Okay, I know, I act all “Ms. Knowledgeable” all the time, but there are (gasp!) things even I don’t know. And they’re the kind of things I feel I should know.
The thing I’m wondering about now is the reaction to the recent Eldred decision by the Supreme Court. The ruling upholds the “Sonny Bono Copyright Extension Act” or the “Mickey Mouse Protection Act,” which allows Disney to hold on to “Steamboat Willie” for another twenty years.
Now, my kneejerk rule-of-thumb is: if Disney’s for it, it’s a bad thing and we should do our best to oppose it. (Trust me: if you follow this guideline, it will never steer you wrong.) But my question is: why is copyright extension—keeping works such as Gone With The Wind and Mickey Mouse and The Wizard of Oz out of public domain—such a bad thing for the public interest?
Why should my work eventually go into the public domain? Why can’t my heirs profit from my work in perpetuity? Why is intellectual property different than, say, physical property such as Standard Oil? Why can’t my work fund a whole bunch of nincompoops whose name is synonymous with wealth?
I’m not being snarky. I actually don’t know. I’m a writer, my work is intellectual property, I should understand these things. I don’t.
I’ve added a new blog to my blogroll, Copyfight, the Politics of Intellectual Property, in an attempt to understand this issue.
Update: Bookslut pointed me to “Copyright ruling is a ripoff of consumers,” an editorial by Dan Gillmor in the San Jose Mercury News that explains a little of why this Supreme Court decision is so evil. But you know, we’re getting used to the Supreme Court being that way.
There are lots of good objections to copyrights which extend past the life of the creator.
This sounds strange, but IMO the concept of inheritance is directly opposed to the capitalist ideal. Inheritance is a way of conveying wealth – usually, vast quantities of wealth – to other people, who haven’t actually had to work to earn that wealth. This seems plainly anti-capitalistic, capitalism being about reaping the rewards of risk and effort. Inheritance involves no risk and precious little effort.
(How is inheritance different from gift-giving in this sense? I have an answer but I don’t have all day. But the key is that gift-giving occurs while both parties are still alive.)
Copyrights – indeed, any property rights – are basically arbitrary. We convey certain rights of ownership to people with regards to some physical property and some intellectual property.
But not all physical property. Some physical property is owned by “everyone” and/or “no one”. Government land, oceans, and outer space, for instance. Not to mention the concepts of abandonment and salvage.
Nor all intellectual property. Copyrights, patents and trademarks all have limited lifespans (in different ways). Not for any particular reason. Why not make them last in perpetuity? Well, for one thing because that means we’d never get generic drugs, and even basic principles of physics and their use would “belong” to specific individuals or corporations.
Having intellectual property become public-domain at some finite time allows others to make use of it in new ways to benefit all of the society, so the argument goes. I buy it, too. The practical benefits of scientific discoveries reverting in this way is clear.
The benefits of art doing so is less clear; as someone I read recently put it, it often ends up leading to awful pastiches by mediocre creators. On the other hand, thousands of people enjoy writing fan fiction (which is blatantly illegal to distribute, although copyright owners generally don’t care), and witness how many people have enjoyed new installments of, say, Sherlock Holmes or the Oz books. Hey, just because you (or whoever) don’t like it doesn’t mean it doesn’t provide value to many others.
Is anyone personally involved with the creation of Mickey Mouse or Superman even alive today? If not, then why should some other entity which doesn’t represent the creators in any meaningful way be allowed to be the sole legal profiteer from those creations?
The practical benefits of scientific discoveries reverting in this way is clear
I could be mistaken here, but my understanding is that scientific discoveries, for the most part, fall under patent law, not copyright law. Patent law extends for only 17 years. I am familiar with the ability to file extensions to patents for pharmaceuticals — which requires the company to come up with a “new” delivery system (gel-caps anyone?) or a new combination of pills (taking one when you used to have to take two for the same illness, such as heart meds)… then the patent can be extended for 6 more years. After that, it falls into public domain, where other pharmaceutical companies can make it and name it whatever they want. I would imagine the same sort of system applies to other patents as well.
Back to copyright law… Disney, (to use the evil example) did the work and spent the money on marketing and brand-name recognition all these years to get consumers to want to buy their brand. They’ve put in ~continuous~ money and effort. It’s not like Walt invented Mickey Mouse and not a single grain of effort has been made since then to enhance that brand and get it out into the marketplace in ever new (and expanding ways). However well they benefitted from their efforts is their just reward, but I fail to see how that brand falling into public domain is right, because it means that people who haven’t had anything to do with the success thus far would then have the right to capitalize on it. Or alter it. Or use it for something not in the originators intention (porn, for example) which could damage the brand for the orginally intended consumer base.
