mfioretti: copyright duration* + public domain*

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  1. The Authors Guild -- notorious for advancing extremely broad, censorious theories of copyright -- told Lee that the Guild "does not support extending the copyright term, especially since many of our members benefit from having access to a thriving and substantial public domain of older works,If anything, we would likely support a rollback to a term of life-plus-50 if it were politically feasible." It will be very difficult to sell term extension as a measure to benefit artists if prominent artists' groups are speaking out against it.

    The other factor is that Congress is a total shambles, its calendar dominated by shutdowns and chaotic attempts to ram through the extreme agenda of the GOP electoral majority that represents a numeric minority of Americans, and the chances of any laws getting passed are slim.

    But there's always the possibility that copyright term extension would be slipped into must-pass legislation, a budget or a key appropriation. That's a risky game, given the possibility that this would spark a public uprising to kill it (there's plenty of Conservative animus for the entertainment industry, after all, and the 1998 term extension was counted as a major achievement by Bill Clinton and his acolytes, so this could be painted as greedy, corporate-money-fattened Republicans helping to preserve the hated legacy of the Clintons).
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  2. One of the most exciting things about widespread access to 3D printing is how it has started to push cultural institutions to begin digitizing their 3D collections. Now, in addition to being able to see free high quality 2D scans of paintings like a 15th Century Italian Pentecost and 18th Century Japanese Woodcuts, you can see (and sometimes download, print, and modify) high quality 3D scans of the Cooper Hewitt Mansion, Abraham Lincoln’s face, and Musette the Maltese Dog. With objects reaching back thousands of years scattered across cultural institutions around the world, it isn’t hard to imagine a future where the world’s cultural heritage objects are available to anyone with a 3D printer (or, say, a Shapeways account).

    a question about copyright is lurking in the background of this glorious future. Specifically, a question about copyrights in the scans of the objects themselves: are 3D scans protected by copyright? If the answer is yes, scanning could drag parts of cultural heritage objects away from their home in the public domain and lock them up behind proprietary walls for decades. That would make it much harder for people to access their own cultural heritage.

    Fortunately, at least one court in the United States has found that scanning an object does not create a new copyright in the scan. That means that scanning a 9th century Hanuman mask doesn’t wrap the scan in a new copyright. However, a paper from earlier this year by Thomas Margoni illustrates that the copyright status of scans is not as clear in the European Union. That lack of clarity alone could slow the dissemination of objects housed in Europe’s finest cultural institutions. Hopefully, the EU will move to clarify that 3D scans of objects do not create entirely new layers of copyright protection.
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  3. In 1998, if Congress hadn’t extended copyrights by 20 years, George Gershwin’s Rhapsody in Blue, Hemingway’s The Sun Also Rises and Margaret Mitchell’s Gone with the Wind would all be in the public domain. This year, the comic book characters Superman and Batman would be free to use by anyone. Meanwhile, movies from 1940 – like Charlie Chaplin’s The Great Dictator and John Ford’s The Grapes of Wrath – would have been slated to enter the public domain at the end of 2015.

    Instead, all of these works – and tens of thousands more – remain firmly under copyright at least until 2019. Surely, we’ll see another effort by those in the copyright extension camp to lengthen the term yet again.

    Why does this matter? Well, how would you feel if you needed to obtain a license from a copyright owner in order to read a passage from the Bible to your church group? Or if before you could ride your bicycle you needed a license from descendants of the inventor of the wheel?

    We all take for granted the right to use certain pieces of our cultural heritage, like the Bible.
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  4. report from the Library of Congress's National Film Preservation Board called The Survival of American Silent Feature Films: 1912–1929 PDF » paints a dismal picture of the archival record of silent movies. In all, "14% of the 10,919 silent films released by major studios exist in their original 35mm or other format," although some of the missing items are extant in lesser transfers and foreign editions. But in all, "we have lost 75% of the creative record from the era that brought American movies to the pinnacle of world cinematic achievement in the 20th century."

    It's a sobering reminder of the fragility of even relatively recent media, and the need for preservation. An appreciable slice of the missing archival materials are still in copyright, with attending difficulties in clearing them for the purpose of striking and circulating new prints.
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  5. The case raises the issue of which elements of the Sherlock Holmes stories are in the public domain, and which may remain under the protection of copyright law. Copyright can sometimes, but not always, protect characters and plot. Recognition of copyright protection for fictional characters goes back to Judge Learned Hand, who suggested that characters might be protected, independent from the plot of a story. He wrote “It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for making them too indistinct.” So, while a writer cannot secure a monopoly on hard-boiled private eyes, one could protect a finely drawn character like Sam Spade.

    While plots can be protected, stock scenes cannot. The doctrine of scènes à faire excludes from copyright protection scenes that flow from common unprotectable ideas. These would include “thematic concepts or scenes which necessarily follow certain similar plot situations” and ordinary literary incidents and settings which are customary for the genre. Thus, a writer cannot preclude others from using such common devices as a car chase or cattle drive in their stories.
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  6. What works were at issue in Golan? As Breyer described, “foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books – books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world.” Moreover, many of these were obscure orphan works (works with no locatable rightsholder) that are now effectively off limits to educators, film collectors, community orchestras, and database compilers who previously had the right to use them for free.

    What are the limits on this decision? Could Congress recall the works of Shakespeare, Plato, Mozart and Melville from the public domain, and create new legalized monopolies over them? It is hard to imagine anything more contrary to the First Amendment – would privatizing Shakespeare by government decree abridge freedom of speech? – or to the attitudes of those who penned the Copyright Clause that limits Congress’s power to create new exclusive rights. Yet if one reads Golan, one searches in vain for any limiting principle on Congress’s actions. In this decision, Justice Ginsburg’s majority opinion effectively denies the public domain any meaningful Constitutional protection. Under the U.S. Constitution, says this case, the public domain is “public” only by sufferance. It may be privatized at any moment, at the whim of the Congress and without violating the Bill of Rights.
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  7. it seems like a good opportunity to recall the underlying complexities of calculating copyright term duration: If you have a fast internet connection and a big screen, you may want to take a look at this 25 MB pdf, which depicts the decision trees for 30 european jurisdictions that power the public domain calculators on
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