For first time ever, US seeking international limits on copyright
Trans-Pacific Partnership proposal overturns years of precedent.
Cyrus Farivar - Jul 3, 2012 8:30 pm UTC
Delegates at the previous Dallas round in May received hundreds of rolls of this custom-designed toilet paper.
TX Corporate Power Partnership
The United States Trade Representative (URTR) has proposed a new copyright provision that would address some intellectual property concerns found in the Trans-Pacific Partnership, a massive trade agreement currently being negotiated amongst nine Pacific Rim countries in San Diego this week. Canada was recently extended an invitation, but its formal membership has yet to be approved by the existing nine countries, including the United States.
In a statement emailed to reporters on Tuesday, the USTR appears to be addressing exceptions to copyright restrictions, which had not been included in a TPP draft leaked a year ago.
"For the first time in any US trade agreement, the United States is proposing a new provision, consistent with the internationally recognized ‘3-step test,’ that will obligate Parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research," wrote Carol Guthrie, the spokesperson for the USTR, in an e-mail sent to Ars.
"These principles are critical aspects of the US copyright system, and appear in both our law and jurisprudence. The balance sought by the US TPP proposal recognizes and promotes respect for the important interests of individuals, businesses, and institutions who rely on appropriate exceptions and limitations in the TPP region.”
Historically, major intellectual property holders, such as the RIAA and MPAA—who both support the TPP—have called for stronger international copyright protection.
Skeptical optimism
That three-step test, which was established in international law in 1967, generally allows for exceptions to copyright restrictions that do not "conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author."
American IP law is, of course, imperfect. However, it does attempt to maintain a balance between strong enforcement mechanisms while also allowing for robust fair use and the public domain. But in IP treaties, all that tends to get exported from the American model are the restrictions, rather than the exemptions.
As such, TPP watchers have cautiously applauded the move.
"Recognizing the limitations and exceptions is generally a very positive development," said Rashmi Rangnath, a staff attorney at Public Knowledge, but she said that her and others' concerns would "depend on [the proposal’s] wording."
Jonathan Band, a Washington, DC-based intellectual property attorney, concurred.
"This is a very positive development," he wrote to Ars in an e-mail on Tuesday. "This is the first time that the US has sought language of this sort in an international agreement. From the blog one can't discern the precise language, which of course makes a big difference in how effective it will be on the ground. Nonetheless, this appears to be a big step in the right direction. Hopefully it will be well received by the other negotiating partners, and perhaps they will make it even stronger."
The specific language here, like the entire treaty itself, has yet to be made officially public.
Devil remains in the details
Fundamentally, interested parties have generally criticized the TPP’s secrecy, as no official draft has ever been made public. The "intellectual property chapter" of the TPP was leaked last year, but no one is sure if the current draft being discussed matches it or not.
Last week, a San Diego County congressman asked to sit in on this week’s round of negotiations—a request that was denied. However, the USTR did allow Rep. Darrell Issa (R-CA) to attend as a "stakeholder," the semi-public part of the talks, but not the negotiations themselves. A separate letter from 130 congressional Democrats illustrates political anxiety that many politicians have with such opaque free-trade agreements, despite the fact that, as Reuters points out, "Congress last year overwhelmingly approved three such pacts—with South Korea, Colombia and Panama."
But beyond the secrecy of the treaty itself, experts have honed in on several problematic aspects to the leaked draft. Among the most important are a lack of definition of fair use and public domain rights, extension of copyright to "life plus 70" (putting it in line with American law), treating temporary copies (such as in a cache or a video buffer on streaming sites) as copyrightable, and a ban on the circumvention of digital locks, among others.
Earlier this year, the Electronic Frontier Foundation (EFF) called it "ACTA-plus," referring to the oft-protested proposed copyright treaty that seems to be on its deathbed.
Update: Parker Higgins, an activist at the EFF, wrote in to Ars to say that the organization "opposes this new proposal, which was made without allowing for input from public interest groups and other interested stakeholders. The USTR may try to paint the "3-step-test" in a positive light, but it actually imposes rigid constraints on the sorts of "fair use" provisions countries may enact."
As for this treaty, it doesn't seem too promising. Life + 70 is completely ridiculous still. It essentially says that the public (should they not have access to a good library) should be denied access to specific knowledge for no less than 70 years (from the perspective of academic books and papers), with the expectation that it will take around 95 years or so to be made public... I really wish the US would stop pushing its inane laws on other countries.
[I personally think something like 15 to 30 years (flat) would be sufficient for copyright.]
