Copyright

[A2SG]

Why not allow anyone with a Word Processor to have access to anything they like (after it's been out for 28 years)?

Consider Harry Potter: J.K. Rowling is a household name. When she writes, people will buy and read (copyright or no). Everybody knows Harry Potter originally came from her. And there will be plenty of "canon" websites and other literature that will trace her work, and her work alone. As you say, there will be Harry Potter vs. Connor MacLeod vs. Darth Vader fan fic. It's noise. Who cares? Nobody will read it, just as they don't, now... except for people who are into that kind of thing. And, honestly, where's the harm in that? On the flip side, however, some young and aspiring author will retell the Harry Potter story in a way that is both subtle and brilliant. And the culture will be enriched because of it. And J.K. Rowling will like it or not. If so, bully for her. If not, she can cry all the way to the bank.

One flipside to this is that it'd encourage laziness in writers. Sure, someone could add something valuable to the Harry Potter legend, a retelling or a different take on a minor character...but wouldn't it be better to take that idea, and create your own character or world around it? Sure, little about JK Rowling's HP world is completely original, but she took several familiar tropes and made them into a world of her own making.

So, why not instead take the idea you have and create your own world around it? Do what Rowling did, use existing tropes and ideas and craft an original tale, all your own. There may be subtle similarities to the original work, but unless you're lazy, it won't infringe the previous work. Seriously, how many variations are there on a character who can perform magic? Can it be measured?

-- A2SG, why be lazy, become your own JK Rowling....

 

[Willtor]

That's why I brought up KSR v Teleflex in my post. But, indeed, it is not uncommon for someone to patent _under_ another patent and cross-license. It is a valid business plan.

But of course it does have to be non-obvious to be patentable.



Yes and no. Innovation doesn't necessarily have to be slowed by patents. The idea being that if the Examiner doesn't get ridiculous "obviousness" linkages then innovation _can_ continue. That's why we have an appeals process for the patent examination.

Sure it may slow "tiny incremental innovation" but it doesn't necessarily have to.

In my (albeit, limited) experience, most advancement is incremental. The big things don't come very often compared to the tiny improvements. Nevertheless, the tiny improvements add up very quickly, and (aggregated) represent significant advancement in their own right. We don't worry about patenting them, of course, since they are obvious and can be rediscovered in short order if reasonably skilled people are trying to do so.

I'm not so sure the U.S. patent system is _that_ busted. Definitely we need reform and I'm not as familiar with the prosecution in Europe but if we even go so far as to align our terms and "first to file" we'd make things a lot less confusing and litigious what with the elimination of "swearing back" an invention based on lab notebook dates etc.

But I'm wholly familiar with all the problems U.S. has vs other country's patent system.

I don't like first-to-file. I actually think that's one of the ways in which the U.S. has it right. It protects the little guy who can't immediately afford to apply for half a dozen patents on his idea, against the big guy who can, some time later.

The brokenness I'm talking about is in reference to the "war chests" kept by corporations in the U.S. The patent office is flooded with patents, so that clerks are encumbered by their quotas and tend to grant many patents that should never be granted. These war chests act as nuclear arsenals that keep the big companies generally protected from one another, but they also prevent small companies from entering the market.

And again, the _idea_ really isn't what is copyrightable according to the USC. But I agree that a better author could take a lousier authors work and make something great and indeed _that can happen right now_ even if copyright terms were extended all the way to the death of the original author. The author can assign copyrights.

Yes, the idea is not copyrightable. But the names are. Imagine what a good script writer could do with Highlander which was a terrible movie but is a cult classic because it was a great idea.

The author can assign copyrights, but never does -- unless the other party has a lot of money. This is fine. But it means that copyright should not extend in perpetuity. After all, many of the best stories are retellings of the sort that would violate modern copyright law.

The reason this becomes a trickier issue than say a utility patent is that we are dealing with a creative work. There's no real _intrinsic_ value to "Harry Potter and the Sorcerer's Stone" that moves our society forward that couldn't have come from another source. It is like any work of art; a work of art.

Let's say Picasso is still alive and maybe I don't like Picasso (I don't, actually) and I want his work to be more like Galen-Kallela (a painter I do like) so I take a Picasso and muck it about to make it look like Galen-Kallela. But that doesn't mean that it's a Picasso anymore. It is now something quite different.

Not necessarily better or worse, but different.

I think the art is different from utility patents.

But generally I am far more ambivalent about term of copyright than I patents. It is far more "touchy-feely" and gets down to topics of what is "art" and what is the "artistic process" and should it attach solely to the artist.

If I make an atomic widget that helps reduce the cost of electricity for all of humanity and then someone makes a "super atomic widget" and makes it even better we can debate the value of how long or how to move this technology forward.

