tag:theconversation.com,2011:/au/topics/us-law-and-copyright-24620/articlesUS law and copyright – The Conversation2023-01-23T18:54:12Ztag:theconversation.com,2011:article/1977712023-01-23T18:54:12Z2023-01-23T18:54:12ZMore means less: Extended copyright benefits the corporate few, not the public<figure><img src="https://images.theconversation.com/files/504764/original/file-20230116-14-bardrl.jpg?ixlib=rb-1.1.0&rect=54%2C20%2C2737%2C1983&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Canada's extension of copyright to 70 years after an author's death puts corporate profits ahead of the public interest.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/christopherdombres/5814893360/in/photostream/">(CHRISTOPHER DOMBRES/flickr)</a></span></figcaption></figure><p>Who benefits from Canada’s recent extension of copyright? Dead authors? Students? Marginalized writers? If you answered no to all of these, you’d be correct. </p>
<p>At the beginning of January, <a href="https://www.cbc.ca/news/entertainment/canada-public-domain-pause-1.6706498">Canada extended its copyright period</a> by an additional 20 years after an author’s death. Previously, copyright lasted up to 50 years after an author’s death. The extension means that works will not enter the public domain in Canada for 70 years after a creator’s death. </p>
<p>The <a href="https://canlii.ca/t/jqgw0">Supreme Court of Canada</a> has made it clear that “Copyright law does not exist solely for the benefit of authors,” but is meant to balance the rights of users and authors. </p>
<p>The <a href="https://www.canlii.org/en/ca/scc/doc/2021/2021scc32/2021scc32.html?resultIndex=1">Supreme Court</a> has also stated that while copyright should ensure a just reward as incentive for authors, “increasing public access to and dissemination of artistic and intellectual works, which enrich society and often provide users with the tools and inspiration to generate works of their own, is a primary goal of copyright.”</p>
<p>The latest copyright extension is a result of the trade negotiations that created the <a href="https://www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cusma-aceum/index.aspx?lang=eng">Canada-United States-Mexico Agreement (CUSMA)</a> — the successor to the <a href="https://www.canada.ca/en/treasury-board-secretariat/services/policy-notice/contracting-policy-notice-2020-2-replacement-north-american-free-trade-agreement-nafta.html">North American Free Trade Agreement (NAFTA)</a>.</p>
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<a href="https://images.theconversation.com/files/504305/original/file-20230112-69951-mdyx52.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three men wearing suits sit at a table. Two of them hold up booklets with signatures. Behind them are flags of mexico, canada and the U.S." src="https://images.theconversation.com/files/504305/original/file-20230112-69951-mdyx52.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/504305/original/file-20230112-69951-mdyx52.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=333&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504305/original/file-20230112-69951-mdyx52.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=333&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504305/original/file-20230112-69951-mdyx52.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=333&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504305/original/file-20230112-69951-mdyx52.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=418&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504305/original/file-20230112-69951-mdyx52.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=418&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504305/original/file-20230112-69951-mdyx52.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=418&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Canadian Prime Minister Justin Trudeau at a signing ceremony for the CUSMA agreement with the then-presidents of the U.S. and Mexico in Buenos Aires, Argentina in November 2018.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Sean Kilpatrick</span></span>
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<p>Like any monetary negotiation, these <a href="https://www.imf.org/en/Publications/fandd/issues/Series/Back-to-Basics/Trade">trade agreements</a> include give and take. Canada gets greater access to U.S. markets, for example, while the U.S. gets Canada to adopt the same copyright duration that they have.</p>
<p>Copyright material is increasingly valuable to Canada. In 2019, copyright-based industries contributed about $95.6 billion to Canada’s economy and made up around <a href="https://www.canada.ca/en/canadian-heritage/corporate/transparency/open-government/economic-impact-copyright-based-industries.html">4.9 per cent of GDP</a>. That means the country needs a more fine-tuned approach to trade deals. And a better understanding of how to best foster our creative industries.</p>
<h2>Who benefits from longer copyrights?</h2>
<p>Most authors need to license their work for it to reach a wide audience. The <a href="https://laws-lois.justice.gc.ca/eng/acts/c-42/"><em>Copyright Act</em></a> grants first ownership to the author who can license it. The act also states that the economic rights belong to the owner of the copyright. That is most often a media company, <a href="https://cb-cda.gc.ca/en/copyright-information/collective-societies">collective society</a>, publisher or other corporate entity. </p>
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<a href="https://images.theconversation.com/files/504307/original/file-20230112-60779-sqm2jw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman with grey hair carries a book." src="https://images.theconversation.com/files/504307/original/file-20230112-60779-sqm2jw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/504307/original/file-20230112-60779-sqm2jw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=784&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504307/original/file-20230112-60779-sqm2jw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=784&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504307/original/file-20230112-60779-sqm2jw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=784&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504307/original/file-20230112-60779-sqm2jw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=985&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504307/original/file-20230112-60779-sqm2jw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=985&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504307/original/file-20230112-60779-sqm2jw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=985&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The extension of copyrights means Canadians will have to wait much longer for works like Margaret Atwood’s Handmaid’s Tale to enter the public domain.</span>
<span class="attribution"><span class="source">(AP Photo/Alastair Grant)</span></span>
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<p>If copyright is a way to incentivize and reward creativity, that incentive should manifest while the author is still alive. The idea of authors benefiting during their lifetime was brought to Parliament’s Copyright Review Committee in 2018 by musician <a href="https://www.michaelgeist.ca/2018/12/bryan-adamscopyrightwarning/">Bryan Adams</a>. </p>