Also, "treating temporary copies as copyrightable" is pretty terrible too. I'd really like it if I could buffer a large portion of a show (from an authorized source) when on a slow connection, rather than 60 seconds. Another way that the MPAA makes it HARDER to legitimately use media...
As for banning circumvention of digital locks, that just gives companies more incentive to use shoddy, user hostile DRM in the first place, instead of thinking of an actual decent solution. (Though I applaud Valve for the work they've done on Steam.)
15 to 30 years wouldn't be that great. If you consider people who have had their older works (for instance) turned into films/etc, then you would massively lose out with a 15 year copyright not only on the rights for the film, since they could just take them for free after 15 years, but also on the subsequent renewed interest in the original story.
15 years would be excessively short and wouldn't work, and even 30 years might be pushing it, although offhand I can't think of many examples where it would be a significant issue, although it might push people to wait for copyright expiry before exploiting something, rather than paying for it.
Copyright should benefit the creator of the work, ultimately. It should not be a way to milk the work for generations afterwards. Life + 70 is 3 or even 4 generations of people who benefit, which is ridiculous, but equally 15 years is also ridiculous because it disadvantages people massively and would be open for exploitation.
Something like minimum 15 years (e.g if someone produces a work, and then dies 2 years later, the copyright is valid for 13 years after death), up to 50 years during life (which is a reasonable time given life expectancy and the time at which you are likely to produce works), because it means the works of dead people enter copyright sooner, but they have a reasonable time in which to keep them safe, and the works of the living benefit them until death, which is reasonable as well IMO.
It should all be about the person who made the damned thing, not the people who can then buy it after they have died and milk it.
15? Try 5 at most. If you haven't gotten your RoI in 5 years, the bottom line is that you are never going to get that.
wildbug Seniorius Lurkius
Typo, first sentence: "The United States Trade Representative (URTR) ..."
The purpose of copyright in the USA is clear: the advancement of science and the useful arts. It isn't a moral right for authors (and its very wording suggests no such right exists under the Constitution, and that the provision was intended to balance the public's right to its property against the reality that, if anyone can copy anything anytime, there is significant impediment to creation). In expanding copyrights to effectively "more than a human lifetime" -- especially doing so retroactively -- we are not significantly increasing the incentive for creation, but we are very significantly restricting works from public use.
drksilenc Ars Centurion
I like this except for one thing i think the 15 years should stand for private use aka non commercial, Then have the stupidly long copyright for commercial applications only. aka someone making a movie. That is the problem there needs to be a public and private copyright not just 1 type for all applications.
devientse7en Seniorius Lurkius
I disagree. I believe the only way to deal with the current IP problem is have it expire sooner. 30 years. With the way the US is going with it's IP and copyright problems the only logical solution is a reasonable expiry. To legislate IP to make it fair for all would be a nightmare. 30 years is not an unreasonable amount of time and will be bring innovation to the country.
Right now legal defense and administration is stiffling. I've worked and developed for some companies that don't know if what they made violate any IP because there is far too much IP out there for us to sort through. So we toss it out to the market and see what comes back. It's cheaper to defend and settle a suite than it is to find out if we violated someones IP in the first place.
IP in the US is seen and used as a cash cow. 1 person should should not have the ability to own "1 click purchase". The Europeans seem to be more on to it by never granting the patent in the first place. The US granted and upheld it. This isn't "innovation". Amazon owning this patent won't help Innovation.
30 years for a company
Day of death for personal.
Jokotai Ars Praefectus
@Lonyo: I agree wholeheartedly. It's nice to see an assenting voice. Far too often, the only POV's available on the Ars forums are from pure consumers.
By definition, a copyright is transferable. For instance, if I write a book, and then Penguin publishes that book, Penguin and I have entered a contract by which they are allowed a right to copy my work for the purposes of commercial exploitation. These contracts often contain terms limiting the scope and length of the rights conferred as well as methods for reversion of those rights back to the author. Even this is a dramatic oversimplification in most cases.
I personally think that if an author does not explicitly declare a beneficiary any copyrights they hold are null and void upon their death; otherwise a beneficiary may retain their copyright no more than ten years following.
[Edit: link fix]
devientse7en wrote:
I could see this as a resonable compromise so long as the terms are very tightly stated, so that a company cannot use a figurehead individual to circumvent it.
Yoozer Ars Scholae Palatinae
15 years would be excessively short and wouldn't work
Or it would work.
ZippyDSMlee Ars Praefectus
5 years top or force them to share the IP/patent by selling the use of it and getting 60% of the profit made of it.
steelgrass Ars Scholae Palatinae
There have been studies into economics of copyright. I recall a study done in the UK a few years ago during their review of copyright. They calculated the optimum length of a copyright was about 45 years. I am not sure what they were trying to optimise, but being economists they were probably doing something like trying to maximise the sales of copyrighted works. Ars reported on another study that said it was 14 years:  This second study said the optimal length of copyright is dependent on how costly it is to produce a work, and so as the cost to produce books and music has declined so should the length of copyright. The reverse has happened.
