Anachist Manifesto from 1892

 

From The Agitator (L'Agitateur) an Anarchist newspaper published in Marseille on the 13th of March 1892. Merci beaucoup to Constance Bantman for sharing this fragment.

 MANIFESTE AN-ARCHISTE 

AN-ARCHIE ne signifie pas « DESORDRE» Le mot « ANARCHIE»  vient de deaux mots grees: «A» Privatif, dont 1e sans est «Absence de» et «Arke» qui vent dire — AUTORITE.
Done, contrairement a Ia definition que se plaisent a downer tous nos adversaires, ANARCHIE est synonyme de -- ABSENCE D'AUTORITE-- et non «chaos, bouleversement, desordre».

Anarchist Manifesto 

AN-ARCHY does not mean "Chaos", the word "Anarchy" comes from the two Greek words "An" the meaning of which is "Absence of" an "Archy" which means AUTHORITY.

Well, contrary to the definition that all our adversaries like to use, ANARCHY us a synonym for - ABSENCE OF AUTHORITY, and not "Chaos, upheaval, disorder".

My French is very limited and tre rusty, so I appreciated the opportunity to exercise a little and combine it with my knowledge of Esperanto. It's said that for over a hundred years, the old communication problem remains. Usually propaganda is the answer to why do so many people equate Anarchy, Anarchism etc, to acts of random and violence. It certainly plays a part, though I am of the opinion the success of this propaganda is down largely to so many people equating freedom to violence and vulnerability. Personally I don't have an issue with equating Anarchy to chaos, but that is because for me chaos is random, change, experience, it can mean danger but so does authority and obedience. But, for many that word means violence, danger, threat exclusively, so I won't argue with the people who ran L'Agitateur.

Returning from Cuba 1898

 

Tornant de Cuba by Ricard Opisso a Catalan artist. Painted in 1898 this image depicts two veterans of the Spanish American war, tens of thousands of conscripts were discharged and returned to Spain at the Barcelona Quays which is seen in the background. Many of these men were wounded, and malaria sickness was common, the Spanish authorities essentially abandoned these men after Cuba and Philippines and Puerto Rico were lost to the United States. 

The treatment of these men contributed to the growing atmosphere of hostility to the Spanish military in Barcelona and the wider Catalan region. I've been told that this defeat sat heavily on Spanish consciousness and that a saying "Más se perdió en la guerra de Cuba" (more was lost in the Cuban war) which means could have been worse.

The conflict between the USA and Spain occurred during the infancy of film and Edison was keen to film recreations of the fighting, if you've seen a documentary on this conflict you've likely seen some of this footage, I certainly have.

Cuban revolutionaries occupy a house and fire on Spanish troops.

Notes on a Mickey Mouse Poster

 

The news that Mickey Mouse is now in the public domain was greeted with jubilation and much gnashing of teeth from a certain boardroom. During the celebrations, many shared some of the posters that Disney produced to advertise its first sound cartoon, including the one you see above. Looks like a cheery innocent little fellow doesn't he. If only we'd realised sooner. 

This poster has sparked a mini controversy, because it's not a 100% clear whether this poster was produced and released in 1928 or early 1929, and it is in colour and Mickey is wearing gloves. Why that matters? Well, it shouldn't actually matter at all, but many people who misunderstand property laws and trademarks have worked themselves up over it. The idea goes if this poster is from 1928 the same year of Steamboat Willie's release then it and its design of the Mouse is public domain and free to use, if not then we'll have to wait another year to January 2025.

The problem here is that the question is irrelevant, to qualify for copyright status in the United States of America before 1988, a work must be released with a valid copyright notice and be registered at the copyright office. Do you see a copyright notice? I honestly can't and this is the cleanest high resolution version I've found. So, while the year of release would be of historical interest, it's irrelevant to the subject of ownership.

