For a long while I’ve been bemused by the running rivalry over intellectual property issues between some of the writers on this blog and the folks at PFF. While sometimes entertaining, I often shake my head when Tim takes the time to painstakingly refute an argument from Jim DeLong that on the surface was already patently erroneous. Now, as I prepare to take the bait myself, I think I understand the feeling of exasperation that prompts such replies.
Yesterday DeLong posted an entry entitled “Another Urban Legend Shot Down.” He wrote that “One of the arguments against extended copyright terms, made in Eldred and other places, has been the charge that there are piles of books, films, etc., moldering away unseen because no one can get permission to look at them and the copyright holders are too oblivious to find and exploit useful items.” He then says that the fact that Amazon sells DVD packs that contain 50 classic movies for just $16.47 refutes the idea (or “urban legend” as he puts it) that there are other movies out there that are being harmed by extended copyright terms. He goes on, “Would such treasures be available if there were no money to be made from making them so? Doubtful.”
FIrst DeLong implies that there are no such works disintegrating out of sight and hints that such an idea is just an “urban legend.” I would point him to the Library of Congress’s report on film preservation. It catalogs precisely the fact that a great number of films are literally disintegrating. It is a fact, not a myth.
He further characterizes the argument he is trying to refute as a charge that works are “moldering away unseen because … the copyright holders are too oblivious to find and exploit useful items.” It’s not just that they are oblivious, but that they are completely unaware of their ownership. It’s called the orphan works problem and I assume he’s familiar with it. You can read more about it here. Film is a fragile medium and to preserve it one must copy it. (The same goes in many respects for photos, too.) Copying without permission, of course, is infringement–even if you can’t find anyone of whom to ask permission. This means that even if I wanted to restore 50 orphan films on the verge of disintegration so that I could make and sell an Amazon DVD pack–a fine motive–the copyright on those films will prevent me from doing so. The longer copyright terms are extended, the longer I can’t restore and sell the movies, and with disintegrating film time is a major factor.
It also does not follow that because there are DVD packs for sale on Amazon that all films will benefit from restoration. As the LOC’s report sates:
If there is a single division that separates most of the preservation issues discussed in this report, it is between two categories of films: those that have evident market value and owners able to exploit that value; and the other films, often labeled “orphans,” that lack either clear copyright holders or commercial potential to pay for their continued preservation. In practice, the former are primarily features from major Hollywood studios; the latter–numerically the majority–include newsreels and documentaries, avant-garde and independent productions, silent films where copyright has expired, even certain Hollywood sound films from now defunct studios. For these films the urgency may be greatest.
DeLong further seems to argue that without extended copyright protection, the Amazon DVD packs would not exist. He asks, “Would such treasures be available if there were no money to be made from making them so? Doubtful.” But I would point him to another series for sale on Amazon called Dover Thrift. It is a series of books, priced at about $2 each, the underlying works of which are all in the public domain. That is, they are being printed–and someone is making money–without copyright.
Therefore, what I argue for is not no copyright, but rather sensible copyright. I argue for taking into consideration the public domain, and not just the interests of creators, when setting copyright terms. What should be the balance is up for debate, but an informed debate requires that we face facts and not simply dismiss those facts as urban legends because they are inconvenient to our position.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
Comments on this entry are closed.