In any case basing an argument on the length of copyright on notions on moral imperatives like the creator should be rewarded for his work is fools errand. It's like putting an atheist and a Christian in a room and expecting them to come to a consensus. You have to shift the discussion to something we can all agree on, and that means the outcome must be we all get something out of it - both the people doing the creating and the consumers.
How about base it off limiting damage to soscity from all the monopolies and lawyers.
What does that say about the power balance? A larger group giving a concession to a smaller group.
Not to mention until said content's being copied there is a natural monopoly in place, which the concession addresses.
What is an audience without an actor, and an actor without an audience?
Copyright must weigh two issues and only two issues: having works for the public to enjoy and the public having the freedom to enjoy those works. The only concern about the authors should be what a system does for their output.
Jokotai wrote:
No, that's licensing, not transfer of copyright. You grant Penguin a license to print the book while still retaining the copyright yourself. Copyright in it's modern form conveys NO positive rights, only the right to exclude others from making copies.
AussieGrunt Wise, Aged Ars Veteran
On one hand, you have a group that wants life + 70, on the other you have a group that wants 5 years, 15 years, life + 0, etc.
End of the day, personally I think it all depends on what the subject matter is. I can actually see a fair argument for Mickey Mouse to still be copyrighted - the company still uses the character as a key moneymaker, and its still iconic to the brand. Commercially, the exploitation if it was make public domain would cheapen the brand, and negatively impact on the product owner.
Having said that, what about research papers, and scientific breakthroughs. What would the world be like today if Oppenheimer and Einstein, just to name two, all had their works tied up in copyright even to this day? Some of the patent battles that Apple have gone through are based on things that happened 30, 40, even 50 years ago, yet the fight now is creating limitations on creativity.
And for me, at the end of the day thats what copyright is meant to protect - creativity. Not stifle it or cripple competition, but to encourage it without hampering the original creator. Its getting to the point that the Bible will be subject to copyright...
AussieGrunt wrote:
I dunno I do not see monopolies improving the worth of an IP as much as doing everything they can to not cheapen it. On the other hand I can not see the down side in making Micky mouse public domain as it will reshuffle the IP and those with the most efficient service/qaulity systems will reap the most from it unlike a monopolistic system were you are it.
This is why I am for limited time frames for IP/patents or a IP rights licensing system set in law that an IP once sold has to be licensed out for 60% of the profit that the IP makes. You can figure out who gets what by what is mostly used in the item that is made.
Its about the only for profit IP system I have seen that dose not create "death stars".
alohadave Ars Legatus Legionis et Subscriptor
That's not what copyright means. Unless the author transfers the copyright, or is in a work-for-hire contract, the copyright remains with the author. Penguin printing the book does not imply a transfer of copyright. The copyright holder can give permission to the publisher to print the book, commonly known as a usage license.
Copyright doesn't protect characters, that's what Trademark is for. No one can use Mickey or other Disney characters because the characters are trademarked. What the copyright extensions have done is to allow Disney the exclusive right to control distribution of the films and other works. If they fall out of copyright, then anyone can sell copies of the work.
For example, if Steamboat Willie fell out of copyright, anyone could do what they liked with the movie. Re-cut it, show it in theaters, sell it on DVD, etc. If the characters are trademarked, you couldn't make a new work with Willie or Mickey.
Ideas and facts cannot be copyrighted. Scientific and mathematical formulas are facts and are not protected. This is central to the reason that phonebooks aren't copyrighted. It is a list of facts. There are some exceptions if you do analysis on the data and present that, but the basic facts aren't copyrightable. They may be patented, but that is a whole separate rathole.
I apologize, I was conflating copyright with granted rights. But, the point still stands: a copyright can be transferred. Some publications do actually stipulate a complete purchase of copyright from the author (TSR comes to mind, even though they're now owned by WotC and I don't know their policies offhand).
This is true, and I have no problem with copyright being transferrable.
Yes, copyright can be transferred under the current regime, but that alone says nothing about whether or not this policy is a good one or not. Obviously, if transfer were not possible, than WotC could not require transfer.
Disney and many corps push for a longer and longer monopoly on works, they buy up these monopolies and exploit them for everything the can get. Does society benefit from 70+ years of copyright?