<p>In Canada, copyrights are usually turned over to an author’s heirs <a href="https://laws-lois.justice.gc.ca/eng/acts/C-42/section-14.html">25 years after their death</a>. This right is one of the ways the <em>Copyright Act</em> seeks to maintain a balance between having an economic incentive to be creative and making works available to others for education and inspiration. </p>
<p>Adams suggested that this would do a lot more good for authors if it were to occur 25 years after the copyright was initially granted. That would mean an author could gain greater benefits during their lifetime. </p>
<p>If further proof was needed regarding who really benefits from this extension, an article from <a href="https://ip.fasken.com/who-really-benefits-from-canadas-impending-copyright-term-extension/">Jean-Philippe Mikus of Fasken law firm</a> makes it clear. </p>
<p>Mikus states that the term extension is a “positive development” for copyright owners. But he also highlights that an author’s heirs can simply have the works handed to them. He goes on to suggest that Canadian law needs to copy the <a href="https://edwardslaw.ca/blog/work-made-for-hire-explained/">American work-for-hire model</a>, essentially ensuring that authors have no claim or ownership in their own creations.</p>
<h2>The public domain</h2>
<p>Another important aspect of copyright is its public interest goal, and works entering the public domain are essential to fulfill that goal. <a href="https://www.ifla.org/publications/the-public-domain-why-wipo-should-care-2007/#:%7E:text=The%20public%20domain%20is%20part,commercial%20and%20non%2Dcommercial%20purposes">The International Federation of Library Associations and Institutions</a> clearly outlines the importance of works entering the public domain:</p>
<blockquote>
<p>“The public domain is part of the common cultural and intellectual heritage of humanity and is the major source of inspiration, imagination and discovery for creators. Works in the public domain are not subject to any restrictions and may be freely used without permission for commercial and non-commercial purposes. It is important for access to knowledge and must be accessible for the benefit of creators, inventors, universities and research centres.”</p>
</blockquote>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/SiEXgpp37No?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Large corporations like Disney have lobbied the U.S. Congress to extend copyright protections.</span></figcaption>
</figure>
<p>Law professor <a href="https://www.michaelgeist.ca/2022/04/the-harm-from-budget-2022s-hidden-copyright-term-extension-part-one-entry-to-public-domain-of-canadian-authors-lost-for-a-generation/">Michael Geist</a> points out that an entire generation will lose out on works not entering the public domain for an additional 20 years. </p>
<p>The extension of copyright has been described as essentially <a href="https://www.techdirt.com/2022/11/29/canada-steals-cultural-works-from-the-public-by-extending-copyright-terms/">stealing cultural works from the public</a>. Canadian authors whose works fall under the extended copyright period include Marian Engel, Adele Wiseman, Hugh MacLennan, Margaret Laurence, bpNichol and Gabrielle Roy, to name just a few.</p>
<p>The public domain allows publishers to publish works that may have been languishing elsewhere because they weren’t seen as being economically viable. In addition, with fewer royalties to pay for the work, publishers are able to add pedagogical material to the text. </p>
<p>It is unlikely that any government will pass legislation to roll back the duration of copyright, but that doesn’t mean there is nothing that can be done. </p>
<p><a href="https://www.michaelgeist.ca/2022/04/the-canadian-government-makes-its-choice-implementation-of-copyright-term-extension-without-mitigating-against-the-harms/">Geist argues</a> for a registration system for the new extension. The author (owner) of the copyright would have to proactively register the copyright to retain it for the additional 20 years. This would allow works to still enter the public domain, particularly works that might not be being published because they aren’t seen as lucrative enough. </p>
<p>Under the <em>Copyright Act</em>, “<a href="https://laws-lois.justice.gc.ca/eng/acts/c-42/page-6.html#h-103270">Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright</a>.” But expansion of the fair dealing exception to include “such as” before the listed purposes could also help encourage new creations and bolster educational goals. </p>
<p>Adding “such as,” similar to <a href="https://www.copyright.gov/help/faq/faq-fairuse.html">fair use in the U.S.</a>, makes the list illustrative and allows for wider interpretation of what is an allowable use. This would be in line with <a href="https://www.ourcommons.ca/Content/Committee/421/INDU/Reports/RP10537003/indurp16/indurp16-e.pdf">recommendation 18 of the government’s Statutory Review of the Copyright Act</a>. </p>
<p>Corporate copyright owners are ultimately most concerned about their bottom line. Better protections for users’ rights are needed to ensure the public retains access to Canadian culture and heritage so Canadian creativity and innovation can continue to thrive.</p><img src="https://counter.theconversation.com/content/197771/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lisa Macklem is a PhD Candidate in Law at the University of Western Ontario. She currently teaches at Western, King's University College and Brescia University College. She is cited in York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 and The Statutory Review of the Copyright Act, both of which are cited in this article.</span></em></p>Canada’s extension of copyright might be good for corporations that hold copyrights, but it’s bad news for creators and the public.Lisa Macklem, PhD Candidate, Law, Western UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1853322022-08-09T12:16:49Z2022-08-09T12:16:49ZKey parts of US laws are hard for the public to find and read<figure><img src="https://images.theconversation.com/files/477199/original/file-20220802-19-ya953.jpg?ixlib=rb-1.1.0&rect=18%2C37%2C6211%2C4110&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The full text of a law may not be in this book – nor in its online equivalent.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/close-up-of-lawyer-reading-law-book-at-desk-royalty-free-image/998882240">RunPhoto/The Image Bank via Getty Images</a></span></figcaption></figure><p>It happens in court cases from time to time: Lawyers and judges discussing the meaning of a law can’t access the text they need to review. </p>
<p>It happened in a <a href="https://law.justia.com/cases/federal/appellate-courts/F3/391/312/559348/">federal court in Rhode Island</a> in 2004 and <a href="https://law.justia.com/cases/indiana/supreme-court/2017/53s04-1703-ct-121.html">in the Indiana Supreme Court</a> in 2017. </p>
<p>In both situations, state legislators and regulators had adopted laws and rules that required, under penalty of law, companies to do specific things to keep the public safe. The Rhode Island case was about fire protection, and the Indiana dispute was about high-tension electrical power lines. But the state officials had not spelled out the specific rules.</p>
<p>Instead, they required adherence to safety rules that were created and maintained by private companies – the <a href="https://www.nfpa.org/">National Fire Protection Association</a> and the <a href="https://www.ieee.org/">Institute of Electrical and Electronics Engineers</a>, respectively. The legislators and regulators did not, however, include the text of these safety rules in the laws and rules they adopted. </p>