But derivative works of art outside of fair use is somewhat trickier in my mind as to how much control an artist has over his or her original work.

Copyright doesn't move society forward. It promotes cultural enrichment. By definition, it's a touchy-feely kind of thing. Society wants great art, so it grants a limited term of exclusive reproduction rights. Extending those rights, however, goes against the stated goal of copyright law.

 

[Willtor]

One flipside to this is that it'd encourage laziness in writers. Sure, someone could add something valuable to the Harry Potter legend, a retelling or a different take on a minor character...but wouldn't it be better to take that idea, and create your own character or world around it? Sure, little about JK Rowling's HP world is completely original, but she took several familiar tropes and made them into a world of her own making.

So, why not instead take the idea you have and create your own world around it? Do what Rowling did, use existing tropes and ideas and craft an original tale, all your own. There may be subtle similarities to the original work, but unless you're lazy, it won't infringe the previous work. Seriously, how many variations are there on a character who can perform magic? Can it be measured?

-- A2SG, why be lazy, become your own JK Rowling....

Perhaps J.K. Rowling is a bad example. I haven't actually read any of the Harry Potter books.

But, as was mentioned, consider the vast Disney empire, built on retelling stories in the public domain! Shakespeare, too, reworked the classics of his own day. I wouldn't consider either of these authors, hacks. On the contrary, they were brilliant story tellers. There's nothing wrong with retelling a story you have heard from somewhere else. Doing so often has its own creative genius. Really, there's nothing wrong with retelling someone else's story. It's one of the sources of great literary works throughout the ages.

Yes, Tolkien was a brilliant inventor of worlds. The great irony is that his Lord of the Rings was intended to be the mythology of the English people. Naturally, it can never do that until the English people feel that it is theirs and that they can retell it as they desire. But it is still under copyright, owned by the Tolkien estate, and will never enter the public domain. It is not the mythology of the English people, and will never live up to Tolkien's hopes, even though it clearly has the capacity (in its own right) to do so.

I am glad that Tolkien received great wealth off of his works -- this is good compensation, and incentive for other authors -- but now it is time for the rights to be owned by the public.

 

[thaumaturgy]

One flipside to this is that it'd encourage laziness in writers. Sure, someone could add something valuable to the Harry Potter legend, a retelling or a different take on a minor character...but wouldn't it be better to take that idea, and create your own character or world around it? Sure, little about JK Rowling's HP world is completely original, but she took several familiar tropes and made them into a world of her own making.

So, why not instead take the idea you have and create your own world around it? Do what Rowling did, use existing tropes and ideas and craft an original tale, all your own. There may be subtle similarities to the original work, but unless you're lazy, it won't infringe the previous work. Seriously, how many variations are there on a character who can perform magic? Can it be measured?

-- A2SG, why be lazy, become your own JK Rowling....

And this is, I think, is the essence of the whole ideal. I like this explanation.

It isn't the "idea" of a boy wizard in an enchanted school that is copyrighted, it is the story as written. You could easily build your own world. But you can't take whole-piece chunks and have your boy wizard, Archibald Bletchly, speak and say exact snippets from what Harry Potter said (unless of course your work is a critique of Harry Potter and it is necessary to reference HP under fair use standards).

But there is nothing stopping you from writing a story about child wizards taking on evil.

 

[thaumaturgy]

We don't worry about patenting them, of course, since they are obvious

I am hoping that your legal department makes that assessment (or that you are one of the Legal department resources?). One thing I've learned is to "Let go and let Legal" to paraphrase the old Christian saw. Legal can often find a way to thread a needle that seems to be unthreadable. (And I'm not entirely sure, but "obviousness" may technically be a legal opinion, I don't recall now.)

One of the things we have to do in our R&D group is keep our scientists from "self-censoring" their ideas.

And again, a case for obviousness can be argued. If won it could yield very lucrative cross-licensing agreements.

and can be rediscovered in short order if reasonably skilled people are trying to do so.

And this is precisely where the "art" of the lawyer rests. PHOSITA.

I don't like first-to-file. I actually think that's one of the ways in which the U.S. has it right.

Oh but it makes for more legal headaches! You automatically get "first to file" but if you need that extra "priority boost" you can swear back to a date scribbled in a notebook and signed off by someone. I've never been through a "swearing back" prosecution but it just sounds so "janky" to me. I like the first to file for two reasons:

1. It at least puts a "system time stamp" on the thing.
2. It aligns most systems (US and Europe at least)

It protects the little guy who can't immediately afford to apply for half a dozen patents on his idea

But that means the little guy may have to later on incur more legal costs in swearing back to get priority.

, against the big guy who can, some time later.

If the little guy has to he can file provisionals as well. That will buy him or her a year.

