Further to the discussion last year and the year before, here are two (potentially complementary) ideas for changing how copyright and trademarks work. This should, at least, provide direction in which there are solutions to orphaned works, hostaged works, and providing access to lore/'IP' without forcing very short terms on all works.
When I did a big "complying with copyright" thing in ~2010 (partially to explore things like Spotify as the potential future of managing to process consumption of media and distribution of fees to creators without a barrier to discoverability issue - other systems like try before you buy / free streaming of music / etc seemed to have the issue that when you move to this online, rental model they you can kinda subvert discoverability access to be free consumption so I wanted to do a deep dive into the all you can eat model of rental), I wiped all my ROMs (along with all my mp3s, etc). So since then I've been trying to keep it 100% legit. Stuff like GOG make that a lot easier than it would have been a decade ago but my nostalgia burns brightest for PC games/ports so the lack of available non-DOS stuff is less of an issue for me.
For copyright black hole content then I do think laws need to be tweaked (like defined limits on profitability before work enters the public domain, considered paid for in full by society, and changes to the copyright limits; here's what I plan to limit my work with as a personal experiment and not what I would consider guidance for legal limits) and thanks to Mickey Corp we have the legal standard that copyright changes are applied retroactively (despite this making no sense to the arguments given for creating a better incentive for current works by making them more profitable, previous works have already been created so that argument would not demand retroactive extensions to limits) so we can free a lot of content with changes that put the public interest before profits from long delivered commercial works.
There is a case for adding new elements to the balance of copyright (because, ultimately, a government can simply refuse to grant any copyrights to creators, the hard-ball deal is "we currently give you all this and you've been asking for more at every turn, we could give you no protection; there is no inherent right, only a government granted license of exclusive duplication to the creator to inspire the creation of works") like a restriction on the creation of limited works as a pre-defined special work. So before something went on sale, you could register it as a limited work with up to, say, 5000 copies (all numbered) and that would be the total run for this work and any sold derivatives. Those units could be sold and restricted with normal copyright. This would be how bespoke art would be managed, one off paintings with some reprints but a market that requires limits on the right of duplication of the original creator/copyright owner to ensure value. Rather than a contract from the creator it would be a legal structure that created a limited run work.
What this would allow was for mass duplicated works to not have to worry about this specific ecosystem of limited copies creating a vibrant second-hand value market with speculation and appreciation. You could then say anything not registered as such before it went on sale would be a mass market work. Mass market works could not be withdrawn from the market. If someone wanted to buy then they would be allowed to (at reasonable cost, based on the sale price of the previous copies and judgement on the increasing costs of materials to generate another duplicate) unless a work was forced from sale by legal issues (say it turns out the creator was only a "creator" as the work was copyright infringement itself). This would prevent the creation of limited time contracts that strip works from sale currently and also make it impossible for someone to sit on a copyrighted work, it they refused to make a duplicate then someone else would be paid the material costs of duplication and the difference handed to the owner by the state. The fair value of sale would be taken from their hands and put into that of a judge so it would be in the interest of the copyright holder to declare a value at the upper end of reasonable and contract the duplication themselves to maximise their profits from the sale.
As long as there was one duplicate in existence that had been analysed and the skills to make another duplicate then a mass produced item would remain on sale to any potential buyer. This would provide a strong protection to a cultural heritage without mandating very short copyright terms that could limit the scope of commercial works which required long tails or reward creators who are some years ahead of their time or slow to find widescale commercial exploitation of their work (although we generally don't see such a thing outside of a few exceptional cases which a sane copyright term would already prevent - the Lord of the Rings should be public domain about now and my earlier suggestions to a profitability and term cap would make sure that was true).
Lord of the Rings is in just as much need of handing over to the Public Domain as anything games have to offer (LotR being ~60 years old seems like it should be public domain by now, it has captured any due remuneration associated with the period of creativity during WWII and become part of broad culture - in fact it lives there often by people sidestepping and making derivative works that are transformative; by now it seems like others should get access to the core, the copyrightable block in the middle to mess with as more expression of culture that does not need to avoid treading around transformativeness) - even our icons like Mario are barely 30 years old. There may be some more time where the creator's right to sell Donkey Kong comes before the needs of the people to be unconstrained in riffing on their shared culture created when Jumpman debuted.
