posted
Just saw this at BoingBoing: Tim Wu has been debating NBC's chief counsel on copyright and the subject of Fair Use came up. Tim's suggestion for redefining Fair Use: if it adds new value, it's fair use; if it substitutes for the original, it's infringing.
quote:That’s why it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use. In my view that’s a principle already behind the traditional lines: no one (well, nearly no one) would watch Mel Brook’s Spaceballs as a substitute for Star Wars; a book review is no substitute for reading The Naked and the Dead. They are complements to the original work, not substitutes, and that makes all the difference. This simple concept would bring much clarity to the problems of secondary authorship on the web. Fan guides like the Harry Potter Lexicon or Lostpedia are not substitutes for reading the book or watching the show, and that should be the end of the legal questions surrounding them. The same goes for reasonable tribute videos like this great Guyz Nite tribute to “Die Hard.” On the other hand, its obviously not fair use to scan a book and put it online, or distribute copyrighted films using BitTorent.
We must never forget that copyright is about authorship; and secondary authors, while never as famous as the original authors, deserve some respect. Fixing fair use is one way to give them that.
I like this. Dunno if anyone could get the Copyright Office (or the affected companies) to go for it, but it's much more elegant than the current vague system. Obviously there would still be disputes over where that line is, but at least rthe argument would make more sense.
posted
I think that I have a problem with his definition because it removes a little bit of control of the characters from an author, places it in the hands of someone else, and permits them to be rewarded for it.
As an author, I'm not kosher with that. I distinguish between a property owned by an individual (say, Harry Potter) and property owned by a corporation (say, Battlestar Galactica); an individual's property is off-limits. A corporation's property is up for grabs.
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The movie versions of Harry Potter added new value by almost any usable definition of the term. Would those be considered fair use?
quote:As an author, I'm not kosher with that. I distinguish between a property owned by an individual (say, Harry Potter) and property owned by a corporation (say, Battlestar Galactica); an individual's property is off-limits. A corporation's property is up for grabs.
Could you elaborate on why you would make this distinction?
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posted
The only way I see that happening is if the law were changed, and unfortunately I don't see that happening. Copyright changes invariably give more rights to the copyright holders at the expense of everybody else, not the other way around.
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posted
That said, this line from the lawyer made me blanch:
quote:The fact that now individuals with relative ease can layer three or four songs, copy their favorite scenes from their favorite television shows, or take three or four movies and splice together their favorite action scenes and post them online does NOT mean that these uses are fair. Although some commentators have argued that the “non-commercial” nature of this type of use makes these uses fair, that is not the test under the Copyright Act.
If he's implying that these sorts of activities ought to be legally curtailed, he's an idiot. These types of things are ADVERTISEMENTS. Revenue generators.
Posts: 14554 | Registered: Dec 1999
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quote:As an author, I'm not kosher with that. I distinguish between a property owned by an individual (say, Harry Potter) and property owned by a corporation (say, Battlestar Galactica); an individual's property is off-limits. A corporation's property is up for grabs.
Could you elaborate on why you would make this distinction?
OSC covers this in his latest OSC reviews everything. I imagine the reasoning is the same.
Posts: 5462 | Registered: Apr 2005
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quote:As an author, I'm not kosher with that. I distinguish between a property owned by an individual (say, Harry Potter) and property owned by a corporation (say, Battlestar Galactica); an individual's property is off-limits. A corporation's property is up for grabs.
Could you elaborate on why you would make this distinction? [/QB]
Sure. I'm a biased hypocrite.
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quote:If he's implying that these sorts of activities ought to be legally curtailed, he's an idiot. These types of things are ADVERTISEMENTS. Revenue generators.
If it's always beneficial to the copyright owners, then they would allow it. There's nothing in current copyright law that prevents it. I'm always suspicious of justifications for removing someone's legal rights because it would be good for that someone.
It's possible to make arguments that they don't deserve to have those legal rights. But removing them "for their own good" seems to be based on the idea that corporations are not as capable of looking out for their own interests as lawmakers are of looking out for corporations' interests, a premise I don't see a lot of evidence for.
quote:OSC covers this in his latest OSC reviews everything. I imagine the reasoning is the same.
OSC doesn't really cover this aspect of the question. Scott hasn't advocated a different copyright term for corporations, but a different standard of fair use. These are quite different things.
The crux of OSC's argument seems to be this:
quote:They just decide which scripts to make and pay for them. This is all well and good in a capitalist society -- but the copyright law is not a corporate welfare plan, it's a device to encourage creativity. The studios don't have any creativity -- the writers do. So the law should be shaped to encourage writers, not the studios that steal from them.