The brokenness I'm talking about is in reference to the "war chests" kept by corporations in the U.S. The patent office is flooded with patents, so that clerks are encumbered by their quotas and tend to grant many patents that should never be granted.

Oh I definitely agree that the USPTO is flooded. And probably a lot of trash gets through.

These war chests act as nuclear arsenals that keep the big companies generally protected from one another, but they also prevent small companies from entering the market.

Well, I don't think that is something that the USPTO will ever be able to stop. That's a corporate strategy issue. They may have it in their interest to attempt to patent everything the think of if only to ensure total coverage and since they do have an excess of cash (not always though) they can afford to.

But that isn't something the USPTO can have control over. Put more examiners in place to keep the flow but you'll still have the big companies filing for everything under the sun to fill in the "White space". The little guy will always come out behind on that one.

Yes, the idea is not copyrightable. But the names are.

Actually the names aren't.

Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks.(SOURCE)

Imagine what a good script writer could do with Highlander which was a terrible movie but is a cult classic because it was a great idea.

Write a good story using the ideas but not the text or something so glaringly similar as to be effectively the same as Highlander?

The author can assign copyrights, but never does -- unless the other party has a lot of money. This is fine. But it means that copyright should not extend in perpetuity.

Oh I agree wholeheartedly there. Totally on board with you.

 

[Willtor]

I'm going to cite only one of your comments for brevity and because I think it highlights my point:

I am hoping that your legal department makes that assessment (or that you are one of the Legal department resources?). One thing I've learned is to "Let go and let Legal" to paraphrase the old Christian saw. Legal can often find a way to thread a needle that seems to be unthreadable. (And I'm not entirely sure, but "obviousness" may technically be a legal opinion, I don't recall now.)

Legal threads things that ought not to be threaded. I read patents for "innovations" for which the proposed solution is trivial -- something I might have done quite by accident as a Junior in college -- and for which no other solution will suffice. These are patents that have made it through the process. It makes me afraid to write code, lest I accidentally infringe! But somebody's legal department (possibly my company's) kept someone from censoring him/herself, as you say, and now there is a bogus patent.

One of my coworkers likes to tell the story of how, years ago, he implemented a mathematical solution to a problem published in a 50-year-old textbook. He was subsequently told that his solution infringed on a competitor's patent, and that he would have to change the algorithm. Could his (giant) company have invalidated the patent? Probably. But it had been granted, and now it was cheaper to make my coworker recode the solution in a sub-optimal way than to invalidate it. If a major corporation is afraid to fight bogus patents, what hope do small companies have?

Legal is the wrong department to be deciding what is obvious or no. Legal is the reason the patent office is flooded. Even if the idea has to go through lawyers, later, legal doesn't know from obvious, and they have an incentive to err (and err very far) on the side of submission. It is precisely the mathematicians, and scientists, and engineers that ought to decide whether something is obvious or whether it is a candidate for submission.

 

[thaumaturgy]

Legal threads things that ought not to be threaded. I read patents for "innovations" for which the proposed solution is trivial -- something I might have done quite by accident as a Junior in college -- and for which no other solution will suffice. These are patents that have made it through the process. It makes me afraid to write code, lest I accidentally infringe! But somebody's legal department (possibly my company's) kept someone from censoring him/herself, as you say, and now there is a bogus patent.

While I understand your frustration with patents that are probably only incrementally meaningful, I must strenuously "traverse" your use of the word "bogus".

As I've stated before it is quite a common and actually quite solid business strategy to _cross license_ with other companies, even competitors.

Now this is _not_ a "bogus" patent, even if it is technically "under" another patent.

It is quite legitimate to get a patent that is valid but cannot be practiced by the assignee of the patent, but the patent is valid nonetheless.

One of my coworkers likes to tell the story of how, years ago, he implemented a mathematical solution to a problem published in a 50-year-old textbook. He was subsequently told that his solution infringed on a competitor's patent, and that he would have to change the algorithm. Could his (giant) company have invalidated the patent? Probably.

Mmmmm, not necessarily. Remember it is hard to invalidate a patent since there is an assumption of validity of the patent (35USC Section 282, I believe). So if the original patent was well drafted it would be harder to invalidate that simply because the "giant" corporation had more money. But you may be quite correct, with enough money the legal department might have been able to do so.

But the law is set up to ensure that once granted a patent is not easily invalidated. I've seen lawyers of big companies indicate that they don't want to go down that aisle unless they absolutely have to.

But it had been granted, and now it was cheaper to make my coworker recode the solution in a sub-optimal way than to invalidate it. If a major corporation is afraid to fight bogus patents, what hope do small companies have?

Was it a "bogus" patent? If it was bogus it would be no problem to invalidate.