Each game in the Mario series would clearly create new copyright for that as a work but the character is born with the first game, which may follow on to a need to de-link the right to the IP of character created from the copyright of the actual work. Maybe our demand for Aragorn to be a PD character in a PD Mordor puts pressure on limited copyright terms that should not also drag the work, the LotR books, into the public domain with it. The words as written keep their copyright but if you want to use characters, locations, events then as long as you're not stripping vast chunks of original text (clear copyright infringement), you're golden. But how much quotation from the common lore of Aragorn's history is fair use and how much is simple infringement on the copyright of the book as written? That discussion would be critical to splitting culture's absorption of lore from the first work in which that lore was crafted.
More complicated would be how that lore developed. Say we put a 50-60 year copyright term on our mass duplicated media but the lore (definition required but roughly anything that isn't the work, any trademarks or copyright that relates to the trademark protection rather than the actual work; lowering of the bar for derivative works to be transformative) enters the public domain in 30 years, your children will be able to use your characters for their own work but you will still probably be able to sell the copyrighted works you create without competition for your entire life. Jumpman is not Mario, but he is. But you couldn't use to release of Jumpman lore into the public domain to get at Bowser Jr. or Birdo but in that lore they exist. Would this lead to the universe that characters inhabit slowly entering into public use as it was expanded in later titles? Mario starts out and then two years later the PD Mario gains a brother and two more years later Bowser turns up. After 7 years PD Mario can talk to Birdo but not a day sooner? There seems to be a conflicting demand to have access to the lore, all of it, and the way this will discourage connected universes if it collapses the (what we're mainly talking about is) trademark (and some copyright) protection of a new work by setting it in a universe that is about to expire from protected term. Maybe we can live with franchises that are 30+ years old having an incentive to be left behind by their original creator. That does not sound like the worst of worlds. But there's a discussion to be had about what we consider fair to the creators and fair to the future creators who want to riff on the shared culture they were raised with, without worrying about transformative tests or protected names.
Edit 04/02/14: Inspired by the same discussion points about the public domain and games, m'very'good'friends at Mode 7 were also narrowing down on some similar sticking points in that debate. While I don't agree with everything Paul has to say, it is a compelling argument with a lot of good points.
The Right to Refuse to Sell More
I think there's a pretty big line between: abandonware as sort of unofficial copyleft system of distribution for items that have no commercial availability or value and are hard to access for the millions of people who do have ownership rights to one copy due to advancing technology; and people who sell ROMs and so on for profit without correctly paying the fees to the copyright holders and those who are due royalties.When I did a big "complying with copyright" thing in ~2010 (partially to explore things like Spotify as the potential future of managing to process consumption of media and distribution of fees to creators without a barrier to discoverability issue - other systems like try before you buy / free streaming of music / etc seemed to have the issue that when you move to this online, rental model they you can kinda subvert discoverability access to be free consumption so I wanted to do a deep dive into the all you can eat model of rental), I wiped all my ROMs (along with all my mp3s, etc). So since then I've been trying to keep it 100% legit. Stuff like GOG make that a lot easier than it would have been a decade ago but my nostalgia burns brightest for PC games/ports so the lack of available non-DOS stuff is less of an issue for me.
For copyright black hole content then I do think laws need to be tweaked (like defined limits on profitability before work enters the public domain, considered paid for in full by society, and changes to the copyright limits; here's what I plan to limit my work with as a personal experiment and not what I would consider guidance for legal limits) and thanks to Mickey Corp we have the legal standard that copyright changes are applied retroactively (despite this making no sense to the arguments given for creating a better incentive for current works by making them more profitable, previous works have already been created so that argument would not demand retroactive extensions to limits) so we can free a lot of content with changes that put the public interest before profits from long delivered commercial works.
There is a case for adding new elements to the balance of copyright (because, ultimately, a government can simply refuse to grant any copyrights to creators, the hard-ball deal is "we currently give you all this and you've been asking for more at every turn, we could give you no protection; there is no inherent right, only a government granted license of exclusive duplication to the creator to inspire the creation of works") like a restriction on the creation of limited works as a pre-defined special work. So before something went on sale, you could register it as a limited work with up to, say, 5000 copies (all numbered) and that would be the total run for this work and any sold derivatives. Those units could be sold and restricted with normal copyright. This would be how bespoke art would be managed, one off paintings with some reprints but a market that requires limits on the right of duplication of the original creator/copyright owner to ensure value. Rather than a contract from the creator it would be a legal structure that created a limited run work.