<p>The organizations that create the rules can make it difficult to find and use the rules. This creates problems for judges trying to interpret and apply the rules. </p>
<p>In Rhode Island, neither the lawyers nor the judge could find the text of the safety rules. Without the text of the rules, the judge could not determine the responsibilities of a company to pay for fire prevention equipment. </p>
<p>The Indiana Supreme Court decided that it was so difficult to access a safety code that people in the state might not know what they needed to do to comply or how the code affected them. In its 2017 ruling, the court expressed concern “<a href="https://law.justia.com/cases/indiana/supreme-court/2017/53s04-1703-ct-121.html">that the Code may not be accessible</a> to those whose property interests it implicates, now that it has been adopted by a state regulatory agency and purports to carry the force of law.”</p>
<h2>‘Free access’ to the law</h2>
<p>Since the early 1800s, the U.S. Supreme Court has ruled that the actual text of the law needs to be accessible to the public. </p>
<p>The most recent ruling was in 2020 in a case involving free access to Georgia laws. In <a href="https://supreme.justia.com/cases/federal/us/590/18-1150/">that decision</a>, the Supreme Court, quoting an 1886 Massachusetts case, declared that “‘<a href="http://masscases.com/cases/sjc/142/142mass29.html">Every citizen is presumed to know the law</a>,’” and “‘all should have free access’ to its contents.”</p>
<p>As <a href="https://digitalcommons.law.uga.edu/jipl/vol29/iss1/2/">my research</a> shows, federal and state judicial support for access to the law extends back over 180 years. </p>
<p>Despite this support, judges and lawyers – not just the general public – at times find it difficult to access documents that have the force of law and govern people’s lives and communities.</p>
<h2>What is ‘the law,’ anyway?</h2>
<p>Most people think of “the law” as statutes enacted by legislatures, although “the law” also includes cases decided by courts and regulations issued by agencies. All of these documents are usually readily available to the public in printed form in libraries, courthouses and offices of government agencies, as well as online.</p>
<p>But there are nongovernmental organizations, mainly private, that also write provisions that govern Americans’ lives.</p>
<p>In both the Rhode Island and Indiana situations, the texts of these very detailed and technical codes were adopted into law but were not included with the texts of the statutes or regulations. For example, the Indiana Utility Regulatory Commission required in its regulations that companies maintaining overhead communications lines follow the <a href="https://standards.ieee.org/products-programs/nesc/">National Electrical Safety Code</a>. Instead of including the code’s text, the commission stated in its regulations that it “incorporates by reference the 2002 National Electrical Safety Code.”</p>
<p>“<a href="https://www.merriam-webster.com/dictionary/incorporation%20by%20reference">Incorporate by reference</a>” is a common phrase used in laws when legislators or regulators want to avoid adding lengthy text to a statute or regulation. It means the text referred to has the force of law as if the text were included in the statute or regulation. Anyone wanting to access the incorporated text, however, has to find it.</p>
<h2>No text included</h2>
<p>Legislatures and regulatory agencies rely on the expertise of private organizations to draft standards and codes that govern safety and technical requirements for numerous industries, including consumer products, energy, water, housing and building construction, paints, plastics and iron and steel products. </p>
<p>It is common to incorporate references to those privately created standards and codes in both state and federal law. The texts of the standards and codes are not included.</p>
<p>In federal regulations, there are thousands of these incorporated standards and codes.</p>
<p>A federal website, last updated in 2016, shows <a href="https://sibr.nist.gov/">more than 24,000 standards</a> incorporated by reference into federal regulations. That number doesn’t include any standards incorporated by reference into state laws and regulations.</p>
<p>In the past, to limit the physical size of published statutes and regulations, legislatures and regulatory agencies did not include the text of the incorporated standards and codes.</p>
<p>But even with online storage and access, where length is not a consideration, incorporation by reference continues.</p>
<p>It is often difficult to locate the text of these incorporated standards and codes. There is no one place where copies of these standards and codes are available. The creators of the standards and codes may provide some access. They also, however, can charge for access and limit or prohibit printing and downloading.</p>
<p>As shown in the Rhode Island and Indiana cases, lack of access can raise questions about the ability of people and companies to comply with the law. It is difficult to comply with the law if it is not available or is hard to obtain.</p>
<h2>Control by copyright</h2>
<p>The private parties who create these standards and codes claim copyright in these writings.</p>
<p>As copyright holders, they can control access.</p>
<p>For example, several creators of standards sued the nonprofit organization Public.Resource.Org, Inc., when it scanned and posted on its website numerous copyrighted standards.</p>
<p>In March 2022, a federal district court ruled that Public.Resource.Org was not violating copyright protections by posting <a href="https://en.wikisource.org/wiki/American_Society_for_Testing_and_Materials_v._Public.Resource.Org,_Inc._(2022)">standards that were incorporated into law</a>. The ruling has been appealed.</p>
<h2>Going backward?</h2>
<p>With so many private standards incorporated into law but hard to find and access, I see parallels with the period of the New Deal in the early 1930s, when the administration of President Franklin Roosevelt <a href="https://public.resource.org/48HarvLRev198.pdf">issued a large number of regulations</a> and <a href="https://www.governing.com/now/the-executive-order-a-history-of-its-rise-and-slow-decline.html">executive</a> and administrative orders. </p>
<p>At the time, there was no organized means of publishing and accessing these documents. The situation was so chaotic that even government officials did not know the law.</p>
<p>In one case, the government indicted several people for violation of a regulation provision. No one knew that the provision had been removed and did not exist when the people were charged. This error was not discovered until the case was <a href="https://timesmachine.nytimes.com/timesmachine/1934/10/02/93644136.pdf">on appeal before the Supreme Court</a>, which <a href="https://cite.case.law/us/293/633/3931826/">dismissed the case in 1934</a>.</p>
<p>Federal regulations are now <a href="https://www.govinfo.gov/app/collection/cfr">published in an organized form</a> and are accessible in print and online. Incorporated copyrighted standards and codes, however, remain a challenge to locate.</p>
