It may have escaped the notice of many, but the Senate is pushing forward with another absurd change to the copyright law. It’s titled: Enforcement of Intellectual Property Rights Act of 2008. I’m not going to burden you with the gobbledygook. The easiest description is this: you know how the RIAA (and to a much lesser degree the MPAA) have been going after “digital pirates”? This legislation essentially allows the shift of the legal stuff from the companies to the government. Yup, that’s right, these money-grubbing-bastages don’t even want to sully their hands to pay the lawyers…they want US (via our taxes) to do it. Scurvy dogs. Never mind the part about seizure of property and stuff.
I HAVE HAD IT!
Let’s start at the beginning: the United States Constitution, which states:
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; — from Article I, Section 8
That’s it. This one clause (the only one in the unamended document to use the word “right”) is all the founders gave us to handle Intellectual Property (IP). We’ve been improvising like crazy ever since.
Key laws regulating U.S. copyrights and their key effects include:1
- Copyright Act of 1790 – established U.S. copyright with term of 14 years with 14-year renewal
- Copyright Act of 1909 – extended term to 28 years with 28-year renewal
- Copyright Act of 1976 – extended term to either 75 years or life of author plus 50 years; extended copyright to unpublished works; preempted state copyright laws; codified much copyright doctrine that had originated in case law
- Berne Convention Implementation Act of 1988 – established copyrights of U.S. works in Berne Convention countries
- Uruguay Round Agreements Act (URAA) of 1994 – restored U.S. copyright for certain foreign works
- Sonny Bono Copyright Term Extension Act of 1998 – extended terms to 95/120 years or life plus 70 years
- Digital Millennium Copyright Act of 1998 – criminalized some cases of copyright infringement
- Family Entertainment and Copyright Act of 2005 – criminalized more cases of copyright infringement, permitted technology to “sanitize” works
Starting with the Copyright Act of 1976, Copyright Law in this country broke.
I’ve worked as a writer, photographer, artist, computer programmer, blogger, and probably a few other IP things as well. Copyright has been a part of my life since I was a teenager. I have seen few changes to the pre-1976 copyright law that actually have been a benefit to me, an actual honest-to-goodness content creator. Instead, I’ve seen a lot of changes benefiting those who acquire the copyrights of others so as to profit from the sweat of someone else’s brow.
Funny…I don’t recall seeing an “and/or their assignees” anywhere in the clause from the Constitution that I quoted. I’m really fuzzy on how the most recent laws in any way benefit the vast majority of actual IP creators.
So, here’s what I’m thinking. First, scrap the current law and rewrite it from scratch (I’m only thinking copyright at the moment…patents are a whole ‘nother kettle of corn). To that fresh sheet of paper we fix a few general principles:
- The actual persons directly involved in creating an artistic work are nonassignably the fundamental right holders of a work until such time as the work falls into the public domain.
- One central repository of registered copyrighted works will be tasked with answering queries about the legal status of registered works for a period of no less than the copyright period plus twenty years. This repository will also provide on-file licensing information and/or contact information upon request.
- Copyright will be for a term of 28 years, which is renewable for one additional consecutive 28 year period (renewal must be on file before the original copyright term expires, and no earlier than one year before the expiration date).
- The fee for copyright registration will not be onerous and will not be for profit, though necessary administrative fees may be drawn from them. The fee for an original copyright will be the same for all, regardless of the number of creators of record.
- For a renewal of a collaborative work, a fee equal to the standard original copyright filling fee multiplied by the number of creators will be required. The paid renewal will cover all the creators of a work for the renewal term.
- Following the end of a non-renewed original copyright period, or the end of a renewed copyright period, the work falls in perpetuity into the public domain to add the to general knowledge and to foster new works.
- Companies or other entities not listed as the creator of a work may be permitted the right to publish a copyrighted work, or act as an agent of a copyrighted work or works, but will be required to pay the creator(s) a non-trivial percentage of gross income received from those works.
- Companies who coerce a work-for-hire arrangement in order to acquire copyright, where no actual good-faith employment existed, may be liable to pay the creators up to ten times the gross income of the work, plus all legal fees, plus punitive damages.
- Works that incorporate several copyrighted works are covered under only their own copyright, for which timely registration will be required. Should the incorporated work’s copyright lapse, the entire completed work will fall into the public domain regardless of the copyright status of any of the separate included works.
- Software code cannot be copyrighted as an artistic work, and will instead be covered under digital patent law.
- Digital IP, unless filed in a timely manner with the digital copyright office into a digital content producer’s account, will be considered to be in the public domain.
- Registered digital IP will contain a digital licensing number. Legal licensing of digital IP will entail the user to pay a non-trivial percentage of income along with a reference of the use, of any and all work containing the registered digital IP content (in whole or part) to the account of the owner of the license.
- Fair use will always have to be determined on a case-by-case basis. However, in the case of imaged copies of printed copyrighted material I propose the following: one page at the standard copy cost, the second page at 2x the copy cost, the third page for 3x the copy cost, and so on. It doesn’t forbid copying, but makes it economically unfeasible for anything other than a short run.
- Copyright content itself is considered a product which, after it is legally purchased, may be transferred or sold to another party without restriction.
- Personal backup copies of copyright content are permitted. While there is a need to prevent general theft in some media (a/k/a piracy), the ability to make personal backups must never be thwarted. These copies may not be transferred or sold to another party. These copies must either be destroyed or included in toto in any sale or transfer of the original material to another party.
I think that covers most of the big stuff. Works are protected, but will fall into public domain in a timely fashion. Creators will never be shut out of the money stream (other than because people ain’t buying). Companies can get the rights to a work, and can profit from them…but those profits must be shared. It acknowledges that digital content is likely to be copied but provides a legal mechanism for sharing and profits. And it establishes a clearinghouse so that copyright status can be confirmed and holders can be found (not always easy nowadays).
I don’t pretend that it’s all-inclusive. It probably isn’t quite as balanced as it could be, either. But it’s a start for honest debate.
Mostly it shifts the law back to how it was intended: as a right of those who have the wherewithal to actually create new things. Today’s copyright law is so far tilted to the huge campaign-funding companies that strong-arm rights away from creators whenever possible that a drastic change has to be made. We should all be up in arms about this for it affects all of us in some way.
I STRONGLY encourage you to write to your members of Congress to respectfully request/demand (potayto/potahto) that copyright law be rewritten to protect the creators of IP, and not the companies.