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The Courts Government The Almighty Buck News Politics

TPP Scuttles Attempts To Fix Orphan Works 128

jsrjsr writes: David Post, writing at the Volokh Conspiracy blog, describes how the Trans-Pacific Partnership treaty may prevent any changes to copyright law regarding orphan works. Quoting: "Big problem #1 is that copyright law doesn’t require the plaintiff to show any damage whatsoever. And it authorizes awards of up to $150,000 in “statutory damages” for each work that is infringed — independent of any damage assessment. ... It appears that the latest version of the treaty contains, buried within its many hundreds of pages, language that could require the U.S. to scuttle its plans for a sensible revision of this kind. ... Any provision of U.S. law that eliminated 'pre-established damage' or 'additional damages' for any class of works could be a violation of various TPP provisions requiring that such damages be made available, and it even appears that distribution of orphan works would have to subject the distributor to criminal copyright liability."
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TPP Scuttles Attempts To Fix Orphan Works

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  • by danaris ( 525051 ) <danaris&mac,com> on Saturday September 05, 2015 @11:38AM (#50462489) Homepage

    Like it's news that the TPP is a terrible, terrible treaty and needs to be stopped.

    This is just one more reason we need to make quite sure that there's bipartisan opposition to this.

    Dan Aris

    • This is just one more reason we need to make quite sure that there's bipartisan opposition to this.

      That cannot happen until a whole different class of person is elected into congress. With this bunch, passage is a sure thing.

      • It wouldn't surprise me if the situation is like the Iran Nuke deal, where Congress is not required to pass it, but rather, is required to reject it [ie, the default is that it is passed, and only with a super-majority can it be rejected].

        • by rtb61 ( 674572 )

          Stop with the Iran deal nonsense. The US had one choice only, either go along with it or be left behind by the rest of the world. Do you have any idea how much damage that would have done to the US image, to be publicly excluded from the Iran deal by the rest of the world as the US was not that long ago publicly excluded from the Ukraine deal by Europe. The US government might have made a whole lot of noise about it and carried on like they were in control but it was just a show. Seriously everyone knows e

          • what 'rest of the world'? Russia could care less about sanctions, particularly now, for selling Iran weapons. China as well. Europe is interested, but it really seemed like the US was the one pressing for a deal.

    • by rmdingler ( 1955220 ) on Saturday September 05, 2015 @11:47AM (#50462517) Journal

      Although the text of the treaty has not been made public, Wikileaks has published several leaked documents since 2013. A number of global health professionals, internet freedom activists, environmentalists, organised labour, advocacy groups, and elected officials have criticised and protested against the treaty, in large part because of the secrecy of negotiations, the agreement's expansive scope, and controversial clauses in drafts leaked to the public.[7][8][9][10][11]

      As general rule of thumb, if governments conspire behind closed doors, it is not the average citizen's best interests being argued about.

      • But when you are negotiating, you don't want the other side to know what your boss thinks of the deal. Ostensibly the citizenry is the ultimate boss here, so it should come as no surprise that treaty terms to not get RFCd.
        • by satsuke ( 263225 ) on Saturday September 05, 2015 @01:01PM (#50462845)

          That's not the way it works in practice. It's not hyperbole to state that American politicians are bought and paid for by wealthy benefactors.

          • Pretty much. Just about the only time that's not true is when the politician _is_ themselves one of those ridiculously wealthy enough to be benefactors if they wanted in the first place.
        • by Fire_Wraith ( 1460385 ) on Saturday September 05, 2015 @01:28PM (#50462953)
          Sometimes this is true... I mean, look at the Iran deal, and all the screaming about that (which, while probably not a great deal, is far better than no deal when you really dig into things), and that's -after- the fact. Also, look at how many times proposals were floated and people not involved in the negotiations on both sides tried to pre-emptively shoot them down, without consider concessions, and letting the negotiators work.

          At the same time though, when it comes to a trade treaty like this, there seems to be so much fuckery going on with provisions being slipped in that are entirely about protecting wealthy interests that are decidedly NOT in the interest of the average citizen. It's the fact that this stuff is being kept secret, in hopes of sneaking it into the treaty, which must then be either accepted or rejected as a whole, so that we're forced to take it along with the other beneficial stuff. No, it's bullshit, and it needs to stop.

