The conventional economic objection to copyright and other IP propertization is that it limits access and by doing so causes a misallocation of resources: making and distributing another copy of some piece of software might cost nothing (well, virtually nothing), and yet if the copyright owner charges a price of say $100 for the software, people who value it at more than zero but less than $100 will be deflected to substitute products that may be more costly or of inferior quality; and that’s inefficient. Of course, limiting access may (or may not) be the least objectionable way of incentivizing producers of IP, but, as critics of Eldred and the Sonny Bono Act correctly point out, tacking on years at the end of an already long copyright term has only negligible effects on the incentive to create a copyrighted work in the first place. Who would refuse to create a work unless he could count on his heirs’ receiving income from it more than 50 years after his death?
But, contrary to appearances, limiting access because copyright enables copyrighted works to be sold at prices in excess of marginal cost (the cost of one more copy) is not the main problem created by the Sonny Bono Act. Very few works of art, literature, or entertainment retain significant value 50 or 70 years after the death of their author. As Lessig’s brief in the Supreme Court pointed out, the problem for people like Eldred who want to publish old works (works that would have entered the public domain by now were it not for the Act) is transaction costs, not license fees: the costs of locating and negotiating with the current copyright owner. Those costs may well exceed the modest commercial returns from publishing a public domain work (which anyone can copy). The beauty of the old (pre-1976) copyright system, with its requirement of renewal beyond a shortish initial term (like 28 years), was that most copyrights, lacking commercial value by the end of their initial term, were not renewed, and so fell into the public domain, and so licensing costs fell to zero.
The old system is gone, perhaps forever. What to do? Fair use to the rescue (next).
My concern is contract law trumping copyright law. My understanding is that HG Wells “War of the Worlds” by all rights should be in the public domain. First published in 1898; the author died in 1946. Life of the author plus 50 would have it go public in 1996, and the Bono Act didn’t kick in until 1998. (Was it retroactive?)
To complicate matters, Wells’s heirs signed a deal with Paramount in 1951 granting exclusive motion picture rights. This contract was upheld in 2002 by the Manhattan Supreme Court when Hallmark wanted to do a TV miniseries based on the book.
So my question is, if the original book is, in fact, in the public domain, how can any company claim exclusive film rights to it?
Nemo dat quod non habet
The War of the Worlds is PD in the U.S. It was in fact one of the earliest texts in Project Gutenberg:
http://www.gutenberg.net/etext/36
Your ideas about the costs of publishing older works may be overly guided by the case of books, and printed material in general. There is an extensive 3rd-party infrastructure (public, private & university libraries) for archiving and preserving books, and any well-preserved copy is just about as good as any other.
This isn’t true for all forms of copyrightable material, however. Most obviously, there are significant costs involved in permanently archiving film masters (or at least, photographic masters; it’s not clear yet how permanent preservation of digitally created audiovisual works will shake out.) There are also very significant fixed costs in duplicating film masters, transferring them to VHS (telecining) and encoding them into a digital format.
Given these differences in costs, might it make sense for there to be differing copyright periods for different media? Analog films might need a very long period, with printed material somewhere in the middle and software losing its copyright, say, 15 to 20 years after its creator stops maintaining it?
“Very few works of art, literature, or entertainment retain significant value 50 or 70 years after the death of their author”
My observation is that most works of art, literature, or entertainment NEVER have any significant economic value EVER to anyone. A few pieces(.000001 percent), through clever marketing, promotion and merchandising have economic value to certain merchandisers. Those same merchandisers are almost never the original creators of a work.
What I find tiring about all the copyright discussion is that both sides claim to be about the creators. Really, what’s it’s about is how to protect the business of entertainment as it’s currently incarnated. The business side can’t fathom a different business model and the reformers are doing everything they can to keep the media companies at bay and maintain the Sony Standard.
The whole regime is on the verge of collapse and nothing that either side is doing can stop it. What about the content creators? They will keep on creating; most of it will have know economic value whatsoever to anyone and some pieces through clever marketing, promotion and merchandising…
The decision of Paramount vs. Hallmark can be found through Google. It’s in some weird format, so use Google’s (copyright infringing?) HTML conversion to be able to read it.
I don’t understand anything about this decision, but that may be just my tiny non-lawyer brain interfering. It seems all the lawyers assembled in that court room only looked at the copyright law to find a definition for the word ‘movie’. My guess is nobody bothered to find out if anybody still owns the rights.
On the face value, I think that Hallmark was too
stupid to approach estate of Wells for the rights
to create a TV miniseries because Hallmark can use
the public domain work as the basis for the TV
show. With some further thought, I think that
Hallmark was scared of Paramount that if Hallmark
goes on and creates TV miniseries, it will be
sued by Paramount under trademark law and some
other legal theories.
It should be mentioned that although the book is
in the pubic domain, the movie still has valid
copyright.
Joseph Pietro Riolo
<[email protected]>
Public domain notice: I put all of my expressions
in this comment in the public domain.
It should be mentioned that although the book is
in the pubic domain, the movie still has valid
copyright.
Which does not enjoin me from publishing, copying, or creating derivatives of the book… Any more than my publication, copy, or derivative work would prevent someone else following me from doing the same.
Else, Charlton Heston owns the Ten Commandments.