[Foundation-l] ASCAP comes out against "copyleft"

Ray Saintonge saintonge at telus.net
Tue Jun 29 20:04:36 UTC 2010

wiki-list at phizz.demon.co.uk wrote:
> Ray Saintonge wrote:
>>> Copyright by default means that anything, however bad or 
>>> trivial, has copyrights; this includes the weekly flyer from your local 
>>> supermarket.
> All of those are designed there is some creative input that goes into 
> them. In some cases, given time, they have a decorative and nostalgic 
> quality they makes them economically valuable. I don't see why someone 
> should commercially exploit those fliers in some 20 years time.

What is your yardstick for determining what one of these will be worth 
in 20 years?  Some old Ivory Soap ads are gems to read a century later, 
and some small obscure companies did produce some very clever ads.  For 
many others, particularly ones targeting a local market, copyright and 
long lasting impact were the furthest thing from the minds of the 
creators; they were just looking to appeal to next week's grocery 
shoppers.  While an easy argument can be made that the unsigned art was 
a work for hire, it doesn't help when the company was taken over by a 
big chain 10 years later, and the chain itself went bankrupt after 
another 5 years.

>> For all of the faults of US copyright law there was much 
>> positive to be said about the former registration and renewal system.
> In the past the corporations, those that owned the copyrights on the 
> economically important works, registered and renewed the copyrights. 
> What didn't get renewed or registered was the works of the those that 
> weren't up with the legal system. Those works got expropriated, just ask 
> the old blues guys who spent years trying to get what they were owed, 
> and many of them never saw a penny.

That's not accurate.  The concept behind renewals was that a creator who 
had received a raw deal when his work was first published could have a 
second chance.  As a rule the publisher did not have the right to renew, 
and renewals by the publisher without a current authorization from the 
copyright owner are invalid.  The creator could not give up his rights 
of renewal through the initial publishing contract.

It would take a tremendous amount of work challenge a publisher's claim 
to a work, and deep pockets would have more to do with the outcome than 
any legal right.  Deep pockets can leave an opponent broke long before 
the real issues go to a judge.  A couple years ago there was a 
discussion about the famous 1950s picture of Einstein with his tongue 
sticking out.  It's now owned by one of the big image merchants, who had 
in turn bought out another, who had in turn acquired it when Associated 
Press was defunct. My inclination would be to ask if the photographer 
was a freelancer, and, if so, did he renew his copyright? Does a copy of 
his contractual agreement with AP still exist?  Is there a proper chain 
of ownership to the present day? These are extremely difficult questions 
to investigate, especially for someone whose motives are other than 

Much of the exploitation was done by those who now find their rights to 
the plunder challenged, not by individuals who chose to cover the blues 
number in a bar act.

>> In theory at least, the laws were there primarily to protect the 
>> creators, not the publishers.  Enforcement of copyright law should 
>> primarily be the responsibility of the owner of the right, not of the 
>> state except in the case of egregious and wilful violation where a 
>> higher burden of proof would also prevail.  The other point is that 
>> damages should need to be proven with evidence, and should in no way 
>> depend on speculative analysis about what the public might want to see 
>> or hear.  It serves no-one (except lawyers) when the costs of legal 
>> actions far exceed actual damages.
> There needs to be a deterrent to infringement. If all that happens if 
> you get caught riding the bus without paying fare, is that you have to 
> pay the fare, who would pay the fare upfront?

Deterrent works no better here than capital punishment as a deterrent to 
murder.  Yes, there are bus-fare cheaters, but most people are happy to 
comply with an honour system.  The bus companies provide a fare box 
where you can insert your fare, and information about the amount of the 
fare is easily available.  When it comes to paying royalties in amounts 
that may be roughly equivalent to the bus fare there is nothing clear 
about it at all.

When you approach copyright from an enforcement mindset instead of one 
based on fairness to creators you get different results.  If a fine is 
levied for evading bus fares you know that the company providing the 
service is the one who benefits from the fine.  When a recording 
companies demands  and receives money for an alleged copyright violation 
how much of that is passed on to the artist?



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