          So how do you do that without denying the negotiators any wiggle room? Well, for one, I'd suggest that drafts be published at regular intervals. You can keep the proceedings themselves secret, so long as we get a record of what they have so far at reasonable periods, and can provide feedback based on that.

          That, and maybe force the input and recommendations/asks from any corporation/special interest/lobbying group to go on public record from the moment it's submitted.
          • Or how about we get to bust them with a recall election every time we catch them stabbing us in the back and trying to be sneaky about it?

          • by r0kk3rz ( 825106 )

            So how do you do that without denying the negotiators any wiggle room? Well, for one, I'd suggest that drafts be published at regular intervals. You can keep the proceedings themselves secret, so long as we get a record of what they have so far at reasonable periods, and can provide feedback based on that.

            How it should work should be as follows:
            Negotiators negotiate in secret in the hopes of striking a deal
            Once a deal as been struck, they go back to their respective parliaments, the deal is posted publicly and public debate happens to decide whether or not to put the deal into law.
            If the public debate rejects the deal, the negotiators go back to the table with the new information they have from the public debate and try and strike a new deal

            The important part in all of this is that once the negotiat

          • The Iran deal is an insightful example of an unpopular deal done for the public good, IMHO, despite the generally acrimonious public reception.

            If only that were even generally the case; that we could trust our representatives to at least believe they were acting in our best interests.

            What would we even have to bitch about, then?

      • Oh, they are absolutely arguing about the average citizen's best interests: How best to circumvent their rights. The TPP seems, on the face of it, to be a ruinous document intended to protect corporate interests above individual interests to such a degree that "natural persons" (I hate that term) will be entirely subordinate in all legal processes. This will be an "instrument" toward such a purpose. But bipartisan opposition will be lacking as our Senators' corporate masters will make sure of it's absence.
    • by PPH ( 736903 ) on Saturday September 05, 2015 @11:57AM (#50462557)

      Sadly, there appears to be support across parties for this. Although many of the Democratic presidential candidates (and Donald Trump) oppose it. At least publicly, that is. Once someone gets into office, I predict that there will be a closed door session with business leaders and the new president. And (s)he will suddenly 'see the light'.

      • I'd like to see a better trade agreement with certain countries in the Pacific. I'm perhaps less keen on others, since I tend to think that free trade is far less efficient when you're talking about countries with wildly divergent levels of economic development, but depending on the way it's done, and the country in question, maybe.

        What I'm decidedly not cool about is all the fuckery that seems to be getting snuck into the treaty by various companies and special interests, particularly about intellectual
    • by QuietLagoon ( 813062 ) on Saturday September 05, 2015 @01:33PM (#50462993)
      The first clue that the TPP was evil should have been the extreme secrecy surrounding it. The second clue should have been the main authors: corporations.
    • I think the next law we should pass, in fact the next law that every country should pass is to make it illegal to negotiate any international agreement in secret. Also I believe this law should make any international treaty or agreement that results from secret negotiations should automatically be null and void, or at the very least automatically subject to referendum, with a 3 month lead up period and that failure to approve should automatically trigger national elections.

    • Just add to this, it is not just the TTP, but also the TTIP and other similar trade agreements of which private American corporations are central and the only ones that apparently get free reign to the agreement.

      From what I understand, in the case of the TTIP, European representatives have to go to the U.S. Embassy to view and are not allowed to make any copies of the document, which makes it hard to have unhindered negotiations.

      We all stand to lose out democratic leverage with these and give more control t

    • The TPP itself isn't a bad idea, the problem is the bullshit they're weaving into it that, really, doesn't have anything to do with it.

    • Totally agree. The TPP is a disaster we all must avoid. This is not trivial.
  • Duh! (Score:5, Insightful)

    by shentino ( 1139071 ) <shentino@gmail.com> on Saturday September 05, 2015 @11:43AM (#50462505)

    Orphan works are potential competitors, even if the true authors decide to release them to the public domain.