Legal is the wrong department to be deciding what is obvious or no.

As I said, I wasn't sure if "Obviousness" was a matter for legal. Certainly there are topics within IP that only legal can, technically speaking, deal with in corporate settings in order to limit liability.

However, the idea of what is obvious or not should, reasonably, be within the realm of those most familiar with the relevant art.

and they have an incentive to err (and err very far) on the side of submission.

In a world where corporations have an infinite amount of money, perhaps but that is not really always the case. Usually Legal wants to ensure that the money budgeted to them for filing cases and prosecuting them is going to be a payback. Of course I don't think they work in isolation, the scientists also have a say in many if not most cases to help Legal determine if this is a realistic stance for patentability.

In certain areas, where it is very crowded art it is often impossible to get broad patents but are limited to small, narrow coverage, but the coverage of the whitespace is quite necessary.

Again, I'm not defending "bogus" patents, but I am defending narrow patents which are valid. And those exist.

It is precisely the mathematicians, and scientists, and engineers that ought to decide whether something is obvious or whether it is a candidate for submission.

According to the MPEP (2141) "obviousness is a question of law" utilizing the "Graham factors". So it is not merely for the scientists to decide. However, I am not a lawyer so I simply assume that professional scientists, mathematicians, engineers etc are heavily relied upon when Obviousness comes up for discussion within a patent prosecution. However according the MPEP obviousness is a "legal conclusion". But also remember that any given examiner who is responsible for making the determination is usually a degreed scientist in the area they are examining in within the USPTO.

Again, I'm not a lawyer nor have I been directly involved in any prosecutions other than watching some of my applications be prosecuted from a distance.

 

[Willtor]

While I understand your frustration with patents that are probably only incrementally meaningful, I must strenuously "traverse" your use of the word "bogus".

As I've stated before it is quite a common and actually quite solid business strategy to _cross license_ with other companies, even competitors.

Now this is _not_ a "bogus" patent, even if it is technically "under" another patent.

It is quite legitimate to get a patent that is valid but cannot be practiced by the assignee of the patent, but the patent is valid nonetheless.

If a college Junior, not yet "reasonably skilled" in the field, is likely to infringe, accidentally, in a class assignment, I'd say the patent is bogus.

Mmmmm, not necessarily. Remember it is hard to invalidate a patent since there is an assumption of validity of the patent (35USC Section 282, I believe). So if the original patent was well drafted it would be harder to invalidate that simply because the "giant" corporation had more money. But you may be quite correct, with enough money the legal department might have been able to do so.

But the law is set up to ensure that once granted a patent is not easily invalidated. I've seen lawyers of big companies indicate that they don't want to go down that aisle unless they absolutely have to.

Was it a "bogus" patent? If it was bogus it would be no problem to invalidate.

By "bogus" I mean "faulty" in the sense that it should not have been granted, and where (although I admit to the possibility of being mistaken) it is difficult for me to believe that it was submitted in good faith but instead was, as you put it, "threaded" through by legal poets.

The textbook in my coworker's example was not under patent. Remember that it was 50 years old, so even if the algorithm were patented at the time of authorship, it would have expired. The patent was unrelated to the textbook. It had been filed recently. The textbook represented prior art. It would still have been a legal hassle to invalidate the obviously bad patent, such that even a big company was uninterested in doing so.

As I said, I wasn't sure if "Obviousness" was a matter for legal. Certainly there are topics within IP that only legal can, technically speaking, deal with in corporate settings in order to limit liability.

However, the idea of what is obvious or not should, reasonably, be within the realm of those most familiar with the relevant art.

This is my point. But it isn't the way things are. The company wants patents, so it encourages its R&D to apply for patents. It doesn't matter whether the ideas are really any good. A bad patent is just as intimidating as a good one (as evidenced by the story, above).

In a world where corporations have an infinite amount of money, perhaps but that is not really always the case. Usually Legal wants to ensure that the money budgeted to them for filing cases and prosecuting them is going to be a payback. Of course I don't think they work in isolation, the scientists also have a say in many if not most cases to help Legal determine if this is a realistic stance for patentability.

In certain areas, where it is very crowded art it is often impossible to get broad patents but are limited to small, narrow coverage, but the coverage of the whitespace is quite necessary.

Again, I'm not defending "bogus" patents, but I am defending narrow patents which are valid. And those exist.

Certainly, good patents exist. I only mean to say that the U.S. Patent Office is fundamentally broken, because the bulk of granted patents (at least in software) are obvious or have prior art. Distressingly, the bad patents are wielded as cudgels, and are just as effective as the good ones. As any Machiavellian knows, therefore, the incentive for companies is to acquire as many patents as possible, regardless of quality.

This is the brokenness with the system, as implemented.

