October 6, 2003
A Tiered Expiration System?
I’ve recently been thinking about changes to the derivatives right. I’ve looked at compulsory licensing (in the sense of section 115) and changes to damages calculation, fair use, and/or the definition of derivative. And, of course, copyright expiration and a rich public domain would help. One idea I haven’t seen yet: having the derivative right expire prior to other rights.
Why might this be appealing? I am hypothesizing that most of the commercial derivative tie-ins happen relatively soon after the original release. You sell the movie derivative from a book when the book’s a best seller; you tie the video game and the McDonald’s toy line to the movie’s release; if you’re expecting to make money from a sequel, you make it relatively soon after; and so on. I know this doesn’t necessarily work across the board. But, when someone’s thinking about profiting from their work, for some reason banking on distributing it 25 years into the future seems a lot more plausible than banking on licensing deals that far into the future.
So maybe we’d have a sort of tiered expiration system, with the right to make derivatives falling into the public domain way earlier.
There are some substantial benefits over any system that involves a new balancing test for damages or fair use. I think it’s important that we revamp those rules, too, but I’m not sure if that’s enough. I don’t know how you get rid of the ambiguity in those sorts of tests. And in the compulsory licensing context, it would be complicated unless you restrict the right to one very specific type of appropriation. With a tiered expiration, we get a bright line rule.
Is it worth it? What would the timing be? Would it cover all derivatives (treating rap songs like expurgated films?)? Not sure right now. I’ll keep thinking about it – tell me if this idea is totally off the wall, or if you’ve seen it argued/explained elsewhere. Just throwing this out there in the midst of more research.
Filed by Derek Slater at 12:40 am under General news
5 Comments
Amen! The first idea that even begins to make sense.
We’re entering an era of utter madness where copyright is concerned. I often deride lawyers for being word-wizards and this condemnation is no more deserving than in the area of copyright law. We’re to the point now where judges are actually entertaining law suits over word snippets.
I’m to the point now that I don’t want to create anymore. I don’t have the time to research whether or not my hard work is infringing and I can’t afford to pay someone to do the research for me. So, I’m just going to chuck-it until we get out of this fog of insanity.
Though I’m all for it, I can’t see the idea being any more popular with the anti-Eldred crowd than a full roll-back of copyright protections.
One would think the Movie Studios would be agush at the prospect of not having to deal with litigation stemming from derivative works.
However, this will probably not be the case because of the potential losses to future cash cows like “Gone with the Wind” the video game.
I think many very bright lines would be necessary, and there would end up being classes of derivative works (translations and conversions to film, or simply the addition of annotations, would be a separate class from the use of the ‘Spiderman’ character in an opera).
Though, after considering some possible upsides, I think the biggest winner would be CliffsNotes.
I think we need to do a couple of things here.
First, I think we need to distinguish between what I call “translations” and true derivatives. Translations, whether between language (Harry Potter from English to German) or media (Harry Potter the Movie), should remain the property of the copyright holder for the length of the original copyright. The definition of “translation” should be fairly narrowly tailored.
Second, I would offer a concept I call the “non-discriminatory” license. That is, you don’t have to license derivatives, or license them at any particular price, but if you do license, you must license to all on the same terms. Moreover, you may not discriminate on the basis of content.
If you license toys for McDonald’s, you must license toys for anyone else on the same terms, and you may not include a clause that would allow you to censor particular toys based upon their content (we don’t like how your toy depicts our characters).
Btw, this would go for sequels. Even if the original author writes a sequel, they must set a licensing price that would allow others to write sequels. They could set the licensing price absurdly high, of course. However, they would be taxed on the licensing fee independently. So, if they set the licensing fee at $100/book for a sequel … and then sold 1,000 of their own sequels for $30/book … they would be taxed as if they had made $100,000, not $30,000.
Mr. Miller.
First, please excuse the poorly formatted prior response; It’s obviously been awhile since I used html.
Second, on the subject of “translations”, I think there will be numerous ambiguities inherent in that term. The German Harry Potter project resulted in much debate as to what constituted a “proper translation”. Many Japanese Lit professors have butted heads about ‘correct’ translations of Saigyo (thankfully in the public domain). At what point is the translation a ‘de facto translation’ placed into the immediate proximity category versus a derivative work which takes into account value added from the translator? How will you measure degrees? Sounds too much like obscenity law to me..
On media, I think Dennis Lahane put it well in a recent Fresh Air Interview . He said he’d never go through the process of adaptation again, because working a 400 page novel into a 2-hour movie (or abridged book on tape) paralleled having part of himself surgically extracted. Emotions aside, I’m sure he’d suggest the end result is sometimes a substantively different work. Should the royalties paid enter some sliding scale system depending on how closely the derivative resembles the original?
Additionally, a “non-discriminatory” license might have a chilling effect. If the author fears opening her work to what she might consider ‘misuse’, she might never license the work at all. To date myself, Xavier Roberts might never license Cabbage-Patch Kids for fear they might be turned into Garbage-Pail Kids (bad example – fair use and parody), but what if licensing had allowed creation of an adult version – not protected by parody.
The last example you give may create an incentive not to create. If an author has a choice between writing a sequel, and thus enabling all others to profit off copy-cat sequels while diluting the “brand”, or not writing one and simply continuing to profit from the undiluted original, they may choose the latter. The fans would lose for want of a sequel.
On equal licensing, I think it’s a good idea. Movie makers fear nothing more than bringing to light the inequity in their licensing contracts. It may forestall anti-competitive behavior, or in the very least open playing fields a little.
As I stated before; I’m all for a shortened derivative work term (for that matter a shorter copyright term), but I fear regulations so abstruse they might not mete out their original purpose. Even as it stands copyright law uses the Walt Whitman defense, “Do I contradict myself? Very well then I contradict myself. (I am large and contain multitudes)”.
Translations will sometimes be somewhat ambiguous, but most will not be. The question is not whether the translation is correct, but whether the intent was a translation. Any ambiguities should generally be resolved to be a derivate work. In any case, the rights for a “translation” would be no greater than the existing rights today.
With regard to Lanhane, translators will enter contractual agreements with the original authors as occurs now.
The question of a chilling effect is a real one. However, I’m fairly certain that the benefits outweigh the harms. People are going to want to make money from derivatives. If integrity is so important to them that they will forswear all derivatives, I’m not so sure that will be much harm. After all, most people want to make as much money as possible, which means they will have to license derivatives. Given that parody and fair use for criticism will still exist, what does the close holder of derivative rights gain?
I don’t think sequel writers will have too much of a disincentive. After all, you want to read Harry Potter by JK Rowling, not Ernie Miller, right?
Equal licensing does have the effective of severely reducing anti-competitive behavior.