    If someone dug up an orphan work it's a potential threat to the revenue streams of the current incumbents and in its in their interest to keep it buried regardless of what the original owner may think.

    This is especially true when without a valid owner asserting their rights you can't even be sure who the statutory damages are even supposed to get paid to.

    • Re:Duh! (Score:4, Interesting)

      by jonsmirl ( 114798 ) on Saturday September 05, 2015 @12:10PM (#50462615) Homepage

      This is definitely going on in the music industry. Vast amounts of older music is kept buried via copyright law so that it won't compete with the new stuff. As escalating fee for copyright renewal would stop this.

      • A fee for copyright renewal would suffice. I suggest annual property taxes on all IP.
        • I wonder to what extent phrasing a copyright registration requirement as a property tax would allow circumventing the Berne Convention's prohibition on formalities. It worked for the Affordable Care Act's individual shared responsibility mandate.

          • As someone who takes photos and occasionally shares them online, I'd hate to have to register every photo I take lest some big company decide that my picture is the perfect image for their ad campaign and that the lack of a copyright registration means they can just use it for whatever they want.

            On the other hand, I don't think my photos should be automatically copyrighted for 95 years after I die as an "incentive" to get me to take more photos.

            I'm fine with the automatic registration of copyright, but copy

            • by tepples ( 727027 )

              As someone who takes photos and occasionally shares them online, I'd hate to have to register every photo I take lest some big company decide that my picture is the perfect image for their ad campaign and that the lack of a copyright registration means they can just use it for whatever they want.

              Would it be that hard to submit /home/jason/photos/2015/*.jpg to Copyright.gov sometime before 2029?

              • The problem is that the current method for sharing a photo is:

                1) Take Photo
                2) Post photo on Instagram/Twitter/Facebook/Flickr/etc.

                Sometimes there's an optional 1a step where the photo is passed through an editing program, but beyond that it's pretty instantaneous to post photos after taking them. Submitting a copyright application for each photo taken/posted isn't practical. Even if you batched them and did them at some later time, you'd wind up with your online photos unprotected by copyright until your

                • by tepples ( 727027 )

                  Even if you batched them and did them at some later time, you'd wind up with your online photos unprotected by copyright until your batch job went through.

                  Then give a 14-year grace period for initial registration, which matches the copyright term under the Copyright Act of 1790.

                  big companies [...] can afford to: [...] pay people to submit copyright applications for any works they do produce

                  But can a company afford to keep a record of copyright ownership up to date when it goes bankrupt? A lot of, for example, video game studios go bankrupt and sell their assets at auction to other companies that also end up going bankrupt.

                  • That's why I'd want automatic 14 year copyright followed by a one-time opt-in (i.e. registration submitted) extension of 14 years. For people like me, a 14 year copyright should suffice. I don't need to hold copyright for photos from 2001. For a big company, they can keep the copyright for BIG_BLOCKBUSTER_MOVIE for 14 additional years but let BIG_FLOP go after 14 years... Or renew them both but give them both up after 28 years. This way, also, you'd be able to see whether FUN_VIDEO_GAME's copyright was

      • Even a perpetual requirement for registration would help. Just keeping the public notified of potential rights would be an improvement over the current situation.

        The biggest problem with orphan works is a lack of a birth certificate that says who you would owe royalties to and who has standing to sue you if you infringe.

        This cloud of FUD hanging orphan works is exactly what the incumbents want. They don't want you using it as an alternative to their stuff, and they don't want the old rightsholders competi

        • by Rakarra ( 112805 )

          Even a perpetual requirement for registration would help. Just keeping the public notified of potential rights would be an improvement over the current situation.

          I'd also like a "no retroactive copyright" clause to prevent things that fell into the public domain from being removed from it later.

