Turner grabs public domain movies
p2pnet.net News View:- A Variety.com article discusses how Turner Classic Movies has negotiated the copyright to six RKO Radio movies from the 1930s.
But there’s an obvious question: Aren’t these works in the public domain?
The answer is that they are in the public domain in Canada, given we have a fixed term of 50 years from the date of publication.
Any movie published prior to 1956 was in the public domain as of January 1 of this year, and is now available for cultural recycling.
The answer for countries like the USA is more complex, and there are tables of copyright terms you can look at. The question seems to hinge on whether it was published with a copyright notice, and whether the copyright had been renewed.
Demanding that copyright "shall not be subject to any formality", such as registration or renewal, was one of the major flaws in the Berne Convention, and is likely one of the reasons the USA took until 1989 to ratify.
I wonder if, since Industry Canada has recognized the value of clarifying when Generic Drug manufacturers can build upon past patented creativity, whether they’ll see the value of similarly simplifying copyright term.
Movies being at publication date+50 years is long but clear, while the recent proposed change of photography from date taken+50 to life of unknowable author+50 is a drastic backwards move.
We also need to be thinking, as a country with negotiating at WIPO, to fix some of the outdated clauses of the Berne convention.
Now that we’ve digital technologies, it makes far more sense to have a registration and renewal system such that we can catalogue the small number of works which are still under copyright protection, rather than trying to create databases of the vast majority of human creativity which is in the public domain.
Note: Canada ratified Berne in 1928, 61 years earlier than the USA. Remember this difference when you hear claims from the USA that Canada has ‘obligations’ to quickly ratify the 1996 WIPO treaties.
Russell McOrmond – p2pnet contributing editor
[McOrmond is an independent author (software and non-software) who uses modern business models and licensing (Free/Libre and Open Source Software, Creative Commons). He's also the CLUE policy coordinator.]
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October 19th, 2006 at 1:06 am
My comment: Many countries use LOA + 50 or 70 years. Is is messier than US system figuring out who the “author” is & then calculating the term of protection for films? Yes! Most countries w/ LOA paradigms do it by agglomerating key personnel & then taking 50 (or 70) years from the death of last person, do they not? Canada taking the path of 50 years from publication produces what may be by far the shortest median average protection period for films of all countries.
Having 50 short years of protection for films may also serve to explain why aspiring filmmakers & studios tend to focus further south where they (now) get 95 years.
J.Means
October 19th, 2006 at 3:18 am
“Movies being at publication date+50 years is long but clear, while the recent proposed change of photography from date taken+50 to life of unknowable author+50 is a drastic backwards move.”
Just think, with todays’s cheap digital photographs, for each photograph with potential economic value there may be a million great but economically worthless photographs taken. Does it make any sense to tie up a million photographs into a copyright straightjacket for a hundred years for the sake of a few photographs? My opinion is that photographs copyrights should not last over 20 years.
Then there is software. Almost any software is obsolete (worthless) in a few years. What good will it do society by having 100 year old software into the public domain? When the software is released from the copyright straightjacket, no one will can use it. I personally don’t like software copyrights, but if you must have it, a 10 year duration is reasonable.
We are seeing the problems with a one size fits all copyright law. The same law for a costless photograph as for a movie that cost 50 million dollar movies to produce. The same law for a rap song as for a monumental symphonic musical work. Wow!
Makes you wonder what it is that legislators do for a living.
Rafael Venegas
http://www.gvenegas.com
October 19th, 2006 at 12:18 pm
“A Variety.com article discusses how Turner Classic Movies has negotiated the copyright to six RKO Radio movies from the 1930s.”
This raises some questions for the p2p community:
Ok, if a Canadian downloads any of these six public domain (in Canada) movies from an American unauhorized source (where the movie is not in the public domain) is there copyright infringement by the American uploader or the Canadian downloader?
And what if a Canadian uploads any of these six public domain to an American is there copyright infringement by the American downloader or the Canadian uploader?
Where does the Canadian or American get the information as to the copyright status of a movie so as to know if it is ok to upload or to download without any authorization?
As a narrow minded judge (and his repeater) would say, ignorance is no excuse. Really?
Rafael Venegas
http://www.gvenegas.com
October 20th, 2006 at 12:41 am
“Having 50 short years of protection for films may also serve to explain why aspiring filmmakers & studios tend to focus further south where they (now) get 95 years.”
