Some of the ACTA's problems

In a post from a few months ago, Mike Masnick discusses one of the problems with the ACTA: It would require parties to punish "commercial scale" copyright infringement, which it then proceeds to define in an extremely vague and broad way. But the biggest problem is one he mentions here: It isn't that it would immediately change any U.S. laws or policies, but it would lock in the odious changes of 1998. Reducing the duration of copyright, or modifying the device and circumvention provisions of the DMCA, can be dismissed as "inconsistent with our international obligations" as long as we are a party to the ACTA.

Bill Patry: Right, as usual.

In all the swirl about SOPA, PIPA, ACTA, TPP, and C-11 and the technical issues these proposals raise, it is refreshing to see Bill Patry remind us that one of the most important things about copyrights is that they expire. (I have written about the same thing in a number of places, for example here and here). From the article:

When I was in private practice at a large law firm, a partner asked me to approach the estate of a famous playwright. My colleague was hoping to get permission to produce an abridged version of a play at his son's special education school.

The school was willing to pay the licensing fee, but the children were capable of only performing one act, not three. The production would be only before parents, not for any profit. After all this was explained to the estate, they subsequently refused permission and the money, insisting the children had to produce the play as written, or not at all.

I think that for published books, the 42-year term of copyright we enjoyed from the 1830s until 1909 was about right, but as noted in an earlier post, as a first step I would probably support a proposal to roll back the term of copyright in published books to a mere 75 years from publication, or 50 years from the death of the author, whichever is shorter.

Why I won't sign that petition

A petition has been submitted to the White House requesting that copyright duration be rolled back to a maximum of 56 years. I have long called for a shorter term of copyright, but I won't be signing this petition. That is because too much has happened since 1976 for it to be reasonable to ask for a single 28+28 year copyright term as we had for all published works under the 1909 act.

An important feature of the 1976 Act was the suppression of the common-law right of first publication in unpublished works. Careless writers called this old common-law right a "common-law copyright," and some insisted that it was perpetual, but this was an exaggeration. It was more accurate to state that it was a right of first publication, not a copyright, and that it was of indefinite duration. It could, indeed, last generations if carefully preserved. The 1976 Act abolished this right and replaced it with a statutory copyright in unpublished works, based on the life of the author. This is one feature of the 1976 Act that I consider worth preserving rather than rolling back. The petition submitted to the White House makes no mention of the distinction between published and unpublished works, and the difficulties of defining a term for unregistered unpublished works.

Also, it makes more sense now to have different copyright terms for different classes of works. Computer software source code, in particular, should have a much shorter term than books or songs.

Finally, as Mike Masnick points out, it is Congress that makes the law. A petition to the President should recognize this.

I might support a petition worded something like this:

The undersigned respectfully request that the President consider the following proposals for the amendment of the U.S. copyright law, and if he deem any of them "necessary and expedient", that he recommend them to the Congress in accordance with Article II, section 3 of the constitution; or, if he find any of them not to be necessary or expedient, that he reply to this petition in writing giving his reasons.

1. We request that the duration of copyright in published works by known authors (except for computer software source code, treated separately below) be reduced to a term of the lifetime of the author plus fifty years, but in no case to exceed seventy-five years from first publication; and that the duration of copyright in published works-for-hire and anonymous and pseudonymous published works be reduced to a term of seventy-five years from first publication. This change would be made without regard for the duration of copyright in the law of any other country, and without regard for any "rule of the shorter term" in any foreign law. Any international agreements that conflict with the proposal, to which the U.S. is a party, would be re-negotiated to conform to the new shorter term.

2. We request that the duration of copyright in computer software source-code to be reduced to a term of 25 years from creation. The Patent and Trademark office, or the Copyright Office, would be empowered to issue rules for computing a presumed date of creation when it cannot be determined from the text of the source code itself.

3. We request that the law be amended explicitly to state that the author's exclusive rights, once they have expired by operation of the law, become rights that are vested in the general public. An explicit statement is necessary due to the contemptuous and scornful tone toward the concept of publici juris works that was used by the U.S. supreme court in its Eldred and Golan decisions.

4. We request that the United States withdraw from the Berne Union.

Yochai Benkler: Next steps after tactical victory on SOPA/PIPA.

Yochai Benkler has a good discussion of recent developments. He includes four proposals:

Legislatively re-instate the Sony doctrine and reverse Grokster. Technology developers should only be liable for copyright infringements by users if there are no substantial non-infringing uses of the technology.

Decriminalize copyright to pre-1998 levels: put the Golem to sleep. Return the definition of criminal copyright to require large scale copying for commercial gain; reduce the funding to criminal enforcement and reduce the presence of federal functionaries whose role is to hype and then combating the piracy threat. In particular, as calls to shrink the federal government abound, it is critical to include in every legislation downsizing the federal budget provisions that would defund and eliminate most of the burgeoning apparatus of multi-agency criminal enforcement of copyright. The most direct pathway to this will be in appropriation bills, to defund implementation of PRO-IP until a more balanced substantive approach can be worked out.

Create a fair use defense to the anticircumvention and antidevice provisions of the DMCA. Users should be exempt from DMCA liability if they propose, in good faith, to make a fair use of the encrypted materials. Decryption and circumvention providers should be exempt from liability on the model of the Sony doctrine, if there are “substantial non-infringing uses” for the circumvention technology or device they offer. This would fix a much older overreach by the industry, from 1998, that has been very slowly and imperfectly loosened by the Librarian of Congress under powers to exempt certain uses from liability.

