Rufus Pollock et al. on the value of the public domain

Rufus Pollack has posted a draft (for it seems to be unfinished still) of his paper, co-written with Paul Stepan and Mikko Välmäkki, on the value of the public domain (PDF). The abstract can be found at

http://rufuspollock.org/2010/10/11/papers-on-the-size-and-value-of-eu-public-domain/

This is a study in a European context similar to Paul J. Heald's survey of American best-selling novels, which can be found at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=955954

Professor Heald surveyed works of fiction. Pollock surveys both books and sound recordings. For books he surveys a much larger sample than Professor Heald surveyed.

Back in 1998 I did a cursory survey of paperback song books, and found that incorporation of public domain content lowered the average price per book and the average price per song. As I surveyed these books, I quickly encountered problems of definition. What is a "pubic domain" song? What was a "public domain" book? My solution was to limit the survey to paperback books with piano-vocal arrangements. If more than 90% of the melodies in a book were public domain melodies (though the accompaniments might be copyrighted) then that book counted as "public domain" for the purposes of the survey, though obviously the book-as-a-whole and many of its components were under copyright. If more than 90% of the melodies in a book were under copyright, then that book counted as "copyrighted" for the purposes of the survey.

Pollock et al. deal with similar questions of classification. Is a book "public domain" if it is a public-domain novel but with copyrighted introduction and notes? The authors very reasonably say yes in this case as long as it contains the full PD text and the PD text is most of the book. A book that is more notes than underlying text is classified in a separate "YN" (Yes PD, but Notes) category. Altogether, the authors develop seven categories of classification of about sixty-four thousand books according to public domain content. Unsurprisingly, when a book is promoted from copyright to public domain, publishers bring to market competing editions in all price categories, from low-priced budget editions to high-priced luxury editions. This wide range of prices, as well as the value that might be added to some of the new editions by additional matter such as notes, complicates average-price computations. Limiting the comparison of prices to the low-price and middle-price editions (i.e. excluding the highest-priced editions, a technique called "right truncation") shows that publishers are offering public domain works to the public at average selling prices that are four to six percent lower than the prices at which they are offering copyrighted works. This is consistent with the results of Professor Heald's earlier, smaller study of best-selling American fiction.

The authors' survey of sound recordings draws fewer distinctions than the survey of books. A recording is considered "public domain" if the copyright in the sound recording has expired, regardless of the copyright status of the music that has been recorded. While a more sophisticated survey would also examine the importance of public domain music to the price and availability of musical works on copyrighted recordings, the authors' focus on the recording copyright alone is reasonable in light of the ongoing debate in Europe over extending the term of the phonogram copyright. Pollock et al. found that pop-music recordings were on the average roughly seven percent cheaper one year after expiration of their phonogram copyright than they had been one year before expiration.

Besides the analysis of the data, the authors transmit some anecdotal information gathered in the course of the study. According to them

one organization, involved in providing recordings for soundtracks to films and televesion, indicated that out-of-copyright recordings would be 70% cheaper than in copyright ones (£20 thousand to £6 thousand fee).

At the foot of the page (at the time of this writing) is the following, rather chilling, footnote number 11:

The organization explicitly requested to remain anonymous due to fears that an attributed statement could jeopardize his relationship with the large music labels.

This very anonymity makes it difficult to evaluate the ancecdote. What were the "recordings" the organization "provided"? What is the "copyright" referred to in the anecdote: a copyright in the music or a copyright in a recording? And so we know less than we might, apparently because the major labels have given one worker in the music business the impression that they are afraid of the truth, and will retaliate against those who speak it.

I like her already

Why Hollywood Should be very Nervous about Elena Kagan.
--Because she believes in fair use.