 Under the 1909 Act, federal statutory copyright protection attached to original works only when those works were 1) published and 2) had a notice of copyright affixed. Thus, state copyright law governed protection for unpublished works, but published works, whether containing a notice of copyright or not, were governed exclusively by federal law. If no notice of copyright was affixed to a work and the work was "published" in a legal sense, the 1909 Act provided no copyright protection and the work became part of the public domain. [https://en.wikipedia.org/wiki/Copyright_Act_of_1909]

You might be wondering why Disney even in the early days when Disney was still just a man forgot to protect this piece of his IP. He probably didn't forget, he just didn't bother, lots of American advertising and promotional material was released without bothering to register for copyright. Remember, the point of copyright terms was to provide long-term ownership of material and its business potential, promotional materials by design have a short shelf life. The poster at the centre of this mini controversy was run at some point between 1928-29, and then never again. Disney and Iwerks made more Mickey Mouse cartoons and other shorts.

 Here's a playlist of other adverts that fell into the public domain for the same reason.

Popeye the Sailor Finally Sails to Freedom!

 

Countdown To Public Domain Day 2025

 

 Every New Year's Day is Public Domain day, when many works of art fall out of copyright. Last time the biggest news was Mickey Mouse, next January the United States welcomes Popeye to intellectual freedom. Popeye debuted in 1929 in the Thimble Theatre comics, and was the inspiration of E.C. Segar. Segar died in 1938 which means that Popeye has been public domain in the rest of the world for some years now. Though finally Americans get to join in the fun.

Of course, even in the United States a surprisingly large amount of Popeye material had fallen into the public domain before, including my personal favourite Popeye cartoon Popeye for President! (see above). But with his first appearance falling into the public domain in America, this will give fan artists and other creators freer reign to remix and incorporate him in their own works. 

I won't pretend Popeye is a favourite of mine, but he does hold a place in my heart. As a child, TV channels would play his public domain cartoons in the mornings, and as a son of a sailor I've had a soft spot for the guy and his squinty smile, he was certainly more relatable and less distant than Horatio Hornblower. And I do in fact enjoy me Spinach. Oh, and living in the UK we got to enjoy some perks of Segar's legacy, more on that below.

A fun fact about Popeye, his `Goil` Olive Oyl is already public domain in the USA too, she predates the sailor with a penchant for Spinach by one whole ten years. Olive Oyl was one of the original cast members when the strips were first run in 1919.

Scene from Thimble Theatre, 1925

Yanks will sadly have to wait two more years for the Hamburger mooching J. Wellington Wimpy "I'll gladly pay you Tuesday for a burger today", to fall into the public domain, as his first appearance was in 1931. Which makes sense, he is after all a reflection on the Great Depression.

Speaking depression Wimpy, in the UK there was once a popular burger restaurant chain named after Wimpy. That's right, Popeye as a brand was once so popular that a supporting character's name could shift burgers and build an international food company. The original Wimpy's were American, but its biggest markets were the UK, South Africa (during Apartheid) and Ireland. In fact, for a time Wimpy was so enmeshed in the UK economy that the Provisional IRA bombed one of their restaurants as part of their campaign to wreck the British economy and spread general panic. One bomb disposal officer was killed while trying to disarm the explosive.

I'm not old enough to remember its golden period, nor have I ever had a Wimpy burger, since I've never lived in a town where they still had their last remaining branches. But it is remembered by older people, who lament its loss when the restaurant is brought up in conversation. It was still around in a limited fashion when I was a lad though, I can remember seeing adverts on TV, and Popeye themed wind-up toys that were given away in its kids meals during a doomed attempt to survive competition with McDonald's, another fast food chain that has a history with the Provisional IRA now that I think about it. Looking back, I don't think naming a burger restaurant after a man named Wimpy and was famous for not actually paying for those burgers he snaffled was a great idea. But, then again, I'm no marketing genius.

We live in Pottersville; thoughts on It's a Wonderful Life

 

 

Last Christmas, I scratched It's a Wonderful Life off my to watch list. It took me awhile, I suppose it was a combination of never being on TV when I was free at Christmastime and a case of absorbing much of the film via cultural osmosis due to the staggering number of other media spoofing, parodying and tributing the film. I learnt about the key plot twists as a child thanks to the Simpsons and an episode of Johnny Bravo. I was surprised to learn that the bits everyone knows about are only a fraction of the film, and that I still really enjoyed it despite popular culture spoiling nearly every key scene. Initially Jimmy Stewart's performance stunned me since I had been under the impression that his aww shucks and golly gee dialogue and put upon but dogged demeanour combined with that semi-warble line delivery was a product of exaggerated spoofs and not the performance of a Hollywood leading man.