According to the MPEP (2141) "obviousness is a question of law" utilizing the "Graham factors". So it is not merely for the scientists to decide. However, I am not a lawyer so I simply assume that professional scientists, mathematicians, engineers etc are heavily relied upon when Obviousness comes up for discussion within a patent prosecution. However according the MPEP obviousness is a "legal conclusion". But also remember that any given examiner who is responsible for making the determination is usually a degreed scientist in the area they are examining in within the USPTO.

Again, I'm not a lawyer nor have I been directly involved in any prosecutions other than watching some of my applications be prosecuted from a distance.

Each side tends to get experts in the field to make their respective cases to the judge. It's very expensive. Not something a small company can afford.

However, my comment was intended to apply to the process that happens long before litigation: the process of deciding whether to submit a patent request in the first place (the "self-censoring" process).

 

[Willtor]

As a more constructive post:

My tentative view regarding a fix for the current patent problems is to provide disincentive for companies to submit bad-faith ideas. If an idea is thought not only not to fit the criteria for acceptance, but also to be particularly egregious (such that it appears to be submitted in bad faith), it should go before an expert panel that has the power to fine the company (or individual) applying for the bogus patent.

Innovative ideas can be accepted. Non-innovative ideas can be rejected. Abuse can be punished.

 

[A2SG]

Perhaps J.K. Rowling is a bad example. I haven't actually read any of the Harry Potter books.

You should. They're actually very good.

But, as was mentioned, consider the vast Disney empire, built on retelling stories in the public domain! Shakespeare, too, reworked the classics of his own day. I wouldn't consider either of these authors, hacks. On the contrary, they were brilliant story tellers. There's nothing wrong with retelling a story you have heard from somewhere else. Doing so often has its own creative genius. Really, there's nothing wrong with retelling someone else's story. It's one of the sources of great literary works throughout the ages.

True enough. Many great literary works have been built on the backs of other ones. And what sets Disney, et al, apart from a hack is they put their own spin, their own unique vision in the retelling. They make it their own, in other words.

Which is basically what I was talking about. I have no problem with public domain, it's a necessary and very fertile ground from which can spring genius. What sets the geniuses apart from the lazy is how much they make the story their own, how much they make it new again.

Rowling used magic and magicians, and the classic coming of age tale and made it her own. Gene Roddenberry took space opera and the western exploration of a new frontier and made it his own. George Lucas took the classic hero's journey, and space opera, and made it his own.

Yes, Tolkien was a brilliant inventor of worlds. The great irony is that his Lord of the Rings was intended to be the mythology of the English people. Naturally, it can never do that until the English people feel that it is theirs and that they can retell it as they desire. But it is still under copyright, owned by the Tolkien estate, and will never enter the public domain. It is not the mythology of the English people, and will never live up to Tolkien's hopes, even though it clearly has the capacity (in its own right) to do so.

While Tolkein's works may have found a way around falling into the public domain, but the concepts behind it, as well as many, many tropes of high fantasy, have been taken by others and made their own. Terry Brooks most obviously, but a great many others, from Robert E. Howard to George R.R. Martin.

I am glad that Tolkien received great wealth off of his works -- this is good compensation, and incentive for other authors -- but now it is time for the rights to be owned by the public.

I agree. I also don't like the idea of a copyright being transferred to a corporation to circumvent falling into public domain. I might even call that cheating.

But, that said, copyright and intellectual property can get tricky sometimes. For example, while George Lucas clearly created Star Wars, but the copyright is held by a corporation, Lucasfilm. Star Trek, on the other hand, while clearly created by Gene Roddenberry, is the property of Paramount, and they hold the copyright, not Roddenberry's heirs.

And while I firmly believe in copyrights and creator's right, I do agree that all creative works should fall into the public domain eventually.

-- A2SG, how long is eventually? Weeellll.....

 

[A2SG]

And this is, I think, is the essence of the whole ideal. I like this explanation.

Thanks!

It isn't the "idea" of a boy wizard in an enchanted school that is copyrighted, it is the story as written. You could easily build your own world. But you can't take whole-piece chunks and have your boy wizard, Archibald Bletchly, speak and say exact snippets from what Harry Potter said (unless of course your work is a critique of Harry Potter and it is necessary to reference HP under fair use standards).

But there is nothing stopping you from writing a story about child wizards taking on evil.

Phillip Pullman and Rick Riordan are doing good jobs of it, I'd say.

-- A2SG, though both movies sucked....

 

[Willtor]

You should. They're actually very good.

I know, I know. That's what everybody tells me. But I only have so much time for reading and I have a queue that's already absurdly long...

True enough. Many great literary works have been built on the backs of other ones. And what sets Disney, et al, apart from a hack is they put their own spin, their own unique vision in the retelling. They make it their own, in other words.

