Oh WikiLeaks, the gift that keeps on giving. Yet another fascinating finding from the papers is the proposed Trans Pacific Partnership agreement, which covers copyright law. The US has been negotiating it in secret, and several of the provisions are very noteworthy. Among them, a continued emphasis on SOPA and PIPA type legislation–both very restrictive anti=piracy laws that Big Media wants which were nonetheless rejected as being too ambiguously restrictive. and open to abuse in. You can read more in the above link on various provisions but here’s a standout:

Only the United States and Australia oppose a provision limiting Internet Service Provider liability (QQ.I.1); U.S. copyright holders would like ISPs to be held liable for hosting infringing content. The United States also proposes extending copyright to life plus 95 years for corporate-owned copyrights. Hollywood consistently presses for longer copyright terms and it is doing so here.

So there you go–Mickey Mouse and Superman would be safe under this change (Mickey Mouse debuted in 1928 an would alreayd be in the public domain if the Bono Act hadn’t passed.) The TPP proposal is said to be a “wish list for Hollywood” and while you can argue both sides of it, it is indeed noteworthy. Hopefully Jeff Trexler and Nat Gertler will be along in the comments to expand on my rudimentary knowledge here.


  1. The criminals running the show will do what they always do in regards to SOPA legislation, that is, can it now when it’s not popular with the public and then later sneak it onto page 800 of a completely unrelated bill so their real bosses are finally satisfied.

    Anything beyond life plus 10-20 is evil. And that 10-20 is just so that a bunch of creators don’t mysteriously commit suicide by shooting themselves in the back five times right as the big billion dollar movie is entering production.

  2. A very good take on the TPP and the leak, from Yale Law professor Margot Kaminski, http://www.concurringopinions.com/archives/2013/11/capture-sunlight-and-the-tpp-leak.html

    The TPP is pretty disastrous, and is a case study of how commercial interests can make an end run around what little input consumers have on policy. It’s clearly an attempt by Hollywood to ignore what happened with SOPA/PIPA and ACTA. I’m hopeful the leak will make that much, much harder.

  3. I hadn’t expected anyone to turn on the Natsignal, but since I was called…

    I haven’t read anything beyond this Beat posting on this, but I’m very suspicious of the accuracy of the summary given. “The United States also proposes extending copyright to life plus 95 years for corporate-owned copyrights” doesn’t make obvious sense; corporations don’t have life. It looks as if someone took a description of the current US copyright standard, which is life of the author plus 70 years, or 95 years for corporate-made work (work made for hire) and misparsed it, not realizing that the “95 years” was being or’d with “life of the author plus 70 years”, rather than just with “70 years”.

  4. I need to give this a more thorough look, but my immediate reaction to the term provision (Article Q.Q.G.6) was just that the U.S. is trying to maintain the terms as they already exist as opposed to reducing them — i.e., 95 years from publication (or 120 years from creation) for works for hire. In other words, Nat’s intuition is correct.

    To see what I mean, let’s compare the current law …

    “As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works first published prior to 1978, the term will vary depending on several factors. ”
    (see also http://www.law.cornell.edu/uscode/text/17/302)

    … with the TPP notes:

    Article QQ.G.6:

    [US/AU/PE/SG/CL/MX propose; VN/BN/NZ/MY/CA/JP oppose: Each Party shall provide that, where the term of protection of a work (including a photographic work), performance, or phonogram is to be calculated:

    on the basis of the life of a natural person, the term shall be not less than the life of the author and [MX propose: 100] [MX oppose: 70] years after the author’s death; and

    on a basis other than the life of a natural person, the term shall be:

    not less than [US propose; CL oppose: 95] [AU/PE/SG/CL propose: 70] [MX propose: 75] years from the end of the calendar year of the first authorized publication of the work, performance, or phonogram, or

    failing such authorized publication within [US propose; CL oppose: 25] [SG/PE/AU/CL propose: 50] years from the creation of the work, performance, or phonogram, not less than [US propose; CL oppose: 120] [AU/PE/SG/CL propose: 70] years from the end of the calendar year of the creation of the work, performance, or phonogram.]

    Article QQ.G.7: {Term of Protection for Copyright and Related Rights}

    [NZ/BN/MY/VN/CA/JP propose; US/AU/SG/MX oppose: The term of protection of a work, performance or phonogram shall be determined according to each Party’s domestic law and the international agreements to which each Party is a party.]