It's a great film, has a good moral, the cast plays their roles excellently, I didn't feel its length and this is nothing new to anyone whose seen the film. All I'll say on that is that if you were like me and were in no rush to see it, give it a go, it'll be a pleasant evening. 

So, with that out of the way, the reason I'm talking about this movie is politics. The film was controversial on release wayback in 1946, the FBI in an early move in the second Red Scare investigated the film on suspicion of it being Communist propaganda. 

There is submitted herewith the running memorandum concerning Communist infiltration of the motion picture industry which has been brought up to date as of May 26, 1947....

With regard to the picture "It's a Wonderful Life", [redacted] stated in substance that the film represented rather obvious attempts to discredit bankers by casting Lionel Barrymore as a "scrooge-type" so that he would be the most hated man in the picture. This, according to these sources, is a common trick used by Communists.

  [redacted] stated that, in his opinion, this picture deliberately maligned the upper class, attempting to show the people who had money were mean and despicable characters. [redacted] related that if he made this picture portraying the banker, he would have shown this individual to have been following the rules as laid down by the State Bank Examiner in connection with making loans. Further, [redacted] stated that the scene wouldn't have "suffered at all" in portraying the banker as a man who was protecting funds put in his care by private individuals and adhering to the rules governing the loan of that money rather than portraying the part as it was shown. In summary, [redacted] stated that it was not necessary to make the banker such a mean character and "I would never have done it that way."

https://web.archive.org/web/20111229215857/http://www.wisebread.com/fbi-considered-its-a-wonderful-life-communist-propaganda#memo1 

 Which is of course total nonsense. Yes, Mr Potter as portrayed by Lionel Barrymore is an absolute scumbag who you're supposed to hate with vehemence, but Jimmy Stewart's character is also a banker. The film isn't Communist at all, Capra the director of the film is throwing his weight behind small scale community oriented capitalism. Bailey Brothers Building and Loans is a bank and its importance as an institution in the town and the hope it provides to the residence of Bedford Falls is salvation through capital investment, the homes they're building and enabling the community to buy come from those investments. 

Potter and Bailey are opposed ideologically, but it's an ideological divide within, the logic of capitalism. Potter represents old monopoly capitalism, he spends the film trying to destroy the Bailey Brothers because they are the one sole form of competition in the area, so he as the big established capitalist uses every advantage he has to break the rival bank, and when that fails he just steals from them to try and deal the killing blow. I think what really got the FBI and its informant [REDACTED] ornery was that Potter, the villain, is representative of the American system, he's the typical capitalist and so criticism of how he acts and behaves is criticism of officially sanctioned America. He also doesn't face any punishment for his many morally and ethically dubious but often legal actions. I don't know if Frank Capra was consciously aware of just how damning that is a judgement of American society. The film shows us that the established powers in America can use that power to crush the good in society out of personal spite or paranoia over a potential competition, and they can do that with impunity. 

The real tragedy is that in the real world, the Potters won.  Credit Unions, community and co-operative banks still exist in the present and some have grown to some size, but compared to the banks' ala Potter? Pebbles next to mountains. The successful stakeholder initiatives increasingly morph into or sell to the big banks, which are now so big and concentrate so much capital that they can plunge the whole global economy into recessions when they screw up. And closer to home, the Potters won the battle for the film. 

It's a Wonderful Life didn't just annoy the FBI, it did poorly with the critics and was a box office disappointment. It languished in obscurity and was such a low priority that when the copyright was up for renewal in 1974 it was botched, pushing the film into the public domain.  Thanks to that clerical error that led to the film's eventual rise to classic status and beloved fixture of American holidays. TV stations could air the film in exchange for royalties to the owner of the copyright of The Greatest Gift, the 24-page source material, which still made it much cheaper to show than most alternative films. This also probably played a role in why the film is so widely referenced, parody is protected under the doctrine of Fair Use, copyright can still provide grounds for offended rights holders to make it not worth the trouble.

