Copyright is unjust. Works created under that regime are tainted. Extreme position: the disappearing of works subject to copyright is a good, for those works are toxic for having been created under the unjust regime.
While I understand where he is coming from, I have to disagree with this position. Many works released under a highly-restrictive “All Rights Reserved” license are done so more out of laziness than anything else. If a creator creates something they wish to share with the world, but is not aware of how the system is at work to prevent sharing (many creators I find to be unaware or misinformed, generally, about copyright) we should definitely celebrate the liberation of that work. That the liberation may eventually come through the expiry of the copyright and not through a conscious act of the creator does not, in my view, taint that liberation.
While a poorly-documented copyright holder or future retroactive extension may steal this work back from us, the same holds true even for work born free. We take at face value most declarations of a free birth, but poor documentations or changes in the law may yet steal more of even these works from us (though, of course, we work to avoid that fate).
Separately, I believe that Linksvayer sees works that have spawned significant proprietary legacies (take for example, James Bond) are tainted by these legacies. In this case I agree that the acceptance to the commons of the origins of such a legacy (such as the James Bond novels) must be taken with caution, since anything building on this source often serves to promote the still-encumbered legacy more than it does to add to the commons, and may even run afoul of legal actions by the owners of such legacy (similar to the problem of clean room reverse-engineering).
However, without an effective system of cultural copyleft (which we lack, though CC-BY-SA is a fine attempt) there is nothing to prevent a fully-encumbered legacy from springing from born-free work. There we would find ourselves stuck with the same conundrum. If a proprietary television program based on, say, Pepper & Carrot became very popular, would it thus become useless as a free body of work? Would we have to move on for fear of providing more benefit to the encumbered program than to the existing free work? I hope not, but I don’t know the answer.
So, I say, celebrate Public Domain Day! Much new work enters the commons, not just the select samples that have spawned an encumbered legacy. Use, study, share, remix!
Last night, I went with my fiancée and her family to see Canadian legends Barenaked Ladies in concert. Near the end of their set, they launched into what I later heard called a “mashup of pop songs”: a delightful medley of everything from current pop hits, to Bohemian Rhapsody, finishing with a wild rendition of Let It Go. A performance that connected with most everyone in the audience, and was for some their favourite part of the show. By quoting from the culture around them, they created a piece that resonated deeply with the audience.
Part way through, my fiancée turned to me and said, “Stop thinking about copyright infringements.” But I wasn’t. I was thinking about how sad it is that they would never release something like that on an album.
You see, I wasn’t thinking about infringements because none were obvious. The venue where the concert took place has an up-to-date license from SOCAN, the copyright collective administering compulsory licensing for musical public performance in Canada. They could thus perform any song or derivative of a song that they wished to, because the license has already been cleared. This gives performers an avenue for free expression at their concerts without fear.
Then why might they not be able to record the piece? In Canada, there is no compulsory license for recordings of music, only for public performances. In order to record this kind of music the group would have to trace each composition they wished to honour, find the current copyright holder, and negotiate a license. A negotiation that the copyright holder is not even required to engage in. If any holder of any song cannot be found, or simply is not interested in participating, then the project dies. If they’re lucky, the songs are covered by a licensor like CMRRA, but they will have to research each individual piece to find out. If they want an International or radio release, then more research must be undertaken in each new jurisdiction, since licensing regimes are different everywhere.
Even with a major label behind them, this kind of task is quite daunting. And so, this kind of culturally-resonant art stays confined to concert performances and bootleg YouTube camera videos (which eventually get taken down, because they are infringements).
This is just one poignant example of how productive arts are often strangled by the lack of culturally-relevant works from the commons to quote, and a lack of legal structures to empower artists.
Let’s say there is a proposal (like parts of TPP) to extend copyright and strangle the Public Domain for a time. This sounds bad, but let’s say it gets defeated. What are we left with? A copyright term of life + 50 years (or longer) is already strangling the progress of useful arts and culture in most of the world.
So, we lobby for a term reduction, right? Good luck. Don’t get me wrong, I’m all for a term reduction. I’m all for many of the reforms that get proposed. I just don’t really see it happening in my lifetime. There are treaties and lobbies and too many things preventing meaningful progress in this area.
Same goes for what should be unrelated policy areas like copy protection enforcement. We can (and should!) decry expansions that criminalize legitimate security research and legitimate unlocking uses. Again, however, each victory leaves us in our existing place of defeat.
We need a back door. A way to promote art, culture, science, and innovation without climbing up the waterfall. It begins with the understanding that the length of time a work is protected for under a copyright regime is a maximum. Creators can at most any time, and for most any reason, provide the public with a license to their work under much more friendly terms than the default.
If you’re familiar with the Free Culture or Free Software or other communities, this is not news. Some creators already choose to provide the public with a license to their work. This, however, is based entirely on creators knowing about the choices available to them, understanding the advantages, and making a decision that sometimes will benefit others more than it benefits themselves.
This is where public policy can come in. Many governments already provide funding to various artistic or innovative ventures based on policy goals. If a government can be convinced of the benefits of an expanded Public Domain (say) we do not have to convince them to shorten copyright terms to achieve that goal. Much easier to implement is to use (some of) their arts funding to fund projects that will be required to (perhaps after a reasonable period of time passes, much shorter than the normal term of copyright) provide the public with a license to their work under reasonably liberal terms, and distribute without copy protection of any kind.
Instead of trying to reform the entire landscape, and instead of only hiding in our corner creating the few things we can, we carve out just a piece of policy and focus it on bettering the overall situation. Things still get much better, and with a lot less change.
I have come to the conclusion that copyright should be non-transferable. It should reside with the creator of the work, and only be licensable to others.
This solves many problems in the artistic world: insane inheritors (ref: the estate of C.S. Lewis), extorting middlemen (ref: music labels, book publishers), and the difficulty of finding out who owns the copyright at all anymore (ref: some content from the CBC is CBC-owned, other content is owned by the contracted reporter).
I have instituted a policy for myself: I will never accept a copyright transfer from another party. If I need the right to do something with someone’s work (such as distribute/sell it, which I will be involved in soon) I need only ask them to sign off on a license. Whether that is a public license, or only a license for me, depends on the circumstances, but there is no reason for me to own another’s work.
I have not transferred my copyrights for any work done this summer, although I imagine any US court would consider what I did at the request of MashLogic to be “work for hire”, since I was paid. Should I return to AideRSS, I imagine that they will require a similar agreement to last time (they own all work I produce “using company resources”). I am okay with that for now. It’s unnecessary, but I don’t call the shots. I will never require it of another.
I think if I were in an industry where there are more middlemen (ie: music) I would be more adamant about keeping my rights. If I were offered an option between more money and negotiating to keep more of my rights, I would quickly spring for the latter.