    I don’t see where the TPP proposes 95+life for corporate works, which, as Nat says, would make no sense. If I missed a section that contradicts the material quoted above, I’m open to be corrected – haven’t read the whole thing in detail.

    Generally, one has to be careful when reading sinister descriptions of IP negotiations. There’s been an anti-IP orthodoxy in the academy since Larry Lessig first became famous for saying the things that most people repeat, and pretty much any legal provision or proposal that doesn’t dial us back to a seven-year term gets pegged as nefarious overreach by a sinister plot. Yes, that sort of thing happens, but not everything falls into that category. Sometimes 95 years is just 95 years, same as it’s been for a while.

  5. Absolutely ridiculous. Human culture does not function this way. As the years go on, Disney becomes a greater and greater blight on the face of the planet.

    Walt & crew got to rip off the Brothers Grimm and Hans Christian Anderson (who sort of codified if not ripped off European folklore), but no one ever gets to take anything Disney does and make anything better from it?

    Disney: “We’ve decided that ever since our company came into existence, there can never be any more folklore anymore. We’re selfish and always want complete control of Mickey Mouse, because that suits our ego. So therefore there will be no real myths anymore, only corporate properties. Hey Congress, pass this extension for us again like you always do. Thanks.”

    Life + 95 years. Absolutely ridiculous.

  6. I don’t see where the TPP proposes 95+life for corporate works, which, as Nat says, would make no sense. If I missed a section that contradicts the material quoted above, I’m open to be corrected – haven’t read the whole thing in detail.

    As noted, the WP blog post apparently got terms confused. From an EFF summary:

    The U.S. is also pushing for countries to embrace terms lengths of 95 years for corporate and 120 years for unpublished works. [. . .]

    Earlier this year, the U.S. Register of Copyrights advised a reduction or limitation in term length as a possible solution [re the orphan works problem]. Crystallizing U.S. term lengths in international agreements would frustrate efforts to enact such reasonable policies. This is a classic example of policy laundering, whereby corporate interests use secretive international forums to trump the democratic process at the national level.


  7. The EFF comment about “policy laundering” is a good example of the sort of response to which I was alluding.

    The current U.S. Register of Copyrights is a government official who happens to have a particular POV re amending copyright. Great–we love creative thinkers, though in the end the job entails implementing the law as enacted. The folks negotiating the treaty on behalf of the government are also government officials, in this instance seeking to perform the same job – maintain the copyright term which has been enacted by Congress, which, last I checked, was part of the democratic process. But because the negotiations in secret – like, y’know, a healthy % of international negotiations as well as the real dealing in Congress – it’s sly, sneaky, nefarious policy laundering, which makes it sound like corporations are trying to sell crystal meth.

    Again, I’m cynical to the power of ten when it comes to realpolitik, but this practice of coming up with sinister names to brand stuff you don’t happen to like is, if not counterproductive, as Orwellian as the corporate speak folks are ostensibly opposing. I say ostensibly because anyone can play the the-other-side-is-corrupt game. For instance, a big player in funding the free-IP side is Google, which wants legal authority for vacuuming up copyrighted material without having to pay compensation to individual photographers, graphic designers and other authors. That, one could argue, is a purer example of policy laundering than negotiating international agreements, which has been a routine part of the delineation of IP rights since the 19th century.

  8. Does “life” mean the life of the creator?

    In that case, we’d have to decide who created Mickey Mouse: Walt Disney or Ub Iwerks.

  9. @george Assuming (contrary to fact) that corporate works’ terms were to be extended to life of the individual creator + 95 years, that still wouldn’t be necessary. Retroctive copyright extension is set for 95 years for all copyrights in their renewal term as of 1/1/78. Thus, despite Superman not being work for hire, the term is just 95 years.

    The Paramount photo op was truly bad optics – the interviewee wasn’t thinking, but I bet the interviewer was. The rhetorical Hobson’s choice set up by free copyright folks is still at base equally problematic — calling for extending the term beyond 95 years is an attempt to thwart the democratic process by means of a trade agreement, but trying to keep the term at 95 years is doing the same thing. However, proposing to lower the term via the same means would be democratic, despite using the same means — an international trade agreement. That’s not rational argument — it’s just giving a good name to what you like and bad names to what you don’t.

