Ages ago, I mentioned that I’d like to see a far more radical copyright reform than any I’ve seen proposed. One of Alas’ readers asked me how I’d design a copyright system.
Well, I’d start with a few principles in mind…
- Everyone owns their own mind, and should be free to make use of whatever is poured into that mind. This means that if I want to write my own “Harry Potter” novel, I should be free to do so.
- Everyone has a right to profit from their own creations, assuming the market is willing to pay for them.
- Corporations are not people and are incapable of being creators.
- It should not be legal for publishers – or creators – to keep once-published creative works out of print and unavailable to consumers indefinitely.
So what kind of copyright law would I enact, if I were elected despot someday?
1) No more work-for-hire laws, period. The creator or creator(s) are the ones who actually created the work (whatever that work is); their ownership of their own work cannot be sold or even given away. (I’ve blogged about the ways work-for-hire harms creators here and here).
What about currently existing work-for-hire creations? If possible, ownership of those works should be returned to their true creators. If that’s not possible (if the original creators have died, for instance), then the work becomes public domain.
2) Compulsory licensing should be the law of the land, allowing anyone to publish any work at will.
What is compulsory licensing? Just what it sounds like – “A compulsory license forces a copyright (or patent) owner to permit someone else to use the work for a predetermined fee. Accordingly, it precludes the owner of the copyright (or patent) from refusing to license her work to other people…”
Say, for instance, I wanted to publish a proper edition of J.K. Rowling’s Harry Potter and the Philosopher’s Stone – one in which the original British language is retained. I wouldn’t need permission to do that; I’d just need to start sending the royality checks to J.K. Rowling’s representatives.
3) Derivative works also benefit from compulsory licensing.
Current “fair use” laws would still apply. Authors would be free to use brief quotes from J.K. Rowling without permission in certain contexts (for an epigram, say, or as part of a scholarly book discussing Harry Potter).
But what if I write my own Harry Potter novel (“Harry Potter and the overly restrictive copyright law“). Again, compulsory licensing would apply. I can write as many Harry Potter books as I want – but if they start turning a profit, I (or my publisher) must send royalty checks to J.K. Rowling. (Rowling’s percentage would be lower for this than for a straight-out reprinting, however.)
4) Open book policy. To keep corporations from falsely claiming that there are no profits to share, publication of a work – or a derivative work – legally obliges the publisher (distributor, label, studio, whatever) to completely open their books and financial records to the creator’s legal and financial representatives.
5) In collaborative works, each creator is a co-owner of the final creative product. Everyone gets a share of the profits. The default (if no contract says otherwise) is for all creators’ profits to be divided equally between all creators; however, creators can write agreements to divide profits in a different manner.
6) In collaborative works, each creator is the full owner of their own contribution to the degree that their contribution can be separated from the creative work.
To see why this is needed, remember the old ABC sit-com Three’s Company. When the show’s co-star Suzanne Sommers, who played “Chrissy,” left the show, she was arguably the most popular TV actress in the USA; yet no other TV network was willing to hire her for over five years. Why not? Because ABC, bitter over losing Sommers, threatened to sue any network that hired Sommers, on the grounds that ABC owned “Chrissy’s” distinctive likeness.
This is what inevitably happens when large corporations are permitted to own copyrights; rather than using them to encourage creativity, which should be the purpose of copyright, corporations use copyright to prevent other creators from creating.
Under my system, Sommers would have been free to continue to perform, without threat of a copyright lawsuit.
In other examples, Joss Whedan should be free to shop around his script to Aliens 4 around to other movie studios, since he was reportedly displeased with how the first script came out. Steve Gerber, who created Howard the Duck in an issue of The Incredible Hulk (published by Marvel Comics), would fully own Howard, and be free to publish more Howard the Duck as he pleases. (Of course, Marvel can also publish their own version of Howard the Duck – but they’d have to pay Gerber royalties for publishing a derivative of his work).
That about covers it, I think… suggestions? Comments?.
Hmmm, for a despot, your proposed laws aren’t that corrupt and self-serving. I’m disasppointed. Are you going for being one of those “enlightened despots” like Louis XIV? You’d still need to create huge, expensive monuments to your own greatness.