Republic Pictures used its ownership of the copyright to the source material to clamp down further on the distribution of the film, effectively forcing it back into copyright. Republic Pictures had closed down in the 1960s and was revived in the 80s due to business restructuring, shortly after reclaiming It's a Wonderful Life they were folded up into Viacom. No one who worked on the story or the film is connected with the royalties and fees that are accrued by the film today. The cinematic community has been robbed of the film thanks to the power of large corporations to influence the legal system of the United States with their large law firms and lobbying agents. 

I suppose It's a Wonderful Life has some solace for us, in the film Potters triumph as bleak as it is not the end of the struggle, George Bailey doesn't give into despair despite the many trying obstacles, he earns his happy ending and we can too.

On Time and Being in the public domain

 

Pay special attention to the year 1929 listed at the bottom

 

Warning to enjoyers of classic media, I've noticed a dirty trick by several bad actors to keep older works under control of estates and corporate departments. In the United States of America, copyright still works differently than in most of the rest of the world. The year of release is the most important aspect for determining if a work is or is not still in copyright. As the year's tick by and more and more popular and well remembered (still able to generate profit) works fall into the public domain, I'm seeing what I guess can be called retroactive release date extensions. 

If you look at the screenshot above, you will notice that the classic air ace film Wings is available for purchasing or rent on YouTube. You may also notice the year listed is 1929. This is not the year Wings was released. It was in fact released in 1927, why the discrepancy? Well, American works released in 1927 or earlier are now in the public domain. Whereas 1929 works at the time of writing are still in copyright. This isn't a little white lie either, I've received take down notices by companies using this false redating, and on at least one occasion while I was compiling evidence for my challenge I noticed that the English language wikipedia entry for the film in question had also mysteriously had new dates, this has since been corrected.

 

So, what can you do about this? Well, like all other forms of copyfraud we can't stop the perpetrators from doing this, we can however challenge and expose this. While wikipedia can be edited by anyone, there are several definitive databases that cannot be tampered with. For American film's I always check the American Film Institute which lists the release dates and premieres of every commercially released American film. For example, the entry on Wings clearly shows multiple screenings in 1927. For British films, the British Film Institute also fulfils this service.  So be vigilant, if in doubt check at authoritative sources.

Public Domain 2024, or why is Steamboat Willie still being flagged when I upload it to YouTube?

 

Yes, after Millions of dollars in lobbying efforts, after two decades of delay, Steamboat Willie the first animated short starring Mickey Mouse is finally public domain. Many have rushed to upload the short to their video platform of choice, which is of course YouTube. And yet many are finding that their videos are being claimed by the Disney corporation anyway. What gives? Well, as someone who uploads public domain material to YouTube regularly, including Steamboat Willie, nothing has changed.

There are two types of copyright triggers on YouTube, manual, where someone actively makes a claim and the much more common automatic flagging system which scrubs through whatever you upload to YouTube as part of the upload process, usually after the SD version is ready but before HD if that is applicable. And after uploading, your video will be subject to periodic and random checks for the rest of time. If you've ever received an e-mail out of the blue informing you that a video you uploaded ten years ago has been blocked in Greece or cannot be monetised because of a claim by a company in Australia, that is usually why that has happened.

This is an automatic flagging. Neither automatic nor manual copyright claims, blocks and strikes do not have legal standing and are not in themselves evidence of anything. But this is especially true of automatic versions when a work's copyright expires. All they mean is that someone - and it's important to remember that this could be anyone - has made a copyright claim on some material and either consciously made it against your upload or the automatic system thinks your content is a match for what's in its database to check for. So, once material has been added to the system to check it stays in there, it's up to the submitter to make changes and there is no obligation for them to do so nor sanction if they fail to do so. 

Last year, Disney was blocking my upload of Oswald the Lucky Rabbit's Trolley Trouble's. I disputed it and to my surprise, instead of running out the clock or trying to intimidate me into dropping the issue, they promptly responded and dropped the claim. A while ago, YouTube informed me that my channel could qualify for partnership, as part of the sales pitch it was keen to stress that I could make use of its checking system, simply upload my video to it, and it would take care of all the rest for me. I think you can see several of the potential openings for abuse right there.