<p>The Indiana Supreme Court noted that with the advent of electronic technology, “<a href="https://law.justia.com/cases/indiana/supreme-court/2017/53s04-1703-ct-121.html">incorporating copyright-protected materials by reference</a> seems antiquated and at odds with government’s obligation to provide meaningful access to laws.”</p>
<p>The court emphasized that “<a href="https://law.justia.com/cases/indiana/supreme-court/2017/53s04-1703-ct-121.html">If the rule of law means anything</a>, it is that persons have meaningful access to the laws they are obliged to follow, so they can conform their conduct accordingly.”</p><img src="https://counter.theconversation.com/content/185332/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>D. R. Jones does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It’s a long-standing principle that people should be able to read the laws that govern them. But many technical rules and standards are hard to find and access, even for lawyers or court officials.D. R. Jones, Associate Professor of Law and Director of the Law Library, University of MemphisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/560502016-08-08T00:03:53Z2016-08-08T00:03:53ZWho owns your tattoo? Maybe not you<p>More than 20 percent of all Americans have at least one tattoo, and for millennials that number jumps to <a href="http://www.pewsocialtrends.org/files/2010/10/millennials-confident-connected-open-to-change.pdf">almost 40 percent</a>. What could be more intimately a part of you than a work of body art permanently inked into your skin? You probably assume that the tattoo on your body belongs to you. But, in actuality, somebody else might own your tattoo. Recent lawsuits and events have shown that tattoo artists and companies can have intellectual property rights in tattoos worn by others, including both copyright and trademark rights. </p>
<p>Tattoo-related lawsuits are not uncommon. Just this year, a group of tattoo artists for several high-profile athletes, including Lebron James and Kobe Bryant, <a href="https://www.scribd.com/doc/297571191/Solid-Oak-Sketches-v-Take-Two">filed a copyright lawsuit against</a> the creators of the popular NBA 2K video game franchise because tattoos they created appear in NBA 2K16. The case is still pending in a New York federal court.</p>
<p>In 2011, S. Victor Whitmill, the artist who designed and inked Mike Tyson’s facial tattoo, <a href="http://www.nytimes.com/interactive/2011/05/21/business/media/20110521tattoo-case.html?_r=0">sued Warner Bros. Entertainment, Inc. for copyright infringement</a>; the production company planned to release the film “The Hangover 2,” complete with a scene in which one of the actors received a facial tattoo nearly identical to Tyson’s. The parties ultimately <a href="http://www.reuters.com/article/us-hangover-idUSTRE75K0DF20110621">settled</a> before a court could make a determination on the copyright claims.</p>
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<a href="https://images.theconversation.com/files/133267/original/image-20160805-466-qtgzrt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/133267/original/image-20160805-466-qtgzrt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/133267/original/image-20160805-466-qtgzrt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/133267/original/image-20160805-466-qtgzrt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/133267/original/image-20160805-466-qtgzrt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/133267/original/image-20160805-466-qtgzrt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/133267/original/image-20160805-466-qtgzrt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/133267/original/image-20160805-466-qtgzrt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Everyman Espresso, before it ceased and desisted.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/39908901@N06/7565354842">m01229</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>And the issue isn’t limited to celebrities and athletes. For example, Sam Penix, a coffee shop owner living in New York, was <a href="http://www.nytimes.com/2013/05/30/nyregion/new-york-challenges-a-coffee-shop-logo.html">threatened with a trademark infringement lawsuit in 2013</a> based on the “I [coffee cup] NY” tattoo he has across his fist. Penix’s shop logo featured his tattooed fist grabbing a coffee portafilter between the words “Everyman Espresso.” The New York State Department of Economic Development, which owns the “I ♥ NY” trademark, sent Penix a cease-and-desist letter because it believed the logo infringed its trademark. To avoid being sued, Penix agreed to several terms, including some restrictions on how his fist could (and could not) be photographed.</p>
<p>As director of the Drake University Law School Intellectual Property Law Center, <a href="http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1216&context=mttlr">I’ve researched this area extensively</a>. Some complicated legal issues stem from applying traditional law to this nontraditional type of property. Based on current law, the standards set by these cases can affect countless daily activities for people with tattoos, including how they are depicted, photographed or recorded. Despite common sense to the contrary, copyright law and trademark law technically allow for such limitations on a person’s freedom. </p>
<h2>Copyrighted art you wear on your skin</h2>
<p>If a creation is copyrightable, the <a href="https://www.law.cornell.edu/uscode/text/17/201">default legal standard</a> is that the person who created it owns it. </p>
<p>To receive copyright protection, a creation <a href="https://www.law.cornell.edu/uscode/text/17/102">must meet three requirements</a>: It must be a work of authorship, it must be original and it must be fixed. Under <a href="http://commons.lib.niu.edu/bitstream/handle/10843/16433/King%2092%20Or%20L%20Rev%20129%202013-Web.pdf?sequence=1&isAllowed=y">widely accepted theory</a>, tattoos can meet each requirement.</p>
<p>First, the term “work of authorship” includes art. Tattoos, <a href="http://escholarship.org/uc/item/77j602d0#page-7">by nearly every interpretation</a>, can be considered art under the law. </p>
<p>Second, regarding originality, courts require that a work be independently created and be “minimally creative.” <a href="http://cyber.law.harvard.edu/people/tfisher/1991%20Feist.pdf">The Supreme Court has held</a> that most things “make the grade quite easily” under this very low bar. Therefore, tattoo artists who design tattoos themselves will almost always meet this requirement. </p>
<p>Third, “fixation” requires that the work be created on something that a person can see and perceive more than momentarily. Tattoos by their very nature (and to some people’s chagrin) are permanently placed on human skin and can be seen by someone nearby.</p>
<p>Given these basic requirements, a tattoo can be protected by copyright law, and the creator of that tattoo owns the resulting rights. <a href="http://commons.lib.niu.edu/bitstream/handle/10843/16432/King%2022%20J%20Intell%20Prop%20L%2029%202014-Web.pdf?sequence=1&isAllowed=y">These rights include</a> the ability to keep others from displaying, reproducing or creating new works based on the original tattoo or one that is substantially similar. This would include things like photos, videos and artwork that use the tattoo. </p>
<h2>Corporate shill or tattooed trademark violator?</h2>
<p>Under trademark law, <a href="http://repository.jmls.edu/cgi/viewcontent.cgi?article=1318&context=ripl">nearly anything can be a trademark</a>, including words, names, symbols or devices. Trademarks are used to protect the trademark owner’s goodwill and reputation developed through the trademark and to help the public identify where products and services come from.</p>