Anyway, I guess my problem with this proposal, from a practical standpoint, is that I’m not sure how we’d legally define who the creator is. Also, what about a film, where thousands of people work on it? To we count a grip or script supervisor as a co-creator – whose jobs are absolutely necessary for the production, but not essential for the creative process.
Also are you saying that corporations shouldn’t own creators and their creations? You know, there’s a word for systems that allow people to be masters of their own fates regardless of how little wealth they have, it’s called Communism!!!! Are you saying we should just dissolve the United States and surrender to the Soviet Union? The Soviet Union doesn’t even exist anymore!
Okay, that was a bit ridiculous. I guess the second paragraph is the important one here.
Great ideas – but it could only possibly work if you carved out an exception for works created in 1928 and that premiered on November 18 of that year featuring rodents driving steamships. And his friends.
By and large I agree with you, however I have a problem with point (2). I worry that there would be the possibility that the creator’s work would be published (or whatever) in a context that completely changes it’s meaning, which would be unfair to the creator.
Also, I think the derivative works policy is a bit weak. Say J. K. Rowling put out the Harry Potter books. And say you wrote one of your own, and now you’re paying her royalties. And say I then put out one of my own. Do I owe you royalties as well as her? How much influence does your derivative have to have had on mine before I do? How can it be demonstrated that your derivative did or didn’t influence mine?
These are minor weaknesses, though. By and large I think I agree with you.
Can collaborators write a contract such that one of them surrenders all future royalties in exchange for a lump sum up front? If so, that allows something similar to work-for-hire.
Jake, that’s a non-issue you bring up, JK Rowlings isn’t owed royalties because she wrote it first, but because she is the creator of the character and franchise hence Harry Potter is the intellectual property of JK Rowlings. So if Amp writes a Harry Potter book and you do afterwards, then both would owe royalties to JK Rowlings and no one else. That’s more or less, to my understanding, how copyright laws work now (intellectual property-wise, not on who owns it) so I wouldn’t see why it would change.
Looking over that post, “non-issue” seems a bit harsh, but I don’t know how to phrase it better.
Hmm… Raznor brings up an interesting point about film and the many people it takes to create a film. I think that what would eventually end up happening is a division of the film labor force into two categories: creative jobs and technical jobs. Creative jobs would be for people like the screenwriter, the director, the director of photography, etc., while technical jobs would be for people like boom operators, technical assistants, and so forth. The line gets blurred, unfortunately, when dealing with things like the art departments (does a miniature builder count as a creator? I wouldn’t think so) but I imagine that individual contracts would work things out.
I imagine this as being somewhat analogous to book publishing. The writer is a creator, the illustrator is a creator, but the people who set the type and run the printing press are not creators even though they’re vital to the existence of the final product.
Raznor, I don’t think that Jake’s issue is actually a non-issue. If you write a Harry Potter novel and introduce the evil wizard Bob, and then Jake writes a Harry Potter that centers around the evil wizard Bob, does Jake owe you royalties for using your created character, or does he only owe Rowling royalties because the overall world belongs to Rowling? If his Harry Potter/Hunt for Red October crossover novels become hugely popular, which author does he owe royalties to? Both? Equally? They aren’t unanswerable questions, but they are questions that would require answers.
On a side point, would Calvin and Hobbes have ever been written if compulsary licensing were the law? In private conversation, Amp claims it would have, since no artist would choose to not create rather than create under a system hostile to his own conception of how his creations should be treated, but reading the article on Watterson that Amp linked to a few days ago, I have to say I doubt that Watterson would have chosen to subject his characters to what would have occured under compulsary licensing.
Any self-respecting despot would have to include a provision that 1% of all licensing fees go to said despot.
I wonder if Watterson would actually have foregone riches, fame, and the fun of creating over compulsory licensing. Perhaps as a sucessful cartoonist looking back, but as a cartoonist starting out?
Well, he did choose to risk foregoing riches, fame and fun in order to avoiding having to add robotman to his cartoon.
Charles, in the event of a Harry Potter/Hunt for Red October crossover, royalties would be equally owed to JK Rowling and (is it Tom Clancy?). That sort of thing happens all the time in our current climate.
As for the Evil Bob part, I’m not so sure of that. That’s an odd detail that I’d wonder about, so good point.