Which is basically what I was talking about. I have no problem with public domain, it's a necessary and very fertile ground from which can spring genius. What sets the geniuses apart from the lazy is how much they make the story their own, how much they make it new again.

Rowling used magic and magicians, and the classic coming of age tale and made it her own. Gene Roddenberry took space opera and the western exploration of a new frontier and made it his own. George Lucas took the classic hero's journey, and space opera, and made it his own.

I think we're agreeing with each other. My point about Disney is that if copyright were being extended the way it is now, he never could have made most of the things he (or his company) made.

While Tolkein's works may have found a way around falling into the public domain, but the concepts behind it, as well as many, many tropes of high fantasy, have been taken by others and made their own. Terry Brooks most obviously, but a great many others, from Robert E. Howard to George R.R. Martin.

And yet, nobody can retell Lord of the Rings without deep pockets, though it's been more than half a century. Likewise with Dune, where a fan group is being kept from making a new Dune movie.

Contrast this with the movie, The Call of Cthulhu, which came out a few years ago and was absolutely brilliant in its own right, though much of the writing was taken directly from the H.P. Lovecraft story. Again, if copyright law were as it is now, the movie could not have been made at all (the team that made it, did so on a shoestring budget).

I agree. I also don't like the idea of a copyright being transferred to a corporation to circumvent falling into public domain. I might even call that cheating.

But, that said, copyright and intellectual property can get tricky sometimes. For example, while George Lucas clearly created Star Wars, but the copyright is held by a corporation, Lucasfilm. Star Trek, on the other hand, while clearly created by Gene Roddenberry, is the property of Paramount, and they hold the copyright, not Roddenberry's heirs.

And while I firmly believe in copyrights and creator's right, I do agree that all creative works should fall into the public domain eventually.

-- A2SG, how long is eventually? Weeellll.....

"Eventually" is exactly the issue being discussed. I'm writing a book of my own, and I'd very much like to have the copyright for long enough to have a chance at a healthy sum for my efforts. But do I really need more than 28 years?!* That's a long time, and it is perfectly adequate to act as incentive for me to write my book in the first place. Actually, I'd probably write it, anyway. But I'm sure I use more of my free time writing, given the possibility that doing so may bring me wealth.

J.K. Rowling is a billionaire off of Harry Potter, and even if copyright were only 28 years, she would have a great deal of time, yet, before the first book entered the public domain. If, as a child, you read a book and are inspired to retell it, and have no hope of doing so in your lifetime, copyright might as well last forever. As it is, works that were created long before I was born have no chance of entering the public domain in my lifetime (or my child's), even if I live to 100 (even if he or she lives to 100).

Further, the effect of all of the current efforts to extend copyright whenever Mickey Mouse is about to enter the public domain, is that copyright lasts indefinitely.

* -- obviously, I can release it into the public domain after 28 years, voluntarily (and I intend to do so). But this is not about one author's efforts to enrich the public domain in his own small way.

 

[OldManAnon]

I'd also point out that in many nations (including Canada and, until last post, I had assumed the US) treated software as a matter of copyright, and not as a matter of patent (though, what the software does, for instance, Amazon.com's "One-Click Shopping process" can potentially be patented if it meets the guidelines).

Not sure if it changes peoples minds, but should code also be a forever matter, or should it be more limited?

 

[thaumaturgy]

Contrast this with the movie, The Call of Cthulhu, which came out a few years ago and was absolutely brilliant

I know! THAT WAS AN INCREDIBLE WAY TO MAKE A MOVIE! I loved that one!

 

[A2SG]

I know, I know. That's what everybody tells me. But I only have so much time for reading and I have a queue that's already absurdly long...

I hear that.

I think we're agreeing with each other. My point about Disney is that if copyright were being extended the way it is now, he never could have made most of the things he (or his company) made.

I dunno. With a little creativity, they might have. Pearl Alabaster and the Eight Gnomes, anyone?

My issue isn't with the public domain at all, only that you can still tell a classic story about rising from obscurity or misfortune to fame and glory without calling your main character Cinderella.

And yet, nobody can retell Lord of the Rings without deep pockets, though it's been more than half a century. Likewise with Dune, where a fan group is being kept from making a new Dune movie.

Still, you can tell many an epic fantasy tale without using the names Gandalf or Bilbo.

Contrast this with the movie, The Call of Cthulhu, which came out a few years ago and was absolutely brilliant in its own right, though much of the writing was taken directly from the H.P. Lovecraft story. Again, if copyright law were as it is now, the movie could not have been made at all (the team that made it, did so on a shoestring budget).