<p>In some cases, people decide on their own to ink themselves with their favorite company brands. Some corporate trademarks make for <a href="http://www.inta.org/INTABulletin/Documents/INTABulletinVol56no12.pdf">popular tattoos among brand loyalists</a>, including the <a href="http://tattoo-journal.com/25-adventurous-harley-davidson-tattoos/">Harley-Davidson crest</a>, <a href="https://ironmarketer.net/2013/08/23/the-m-dot-ironman-tattoo/">Ironman “M-Dot”</a> and <a href="http://www.nytimes.com/1994/05/22/magazine/sunday-may-22-1994-nike-s-tattooed-ekins.html">Nike swoosh</a>. In other instances, companies <a href="http://www.rapidnyc.com/rapidtattoos">encourage employees</a> to tattoo themselves with the corporate trademark by offering financial benefits. In either case, individuals with trademark-based tattoos can find themselves exposed to an infringement lawsuit. </p>
<p>A <a href="http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1216&context=mttlr">trademark infringement claim requires</a> showing that:</p>
<p>1) the tattooed person is using a reproduction or copy of the trademark;
2) the tattooed person is in commerce without permission; and
3) the use is likely to cause confusion.</p>
<p>Under this standard, nearly anyone with a trademark-based tattoo could be subject to a trademark lawsuit.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/133270/original/image-20160805-496-sc0yfv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/133270/original/image-20160805-496-sc0yfv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/133270/original/image-20160805-496-sc0yfv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=415&fit=crop&dpr=1 600w, https://images.theconversation.com/files/133270/original/image-20160805-496-sc0yfv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=415&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/133270/original/image-20160805-496-sc0yfv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=415&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/133270/original/image-20160805-496-sc0yfv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=521&fit=crop&dpr=1 754w, https://images.theconversation.com/files/133270/original/image-20160805-496-sc0yfv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=521&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/133270/original/image-20160805-496-sc0yfv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=521&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Consult your lawyer before you enter.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/thomashawk/459898582">Thomas Hawk</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
</figcaption>
</figure>
<h2>Cover yourself?</h2>
<p>Athletes, entertainers and other public figures are probably most at risk of violating copyright or trademark law through their body art. By virtue of their careers, these figures are regularly in the public eye and using their physical appearance, skills and bodies to market themselves and the goods and services connected to their livelihoods. </p>
<p>But, the nonfamous may also find themselves using trademark tattoos in commerce through photos and marketing materials related to their own companies, similar to Sam Penix. In addition, because the internet and social media have made nearly every contact a potentially commercial endeavor, many people could find themselves exposed to trademark infringement lawsuits based on their tattoos. </p>
<p>According to current trademark law, if a person is ultimately found liable for trademark infringement, he or she could be required to pay money damages, court costs and attorney fees. A court could also require that the person stop using the trademark as well as destruction of infringing items. In the trademark-based tattoo context, one can imagine how practical issues might come in to play. Could a court, for example, require tattoo removal? Though highly unlikely, the plain language of the law does not foreclose such an option. What is more likely is that a person may be precluded from displaying the tattoo in commercial photography and appearances.</p>
<p>Until courts and legislators create innovative legal solutions, both tattoo artists and people with tattoos should consider copyright agreements that specifically outline who owns a resulting tattoo. People with trademark tattoos should be aware that displaying their tattoos visibly in commerce could lead to liability. Otherwise, tattooed skin may end up with several owners with competing interests – and even if you live within that skin, you may not own the art that adorns it.</p><img src="https://counter.theconversation.com/content/56050/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shontavia Johnson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Copyright and trademark law mean that the body art inked into your skin may leave you open to an infringement lawsuit.Shontavia Johnson, Professor of Intellectual Property Law, Drake UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/604182016-06-06T01:21:54Z2016-06-06T01:21:54ZGoogle wins in court, and so does losing party Oracle<figure><img src="https://images.theconversation.com/files/125183/original/image-20160603-11620-15adj3n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Everybody wins!</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-402095701/stock-vector-gold-trophy-cup-of-winner-in-two-hands-illustration.html">Trophy and hands via shutterstock.com</a></span></figcaption></figure><p>Oracle <a href="http://arstechnica.com/tech-policy/2016/05/google-wins-trial-against-oracle-as-jury-finds-android-is-fair-use/">recently lost its attempt</a> to use patent and copyright law to force Google to pay US$9 billion for using parts of its Java computer language. Nine billion dollars isn’t chump change, not even for Google, but despite the verdict against Oracle, I’d say Google is not the only winner.</p>
<p>The dispute between the two internet giants was <a href="http://arstechnica.com/tech-policy/2016/05/how-oracle-made-its-case-against-google-in-pictures/">whether Google had needed Oracle’s permission to use computer code</a> called the Java API. The API, and therefore the legal issue, relates to some pretty technical details about how computer programs work – how the instructions programmers write are followed on different hardware devices and different software operating systems.</p>
<p>The outcome of the case, decided in parts by a judge, an appeals court and a jury, was that Google’s use of computer code didn’t violate Oracle’s patents, and that Oracle could copyright its code. However, the jury found that Google’s use did not violate the copyright restrictions because it significantly expanded on the existing copyrighted materials, an exception in law called “<a href="http://www.copyright.gov/fair-use/">fair use</a>.”</p>
<p>It is not only a victory for Google, which has done nothing wrong and need not pay Oracle any money. Programmers remain allowed to use a very popular programming language without fear of crippling legal penalties – which in turn benefits the public, who use <a href="https://github.com/trending/java">apps and websites made with Java</a>. And while technically the legal loser, Oracle also won in a way, because it will benefit from Java’s continued popularity.</p>