I’m kind of not sure about the compulsory licence part. On the one hand, an individual artist shouldn’t be hampered as to what he or she can and can’t write, but I’d worry about the new Harry Potter series of crappy videos from Disney that capitalizes on the creation but utterly cheapens it. As an artist, I’d want more control over my creation than that.
Thank God you have someone reading who can focus on the real issue, which is that Howard the Duck was first seen in an issue of Adventures in Fear, in a Man-Thing story, not Hulk.
Slightly more seriously, though, in almost any medium except written fiction, it’s hard to decide who to credit with the creation of a character. We don’t have to get into the question of “creative” vs. “technical” controbutions. Take, indeed, “Chrissy”. Who does own that character? The many writers of the show? The actress? Directors? Producers? The writers of the original British show “Man About the House” on which “Three’s Company” was based?
There’s at least one book of scripts of the show “Friends”. It’s amazing how the lines just sit there flat on the page when they’re not being performed and directed. Without being an insider, I’m highly convinced that a lot of the credit goes to James Burrows, who used to direct that show and now does Will & Grace — and think of Jack and Karen on that show for perfect examples of characters that are all in the delivery. So who owns Joey?
In comics, again, creator credit can be controversial, especially when considering characters in retrospect. Some comics characters have been through multiple sets of powers, real names, and visual appearances. It’s hard to divvy it up. There was a long, long piece in a recent New Yorker on the process of arbitration of the writer’s credit on a film. The example given was for the Hulk movie, which had dozens of drafts combining story elements from (potentially) hundreds of comic stories.
Finally, if an individual creator really wants to disown and erase one of their own earlier works, I’m not sure they shouldn’t be allowed to.
Double-finally, I heard an intellectual property hardliner on NPR about a year ago arguing that copyright should be eternal, and that if Shakespeare is really the world’s greatest author, his (non-existent) heirs should be raking in super-boatloads of money for all time, for the enormous benefit his work has given the world. As they say, it’s a point of view.
Possibly, Charles, although I can’t see Robotman fitting into what Watterson was trying to sell, so it seems to me that he was hoping to sell what he figured would work versus capitulating to something he thought would be a failure. Only he knows for sure what he was thinking (and it sounds as though he doesn’t really want to tell us). He certainly wasn’t adverse to making changes they suggested as to what characters to use and what to drop (and it seems on that subject the powers that be were pretty smart — that would be batting .500). I do wonder if he would actually have simply refused to do a cartoon if our despot’s rules were the law. Maybe, but I wouldn’t bet big money on it, and I’d want long odds.
As a brother of an insider, I can tell you television scripts are an unusual beast. Usually for a sitcom, you have a dozen or so writers, each submits one or two episodes a season, and everyone gets together to edit it before it’s shot. The “writer” of an episode really contributes pretty little outside the skeleton of the piece, but their credit gives them greater rights regarding royalties for that particular episode.
Ownership of a character in this case would go to everyone involved, if we follow Amp’s guidelines above. The ownership of a character’s likeness is absurd, in despotic copyright law or current, I wonder if ABC would have won any of it’s proposed lawsuits.
But that’s different than Evil Bob, since in this case, Evil Bob is in a book, so his creation is traced to a specific person, being the author. What would happen if JK Rowlings read this book and then decided she liked Evil Bob and added him to her new book, Harry Potter and the Very Large Goat. Would she owe royalties?
Amp, you thought of this kah-rayzee law, and your hypothetical self created evil Bob, so what do you think?
What about non-media intellectual property, like drug formulations and technological inventions? They’re actually the biggest exploiters of work for hire. If I’m an engineer, and I work for Widgets, Inc., they would likely make me sign a contract saying that any new widgets or widget improvements that I design in their labs while under their employ belong to them. If they couldn’t do that, if they knew that I could build a better widget while on salary with them, and then turn around and sell it to International Widget Corp. across the street, they’d be unlikely to hire me, and I’d be out of a job, and there would be no new and improved widgets.
Also, would a creator still have the right to sell the copyrights to his works? Could I accept a million dollars from Widgets Inc. for my design idea and then let them sell it for me? Could I sell my hit pop single to a record company and let them have the distribution rights if I decided I didn’t want it anymore? If so, there’s a huge loophole in the “work for hire” ban. If not, there’s a huge limit on intellectual property rights as we know them.