  • by elwinc ( 663074 ) on Saturday September 05, 2015 @11:55AM (#50462545)
    OK, I get it, intellectual property is a real thing and needs a certain amount of protection. But you know what? Protecting property costs money! I own a condo and I pay taxes on it - something like 2% of the property value per year! Obviously the tax rates for IP need to be set at a reasonable level, but if a company is claiming x billion dollars of IP, perhaps they ought to pay a tax of a few hundred thousand for property protection. And if they lapse in their tax payments, perhaps their ownership rights lapse too, just as the city or state would take over my property if I stopped paying taxes.
    • by gnupun ( 752725 )

      2% property tax is nothing compared to what IP owners pay -- 20 to 50% in income and sales taxes when they sell their products.

      • by satsuke ( 263225 )

        Can you cite a source for that fee/tax rate?

        If true, you'd think the costs would be in a more narrow band, not wildly variable.

      • by Calydor ( 739835 ) on Saturday September 05, 2015 @01:11PM (#50462879)

        Yes, when they sell their products.

        What about all the stuff they used to sell but don't want to compete with the new stuff, so it just gets locked away? How much tax do they pay on being allowed to do that?

      • Re: (Score:1, Flamebait)

        That's 2% per year, whether you earn money or not. Sales tax comes off of actual transactions. So, too, income tax is directly related to actual transactions (work for money).

        I've always had a problem with property taxes -- I understand the fireman and police issues, but I don't like having to buy your freedom each year.

        • Apparently a downmodder does like me having to buy my freedom for my house every year, or have it seized.

          • I don't see your post as flamebait, a little naive, maybe, but how do you expect to pay for protection of your freedom?
            • by satsuke ( 263225 )

              I don't have points and wouldn't have downvoted you, but it is rather simplistic to think that all the modern things you enjoy are somehow without cost.

              e.g. it's not theft to pay property taxes if those property taxes pay for your ability to drive to your property, enjoy protection on your property should it be targeted by criminals or should catch fire,. to say nothing of the education of you and the people around you to enable you to have money to make and do those things in the first place.

      • by Anonymous Coward

        That isn't the IP, remember: you are NOT buying the IP when you buy the copy, you're buying a LICENSE to the copy. So the "20%" is on the license. This 2% would be on the IP, that they ARE NOT selling. And it's the IP that is the property.

      • by tepples ( 727027 )

        2% property tax is nothing compared to what IP owners pay -- 20 to 50% in income and sales taxes

        People who use both property to make a living have to pay both property tax on the property and income tax on the income.

        when they sell their products.

        How much does a copyright owner pay when he does not sell his products? That the answer is presently nothing is the problem.

    • How would you value a song? Would all songs be valued at the same rate? Would I have to pay property tax if I created a song on my own but never released it? How about if I just recorded it and gave it to family and friends? Or gave it away free on the Internet? (I'm thinking the equivalent of open source software.)

      • The owner would put a value on the song, and all fines and damages for copyright infringement would be capped at that amount.
  • Fixing orphan works (Score:5, Interesting)

    by jonsmirl ( 114798 ) on Saturday September 05, 2015 @12:06PM (#50462595) Homepage

    There is a very simple way to fix the orphan works problem and also let Disney have Mickey forever. The root of the problem is giving free, automatic copyright for 150 years or so to every work.

    Instead require that copyrights be renewed every ten years with a one year grace period. First renewal is free but you have to fill out a form on-line. Second renewal is $1,000. Fee for each subsequent renewal doubles. This will quickly place all of the non-economically via works into the public domain. It also lets you keep a copyright forever as long as you keep paying the renewal fees.

    • Under your concept, I'm screwed. All my code and photography would end up in the public domain, because I'm too small to afford the fees. But you protected Disney, RIAA, and MPAA.

      • The first 20 years are free. Why are you screwed?

      • My reform would be to eliminate the fungibility of intellectual property. Copyright would be a personal right of the creator of work, held by that person alone and expiring with the creator. Your heirs would have to go out and get real jobs, and no copyrights would get transferred to non-producing middlemen. Anyone making use of your work would have to maintain a contractual relationship with you, rather than kicking you to the curb and taking all the profits for themselves.

        • Copyright would be a personal right of the creator of work, held by that person alone and expiring with the creator.

          God help you if a hitman is cheaper than what you ask for a license.