On the other hand, they could have used the same themes, only changed the names, settings and other specifics of the story and made it their own without worrying about copyrights, the way Lucas did with the classic hero's journey or Rowling did with classic coming of age tale. (Actually, there are a lot of similarities there, but I digress....)

"Eventually" is exactly the issue being discussed. I'm writing a book of my own, and I'd very much like to have the copyright for long enough to have a chance at a healthy sum for my efforts. But do I really need more than 28 years?!* That's a long time, and it is perfectly adequate to act as incentive for me to write my book in the first place. Actually, I'd probably write it, anyway. But I'm sure I use more of my free time writing, given the possibility that doing so may bring me wealth.

As one writer to another, I feel obligated to ask: why are you here instead of writing your book??? And no, you can't ask me the same question!

J.K. Rowling is a billionaire off of Harry Potter, and even if copyright were only 28 years, she would have a great deal of time, yet, before the first book entered the public domain. If, as a child, you read a book and are inspired to retell it, and have no hope of doing so in your lifetime, copyright might as well last forever.

So retell it in your own way. Do what Rowling and so many others did by making the themes your own by creating your own characters in your own world. It's clear C.S. Lewis was inspired by the bible to write the Chronicles of Narnia, and the fact that Aslan is Jesus is very clear, but he did retell the story in his own unique way, making the story his own.

As it is, works that were created long before I was born have no chance of entering the public domain in my lifetime (or my child's), even if I live to 100 (even if he or she lives to 100).

As problems go, it's not insurmountable, as I said. Besides, those works were in some way based on what came before them as well, so all you really need to do is go back to the source material. If you can't write about Luke Skywalker, write about Perseus. There are enough similarities to work with.

Further, the effect of all of the current efforts to extend copyright whenever Mickey Mouse is about to enter the public domain, is that copyright lasts indefinitely.

Well, Mickey may be a bad example as he's more a mascot than a character in his own right. Think about it, can you name a single, defining character trait for Mickey? Or even one unique, original story he was ever in?

The only one that comes to mind in Steamboat Willie, and no one knows the plot of that one!

But your point about characters and stories whose copyright is owned by a corporate entity is a valid one. I think there should be a specific classification for movies/TV shows where the original film or episodes may be protected, bu the characters fall into public domain after a while, especially if there are no new movies/tv shows being made. Then again, as comic books have shown us, that would mean crappy versions will be made every few years just to hold onto the copyright.

* -- obviously, I can release it into the public domain after 28 years, voluntarily (and I intend to do so). But this is not about one author's efforts to enrich the public domain in his own small way.

Cory Doctorow has some similar ideas on copyright and intellectual property.

-- A2SG, and he writes some cool SF too....

 

[thaumaturgy]

On the other hand, they could have used the same themes, only changed the names, settings and other specifics of the story and made it their own without worrying about copyrights

Two points:

1. With Lovecraft it is really hard to imagine his stories have a commonality with anything else in the regular world. Just sayin'. (Especially the Cthulu Mythos)

2. If you do write something that is substantially like another work of authorship it can still fall under copyright.

Well, Mickey may be a bad example as he's more a mascot than a character in his own right. Think about it, can you name a single, defining character trait for Mickey? Or even one unique, original story he was ever in?

The only one that comes to mind in Steamboat Willie, and no one knows the plot of that one!

I'm reasonably sure Steamboat Willie, technically speaking, had no plot. (/editorial comment)

But your point about characters and stories whose copyright is owned by a corporate entity is a valid one.

The characters are not copyrighted. Mickey Mouse is probably "trademarked". A particular Mickey Mouse movie may be copyrighted but you can't copyright a character.

You could technically copyright a particular drawing of Mickey but that wouldn't cover Mickey in toto. It would only cover that particular drawing of Mickey.

Here's what the Copyright office of the US Gov't has to say about cartoons and comics (LINKY)

NOW, you can cover Mickey under trademark law.

 

[A2SG]

Two points:

1. With Lovecraft it is really hard to imagine his stories have a commonality with anything else in the regular world. Just sayin'. (Especially the Cthulu Mythos)

I admit, I've never read Lovecraft myself, but from what I understand, he's influenced a lot of horror writers (and other writers), so his themes seem to be transferable in some way.

2. If you do write something that is substantially like another work of authorship it can still fall under copyright.

I know. I'm not talking about cheap knockoffs here, but making the story your own. Granted, that goes beyond changing the names and stuff, but I think you know what I mean. Kind of the difference between turning the adventures of Heracles or Theseus into Luke Skywalker versus The Adventures of Sook Lywalker.

I'm reasonably sure Steamboat Willie, technically speaking, had no plot. (/editorial comment)

True enuff.

The characters are not copyrighted. Mickey Mouse is probably "trademarked". A particular Mickey Mouse movie may be copyrighted but you can't copyright a character.