Update 4/22/2011: The link has moved to : http://www.hollywoodreporter.com/blogs/thr-esq/hollywood-nervous-elena-kagan-63877

Mr. Justice Stevens

Mr. Justice Stevens, in his long service on the Supreme Court, has written many opinions and dissents. But it is his dissent in Eldred v. Ashcroft that is my favorite. Stevens' starting point was that Congress's power to grant "exclusive rights" for "limited times" to "authors and inventors" for "their" writings and discoveries arises from the a single clause in the constitution, so that many of the principles that the court has developed in its patent-law jurisprudence to protect the public from excessive monopoly must apply to copyright law as well.

The court majority in that case had nothing but scorn and contempt for Stevens' dissent, expressed in Footnote 18 of the Court's opinion:

Justice Stevens' characterization of reward to the author as "a secondary consideration" of copyright law...understates the relationship between such rewards and the "Progresss of Science". As we have explained, [t]he economic philosophy behind the [Copyright [C]lause...is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventers." Mazer v. Stein, 347 U.S. 201, 219 (1954). Accordingly, "copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge...The profit motive is the engine that ensures the progress of science." American Geophysical Union v. Texaco Inc. 802 F. Supp. 1, 27 (SDNY 1992), aff'd, 60 F. 3d 913 (CA2 1994). Rewarding authors for their creative labor and "promot[ing]...Progress" are thus complementary; as James Madison observed, in copyright "[t]he public good fully coincides...with the claims of individuals." The Federalist No. 43...Justice Breyer's assertion that "copyright statutes must serve public, not private ends"...similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with incentive to pursue private ones.

But as I wrote at the time, it was the majority, not the dissenters, who "understated" important aspects of copyright theory, and "missed the mark" in its analysis:

In Madison's day it might have been possible to assert that the public good "fully coincid[ed] with the claims of individuals", because the scope of copyright did not then include derivative works; did not then include public displays and performances; and only lasted for 28 years at most. Everything else Madison wrote about copyrights and patents shows that he is fully aware that copyright places burdens on the public, and that these burdens can, if they become heavy enough, destroy the coincidence between "the public good" and "the claims of individuals." Justice Stevens's and Justice Breyer's statements are entirely consistent with the cases they site. It is the court majority that "misses the mark", disregarding the clear spirit of the court's earlier copyright dicta and cynically citing Madison in a tendentious way. Justice Stevens does not "understate the relationship between [the] rewards [conferred in the copyright monopoly] and the 'Progress of Science'". It is the court majority that understates --indeed, all but ignores -- the relationship between the public domain and the "Progress of Science."

For completeness' sake, here is a link to Mr. Justice Breyer's dissent in the same case.

The new health-care law

The infant mortality rate in some of the rural counties of Oklahoma is shockingly high. If there is anything in the new law that, properly implemented, will bring these rates down, then that provision of the new law is to be welcomed.

Public Knowledge's 5-point plan for copyright reform

Public Knowledge has released a five-point plan for copyright reform that they intend to be the basis of a legislative proposal. The pillars of this plan are:

1) strengthen fair use, including reforming outrageously high statutory damages, which deter innovation and creativity;

2) reform the DMCA to permit circumvention of digital locks for lawful purposes;

3) update the limitations and exceptions to copyright protection to better conform with how digital technologies work;

4) provide recourse for people and companies who are recklessly accused of copyright infringement and who are recklessly sent improper DMCA take-down notices; and

5) streamline arcane music licensing laws to encourage new and better business models for selling music.

Before anything, though, else we need a shorter copyright term. I would consider duration to be implicit in point 3, limitations on copyright. But it is not clear that the folks at Public Knowledge think so. In this article, for example, under "What are the limits of copyright?", they mention only limitations on copyright's scope-- fair use and first sale. Duration is mentioned under the heading "why do we have copyright?" So it seems that the folks at public knowledge don't consider a shorter term of copyright to be part of their 5-point plan, even implicitly. What a disappointment.

Ice storm!

While not quite as heavy as the ice storm of December 2007, the sleet that fell on central Oklahoma this past Thursday was heavy enough. It was followed by several inches of snow.