Palgrave Macmillan, 2014) and I want to know how I can prevent the extension of copyright on my work post my death. I realise that, at the moment, the copyright is really with the publisher, but is there anything I can do to make sure they don't apply for extensions when I'm dead?

    Tāmaki Makaurau • Since Sep 2008 • 441 posts Report Reply

  • Lucy Telfar Barnard,

    I'm not sure I completely understand the issue. Just because things are still under copyright, doesn't mean you can't see them, or hear them, or read them. It just means you might have to pay someone for the privilege (or get them from the library).

    To be topical - if I'd written a stirring piece of music, I might want to be sure that the Act Party, or its future equivalent, couldn't ever use that piece of music in the background of one of its advertisements. You can argue that if I'm dead I won't care. But I don't think even my grandchildren should have to bear that.

    I like Creative Commons, but there's a difference between that and the ability for others to use something you've created for their own profit or promotion. Copyright is, as far as I can see, the thing that allows a difference between these two outcomes.

    Wellington • Since Nov 2006 • 580 posts Report Reply

  • Jeremy Malcolm, in reply to Lucy Telfar Barnard,

    This U-shaped graph explains the problem: http://ip.jotwell.com/how-copyright-prevents-us-from-getting-the-books-we-want/. After the short initial short period when the peak profits are earned from the work, the rightsholders don't bother to keep their works commercially available, so they are essentially lost. This graphic covers books, but for other types of works the same has been observed—there are instances where original master tapes of music that studios thought was no longer valuable were trashed, and in consequence the best existing copies of some music are illegal copies from P2P file sharing services.

    Covering the point you raise, in civil law countries (but not New Zealand) there is an independent "moral right" that is inalienable and permanent which can allow you to prevent your work being misused, even after you're no longer entitled to receive economic returns for its use.

    San Francisco • Since Feb 2015 • 2 posts Report Reply

  • Jeremy Malcolm, in reply to HORansome,

    There is actually no way to extend copyright. You get life plus 50 years neither more nor less, and that's that (unless you are Walt Disney, in which case you can ask Congress for a 20 year extension and they'll give it to you).

    So your publisher won't be able to resurrect your copyright. However they could make a new edition with for example a new preface or a new page layout and there would be a fresh copyright in those changes, but not in your original words.

    San Francisco • Since Feb 2015 • 2 posts Report Reply

  • Martin Brown,

    US music copyright protection is currently 70 years after death and I believe heading towards longer. The danger for NZ is that current and future US enforcements would prevail, meaning massive, non-negotiable fines for small/naive breaches rather than actual commercial damage compensation.

    Auckland • Since Mar 2013 • 137 posts Report Reply

  • ScottY, in reply to HORansome,

    I realise that, at the moment, the copyright is really with the publisher, but is there anything I can do to make sure they don't apply for extensions when I'm dead?

    If your publisher owns the copyright, then most probably the only rights you retain any control of will be your moral rights (to the extent you haven't waived them under your contract with the publisher).

    If you were the copyright holder, then you might be able to abandon or renounce your copyright in the work at some future point in time in order to bring it into the public domain. I suppose you could provide for this in your will, or under some separate legal instrument that comes into effect upon your death. The problem, though, is that in most countries there isn't any formal legal mechanism for abandoning copyright, so any abandonment might not be legally enforceable if your heirs decided to challenge it. There's certainly some doubt legally, anyway.

    I suppose you might be able to issue a waiver of copyright, to the effect that you will not seek to enforce your copyright against anyone who wishes to copy or reproduce your work. This would probably be not that different to some types of creative commons licences.

    West • Since Feb 2009 • 794 posts Report Reply

  • Sacha, in reply to ScottY,

    some separate legal instrument that comes into effect upon your death

    is that a thing?

    Ak • Since May 2008 • 19688 posts Report Reply

  • Sam M, in reply to ScottY,

    Could you grant a general license to the world at large (e.g., open source model)? That may be enforceable against your heirs.

    Auckland • Since Nov 2006 • 72 posts Report Reply

  • steve black, in reply to Jeremy Malcolm,

    He asked about how he could STOP the copyright at his death not EXTEND it.

    If the publisher owns the copyright it is in their hands.

    If you own the copyright yourself I presume you can state in your will that you wish the executors of your estate to place any copyright you hold into the public domain. Property is property, last I heard.

    sunny mt albert • Since Jan 2007 • 116 posts Report Reply

  • steve black, in reply to Sacha,

    some separate legal instrument that comes into effect upon your death

    is that a thing?

    It is called a will, last I heard. I am currently acting as the executor of a friend’s Estate right now. My job is to distribute the property in his Estate as he requested.

    sunny mt albert • Since Jan 2007 • 116 posts Report Reply

  • Juha Saarinen, in reply to HORansome,

    You'd have to... come back.

    Since Nov 2006 • 529 posts Report Reply

  • Juha Saarinen, in reply to steve black,

    Wills can be challenged.

    Since Nov 2006 • 529 posts Report Reply

  • Stephen Judd, in reply to Lucy Telfar Barnard,

    A lot of use of copyright is not by listening or watching, but by making a new work out of them: quoting, sampling, retelling, reframing, whatever.