I’m intrigued by the ideas and have much more than a little sympathy with them, but…
What about non-fiction? I’m thinking of a particular real life example that, admittedly, isn’t too common, but with which I deal every month or so:
My company did a piece of research over five years. We published an interim report of findings after two years (and by “published” I mean as a book). However, over the next three years, we found, as we knew we would, that some of the things in the interim report either were incomplete or were, in fact, not so. Our publication at the end of the five years contained the most up-to-date information and we ceased granting permission to cite (much less distribute) the two year report.
However, the earlier report was widely disseminated in our field and we sometimes find that our current work is criticized based upon misunderstandings relating to that report. We also receive requests to reprint parts of the earlier report about a dozen times every year.
Compelling us to accept the publication of the two year report, with its flaws and omissions, would simply not be acceptable.
Certainly no one should feel compelled to answer this objection, but it is a factor in my thoughts on the issue. By the by, my company is in the process of moving to Creative Commons licenses for future publications.
I agree with Charles…. I think it is completely likely that Watterson would never have created Calvin & Hobbes if it could have been hijacked for a royalty. I remember the example being given of a Hobbes stuffed animal. This would probably be the least offensive of a licensed product, and yet Watterson never authorized it. Why? There was enourmous demand for it – and it wouldn’t have affected the creative aspect of C&H at all. I dunno – I’m not saying that C&H should have gone the way of Garfield – in fact, I am profoundly grateful that it didn’t. But it is clear that Watterson never wanted C&H licensing.
And with compulsory licensing, every popular cultural idea would go through a brief Garfield like stage, where toy, sticker and other schlock manufacturers would quickly tool up to take advantage of the craze, and then move on when they had overfished the market. It would result in a tragedy of the commons for every new C&H. Sure, maybe we would become adept at telling the difference between a real Harry Potter and the fan-fic Harry Potter – but why should someone create a character just to see him peeing on a Ford emblem two days later.
Perhaps compulsory licensing for non-commercial uses would be a solution – people could write fan fic without fear of lawsuit, while JKR could be secure knowing that the market was not about to become flooded with crappy and/or dangerous Harry Potter rip off toys.
Finally, no matter what, copyright should end when you die. Creators need to be compensated for their work, and copyright encourages people to write (or so the theory goes) but no one writes so that their heirs can get fat on the royalties. Mickey Mouse should be mine to torment.
Y’arr, matey, ye be an Airrrr Pirate!
I don’t know that compulsory licensing would be a cause for Watterson to stop creating Calvin and Hobbes. He could just withhold it from the public by not publishing it… which is perfectly legal under these fantasy rules. If you wanted total creative control and didn’t care about the money, you could create as much stuff as you want and only show it to people you trust, or no one at all.
I’m a technical writer, which means my day work is work-made-for-hire. I think it’s completely appropriate that it be so; I’m not putting in substantive original intellectual content. I’m organizing a set of known (or should-be *g*) facts into a bland structure. For this, I am paid salary; if I were paid royalties on software manuals, I’d starve to death. (We give ’em away free.)
I’ve done original intellectual work. My technical writing is not it.
I’ve got serious reservations about a couple of these proposals.
First, I share the concern about compulsory licensing that others have voiced. It seems to me that this system would give too much power to big corporations like Disney–if I write a charming little children’s book, the Mouse can come along and make a crappy movie using my characters, spend gazillions promoting it, and cement the association between my characters and their brand in the imagination of the public. (This happens under the current system, too, but only to dead people like A. A. Milne.) Sure, I get paid. But my creation gets degraded and diluted, and there’s a significant risk that my own works involving my characters will begin to seem derivative to readers who are more familiar with the Mouse’s version. I think Amp’s more of a materialist than I am; I don’t believe that the loss of creative control can be compensated at a standard rate.
I’m also wary of the abolition of work for hire, odd as it may sound. I don’t like a lot of the consequences of the present system, but at the same time, I think that artists in Amptopia would suffer from decreased job security. Amp’s rules seem to encourage the “lay them all off and then hire them back as consultants” approach to downsizing: if a company can simply pony up the royalties for whatever independent creation it wants to exploit, why should it bother keeping artists on payroll and giving them benefits?