You could technically copyright a particular drawing of Mickey but that wouldn't cover Mickey in toto. It would only cover that particular drawing of Mickey.

Here's what the Copyright office of the US Gov't has to say about cartoons and comics (LINKY)

NOW, you can cover Mickey under trademark law.

Which is why I think Mickey is a bad example. Characters like Luke Skywalker or Superman are more than images, they have specific character traits, details and stories surrounding them that are unique to the character. Mickey has no such backstory.

-- A2SG, it's the difference between a mascot and a character, at least as I see it....

 

[thaumaturgy]

I admit, I've never read Lovecraft myself, but from what I understand, he's influenced a lot of horror writers (and other writers), so his themes seem to be transferable in some way.

FORWARD transfer...I have a tough time figuring out what inspired Lovecraft!

hich is why I think Mickey is a bad example. Characters like Luke Skywalker or Superman are more than images, they have specific character traits, details and stories surrounding them that are unique to the character. Mickey has no such backstory.

-- A2SG, it's the difference between a mascot and a character, at least as I see it....

Actually you can't copyright "Luke Skywalker" either, for the same reason. You can copyright a specific story or movie about Luke, but Luke himself would have to be covered by (and probably is) "trademark" law aspects.

Copyright is an interesting thing in that it really covers the specific work it is applied to. I can copyright a single story about Luke Skywalking but cannot copyright or preserve for my own use the character of Luke Skywalker using copyright. I can copyright a single drawing of Marmaduke the dog (one of the worst comic strips known to human kind, but at least it isn't as bad as Fred Bassett) but I can't copyright the character of Marmaduke.

I'd have to use some aspect of trademark law to cover the "character" as I understand it.

 

[A2SG]

I can copyright a single drawing of Marmaduke the dog (one of the worst comic strips known to human kind

You should hear the Comics Curmudgeon's take on it!

-- A2SG, truly a hound from hell....

 

[Willtor]

I hear that.

I dunno. With a little creativity, they might have. Pearl Alabaster and the Eight Gnomes, anyone?

My issue isn't with the public domain at all, only that you can still tell a classic story about rising from obscurity or misfortune to fame and glory without calling your main character Cinderella.

Still, you can tell many an epic fantasy tale without using the names Gandalf or Bilbo.

On the other hand, they could have used the same themes, only changed the names, settings and other specifics of the story and made it their own without worrying about copyrights, the way Lucas did with the classic hero's journey or Rowling did with classic coming of age tale. (Actually, there are a lot of similarities there, but I digress....)

So, what's the offense to society by calling it Cinderella? If you're going to retell the story, why not use the names everybody knows, like people have done for centuries? If everybody knows it's Cinderella, why not call it, "Cinderella"? I'm not talking about genres -- I'm talking about specific stories.

As one writer to another, I feel obligated to ask: why are you here instead of writing your book??? And no, you can't ask me the same question!

The clever answer is: research.

The real answer is: procrastination.

So retell it in your own way. Do what Rowling and so many others did by making the themes your own by creating your own characters in your own world. It's clear C.S. Lewis was inspired by the bible to write the Chronicles of Narnia, and the fact that Aslan is Jesus is very clear, but he did retell the story in his own unique way, making the story his own.

Again, I'm not talking about general themes. Consider Peter Jackson's Lord of the Rings movie: New Line acquired the right to make those movies, and I thought they were great. There was no shame in such a direct translation to the screen. The only shame is that they had to acquire the right to do so, after so many years.

As problems go, it's not insurmountable, as I said. Besides, those works were in some way based on what came before them as well, so all you really need to do is go back to the source material. If you can't write about Luke Skywalker, write about Perseus. There are enough similarities to work with.

Indeed, it's fortunate that Perseus predates Disney, or, no one couldn't. My question is not whether there is a public domain, but why that public domain does not continue to grow?

Well, Mickey may be a bad example as he's more a mascot than a character in his own right. Think about it, can you name a single, defining character trait for Mickey? Or even one unique, original story he was ever in?

The only one that comes to mind in Steamboat Willie, and no one knows the plot of that one!

But your point about characters and stories whose copyright is owned by a corporate entity is a valid one. I think there should be a specific classification for movies/TV shows where the original film or episodes may be protected, bu the characters fall into public domain after a while, especially if there are no new movies/tv shows being made. Then again, as comic books have shown us, that would mean crappy versions will be made every few years just to hold onto the copyright.

Cory Doctorow has some similar ideas on copyright and intellectual property.

-- A2SG, and he writes some cool SF too....

The Statute of Ann lasted for 14 years. More than ever, with modern replication and distribution technologies, 14 years is a long time. But even with 28 years, at least people who were influenced by stories written during their childhoods have a chance to retell them during their lifetimes.