<h2>What’s an API?</h2>
<p>To understand the heart of the dispute, we first need to grasp what an Application Programming Interface (API) is and what it does for programmers. At its simplest, an API defines the specific details of how a program interacts with a computer’s operating system and the underlying hardware.</p>
<p>Computer manufacturers use a <a href="http://www.makeuseof.com/tag/whats-inside-your-computer-the-story-of-every-component-you-need-to-know-3/">wide range of specific components</a>: hard drives and memory storage units with different sizes, faster or slower processing chips, smaller and larger screens. They also choose <a href="http://www.computerworld.com/article/3050931/microsoft-windows/windows-comes-up-third-in-os-clash-two-years-early.html">different operating systems</a>, such as Windows, the Macintosh OS X, and Linux – each of which is regularly upgraded with a new version.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/125184/original/image-20160603-11585-ehiq95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/125184/original/image-20160603-11585-ehiq95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/125184/original/image-20160603-11585-ehiq95.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/125184/original/image-20160603-11585-ehiq95.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/125184/original/image-20160603-11585-ehiq95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/125184/original/image-20160603-11585-ehiq95.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/125184/original/image-20160603-11585-ehiq95.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Hoping to avoid nightmares: a Java programmer.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File%3AProgrammer_writing_code_with_Unit_Tests.jpg">Joonspoon</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>Each variation might handle basic functions differently – such as reading a file connecting to the internet, or drawing images on the screen. For a computer programmer, that is a nightmare. Nobody wants to write a program that works only on a <a href="http://www.dell.com/us/p/inspiron-15-3552-laptop/pd?oc=fncwc008sb&model_id=inspiron-15-3552-laptop">Dell laptop with a 15-inch screen, a 500 GB hard drive, 4 GB of RAM, running Windows 10</a> – and no other computer. And nobody wants to write the extremely large number of slight variations to make sure a program works on every machine, either.</p>
<p>The API solves that problem for the programmer, handling the complicated and difficult details of exactly how any specific computer will act. That leaves programmers free to concentrate on what they want a computer program to do, without having to worry about precisely how. It’s better for the user, too. If she has (for example) <a href="https://java.com/en/download/">Java installed</a> on whatever computer she uses, programs written in Java will run.</p>
<h2>Java itself</h2>
<p>The Java API contains methods for everything from reading and writing a file, to drawing on a screen, to handling web security certificates. Without a functioning copy of the API, programs in Java are fundamentally broken. Clearly, therefore, he who controls the API controls the language. </p>
<p>Oracle, when it <a href="http://www.oracle.com/us/corporate/press/018363">bought Sun Microsystems</a>, bought the rights to Java and its API. The crux of the legal battle was how this control is exerted and how far it extends.</p>
<p>No one denied that Oracle has a valid copyright on the language and API specification. This is a good thing. It means I can’t just make a copy of Java, give it a name (like “Darjeeling”), and call it a new language that I own. Similarly, a company can’t change the API arbitrarily and still call it the Java API.</p>
<h2>What did Google do?</h2>
<p>When it <a href="https://googleblog.blogspot.com/2008/09/first-android-powered-phone.html">released Android in 2008</a>, Google added software and hardware development to its existing internet service business. If its products were going to succeed, they needed to be able to run lots of interesting programs. The easiest way to do ensure that was to make sure the new devices could understand at least one computer language that’s already <a href="http://spectrum.ieee.org/computing/software/the-2015-top-ten-programming-languages">widely used by programmers</a>. Java is a natural choice. </p>
<p>The alternative would have been to <a href="https://msdn.microsoft.com/en-us/library/67ef8sbd.aspx">create a new language</a>, but that pathway is fraught with difficulties. Introducing a new language requires convincing programmers that it is worth using and giving them time and resources to learn the language.</p>
<p>Once Google decided on Java, it needed to connect Java programs to Android’s hardware and software – it needed a Java API for Android.</p>
<h2>Sharing names for computer commands</h2>
<p>Rather than commissioning Oracle to write it, Google wrote the software in-house, customizing it for cellphone hardware. For example, Bluetooth, touch-screen gestures and telephone calls are not handled in Oracle’s standard Java API; they are solely in Android-specific code. </p>
<p>However, to be sure Android devices could run existing Java software, Google wrote its Android Java with some of the same commands as Oracle’s version of Java. Both Android and Oracle support the <a href="https://docs.oracle.com/javase/7/docs/api/java/io/package-summary.html">Java.io methods</a> that let programmers use the same <em>files.newInputStream(filename)</em> command to initiate the arcane and complex Java file-reading process. </p>
<p>Google didn’t copy the code Oracle had written for other hardware or software systems. It wrote <a href="https://developer.android.com/reference/classes.html">all-new Android-specific</a> instructions for devices to follow each command, but to help programmers, gave many common commands the same name Oracle used.</p>
<p>Oracle’s <a href="http://arstechnica.com/tech-policy/2012/04/oracles-ip-war-against-google-finally-going-to-trial-whats-at-stake/">lawyers sharpened their knives</a> and the battle was on. Could Google use the same names, even if the code they referred to was different?</p>
<h2>The stakes were high</h2>
<p>If Oracle had won, Java’s days as a primary programming language for Android – the <a href="https://bgr.com/2016/06/02/apples-mobile-market-share-sees-big-drop-in-may-as-android-skyrockets/">world’s most popular smartphone system</a> – were numbered. Very quickly, Google would have chosen a new language for Android programmers to use, and published a conversion tool to translate existing Java apps into the new language. Then it would have stopped supporting Java. (I suspect <a href="https://www.microsoft.com/en-us/">one of Oracle’s competitors</a> would have offered Google excellent licensing terms to choose another language.) </p>
<p>Programmers would have lost. The tools to write code for Android would have been, at a bare minimum, more expensive and less flexible. The public would have lost, because new and interesting apps would both be more expensive and released less frequently.</p>
<p>Finally, Oracle would have lost because programming in Java would no longer be a viable option for a major market. Computer languages compete for popularity, so fewer programmers would choose to program in Java, reducing the pool of people who were comfortable and competent in Java. Instead they would choose others, like <a href="https://www.python.org/">Python</a> or <a href="https://www.ruby-lang.org/en/">Ruby</a>. With fewer people working in Java, Oracle’s primary way of making money from it (creating <a href="https://www.oracle.com/java/index.html">Java-based computer systems</a> that can be expanded by third-party developers) would slowly decline.</p>