Rein in the international trade pathway for copyright extension. Another pathway, similar to criminalization in the sense that it harnesses federal functionaries to help the industry, distinct in the set of functionaries it harnesses, has been international trade. Through a set of trade agreements, both bilateral and multilateral, the U.S. government has pursued the passage of requirements more stringent than it could itself pass in the U.S. The recent adoption of SOPA-like laws in Spain is one example, as is the notorious Anti Counterfeiting Trade Agreement (ACTA). We need a law that would prohibit secret negotiation of IP-related provisions in international agreements, and a law that prohibits the U.S. from entering agreements that require of ourselves or our trading partners more restrictions on the public domain than then-current U.S. law permits.

I would add, as always, reduce the duration of copyright in published works.

"When Adam dalf and Eve span..." 2

Here was another version of the Adam and Eve picture that I made for last year's anniversary of the uprising of 1381.

Updating the tiger

I've updated the tiger to indicate the threat posed by SOPA/PIPA. If a version of the bills should pass, I'll change the color of the letters on the tiger's right-front paw to be the same color as the letters on the other paws.

Whose hands? Another possible case of cumulative authorship

A prose poem meditation beginning "Christ has no body now but yours" is frequently attributed to St. Teresa of Ávila, though sometimes instead to St. Catherine of Siena. You can hear a version of the text here, set to music by David Ogden:


Link:
http://www.youtube.com/watch?v=uJfmuVWMVnQ

However, as noted here:

http://anunslife.org/2006/09/20/saint-teresa-of-avila-prayer/#comment-260

the attribution to St. Teresa seems mistaken. I have yet to find anything like them in scholarly editions of St. Teresa's works. I have yet to meet anyone who can give a citation to any attested words of St. Teresa that can be the source of this poem.

So I tried tracing the words themselves. For now, at least, I believe the poem to be a work of cumulative authorship, like the text of "Hark the Herald Angels Sing" that is found in the Episcopal Church's Hymnal 1982. In the case of "Christ has no body now but yours", the work is principally by two authors: Methodist minister Mark Guy Pearse (1842-1930), and Quaker medical missionary Sarah Elizabeth Rowntree (dates unknown.) But the poem circulates in various versions which also show minor adjustments by others.

In my present reconstruction (which may change as I gain additional information) the Rev. Mr. Pearse is responsible for the second half of the poem. He spoke as follows in a sermon delivered on January 3rd, 1888, in Steinway Hall, Portman Square, London:

Now you, my brothers and sisters, are the eyes through which Christ's compassion is to look out upon this world, and yours are the lips through which His love is to speak; yours are the hands with which He is to bless men, and yours the feet with which He is to go about doing good--through His Church, which is His body.
--Evangelical Christendom, v. 42, February 1st, 1888, p. 46

Pearse cites no sources for his words other than, of course, the Bible.

A few years later Sarah Elizabeth Rowntree used Mr. Pearse's words, which she acknowledged to be his, and to which she added the first half of the poem. Here is the report from the Quaker periodical The British Friend

Sarah Eliza Rowntree gave an interesting account of the recent establishment of the "Home" in Pearl Street, and the progress of the Mission there. She appealed for more workers to assist its further usefulness, concluding with some words of Mark Guy Pearse, "Remember Christ has no human body now upon the earth but yours; no hands but yours; no feet but yours. Yours, my brothers and sisters, are the eyes through which Christ's compassion has to look upon the world, and yours are the lips with which His love has to speak. Yours are the hands with which He is to bless men now, and yours the feet with which He is to go about doing good through His Church which is His body."
--The British Friend, volume 1, number 1, 1892, p. 15

Around the same time John Wilhelm Rowntree (1868-1905) (I suspect a cousin of Sarah Elizabeth's though I cannot yet confirm it) used the words in a sermon on "The Place of Religion in Modern Life". In the outline for this sermon that was published posthumously in 1906, the piece stood as follows:

Remember Christ has now no human body upon earth but yours; no hands but yours, no feet but yours. Yours are the eyes through which His compassion is to look upon the world, yours are the lips through which His love is to speak, yours are the hands with which He is to bless, and yours the feet with which He is to go about doing good--through the church which is His body.
--from "The Place of Religion in Modern Life" (notes for a sermon), in Joshua Rowntree, ed., Palestine Notes and Other Papers by John Wilhelm Rowntree, Hadley Brothers, London, 1906, p. 106.

John Wilhelm's notes contain no attribution, either to Pearse or to Sarah Elizabeth, or to anyone else. John Wilhelm's words also differ in a few details from Sarah Elizabeth's, making him possibly the first of many who have adapted the text over the decades.

Update:It is of course possible that it was John Wilhelm (or even someone else) who added the first part to Mr. Pearse's words. But Sarah Elizabeth remains the first one on record to have spoken the whole poem in something like the form it now has.

I might as well end with something that St. Teresa did write. Or at least, she is said to have had it on a bookmark in her breviary, and the scholars seem to have accepted it has her work.

Letrilla
Nada te turbe,
nada te espante;
todo se pasa.
Dios no se muda.
La paciencia
todo lo alcanza.
Quien a Dios tiene,
nada le falta;
solo Dios basta.