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  1. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Copyright and Public Policy

    Discussion in 'Debate Room' started by Steerpike, Jul 13, 2015.

    I didn't want to hijack the other thread, so...

    One thing people lose sight of with respect to Intellectual Property generally is that the systems we have are supposed to have a public benefit. That is, in fact, a core principle underlying the systems we have. The U.S. Constitution makes this clear in the clause that gives Congress the power to establish the copyright and patent systems:

    "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

    Trademarks aren't mentioned there, and the system is a bit different (although we have a federal registration system, trademark protection also still comes into being under common law and state law regimes). The public benefit is an overriding consideration of the trademark system as well. The idea is that the consumer can see a trademark and know that any goods bearing that mark come from the same source. The consumer can then associate any impressions they have, good or bad, with that mark and have a reasonable expectation that it is consistent and you don't have ten companies using the same mark on the same goods. If you try to register a mark too similar to someone else's, the test the Trademark Office will use in deciding whether to allow it is whether the public is likely to be confused into thinking that your goods originated from, or are somehow associated with the other entity's products. If you want to license a trademark, you have to have provisions ensuring quality standards and policing of the mark by the licensor, so that the public's ability to rely on the mark as an indicator of source and/or quality isn't compromised.

    Copyright terms were initially fourteen years, with a fourteen year extension allowable. After that, the public received the benefit of the work in an unlimited fashion. I think that's too short, and it was expanded over the years. Now, it is too long, and we're more interested in protecting corporate interests instead of balancing the interests of content creators against those of the public at large. My personal preference is still for a fairly long term - life of the author plus maybe 25 years. You can still come up with some seemingly unfair fact scenarios under that term, but you can do that for any of them. The fact that we have so many works written in 1923 that are potentially still under copyright, or whose status is almost impossible for the average person to determine, strikes me as wrong. The vast majority of those works all ought to be in the public domain by now.

    Patent system - same rationale. People are encouraged to innovate, and you're going to get a 17 year or so monopoly in exchange from doing so. After that, the public gets unlimited benefit of what you patented. It also encouraged people to bring inventions out into the open (thus, "patent"), which was particularly important during a large part of our history when industrial entities would keep innovations secret and behind closed doors (innovations in manufacturing processes, etc). Part of the goal of a patent system is to encourage such entities to describe their innovation to the world in exchange for a limited-time monopoly granted by the government.

    Owners of intellectual property - patent, trademark, copyright, trade secret - tend to view the system as one purely of protection for them. They see that as a moral purpose behind the system. That's just not an accurate viewpoint in terms of the historical public policy, nor is it the correct one intellectually, in my view. We're all writers here - content creators - but we're also all consumers. We should be aware of, and advocates for, the balancing of the rights of creators versus the public benefit. That's what the whole system is meant to be about, but big money tied up in IP has increasingly pushed the public benefit out of the picture.
     
  2. Jack Asher
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    Jack Asher Wildly experimental Contributor

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    I'm gonna cut out that part that I want to talk about, because I agree with everything else.
    And I actually agree with most of this as well, except for two little thought experiments.
    1.) Should a company founded on certain copyrights be able to extend their use after their original maker is dead? Their entire monetary system rides on a trademarked pair of ears. Their cartoon mouse is immediately identifiable, and there are without any doubt, people and organizations who intend to abuse customer confusion. (Have you figured out I'm talking about Disney yet?) There are no circumstances in which an element waiting for Disney's copyrights to expire, are prepared to do good with it. They are absolutely waiting to merchandise, and exploit the images, characters, and concepts for their own financial gain. Does Disney not have the right to ensure that if anyone is making black hats with big ears, they are getting a cut of that action?

    2.) Why should you wait 25 years for the death of the creator? The number seems arbitrary at best, chosen simply because you like the number perhaps. I don't see a reason with there should be any waiting period. The family of the progenitor has contributed nothing to the creation, they're only making money because they happen to be related to someone who had a good idea. Once the copyright holder has died there's no reason to keep his work out of the public domain. There's nothing he can object to, and nothing he can gain from exclusivity.

    But it really doesn't matter. Disney's legal team is capable of transcending space and time and have approximately infinite money to throw at the problem. It's unlikely we'll see Mickey Mouse in the public domain even in our children's lifetimes.

    To use an unrelated quote, "If you put a little hat on a snowball, it'll last a long time in hell."
     
  3. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Trademarks never expire, so long as they're enforced and continue to be used as trademarks. Disney has done so much at this point to protect Mickey Mouse as a trademark that even once the copyright expires they're going to be able to go after people under trademark law.

    I chose 25 years after the death of the author because it seems a reasonable amount of time to make sure all children are grown up and through college. I can imagine a situation where an author dies young and has a one year old child. If the copyright expired immediately, a movie company could go out and make a movie from the work, make a lot of money between the movie and merchandising, and the author's own child could be living in poverty and going into debt to try to get to school. Of course, you can think up unfair scenarios no matter how you set the term, but I like author plus 25 because it ensures that any children of the author have at least gone into adulthood and college years while still being able to benefit from the work, which they certainly would have if the author had remained alive.

    I decided on that term back when my kids were little, in part because when your children are that age you think about what would happen if you passed on.
     
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