<p>Instead, while Oracle doesn’t get $9 billion from Google, the programming community – and those of us who use apps and websites every day – gets to keep using an important tool, without fear of a similarly large lawsuit in the future.</p><img src="https://counter.theconversation.com/content/60418/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Harrison does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Google saves $9 billion, programmers and users get to keep a popular language and its apps – and a key Oracle product stays alive.Robert Harrison, Professor of Computer Science, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/537882016-02-10T11:06:45Z2016-02-10T11:06:45ZShouldn’t there be a time limit on Mickey’s copyright?<figure><img src="https://images.theconversation.com/files/110509/original/image-20160205-18300-l9ge4r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">When should a work go into public doman?</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/cat.mhtml?lang=en&language=en&ref_site=photo&search_source=search_form&version=llv1&anyorall=all&safesearch=1&use_local_boost=1&autocomplete_id=&searchterm=copyright&show_color_wheel=1&orient=&commercial_ok=&media_type=images&search_cat=&searchtermx=&photographer_name=&people_gender=&people_age=&people_ethnicity=&people_number=&color=&page=1&inline=213582682">Copyright image via www.shutterstock.com</a></span></figcaption></figure><p>In 1998, the U.S. Congress passed the <a href="https://www.gpo.gov/fdsys/pkg/PLAW-105publ298/pdf/PLAW-105publ298.pdf">Copyright Term Extension Act of 1998 (CTEA)</a>. CTEA expanded on the <a href="http://copyright.gov/history/pl94-553.pdf">Copyright Act of 1976</a> by retroactively extending all existing copyrights by 20 years. </p>
<p>So instead of the steady entry into the public domain of works whose copyrights had expired, CTEA mandated that no additional copyrighted works would enter the public domain from January 1, 1999 through January 1, 2019. </p>
<p>Consequently, CTEA provided a substantial windfall to holders of valuable intellectual properties for which the copyright would have otherwise expired. </p>
<p>This 20-year moratorium imposed by CTEA is now approaching its end. And the Congress that will be elected in November 2016 will face a decision: to either allow CTEA to quietly expire or vote to further extend the term of copyright.</p>
<p>What will be the consequence if the term of copyright is further extended?</p>
<p>As an academic librarian and a student of the history of copyright, I believe a further extension to the term of copyright will be detrimental to the public good. </p>
<h2>U.S. law and copyright</h2>
<p>Consider the example provided by a single, somewhat unremarkable book.</p>
<p>On July 21, 1924, a U.S. Army officer named <a href="https://en.wikipedia.org/wiki/Walter_C._Sweeney,_Sr.">Walter C. Sweeney Sr.</a> registered the copyright for a nonfiction book, <em><a href="http://collections.stanford.edu/copyrightrenewals/bin/search/simple/process?query=walter+sweeney">Military Intelligence: A New Weapon of War</a>,</em> based on his experiences in the First World War.</p>
<p>Under the U.S. laws in effect at the time, the <a href="http://www.legisworks.org/congress/60/publaw-349.pdf">term of copyright</a> for this book was 28 years with the possibility of extending for an additional 28 years. <a href="http://collections.stanford.edu/copyrightrenewals/bin/search/simple/process?query=walter+sweeney">On July 7, 1952,</a> Major General Sweeney, by then retired, renewed his copyright. Thereby his exclusive rights to his work were <a href="http://www.legisworks.org/congress/60/publaw-349.pdf">extended to January 1, 1981.</a></p>
<p>Though it cannot be known with certainty, it is possible that Sweeney was still receiving royalty payments for <em>Military Intelligence</em> as late as 1952. However, by that date it is also possible that he may not have seen a royalty payment in years. Save for an obscure translation into <a href="http://ucmerced.worldcat.org/title/jun-shi-qing-bao-yi-ge-xin-de-zhan-zheng-bing-qi/oclc/56952624?ht=edition&referer=br">Chinese undertaken in 1946,</a> <em>Military Intelligence</em> was never reprinted following its initial publication in 1924. </p>
<p>By 1952 all the new (i.e., royalty-generating) copies could have been already sold through normal channels or simply disposed of when the original publisher, <a href="http://www.gutenberg.us/articles/frederick_a._stokes">Frederick A. Stokes Company, was bought out by J.B. Lippincott in 1943.</a> </p>
<p>Regardless, it is entirely likely that by the time New Year’s Day 1981 rolled around, the expiration of Sweeney’s copyright would have caused no financial harm to his estate. (Sweeney died a widower in 1963, and only one of his three children was still alive in 1981.)</p>
<p>Like the vast majority of works, the economic value of <em>Military Intelligence</em> expired decades ahead of its copyright. For every <em>The Great Gatsby</em> that continues generating revenue decades after its début, there are tens of thousands of works like <em>Military Intelligence</em> whose economic shelf life lasts a few years at best. </p>
<h2>So, what’s the point?</h2>
<p>Here is the twist. </p>
<p>This book did not enter the public domain in 1981. Instead, it remains to this day a copyrighted work. And, under current law, will stay that way until it enters the public domain on January 1, 2020, more than 95 years after its initial publication.</p>
<p>Why has <em>Military Intelligence</em> remained in copyright for nearly four decades longer than its author had any expectation it would? </p>
<p>The reason is that the U.S. Congress keeps extending the term of copyright. In 1976, <a href="http://copyright.gov/history/pl94-553.pdf">new copyright legislation</a> increased Sweeney’s 1952 copyright extension from 28 to 47 years. </p>
<p>In 1998, CTEA unilaterally extended the copyright of all still-in-copyright works created after January 1, 1923. The chief justification for CTEA was that it brought U.S. copyright in line with European copyright as specified in the <a href="http://www.wipo.int/treaties/en/text.jsp?file_id=283698">Berne Convention,</a> which prescribes that copyright should last at least 50 years after the author’s death. </p>
<p>The chief criticism to the law, as expressed by the likes of academic and attorney <a href="http://www.wired.com/2002/10/lessig-3/?pg=5">Lawrence Lessig,</a> is that Congress’ retroactive extension of copyright terms benefits a handful of corporations like Disney and the heirs of commercially successful artists like <a href="http://www.biography.com/people/irving-berlin-9209473">Irving Berlin</a> <a href="http://www.wired.com/2002/10/lessig-3/?pg=5">in defiance</a> of the constitutional mandate that copyright law protect the rights of creators for a limited time rather than in perpetuity.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/110511/original/image-20160205-18274-gyp1y9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/110511/original/image-20160205-18274-gyp1y9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/110511/original/image-20160205-18274-gyp1y9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/110511/original/image-20160205-18274-gyp1y9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/110511/original/image-20160205-18274-gyp1y9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/110511/original/image-20160205-18274-gyp1y9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/110511/original/image-20160205-18274-gyp1y9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Disney’s Steamboat Willie remains under copyright.</span>