I read over these posts. It sounds as though, as usual, there is a fair amount of confusion about copyright, trademarks and patents- – which are all different things.
But.. even putting that aside. It’s important to remember that copyright laws must make some modicum of sense when applied to ALL of the following (and more):
1) Books.
2) Cartoons.
3) Computer programs.
4) Computer manuals.
5) Movies created by huge groups of people.
6) original clothing designs.
7) Knitting patterns.
8) Paintings.
9)
Oh.. a huge number of things. Amp seems to be fixated on 1 and 2.. but forgetting that 3- ? also matter.
Do you really think the proposed rules make *any* sense when appllied to computer programs like MS Word?
Shoot.. I shouldn’t blog when I’ve had a half bottle of wine… LOL!
You’re right… I didn’t think of programs like Word, and I should have. I’ll have to fall back and rethink things.
Another application of copyright law not yet mentioned that the proposed rule seems very inadequate for handling:
Currently, if I write a letter to you, you own the physical copy, but you don’t hold the copyright. While you can show the letter to anyone you want, you can’t publish the letter without my permission. Likewise, if I write a manuscript, I hold the copyright even before I publish it, and therefore I have the exclusive right to decide whether to publish the work. Under Amp’s proposal, anyone can publish my work at any time, so long as they pay me for it. So I lose all negative say over whether or not my creations see print. If I lend you a copy of my manuscript to read over, and you decide it is worth publishing as it stands, I have no legal recourse, so long as you give me a cut of any profits. Furthermore, I don’t see any way under Amp’s system for an author to prevent anyone from taking that author’s work, editing it as they see fit, and republishing it as a new edition of the work (so long as they mention somewhere that it has been re-edited). I can’t think of anyway that this free form corruption of texts would be to anyones benefit.
Even excluding the massive blindspots pointed out by lucia, I still think that this proposed system goes far too far in denying that authors have any interest in their created works besides a financial interest. I think that most authors have a legitimate desire for their work to be published in the manner that they choose, not in a rough draft, and not in an expurgated version. Amp’s system would deny authors the right to have these desires respected.
Another application of copyright law not yet mentioned that the proposed rule seems very inadequate for handling:
Currently, if I write a letter to you, you own the physical copy, but you don’t hold the copyright. While you can show the letter to anyone you want, you can’t publish the letter without my permission. Likewise, if I write a manuscript, I hold the copyright even before I publish it, and therefore I have the exclusive right to decide whether to publish the work. Under Amp’s proposal, anyone can publish my work at any time, so long as they pay me for it. So I lose all negative say over whether or not my creations see print. If I lend you a copy of my manuscript to read over, and you decide it is worth publishing as it stands, I have no legal recourse, so long as you give me a cut of any profits. Furthermore, I don’t see any way under Amp’s system for an author to prevent anyone from taking that author’s work, editing it as they see fit, and republishing it as a new edition of the work (so long as they mention somewhere that it has been re-edited). I can’t think of anyway that this free form corruption of texts would be to anyones benefit.
Even excluding the massive blindspots pointed out by lucia, I still think that this proposed system goes far too far in denying that authors have any interest in their created works besides a financial interest. I think that most authors have a legitimate desire for their work to be published in the manner that they choose, not in a rough draft, and not in an expurgated version. Amp’s system would deny authors the right to have these desires respected.
oops.
Damned program, republishing my works without permission…
Damned program, republishing my works without permission…
lol. ANd I usually don’t even use internet abbreviations.
I should add that my brother is a screenwriter who makes his living on work-for-hire. It’s a good system that really protects the screenwriter, if you can sell enough scripts you can join the Screenwriter’s Guild, and you get a lot of rights from that. And then you do work-for-hire until you make enough money to write your own script and try to sell it to some studio. So in the meantime, he’s writing things like Wild Things 2, Wild Things 3 and so on.
But then this is different, because where the writer is an important part of film, he is one of many, many parts, unlike say cartoons.
I don’t know exactly what my point here is, but I’ve got a paper to write. Then publish and sell the rights to Disney.
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