  10. Copyrights are arguably too long already. They don’t encourage creativity; rather, they facilitate corporate marketing programs and property management. Matthew Yglesias recently had a nice post on the benefits from shorter copyright periods:

    These days many popular characters or story franchises live on in sequels authorized by a dead writer’s estate. I was talking the other day about the terrible series of prequels to Dune that Kevin J. Anderson has written.

    But it must be said, this is as much a public policy issue as a literary one. [. . .]

    What we ought to do is go back to a sensible regime of finite copyright—perhaps the lifespan of the author or 50 years, whichever is longer—so that creators can still benefit from their works but that new generations of characters will enter the mythic realm of the public domain. Then there will be many new James Bond stories, but also a discrete canon of “real” James Bond stories written by Ian Fleming.

    I’m all for that. Once an author dies, he can’t interpret his characters anymore. Even if his estate has a writer base stories on unpublished fragments or plot outlines, or only has the writer try to write as the original would have, the stories still aren’t what the characters’ creator would have done. Letting people use the characters as they wish is a better way of letting them express love for the characters, or build on the creator’s story ideas, than having just a few authorized writers use them is.


  11. Jeff, I frankly don’t understand what you are trying to say. Any reform, for a longer or a shorter term, are equally suspect because it would eventually have to go through trade negotiations?

    For a concise, sober listing of some of the concerns with TPP, not having to do with the actual mechanics of how its been created and negotiatied, see this page http://infojustice.org/archives/31243

  12. >> Jeff, I frankly don’t understand what you are trying to say. Any reform, for a longer or a shorter term, are equally suspect because it would eventually have to go through trade negotiations?>>

    He’s saying that if you bitch about an agreement happening through trade negotiations because that’s secret back-room smoke-filled stuff, and then call for what you want to be done to get done in the exact same manner, that’s hypocrisy. If the method of negotiation is being decried as bad, then the method is bad whatever the result. If the method isn’t bad, then it shouldn’t be criticized as if it is.

    He’s saying those who say reform for a longer term is bad because it uses X method shouldn’t then turn around and call for X method to be used in their favor. If X method is bad, then it’s bad either way.

    I don’t think he’s arguing that X method is in fact bad, merely that those saying it is are being inconsistent in wanting both to decry it as bad and to use it themselves.

    Me, I don’t care what method they use, I think copyright should be shortened to life +20, and 60 years for corporate-owned. It should last long enough so that it’s a spur to creation and gives a decent long window for profiting from the creation, but then it’s time to enrich the public domain. Give Disney a reason to cook up the _next_ Mickey Mouse, and Warners to seek the _next_ Superman. And let creators play with new stuff in the public domain the way they do now with Dracula, Ebeneezer Scrooge and D’Artagnan.


  13. Kurt nailed it – that’s exactly what I was saying. And as Kurt correctly noted, I wasn’t taking a stance re the method – my interest is more in the rhetoric. International agreements can be used in Machiavellian fashion + they can be the very essence of bureaucratic routine — branding them as inherently good or evil is often symptomatic of an agenda that has little to do with agreements themselves.

    More generally re copyright, reading the Congressional tea leaves, the copyright term does not appear to have a substantial likelihood of being reduced. Life + 70 has more or less emerged as the cutting-edge international standard, with the rationalization that it represents the lives of the author + two generations of descendants. Having already gone beyond life + 50, it’ll be hard to dial back.

    As for concerns about lengthening beyond life + 70 for individuals / 95 for work-for-hire, I dunno. The state of the economy + L’Affaire Derek Khanna have had a definite impact, making Congressfolks who might otherwise have supported another extension a bit skittish about appearing too conspicuously in thrall to corporate interests. Of course, if Kurzweil’s right and we hit the singularity, in a decade or so we might go the full Mexico, life + 100!

  14. I can see the extending the works for maybe 10 years at most past the creator’s passing. That’s it. The creator’s work may have been his\her livelihood. The beauty of public domain is breathing new life to old characters. Alan Moore did this with League of Extraordinary Gentlemen. Peter Pan is currently in the domain, what brand new adventures can we expect?

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