<span class="attribution"><a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>In that process, millions of works that no longer bring, or never brought, any economic benefits to their creators or their creators’ heirs are today bound by the same laws that protect commercially successful works such as the first Mickey Mouse film, <em>Steamboat Willie,</em> and Berlin’s “Puttin’ on the Ritz.” (Both of which would today be in the public domain if not for CTEA.) </p>
<h2>Why it matters</h2>
<p>So who cares if one obscure and hopelessly outdated book about military intelligence is tangled up in the grabby tentacles of the copyright octopus? </p>
<p>Aside from a few military historians, probably nobody. But if it were to turn out that, unlikely as it may be, <em>Military Intelligence</em> contains some facts, wisdom or insight that could make the world a safer, happier, or more just place, the whole world should care. </p>
<p>As it stands, however, the world cannot know what <em>Military Intelligence</em> has to offer save for those who already own a copy, have access to one of the roughly 100 copies scattered among various libraries, or are willing and able to supply the US$25 to $70 asking price for a used copy (not a penny of which goes to the author’s estate).</p>
<p>Public-good entities such as HathiTrust and Internet Archive cannot make the digitized full text of <em>Military Intelligence</em> (a work with zero economic value) freely available.</p>
<p>And what if, against any reasonable expectation, someone were inspired to create a play, song, film, graphic novel, or other work derived from <em>Military Intelligence</em>? </p>
<p>At worst, tracking down the current rights-holder for permission to create a derivative work would prove impossible; at best, the process would be time-consuming and costly. Even if tracked down, the current rights-holder could quash any attempt to repurpose <em>Military Intelligence</em> by demanding an exorbitant permission fee or simply refusing to cooperate. If you are holding your breath for the premier of <em>Military Intelligence: An American Musical,</em> don’t bother. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/110510/original/image-20160205-18308-1forhgi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/110510/original/image-20160205-18308-1forhgi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=431&fit=crop&dpr=1 600w, https://images.theconversation.com/files/110510/original/image-20160205-18308-1forhgi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=431&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/110510/original/image-20160205-18308-1forhgi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=431&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/110510/original/image-20160205-18308-1forhgi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=542&fit=crop&dpr=1 754w, https://images.theconversation.com/files/110510/original/image-20160205-18308-1forhgi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=542&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/110510/original/image-20160205-18308-1forhgi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=542&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">This illustration is an allegory of the battle between corporate monopolies and public domain for the extension of intellectual property rights.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/christopherdombres/5814893360/in/photolist-9RQRd5-99Rf8R-4F6Lh3-bx59Gn-7NfxcR-5AXf6j-sgyEc-37jCsU-8nDt9B-MKerv-mhe62e-5ASZ6x-dnvABk-5ASZ7T-7vBD4T-9JWy4r-eSmc91-4dHWP-9b45XN-7zQetQ-5AXf7J-bqbjQd-JjmVK-2t7JF-9rjVkk-5oGqKU-5Hxjg4-dT63q-6QyPwR-a7fAHV-amMHBV-856aLS-bD6e8F-5nEX5o-ns17uC-6x3pc2-8AqBLM-qcHNja-9dgGAu-8yZZoH-RXL7R-8kMCb4-dLnTuW-jV6vrh-9dsvMS-9f7sxA-bmnwzW-6CYVuw-dYb3QT-e6B4MN">Christopher Dombres</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Of course the problem with current copyright law is not the locking up of any one book. The problem is the locking up, for ever-increasing lengths of time, of the mass of works that should be freely available to fuel the creation of new works.</p>
<h2>A perpetual copyright?</h2>
<p>Will the corporations and individuals who hold old, but still valuable, copyrights allow works they consider to be their private property to march, year by year, into the public domain? Or will they lobby Congress for another 20 or 40 or 100 years of copyright extension?</p>
<p>It seems logical to assume that holders of valuable copyrights will lobby the 115th Congress to extend the term of copyright. Lobbyists were certainly on hand to push for the passage of CTEA back in the late 1990s – <a href="https://www.washingtonpost.com/news/the-switch/wp/2013/10/25/15-years-ago-congress-kept-mickey-mouse-out-of-the-public-domain-will-they-do-it-again/">a victory they achieved </a> in the face of generally weak and disorganized opposition.</p>
<p>This time around, I believe, any lobbyists pushing for longer copyright terms should have a harder time. The emergence of the digital into everyday life has created a significant body of academics, legal thinkers, librarians, and consumers who care a great deal about the impact copyright legislation has on their lives. </p>
<p>In the past, organizations that care about the public’s stake in copyright – for example, the <a href="https://www.eff.org/deeplinks/2016/01/copyright-week-2016-making-copyright-work-public">Electronic Frontier Foundation</a>, the <a href="http://www.ala.org/advocacy/copyright">American Library Association</a> and, <a href="https://creativecommons.org/">Creative Commons</a> – have stepped up to oppose other unfair copyright legislation, such as the <a href="https://www.eff.org/issues/coica-internet-censorship-and-copyright-bill">Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA).</a> </p>
<p>Should the 115th Congress be pressured into extending copyright yet again, these organizations and their allies will need active public support. It is not enough to sit back and hope that Internet petitions and angry Facebook rants will prevail. </p>
<p>While Congress may not be able to make copyright perpetual, it could make the terms so long that copyright might as well last forever. If this is allowed to happen, millions of works that should be freely available for use by current and future generations of scholars, artists, and the just plain intellectually curious will remain hidden in the shadow of copyright – inaccessible and all but invisible.</p><img src="https://counter.theconversation.com/content/53788/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Donald A. Barclay does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A copyright law that has frozen the entry of many works into public domain is approaching its end. Will a further extension of its term be detrimental to the common good?Donald A. Barclay, Deputy University Librarian, University of California, MercedLicensed as Creative Commons – attribution, no derivatives.