No - we get rehashed reformatted redone and rebooted movies where they can make the most from something familiar, instead of creating. It is like the difference between Pixar and Disney, Pixar makes great movies that stand alone, Disney buys everything and markets it to death coming up with unending drivel because that is easier cheaper and greater cost benefit. I say that Disney would once again make great movies that could stand alone if they needed to, like they did before.
reply Wed Jul 04, 2012 12:06 am
Mydrrin wrote:
I'm not entirely certain that it would have much of an effect on Disney. Since they brought on Lasseter with the Pixar merger, and Lasseter proceeded to cut their low-budget studios, the quality has already improved, at least as far as their animated features go. However, Disney has a long history of recapitulating works from the public domain. At least recently those derivative works are starting to feature more creative twists (e.g. The Frog Prince as told in 1920's New Orleans).
Furthermore, as it pertains to Hollywood, recapitulating old works is the old way to make easy money. The new method is reality programming and infotainment documentary (and even hybrids in between). The majority of Hollywood continues to demonstrate entropy in the most appalling way possible. Limiting the terms of copyright won't trigger a new renaissance. The function of their creativity tends to be finding new ways to create content devoid of any deeper meaning.
On the other hand, whittling the length of copyright to the length of a flea's lifetime (and I know I'm exaggerating, but it's just to demonstrate the point) will only lead to Hollywood circling the expiration of copyright in order to repackage their work without having to deal with licensing or creative control. Once the author's copyright is expired, they will be powerless to bring Hollywood to court over copying large portions of their work with only small and largely demeaning changes (see Starship Troopers, even though that was a licensed deal which if Heinlein were alive he'd have never permitted).
I personally would like to see what the USTR's actual proposal was and what bearing it might have on US Copyright law. If it gets rid of the silly profit-maximizing and industry control schemes of the RIAA and MPAA, then I'm okay with those. If it turns the tables against independant content creators, then I'm not. I'd be optimistic but US politicians don't have a great track record for compromises.
Cherlindrea Ars Tribunus Militum
@Lonyo: I have to agree with others on this thread that I think your proposal would ultimately not benefit the creative endeavors that the original wording in the Constitution inspired in my personal translation. Given the brief and vague wording we have to work from in the actual Constitution, we really only have subsequent treaties, rulings, and other precedents to work from--but those are what have helped land us in the current situation.
The way I interpret copyright is thus: it is meant as a remission to artists/authors who create works that the public value. To me, the most important aspect to this is that the public values. Current copyright schemes have taken too much an entitled stance coming from the creator's perspective.
Copyright--again, in my opinion and interpretation--should be the public rewarding a creation they like. That creation should not be the end-all of the conversation between public and creator, though--which those like Disney and the RIAA have taken it to be. It should be the impetus that allows the creator to make a comfortable living through the time it takes to create further works of value to the public. As such, it should have a reasonably short duration because that further drives those with valued creative talents to continue with their skills for the betterment of society and the enjoyment of the public. This, to me, is what would truly drive an open and equal communication between audience and artist.
As it currently stands, if someone creates a one-hit wonder (be it movie, song, painting, etc.), that person can stand to make a fortune for their life, and quite possibly their kids and grandkids as well. This is not in any way encouraging that person to continue on creating desirable works. Why would someone want to keep slaving at their trade if they're making a killing off one success they've already done?
I personally think that 10 years is a decent time limit to recompense an author for writing a best-selling novel (very few novels outside of Robert Jordan or George R. R. Martin take over a decade to write). I wouldn't even balk at up to 20 years. But beyond that, if that artist truly had talent in their field and not a one-off savant, then they have been paid for far more than enough time for them to produce a second, third, or whatever subsequent work is necessary for them to make a living off that work for the next decade or two. And thus the circle of art goes.
Once again, this is all my interpretation from the Constitution stance, but I say it coming from an art-lover's perspective, but also from an artist's perspective. I have created and I have enjoyed the creations of others.
From both sides, I think that works need to enter the public domain far faster and with more reliability than they have for the last 50 years or more.
Once the 15 years are up, absolutely anybody would be able to create the derivative work. You would have massive competition from other people interested in doing the same thing. For popular works, I think this competition would cost more than securing a licensing deal with the author within the 15 year period and releasing a movie early with no competition. This is already happening for a lot of books (see Harry Potter and Da Vinci Code)
For the huge number of works that aren't actually popular, I agree that you would get Hollywood-types cherry-picking the better written stories as possible movie plots with no money for the author. But I think this would be more than offset by having your unpopular work finally popularized. Which would create incentive to write more to cash in on this popularity.
Ultimately, the biggest problem for any author or artist is actually popularity and attention and significantly shorter copyright terms would cast the limelight on a much larger group of people.