What he doesn't even address is the fact that studios' willingness to pay 300k for a script also have an effect that encourages creativity. The value of the script stems in part from what the actors, the director, and, yes, the people willing to front $100 million to make and market a movie bring to the table.
Finally, this sentence alone makes me suspicious of the reasoning in the rest of the article:
quote:Each good script is the product of one writer or writing team; all the other parts are interchangeable.
I create a wonderful character called JOE the MAGICAL SCHMOE.
Now I want to create a web-site for Schmoe fans to congregate, learn Shmoe Canon, and for me to sell ad space.
Kim Kind read my first Schmoe book and started a website, where she is earning revenue from ads.
Even though I created Joe Schmoe, I can not create the web-site, nor gather the funds my web-site would generate. Kim Kind has created something with Extra Value, while I would only be creating competition, even though I created Joe Schmoe.
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quote:If it's always beneficial to the copyright owners, then they would allow it.
Perhaps. One thing I think is monumentally stupid is the rule against posting book cover images in an educational setting. (It's legal to post the actual cover, just not a picture of it.) If my students want to create an advertisement for a book and download and print the cover, that's illegal unless we seek permission from the copyright holder. They very well may allow it--but I for one have no interest in investing that kind of time. (Let me clarify that these "ads" weren't for a grade: students completed them in their free time because they loved a book & thought others should try it.)
Why is it a stupid rule? 1) People always judge books by their covers. An intriguing cover helps to sell a book--perhaps especially to adolescents, but I'm not so sure.
2) There's absolutely no way that posting a copy of a book cover in an educational setting will harm the copyright owner's revenue in any fashion. It can ONLY help. Of course, a student might not actually buy this particular book--but then again, she might. And if she starts to read, then she's MUCH more likely to buy books in the future.
3) With as much as I have personally done to increase the profits of the publishing industry, both through my own efforts and by encouraging others, I think that I should have special dispensation.
Please note: My understanding of copyright law in this instance is based on what my librarian told me when I asked. Any errors are hers and hers alone. Or possibly, a case of me misunderstanding what she told me.
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posted
While there are some ways that fair use might be expanded or better specified, the problems with copyright are not really ones of fair use. The biggest problems with copyright currently are with the duration, the penalties, and the circumvention prevention laws.
Even assuming fair use was what most needed revising, the proposed revision of fair use is a bad idea. It would require huge value judgements from courts, and many things that clearly add value are also not the sorts of things it makes sense to allow under fair use.
I would like to see a legal framework emerge where it was easier for creators to give withdrawable general permissions for certain limited uses -- fanfiction and the like. Perhaps even have there be certain tacit permissions absent specific injunction. It is clear that the current copyright regime is, in practice, inadequate to deal with the varied uses to which secondary creators are interested in putting creative works and primary creators are often interested in allowing.
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posted
Liz B: while I'm hardly comprehensively aware of the subject, as far as I know there has been no precedential court case making such a ruling. And that rule is definitely not in statute form anywhere. Most likely it is just something someone decided on that people you talk to have decided is the standard. This is very common. I'm on a mailing list used by academic librarians discussing e-reserves, and librarians regularly come on and talk about how they do e-reserves, and frequently justify particular policies because something or another is against the law, or because the law set some standard . . . except that what they talk about is typically not mentioned in law or court case, anywhere.
I'd like to amend my previous list. I add to my list of 'biggest problems' misconceptions about copyright. Many people shoot themselves in the feet by forbidding that which is not forbidden.
In your particular case, a student making an 'ad' for a book to show in class, there is no doubt in my mind that it is fair use, and that the students should feel free to download and print the cover image as part of the ad.
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posted
Liz--The problem may be that the artist who actually drew the cover of the book gets 0 out of this.
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posted
That's terrific...thanks, fugu13. I never expected to get sued or arrested, in any case, but I do like to set a good example in my classroom. Posts: 834 | Registered: Jun 2005
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quote: The value of the script stems in part from what the actors, the director, and, yes, the people willing to front $100 million to make and market a movie bring to the table.
$300k is a lot to pay for a script. I'm not sure if this figure is average across the industry; I don't think that it is.
$100 million is also a lot to spend on a movie; I don't think that's an average cost of a movie these days.
I know that your average novelist makes about $5000 from a novel sale, not counting royalties. I don't know what the production/advertising costs are for a book; I do know that if a writer doesn't make his advance back, it's harder for him to get another book deal. So I'm extremely invested in making certain that the author retains his ability to control cash flow regarding his book. Some authors may choose to overlook infringement; sometimes, it works out in their favor.