    You can't just say dear owner, here's my money, now I'm going to make a derived work, and then do it. The owner may not let you, or they may demand more than you can afford. Or worse, and this can happen, you can't find the current owner, and you are either stymied or obliged to hope that you won't get sued out of the blue.

    This is how long copyright terms retard cultural development.

    The original intent of copyright was to provide an incentive for people to create, because creation is a public good. Now, it's grown to the point where it's an impediment to creation. We all know that the real reason terms have grown in the US is so large corporate holders can maintain their monopoly on popular franchises, and we need to understand that while this is good for them it harms the rest of us.

    Wellington • Since Nov 2006 • 3122 posts Report Reply

  • Stephen Judd, in reply to Jeremy Malcolm,

    I favour the Brazilian approach, where if a copyright work is not available after a certain term, the copyright lapses. In this way a incredible trove of Brazilian popular music from decades ago, where the publishers are defunct or don't care, is slowly becoming available again.

    Wellington • Since Nov 2006 • 3122 posts Report Reply

  • ScottY, in reply to steve black,

    It is called a will, last I heard.

    Which is probably why I wrote "your will, or under some separate legal instrument..."

    If you own the copyright yourself I presume you can state in your will that you wish the executors of your estate to place any copyright you hold into the public domain. Property is property, last I heard.

    In which case you are relying on the beneficiaries of the will not to challenge it. If the rights were valuable I could imagine someone might be tempted to.

    West • Since Feb 2009 • 794 posts Report Reply

  • Kumara Republic, in reply to Stephen Judd,

    The original intent of copyright was to provide an incentive for people to create, because creation is a public good. Now, it's grown to the point where it's an impediment to creation. We all know that the real reason terms have grown in the US is so large corporate holders can maintain their monopoly on popular franchises, and we need to understand that while this is good for them it harms the rest of us.

    Yep, back when copyright was invented, media conglomerates didn't yet exist.

    The southernmost capital … • Since Nov 2006 • 5420 posts Report Reply

  • izogi, in reply to Lucy Telfar Barnard,

    I’d agree with Stephen on this. Copyright has its benefits, but it isn’t in any way a natural right. It’s an artificial legal compromise on free speech, where society decides to grant the creator of a work a temporary monopoly on stuff they said first, so that nobody else is allowed to repeat it (without permission). This was conceived as an incentive for people to create works which would eventually be returned to the public domain, most commonly by letting a creator profit from every copy of its distribution within that time-frame. But the intent has nearly always meant to be that society gets those works back in the public domain where others can use them freely and uninhibited, and build on them to create new works.

    If you grew up in a society more than a few hundred years ago, sometimes even more recently, it probably wouldn’t seem natural at all that others shouldn’t be able to reproduce something you’ve done, simply because you did it first.

    Even US copyright began as a term of only seven years, after which works returned to public domain, but that term has been repeatedly extended. The last couple of times, the across-the-board extensions to prevent copyright from expiring have effectively been a consequence of lobbying mega-corporations who want to continue earning money on things they’ve had in the bank for decades, even if they’ve created nothing since, and now there’s talk in the US that it might happen again. Even with life+50 years as in New Zealand, non-expiring copyright has become so embedded in society that many people now expect it to last forever, and get surprised when they discover it’s not meant to.

    The irony is that the corporations most active in preventing copyright from expiring also benefitted hugely from expired copyright. Most, if not all of Disney’s extremely popular movies were built from old stories in the public domain.

    In honesty I don’t personally care much about having the rights to make copies of old movies and books owned by mega-corporations if they’re at least generally available, but the less obvious loss to society with absurdly long, or infinite copyright terms, is with many less prominent works. There’s lots out there which has never been republished, and which nobody’s able to practically preserve noncommercially because the copyright owners, whoever they might be ~80+ years after creation, either can’t be found or don’t even know they own it, or don’t care. Many of those types of works will simply disappear before anyone has an opportunity to rediscover them. I’d quite happily return to a much shorter automatic term if international treaties would allow it, at least unless creators asserted a specific interest in retaining the copyright on something for longer.

    Wellington • Since Jan 2007 • 1139 posts Report Reply

  • Don Christie,

    Thank you for this.

    To put it another way...

    No man is an island,
    Entire of itself,
    Every man is a piece of the continent,
    A part of the main.
    If a clod be washed away by the sea,
    Europe is the less.
    As well as if a promontory were.
    As well as if a manor of thy friend's
    Or of thine own were:
    Any man's death diminishes me,
    Because I am involved in mankind,
    And therefore never send to know for whom the bell tolls;
    It tolls for thee.

    Wellington • Since Nov 2006 • 1645 posts Report Reply

  • Ian Dalziel, in reply to Stephen Judd,

    ©lockwork freerange...

    A lot of use of copyright is not by listening or watching, but by making a new work out of them: quoting, sampling, retelling, reframing, whatever.