Why such a boon for shady dealers and outright committers of copyfraud? Well, it's not YouTube's fault, well not exclusively its fault. It's the fault of Intellectual Property legislation. In particular the Digital Millennium Copyright Act, the dreaded DMCA. Under the DMCA system, YouTube and all other websites operating under jurisdiction of the United States of America have to take allegations of copyright infringement at their word and act to remove it. This leaves it up to the user to challenge it if those complaints are unfounded. And sites aren't even obligated to provide you the means to challenge it. YouTube gets lots of criticism for its copyright policies, but I will give it the barest slither of credit, it does allow users to make a challenge in the case of abuse, from what I've seen other websites just act and then ban the user or send them a warning. YouTube's process is extremely flawed, especially if you don't have a lawyer on retainer, but it has a process.

If you're curious why websites behave this way, it's because that's a requirement of the `Safe Harbour` protections. So this is a compromise between big media companies and big tech companies. YouTube and all the big online media sharing sites are full of piracy, but they rarely face any legal consequences, because the liability is transferred to the anonymous individual users. This aspect was key to what made that lawsuit by the channel Business Casual so surprising, the alleged actions of YouTube as a company risk losing that Safe Harbour status and would put them at risk of direct litigation for copyright violations and other activities by the company and its administration. So, it will be interesting to see how that class action lawsuit they're building plays out.

But back to the Mouse, because of how 'Safe Harbour' works there is no attempt at evaluation or judgement, it is a simple as Step 1: Report and Step 2: Remove as an automatic function, this means that the copyright claims on YouTube videos don't matter beyond restricting and annoying some people. The system by design eliminates evaluation and judgement of merit until other parties take further action. My upload of Steamboat Willie is blocked in several nations, and according to YouTube the claim is made by Disney, but I won't have any proof that Disney is in fact behind the claim unless I proceed through the dispute process up to a point where YouTube enacts a "contact the claimant" option and gives me an e-mail address, that is how little effort YouTube takes in verifying the identities of the entities that claim their legally protected material is being harmed by its service. Oh, and for extra fun, even when you win a dispute, there is nothing in place to stop the same content being claimed, nor being claimed by the same people you fought off last time. Warner Bros, are pretty infamous for repeatedly trying to re-claim their former properties to take just one example. What determines the copyright status of works is legislation and case law. So, if you live in one of those countries that keeps blocking the Mouse, you need to look at your own nation's legal codes; does your nation have the "rule of shorter term" for foreign works? Is the work still in copyright in your territory, and if so in what fashion and to whom is the representative? A company arbitrarily actioning what is often an automatic response does not mean anything.

Addendum

On the 13th of March, Disney failed to escalate my challenge copyright dispute over the content of the video, during the dispute period Disney did however remove its region blocks and changed to what's called an "ad grab" copyright claim. That's the claim that doesn't affect the upload but does monetise it for the claimant. So, looks like we have clarity, Mickey Mouse the character is public domain world wide.

Breaking News! Bill Willingham's Fables are now in the Public Domain

 The one thing I didn't think I'd do on this blog is cover breaking news. Bill Willingham, the writer and comics artist, has placed his creations in the Fables comic line in the public domain. The reason? Well, the publisher of the line, DC Comics hasn't been playing fair with Willingham in regard to their contractual obligations, and failed to pressure Willingham into giving up his creative control of the Fables intellectual property. 

Willingham has released a public statement explaining his decision, which can be read in full at These Foolish Games

Fables Press Release

Subject: Fables Enters the Public Domain

15 September 2023

By Bill Willingham

For Immediate Release

The Lede

As of now, 15 September 2023, the comic book property called Fables, including all related Fables spin-offs and characters, is now in the public domain. What was once wholly owned by Bill Willingham is now owned by everyone, for all time. It’s done, and as most experts will tell you, once done it cannot be undone. Take-backs are neither contemplated nor possible.
[...]
When I first signed my creator-owned publishing contract with DC Comics, the company was run by honest men and women of integrity, who (for the most part) interpreted the details of that agreement fairly and above-board. When problems inevitably came up we worked it out, like reasonable men and women. Since then, over the span of twenty years or so, those people have left or been fired, to be replaced by a revolving door of strangers, of no measurable integrity, who now choose to interpret every facet of our contract in ways that only benefit DC Comics and its owner companies. At one time the Fables properties were in good hands, and now, by virtue of attrition and employee replacement, the Fables properties have fallen into bad hands.