        • by Rakarra ( 112805 )

          My reform would be to eliminate the fungibility of intellectual property. Copyright would be a personal right of the creator of work, held by that person alone and expiring with the creator.

          Which is great until you get to works that have multiple creators. What about a movie where hundreds of people put in hours to create it? Do we choose whomever lives the longest? Or just the director? Or producer?

          • I'm glad you brought that up. I thought of that case, but didn't want to make a short post too complicated. For a collaborative work, such as music created by a band or a drug created by several researchers at a laboratory, the collaborators would write an equity sharing agreement to be filed as part of the copyright/patent, specifying what percentage equity of the IP each person would share. The lifetime limit would apply to each share individually, which would mean that a novel with three co-authors would

            • by Rakarra ( 112805 )

              the collaborators would write an equity sharing agreement to be filed as part of the copyright/patent, specifying what percentage equity of the IP each person would share. The lifetime limit would apply to each share individually, which would mean that a novel with three co-authors would not go fully public domain until the last co-author died. [...] A topic to be debated is what happens between the death of the first and last collaborator.

              I like "partial public domain." "One of the three authors of this song has died. You may copy every third note."

      • Under your concept, I'm screwed. All my code and photography would end up in the public domain, because I'm too small to afford the fees. But you protected Disney, RIAA, and MPAA.

        Simple. You fill out a form, where you declare the value (what you think it is worth currently) and pay 1% of the value as tax. If someone wants to buy it, they need to offer 200% of the value and then the IP is auctioned. The auction winner gets your IP, pays 5% or 10% tax on the auction price, and for the next year the value (and tax) is set to the higher value.

        If you set the value of your IP to $10,000 and pay $100 tax a year, you either keep your IP because nobody wants it, or you get at least $20,00

        • That sounds great for a single high value IP item. But I have 90,000 photos. Some may not be worth anything, others - who knows. But it is a huge burden for a one-man operation.

    • Better idea: Require registration of copyright within 5 years after first creation, and require the registration to be renewed annually after that. 5 year grace period since last renewal, with penalties for late renewal. No renewals in 5 years = forfeiture of copyright to public domain.

      Renewals require a nominal fee of ten dollars or so, but you can renew indefinitely. You OR your heirs.

      The problem with orphan works is having a treasure trove of abandoned ideas left in limbo. This method would force ri

      • Without an escalating fee works owned by corporations will never, ever come out of copyright. The RIAA and MPAA will renew their copyrights for a 1,000 years under a $10 renewal fee.

        At some point these works need to become part of history and culture. For example every photograph from WWII will be under copyright until after most people that are alive today are dead. I think that is just wrong. WWII is a major part of history and should be available freely to everyone.

    • There is a very simple way to fix the orphan works problem and also let Disney have Mickey forever.

      To the geek, "Steamboat Willie" is just a symbol.

      Eight minutes of silent era sight gags with a synchronized sound track. What he wants is the use of the trademarked character designs for the Mouse, Minnie, Pete and the rest.

      Instead require that copyrights be renewed every ten years with a one year grace period. First renewal is free but you have to fill out a form on-line. Second renewal is $1,000. Fee for each subsequent renewal doubles. This will quickly place all of the non-economically via works into the public domain.

      Let's call this what it is:

      Copyright protection for the mega-corp.

      The distressed writer like H.P. Lovecraft loses control of his work early on. The mega-corp squirrels away everything that might be bankable now or in the future. This is how the system worked in the pulp fiction era of B

      • Right now they have, essentially, infinite protection for free. The entire cost of that protection is born by society, and they have the entire benefit. In the new plan, at least they get to pay for that privilege. The cost should be high enough that there is a real trade-off to be made: keep a work under wraps, or donate it to the public domain.

        Also, you might be distressed to learn that Lovecraft passed away, and is thus unlikely to get great enjoyment out of any renewed income streams.

      • Eight minutes of silent era sight gags with a synchronized sound track. What he wants is the use of the trademarked character designs for the Mouse, Minnie, Pete and the rest.