What this would allow was for mass duplicated works to not have to worry about this specific ecosystem of limited copies creating a vibrant second-hand value market with speculation and appreciation. You could then say anything not registered as such before it went on sale would be a mass market work. Mass market works could not be withdrawn from the market. If someone wanted to buy then they would be allowed to (at reasonable cost, based on the sale price of the previous copies and judgement on the increasing costs of materials to generate another duplicate) unless a work was forced from sale by legal issues (say it turns out the creator was only a "creator" as the work was copyright infringement itself). This would prevent the creation of limited time contracts that strip works from sale currently and also make it impossible for someone to sit on a copyrighted work, it they refused to make a duplicate then someone else would be paid the material costs of duplication and the difference handed to the owner by the state. The fair value of sale would be taken from their hands and put into that of a judge so it would be in the interest of the copyright holder to declare a value at the upper end of reasonable and contract the duplication themselves to maximise their profits from the sale.
As long as there was one duplicate in existence that had been analysed and the skills to make another duplicate then a mass produced item would remain on sale to any potential buyer. This would provide a strong protection to a cultural heritage without mandating very short copyright terms that could limit the scope of commercial works which required long tails or reward creators who are some years ahead of their time or slow to find widescale commercial exploitation of their work (although we generally don't see such a thing outside of a few exceptional cases which a sane copyright term would already prevent - the Lord of the Rings should be public domain about now and my earlier suggestions to a profitability and term cap would make sure that was true).
A Work vs the 'IP'/Lore & are Games Special?
There has been recent discussion of copyright in games being special and the evolution of the medium requiring radically shorter terms than other types of works. I don't see why games are a special case so an argument like that seems very weird. Are we to propose a way of determining the maturity of a medium and build copyright terms based on a curve that slowly grants more longevity based on the progress the medium is making? "Games had three revolutionary new techniques discovered according to the judges so keeps the 20 year copyright terms but cinema hasn't had one in 5 years so that 50 year copyright is extended to 55 years now." I just can't see it working and I also don't see the need from a place of providing access to the shared culture to the next generation to remix without concern of transformativeness. I don't see games entering into the public awareness and integrated into culture at a different rate, so why would it need different terms?Lord of the Rings is in just as much need of handing over to the Public Domain as anything games have to offer (LotR being ~60 years old seems like it should be public domain by now, it has captured any due remuneration associated with the period of creativity during WWII and become part of broad culture - in fact it lives there often by people sidestepping and making derivative works that are transformative; by now it seems like others should get access to the core, the copyrightable block in the middle to mess with as more expression of culture that does not need to avoid treading around transformativeness) - even our icons like Mario are barely 30 years old. There may be some more time where the creator's right to sell Donkey Kong comes before the needs of the people to be unconstrained in riffing on their shared culture created when Jumpman debuted.
Each game in the Mario series would clearly create new copyright for that as a work but the character is born with the first game, which may follow on to a need to de-link the right to the IP of character created from the copyright of the actual work. Maybe our demand for Aragorn to be a PD character in a PD Mordor puts pressure on limited copyright terms that should not also drag the work, the LotR books, into the public domain with it. The words as written keep their copyright but if you want to use characters, locations, events then as long as you're not stripping vast chunks of original text (clear copyright infringement), you're golden. But how much quotation from the common lore of Aragorn's history is fair use and how much is simple infringement on the copyright of the book as written? That discussion would be critical to splitting culture's absorption of lore from the first work in which that lore was crafted.
More complicated would be how that lore developed. Say we put a 50-60 year copyright term on our mass duplicated media but the lore (definition required but roughly anything that isn't the work, any trademarks or copyright that relates to the trademark protection rather than the actual work; lowering of the bar for derivative works to be transformative) enters the public domain in 30 years, your children will be able to use your characters for their own work but you will still probably be able to sell the copyrighted works you create without competition for your entire life. Jumpman is not Mario, but he is. But you couldn't use to release of Jumpman lore into the public domain to get at Bowser Jr. or Birdo but in that lore they exist. Would this lead to the universe that characters inhabit slowly entering into public use as it was expanded in later titles? Mario starts out and then two years later the PD Mario gains a brother and two more years later Bowser turns up. After 7 years PD Mario can talk to Birdo but not a day sooner? There seems to be a conflicting demand to have access to the lore, all of it, and the way this will discourage connected universes if it collapses the (what we're mainly talking about is) trademark (and some copyright) protection of a new work by setting it in a universe that is about to expire from protected term. Maybe we can live with franchises that are 30+ years old having an incentive to be left behind by their original creator. That does not sound like the worst of worlds. But there's a discussion to be had about what we consider fair to the creators and fair to the future creators who want to riff on the shared culture they were raised with, without worrying about transformative tests or protected names.
Edit 04/02/14: Inspired by the same discussion points about the public domain and games, m'very'good'friends at Mode 7 were also narrowing down on some similar sticking points in that debate. While I don't agree with everything Paul has to say, it is a compelling argument with a lot of good points.
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