From the Mises blog; archived comments below.
I just listened to the most recent episode of Denise Howell’s This Week in Law. It featured anti-copyright activist and artist Nina Paley, and had a really excellent, fascinating and wide ranging extended discussion of artistic creativity, problems with copyright and the Creative Commons license model, and so on (I was a guest on last week’s show). Refreshingly, the two lawyers on the show, Howell and Evan Brown, as well as the other guest, Siva Vaidhyanathan, all seemed receptive to at least part of Paley’s copyright-abolitionism. All of them seem to favor reform. One interesting discussion involved the problem of copyright now being automatic and the default, ever since copyright law was revised in the 1970s. Before then you had to actively register your work and put a copyright notice on it. But the law was changed so that there are no “formalities” needed; copyright is now automatically granted whether you want it or not as soon as you create the work.
The panelists rightly point out that a big improvement in the law would be to make copyright opt-in instead of opt-out. (I proposed such a change in “Reducing the Cost of IP Law.”) As Vaidhyanathan notes, however, there are two main obstacles to this. First, the RIAA and corporate interests would strongly oppose any calls for legislative reform; and the US is now obligated under international treaties to have no formalities for copyright protection to exist (see my post The Mountain of IP Legislation). So the US would arguably violate international law (largely of its own creation) if it were to change copyright to the pre-1976 system or to any kind of opt-in system.
Another problem is that the current system is not only not opt-in, it is not even opt-out. This is because there is no easy way to get rid of copyright; I am even suspicious of the legal validity of creative commons licenses, and none of these would make the work truly public domain; CC0 comes close but its validity and global applicability is much more doubtful (see my post Copyright is very sticky!). So given the difficulties in making copyright opt-in, one big improvement in the law would be to at least permit people to opt out of it (or partially opt out, whatever)–basically, the copyright law could be amended to recognize the ability of a copyright holder to partially or completely give up copyright protection, by means of creative commons licenses or other manifestations of intent. I am not aware that permitting people to voluntarily get rid of automatically generated copyright law would violate any of the copyright treaties.
The video for this episode is below; it’s also on the TWiL page for this episode; you can also subscribe to the audio or video podcast for this show.
- February 14, 2011 at 3:08 pm
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Stephan,
I was unaware this was a problem. Isn’t it true that anyone possessing a copyright can refuse to enforce it, grant an unlimited license, place it in a trust that has no authority to enforce, etc?
Why would one need a formally opt out of the copyright law when they already have the discretion to give away the rights if they choose?
It was my understanding that the Creative Commons license has the effect of requiring attribution. Is that incorrect?
What about the problem that a protected work, if its owner opted out of copyright protection without placing the work forever in the public domain, could then be copyrighted by another, since it is still a protectable work, yet not in the public domain?
Is there no way to place a copyrighted work inthe public domain before expiration?
- February 15, 2011 at 2:39 am
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That Siva guy is nuts.
Google exists solely because of the State. Stanford innovates because of the State.
What’s next? Al Gore invented the internet?Bah. I’m not listening to this guy ramble on …
- February 15, 2011 at 12:27 pm
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I find it worthy of note that pro-IP advocates continue to admit to problems with IP regulation but fail to carry through to the fundamental. Instead they say they are in favour of “reform” of IP laws (it’s never explained exactly what they’d reform and how it would supposedly “work”).
If you went to a doctor because you had a UTI and rather than eliminating the infection he stated, that while the UTI was uncomfortable for you, he’d rather not treat it. Instead he’d reform it to allow it to work better, well, surely you’d be out of there…
Sione
- February 23, 2011 at 8:51 pm
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I generally lean toward copyright abolition, but (like Lincoln?) could be persuaded to get behind a gradual emancipation plan. So for the sake of devil’s advocacy, I’d say these reforms could at least get the world a step closer to sanity.
-No more automatic copyright; require registration.
-Derivative works of all kinds (not just parody but your own film of Deathly Hallows part 2) permitted from day one.
-Repeal of Eldred v Ashcroft. By this I mean that copyright statutes would be open to constitutional challenge on the basis that they did not demonstrably promote science and the useful arts (their constitutional purpose)
-Repeal of the NET Act, the DMCA, and the immediate roundfiling of ACTALet me be clear: I’m no IP advocate; I think it’s an invalid concept. But these seem like reasonable steps to me, for a simple reason:
If you question the average nonexpert about copyright, she will probably think this is *already* how copyrights are implemented. i.e. she will think that registration is required, that “criminal infringement” requires that someone be setting up a profitable company around unauthorized copying, and that the technological control measures in the DMCA are stupid as hell.
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