        Said trademarks will probably cease to be distinctive once copyright in the original Mickey trilogy (Plane Crazy, The Gallopin' Gaucho, and Steamboat Willie) expires, which under present law is due to happen in 2024. The Supreme Court of the United States in Dastar v. Fox ruled that a trademark cannot be used as an ersatz copyright.

        • by Rakarra ( 112805 )

          The Supreme Court of the United States in Dastar v. Fox ruled that a trademark cannot be used as an ersatz copyright

          Have they not also ruled that the Congressional scheme of passing copyright extensions every 20 years is absolutely fine?

          The Mickey Trilogy will not expire in 2024 before Congress will just extend copyright again, as it always does.

    • by Anonymous Coward

      Your scheme is not indexed for inflation. If hyperinflation sets in for an extended period of time, the renewal fees will become relatively affordable.

  • by Anonymous Coward

    IF the fee were tiny for statutory infringement, it might still comply with a TPP (Lord protect us) yet have the same effect.
    Millionth of a cent per work, unless actual loss could be shown?

    I like the idea of charging a fee for renewal that doubles every time copyright gets renewed though. That is even better
    for long term, though cutting statutory damage amount to a tiny bit should also be done. Amount should be tiny
    enough that payment is trivial even if everyone on the planet infringes many times. Mathemati

  • by Anonymous Coward on Saturday September 05, 2015 @12:37PM (#50462723)

    The big big big power grab in TPP is the corporate sovereignty clauses. These allow company to sue governments if the government passes a law that disadvantages the companies profits:

    https://www.techdirt.com/articles/20150325/17151130431/corporate-sovereignty-provisions-tpp-agreement-leaked-via-wikileaks-would-massively-undermine-government-sovereignty.shtml

    The court that decides this is a Kangaroo court too, not a legal court, a tribunal of industry lawyers would decide if a law violates a companies profits and needs to be reversed.

    Sugary drink taxes, banning cigarettes, banning bee killing pesticides, you name it, the tribunal could override the elected government on all of these matters. Rendering democracy optional.

    No wonder its being discussed in secret by a group of people, but thankfully we still have Wikileaks and the draft treaty has been leaked by a few honest people among the negotiators who are allowed to see how bad it is.

  • What they'd like is for you have to pay for music by the note, for literature by the word, and pay every time you even glance at an image they own.

    Hell, what they want is if you even dare to remember a few notes and hum them to yourself, you'd have to pay them.

  • by no-body ( 127863 ) on Saturday September 05, 2015 @12:58PM (#50462835)

    I am glad this is finally catching some attention at slashdot, one of the greatest fraud attempts on people.

    If they have to be secretive about it, something is wrong. A global powergrab of multinational corporations, probably a first of that magnitude.

    https://www.youtube.com/watch?... [youtube.com]

    • by SuricouRaven ( 1897204 ) on Saturday September 05, 2015 @01:27PM (#50462947)

      Second.

      The first was the East India Company. Arguably the first 'megacorp' in history. They managed to go further even than modern multinationals - while those of today will manipulate events behind closed doors and pressure politicians in secret, the East India Company had sufficient influence with the British government that they were contracted to serve as the actual government of India, assuming all administrative functions with the duty of turning a profit. They even hired their own army to maintain power.

      The role of very large corporate powers in government today is certainly concerning, but not entirely without precedent.

      • by no-body ( 127863 )

        ...

        The role of very large corporate powers in government today is certainly concerning, but not entirely without precedent.

        True - but the magnitude, global impact, number of affected people, possibilities of transparency with global communication possibilities for "normal" people sure is different.

        The human mind (nervous system) structure allowing this to happen appears to be unchanged since the East India Company - maybe in smaller communities/tribal structures?

        If you look that single individuals manipulate millions of people into destructive acts - that basic feature may be happening since your ancestors started walking upri

  • The sad thing is that I suspect this language is present in the treaty at our (the U.S.'s) request. We want other countries to respect our copyrights so we insist their laws be stronger, even when we are starting to realize our own laws are too strict. One would be tempted to think this is aimed at China, except they're not a participant in the treaty. It would be much better if trade treaties were limited to simply stating that "Trade between our countries shall be free and unrestricted." That might put a

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