I could see the logic of having a distinction between the copyrights which have been pursued and kept up vs. those which have been ignored and not marketed (or no attempt to market has been made). The latter falling into public domain wouldn’t harm the originator, the former would. And I’m not sure how making the argument that it would “help the public” is fair — how doing one wrong (i.e., harming the originator) is okay just because others benefit. And “greater good” seems to me a specious argument, because we’re talking profiting off of effort in the copyright case — not making cancer medications more readily available and cheaper, as in the patent case.
Disney has already already been compensated – very well compensated – for the creation of Mickey Mouse and all the effort they’ve put into building their brand. No one who is even vaguely aware of how much money Disney rakes in could sanely claim that they’ve somehow not made enough money off of the character to compensate them for the effort expended.
The whole point of putting works into the public domain is so that “people who haven’t had anything to do with the success thus far would then have the right to capitalize on it. Or alter it. Or use it for something not in the originators intention”. Evolving existing creations and ideas is a significant factor of the development of new creations and ideas. This is a good thing, it’s not “damaging the brand”.
And remember, all of the works which have previously been created with the character will still exist regardless of whatever other works are created with it. Claiming that new works will somehow damage the character is the same fallacy which is sometimes applied to the current crop of Star Wars films; regardless of how bad they are, we can still go back and enjoy the original trilogy whenever we want.
Star Wars is actually a pretty good example, here; it’s IMO already at the point where it could probably stand to be flung into the public domain so that other people can do things with it.
‘Evolving existing creations and ideas is a significant factor of the development of new creations and ideas.”
So… we must have the use of a brand in order to develop a new creation or idea? Not logical, since plenty of new ideas have come along without impinging on an existing name brand. Besides, if it’s a truly evolved idea or a newly created idea, it wouldn’t be impinging on the copyright anyway.
What your argument accomplishes, in fact, is to allow people who haven’t had the right to profit off a brand to suddenly start profiting off the use of that brand. The argument sounds more like an argument for socialism — stick it to the big corporations — they’ve certainly “raked in” enough — and allow anyone who wants to, to profit off others’ efforts. I honestly don’t see how that’s fair, because that same rule would apply to my works, my efforts, my creations down the line somewhere. And maybe I won’t have raked in very much and my tiny little bit that I raked in was juste enough to help my kids pay bills… and then someone else would have the right to take it… nope, just don’t see how it’s a fair or right thing to do.
(Your Star Wars comparison isn’t accurate, since the second rate movies aren’t actually labeled “Star Wars” and marketed as such. They have their own names and stories and if they fail, it’s because they weren’t as creative as Lucas. Even Lucas is discovering that having a brand without the creativity it needs is going to kill his own brand. But I digress.)
–toni
Well, I still don’t know what to think. I like the idea of people being able to own the rights to their creations for a long time…but corporations have relatively infinite lifespans. So if a corporation owns something, it’ll own it forever.
(Btw, I happen not to believe in inheritances; I don’t think people’s descendants should get a dime. Living off the largesse of ancestors has for the most part not led to good things. Exhibit one: the Hilton girls.)
Intellectual property rights have intrigued and confused me for some time. I remember reading about how Microsoft had licensed the digital images of art at the Louvre (errr…I think it was the Louvre; I know it was Microsoft), so every time that art would appear in digital form MS would get paid. And I found myself thinking: Why in the hell should MS get paid every time the Mona Lisa gets repro’d?
Diane, I see your point about the longevity of corporations. But I’d be curious about that Microsoft example… does the money they pay in licensing fees help the museum? Allow them to acquire more works, pay more employees or expand the museum itself and its services? (Admitting my bias here — when you gave the example, my first reaction was, “Damn, that was a smart idea,” rather than “The evil empire has struck again.”) Because if the money the museum makes off the license fees allows it to do any of the things listed, I wouldn’t really care if the entity which licensed it made a profit, too.
Oh, and my other bias is that I’ve run a business for 20 years, so I tend to be pro-capitalism. Without capitalism, there wouldn’t be a need for copyright law. And just like freedom, it’s sometimes tricky and it isn’t always clear-cut (the right of free speech vs. the right to privacy, etc.). I don’t know where the lines or limits need to be drawn, either, but to argue on behalf of limits for big corporations just because they’re big or profitable seems to be in direct contradiction to the point of having a capitalistic society.
(Good grief, have I really posted THREE argumentative posts here? Yikes. Going to go soak my head.)
–toni
One thing I don’t really understand is the notion of their brand being jeopardized. The original “Steamboat Willie” cartoon would enter into the public domain, and perhaps instances of those characters would be in the public domain. Even Disney has to admit that cartoon is an anacronism — people don’t pay money to see it, but it is useful in an historical context.
But the current Mickey Mouse as used in their products and theme parks will be protected for years to come as long as they continue to update it. Protecting the (for lack of a better word) iconic image of Mickey Mouse also seems to be a function of trademark law vs. copyright, but that’s more of a wild-ass guess on my part rather than real understanding.
As long as Disney continued to use the current version of the Mickey Mouse character, people will always identify that image with them — they’ve got the loudest newsboys on the block. And shouldn’t that be their primary concern?