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quote:I would like to see a legal framework emerge where it was easier for creators to give withdrawable general permissions for certain limited uses -- fanfiction and the like. Perhaps even have there be certain tacit permissions absent specific injunction. It is clear that the current copyright regime is, in practice, inadequate to deal with the varied uses to which secondary creators are interested in putting creative works and primary creators are often interested in allowing.
:big nod:
The point I'd insist on is that the legal rights remain with the creator, not the publisher/distributor.
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Why do you feel that the right for a creator to assign copyright is more valuable than all the other rights that come with copyright?
The copyright exists to allow the creator to profit from his creations. Creators have been relegating that right to corporations in exchange for money for too long-- creating a sell-out culture in which the creators could not reclaim their intellectual property. (All legal; all agreed upon; I'm not really complaining, except to note that the sell-out culture is not good to creators in the long run.)
I hope that the WGA doesn't settle for a more lucrative method of selling out. I hope they stick this out and really change the industry. That's what I'm really rooting for.
I know where the $300k figure comes from; I know I'm an OSC apologist, but hey, even *I* can disagree with the guy sometimes.
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I'm probably not going to be rational about this, but part of my training as a professional author is this mantra: "Money flows to the author."
I have an ingrained sense that the more money that a creation makes, the more money flows to the creator. I don't like the idea of one-time payouts; I don't like the idea that in order to sell a creation, the creator has to cut his rights off from it.
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posted
In many fields, such as book authorship, creators retain copyright.
Our economy probably could not run if creators working as employees (given a certain specific set of conditions) did not relinquish copyright to their employers.
It is very hard to profit from one's creations if one is prevented from selling certain rights involving them. The primary method many people profit from their creations is by selling some or all of the rights to them. This allows individual creators to transfer the risks that could break them to entities with large enough portfolios that the same risk poses no significant danger, among other things.
If a creator does not want to give up his creation, that is perfectly legal, nowadays. Some choose to do so. In most cases, they are not able to make as much as if they had sold the rights. This is not just because the music labels (or whomever) are engaging in certain business practices. Preventing people from selling their copyrights does not make them better off.
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posted
A creator doesn't have to cut off his rights from it. A creator can always sell limited rights (that is, provide a copyright license). This is how it tends to work in the book publishing industry. Some successful musicians retain copyright in their own music.
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posted
I think it's very clear that current copyright laws are being pushed further and further away from their intended purpose for no other reason than to benefit corporations. I think it's plainly absurd, for example, that while Disney made its fortune mining public domain materials created by individual authors, no author may ever be able to benefit from Disney-owned characters or stories because they may never fall into the public domain.
I suppose the thrust of the argument depends upon whether or not you believe, as I do, that the intended purpose of copyright law is to encourage creation and authorship by protecting your work once you've created it, and to benefit society at large by making your work available to the public after you've had the opportunity to make money from it. (I'm perfectly fine with death being the cut-off point, or 75 years being the cut-off point.)
To me, it would be impossible to argue that this purpose has not been twisted to serve corporate interests. And going down that path turns a win-win into a lose-lose. Individual authors lose-out, and society loses out.
I agree strongly with OSC's proposal. It's hard to imagine another solution that would so elegantly balance the interests of corporations, authors, and society.
Drawing the distinction between individual authorship and corporate authorship in terms of how copyright law is practically applied is already being done.
It just benefits the wrong party.
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quote:Finally, this sentence alone makes me suspicious of the reasoning in the rest of the article:
quote: -------------------------------------------------------------------------------- Each good script is the product of one writer or writing team; all the other parts are interchangeable.
To be fair, he did explain pretty much immediately what he meant by that.
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posted
I would have no problem with copyrights being different terms for the creator than for someone other than the creator. 15 years might be somewhat short, but I could live with it .
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Why do you feel that the right for a creator to assign copyright is more valuable than all the other rights that come with copyright?
Because it makes all the other rights that come with copyright more valuable. You are advocating taking a right away from creators in the name of protecting them.
Posts: 26071 | Registered: Oct 2003
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quote:Originally posted by fugu13: Liz B: while I'm hardly comprehensively aware of the subject, as far as I know there has been no precedential court case making such a ruling. And that rule is definitely not in statute form anywhere. Most likely it is just something someone decided on that people you talk to have decided is the standard.
Agreed. The recent debate on GoodReads came down quite firmly on the side of covers (or pictures thereof) being used non-commercially being fair use. And one of the ones who pushed that interpretation was an intellectual property lawyer, IIRC.
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