    .... why, that sounds like general conversation©,
    </Prof Pat Pending 2015>

    I foresee a fifty year cycle of reissues - each iteration launching a new ©lock, while the content is free to roam amidst the latitudes of the reavers and retrievers of, and on, the high ©s....

    ......

    Could you grant a general license to the world at large...

    ...what about copyleft
    the debate is always out there over Copyleft vs. Permissive Licenses
    get in early here:

    <aside> could this be ~shiver~ The Copyright Thread Redux~tremble~</aside>

    Christchurch • Since Dec 2006 • 7892 posts Report Reply

  • Martin Connelly, in reply to HORansome,

    Its called "Make a Will". Tell your lawyer what you want, its not hard.

    New Zealand • Since Jun 2012 • 28 posts Report Reply

  • Lucy Telfar Barnard,

    But quoting, sampling, retelling, reframing etc – what if I don’t want the thing I’ve created quoted, sampled, retold, or reframed? If I’ve created it, don’t I have that right? Or is that the moral right mentioned earlier, separate from copyright?

    Besides which, copyright applies not just to “creative” works, but also to non-fiction. I think of my grandmother, who after a lot of learning and hard work, wrote a textbook for English language teaching and learning. Her textbook was widely used in China, but she received no royalties for its use there because they didn’t have copyright law. She saw the irony in it, having been an ardent communist in her youth, but she would have quite liked to have had the royalties.

    Maybe I just have to think about it some more. I certainly don’t know much about the extent of copyright.

    I understand people’s frustrations at things being dropped out of print. But the effort that went into making that thing doesn’t go away. My mother’s had a few books published. Writing them them took years and stress and angst. They’ve now been out of print for 30 years. But my mum’s finances are pretty tight, and if someone was able to just come along and reprint them and sell them without her getting any reward for all her work, just because they’d been out of print for a while, I’d think that was pretty rude. Sometimes I’ve thought it could be fun to make a new book based on one of her books, but with additional chapters or sections from the point of view of another character in the book. But if I wrote and published that, and made money from it, and all that money went to me and none to her, that would feel wrong too.

    To me, a creative work isn’t just a lightbulb going off in someone’s head. It’s the result of work and maybe study and investment of time and possibly money in developing the skills and aesthetic sense to create the thing that has the copyright. The person who comes along and copies that thing is getting the benefit of all those skills and training and hard work, without the person who developed them getting any reward. That’s exploitation. It’s like having someone work for you without paying them. And it doesn’t stop being exploitation just because a lot of time has gone by since you did the work.

    So yeah, still not quite getting it.

    Wellington • Since Nov 2006 • 580 posts Report Reply

  • Keir Leslie,

    I have seen it argued that it is not possible to renounce copyright, or give a license to the world at large, on death as that would give the other heirs a reason to challenge the will, particularly if the copyright represents a very large amount of money. (In the same way that it's surprisingly hard to leave all your worldly possessions to the dog, and leave nothing to your family heirs.)

    I have absolutely no idea if that is true, or if it is true in NZ, and it would, obviously, depend on the case.

    I suspect that the cost of challenging the will would be out of proportion to the value of any copyright under discussion. (If you do have a copyright worth enough to have a inheritance fight over, you can afford a proper lawyer.)

    Since Jul 2008 • 1452 posts Report Reply

  • Russell Brown, in reply to Lucy Telfar Barnard,

    But quoting, sampling, retelling, reframing etc – what if I don’t want the thing I’ve created quoted, sampled, retold, or reframed? If I’ve created it, don’t I have that right? Or is that the moral right mentioned earlier, separate from copyright?

    Should that right exist in perpetuity?

    Auckland • Since Nov 2006 • 22756 posts Report Reply

  • Lucy Telfar Barnard,

    No, I probably wouldn't think that right should exist in perpetuity (except maybe for the aforementioned ban on use in ACT party advertisements...). But maybe as long as anyone who knew me well in person is still alive, which could conceivably be longer than 70 years.

    Wellington • Since Nov 2006 • 580 posts Report Reply

  • Stephen Judd, in reply to Lucy Telfar Barnard,

    I certainly don’t know much about the extent of copyright.

    It’s already really, really long – much longer than it was when it was first invented. If your Mum died tomorrow, which of course we hope she won’t, her work is still protected for another 50 years. 80 years for something to enter public domain is a very long time.

    About your Mum’s books being out of print, I get it. But consider the case where the artist has given up the copyright to a publisher who just doesn’t give a shit, or who went bust, or sold it on to another company that no longer regards (books or music or whatever) as its core business.

    And in the end, this lobbying isn’t for creators like your Mum. It’s for a few large companies to continue extracting value from portfolios they own for even longer than they currently do. Keeping our terms at the already very long limit of death + 50 years isn’t going to hurt your Mum in the slightest. Those large companies always point to small artists and act all altruistic and cry crocodile tears, but that’s a bullshit front.

    I come back to: copyright is an artificial good we've created for public policy reasons. No different to say, fishing quota. It's an impudent demand on the public that we be barred from making new stuff out of old for even longer, with no corresponding public benefit.

    Wellington • Since Nov 2006 • 3122 posts Report Reply

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