Actually, 50 years is a very long time. After 50 years, for most movies (90% ?) no one ever heard of the movie. Just ask a a 20 year old today if he ever heard of “Casablanca”, “Ber Hur” or knows who Clark Gable or Audrey Hepburn was. Wah t good is it for the public domain if there is no interest in it because of the many years that have elapse?
If the producers go South, or elsewhere, it is because of the “unexpected consequences”, the ever present companion of quick, corporate oriented legislation that does not take into account national culture needs.
Rafael Venegas
http://www.gvenegas.com
October 22nd, 2006 at 4:34 pm
Please see the errata I posted to my BLOG: http://www.digital-copyright.ca/node/2754
Errata:
It turns out my note stating that the term of copyright for Cinematographic works is 50 years from date of date of publication (or making if never published) is incorrect. Section 11.1 of the Canadian Copyright Act says that this term only applies to works without “dramatic character”. For works with dramatic character, it falls to life of the “author” plus 50 years. This obviously opens up new questions, such as who the “author is” (is it the director?), and what constituted “dramatic character”.
This is another example where “clarifying and simplifying the act” should be a top priority for copyright revision. I believe that the term for cinematographic works without “dramatic character” is already excessively long, but at least it is a fixed term that doesn’t require hiring expensive lawyers and researchers to determine the cultural recycling date for.
October 22nd, 2006 at 4:38 pm
“explain why aspiring filmmakers & studios tend to focus further south where they (now) get 95 years. ”
This isn’t the case. Whatever the term of copyright is for a cinematographic work, most countries use “national treatment” and treat foreign works identically as they would domestic.
A movie made in Toronto or Mumbai (Bollywood) enjoys the same 95 years (for when the first holder of copyright is a corporation) in the USA as a movie made in Hollywood.
October 23rd, 2006 at 11:13 am
“This is another example where “clarifying and simplifying the act” should be a top priority for copyright revision.”
This is a good point, to which I would add…..
Since the purpose of copyright law is to promote the production and distribution of cultural and scientific work, the purpose of copyright law is to have an incentive.
For movies a special considerations must be taken into account.
First we must understand that there are many kinds of movies, home movies, commercial movies, for profit movies, not for profit movies. Clearly a one size fits all law (incentive) is senseless.
It makes no sense to give a big incentive (large copyright duration) to a movie making class (not for profit) movie production. This is because the copyright duration incentive will not incentivate the making of this type of movie.
On the other hand, a very expensive, for profit movie will be made only if there is, first of all, a proper profit (cash flow), which in part depends on a proper copyright duration. But there is a limit to this, because corporations and investors do not invest for a very long term payback. In other words, if a movie, it is thought by the producer, will not recouperate the investment and the wanted profit (cash flow) from the investment in a very short time (five years or less, with 5 years roughly representing a 20 percent return on investment), the movie will not be made. If this is true then these very long copyright durations of about 100 years make no sense as a stimulat to investment in movie production.
Get me someone who needs 100 years of cash flow from an investment to justify the investment and I will show you someone who knows nothing about investments and investment cash flow.
We need to understand: Long copyright duration is a product of special interest lobbying. There nothing rational about copyright duration as presently “designed”. As someone said, the Beatles do not need a longer copyright duration to make more music.
Rafael Venegas
http://www.gvenegas.com
November 1st, 2006 at 12:02 am
I understand your point and I think you’re right, but my point is one of focus and location. Why bother planting yourself in a country that gives only 50 years protection?
Someone said 50 years from release is a lot. It’s not. I daresay it may be the shortest period of protection that exists (but then, I’m not an expert on int’l copyright …I know, I know, it probably shows…
But many countries use PMA (post mortem auctoris) to determine protection period & the give 50 and even 70 years from the last to die of an aggregate of “authors” (directors, writer, producer etc). It’s done all over. It’s not particularly ‘neat & tidy,”‘ but it’s used, it’s done.
J.Means
November 1st, 2006 at 12:08 am
Rafael, it’s not long, not in comparison to other countries. Name a major country with a shorter period of protection. I can name any number w/ longer periods.
the key you’re arguing for PMA (post mortem auctoris) type period, but because it’s a corporation you’re using year of release rather than the continuing life of a human author(s)
That’s why it’s short – you’ve undercut the PMA process
The ‘unknowable author’ argument is a red herring. Countries have used PMA calculations for years. It’s not neat & tidy, but it can be done.