Since I can’t afford to sue DC, to force them to live up to the letter and the spirit of our long-time agreements; since even winning such a suit would take ridiculous amounts of money out of my pocket and years out of my life (I’m 67 years old, and don’t have the years to spare), I’ve decided to take a different approach, and fight them in a different arena, inspired by the principles of asymmetric warfare. The one thing in our contract the DC lawyers can’t contest, or reinterpret to their own benefit, is that I am the sole owner of the intellectual property. I can sell it or give it away to whomever I want.

            I chose to give it away to everyone. If I couldn’t prevent Fables from falling into bad hands, at least this is a way I can arrange that it also falls into many good hands. Since I truly believe there are still more good people in the world than bad ones, I count it as a form of victory.

This isn't a unique issue, it's extremely common, there are many well known cases but to pick just a few, recently Disney has been embroiled in an ongoing dispute over failure to pay royalties prompting Alan Dean Foster to pen an open letter to Disney airing the issue publicly. "Some of you doubtless are by now aware of my complaint that Disney has failed to pay royalties on books owned by companies they have purchased: Twentieth Century Fox (the first three ALIEN novelizations) and Lucasfilm (the novelization of STAR WARS and SPLINTER OF THE MIND'S EYE). With reluctance, this ongoing imbroglio has been made public in order to generate a response. Turns out I'm not the only author being similarly shafted. SFWA is involved and details of the disagreement went viral within twenty-four hours. You can read the details in many places, on numerous sites. For those who are interested, here is my letter of complaint to Disney:" According to Foster's personal site updates, the `imbroglio` was settled on the 1st of May 2021.

And while the lawsuit punishing the Internet Archive for its digital lending policies was eating up headlines and exposing several authors for less than ethical views on libraries, Stephen King and other authors were engaged in another lawsuit against their own publishers Penguin Random House and Simon & Schuster, who were attempting to merge. The reason for so many authors lining up to support the United States Attorney General was because they feared this merger would further strengthen the publisher's power at the expense of the authors.

I fully sympathize with Willingham and applaud his decision, as a method of resistance to corporate control, is brilliant. It is also not without precedent, last November the mathematician and musician Tom Lehrer publicly renounced his copyright on all of his songs:

I, Tom Lehrer, individually and as trustee of the Tom Lehrer Trust 2007, hereby grant the following permissions:All copyrights to lyrics or music written or composed by me have been permanently and irrevocably relinquished, and therefore such songs are now in the public domain. All of my songs that have never been copyrighted, having been available for free for so long, are now also in the public domain. In other words, I have abandoned, surrendered and disclaimed all right, title and interest in and to my work and have injected any and all copyrights into the public domain.The permission granted includes all lyrics which I have written to music by others, although the music to such parodies, if copyrighted by their composers, are of course not included without permission of their copyright owners. The translated songs on this website may be found on YouTube in their original languages.Performing and recording rights to all of my songs are included in this permission. Translation rights are also included.In particular, permission is hereby granted to anyone to set any of these lyrics to their own music, or to set any of this music to their own lyrics, and to publish or perform their parodies or distortions of these songs without payment or fear of legal action.Some recording, movie, and television rights to songs written by me are merely licensed non-exclusively by me to recording, movie, or TV companies. All such rights are now released herewith and therefore do not require any permission from me or from Maelstrom Music, which is merely me in another hat, nor from the recording, movie, or TV companies involved.In short, I no longer retain any rights to any of my songs.So help yourselves, and don’t send me any money.

The disclaimer statement of Lehrer's official music page. 

 Though, as far as I am aware, Lehrer's decision was not motivated by corporate overreach. 

Of course, it is no surprise that I view the actions of Willingham and Lehrer favourably, in particular with Willingham's statement I found myself nodding vigorously while reading the section marked philosophy 

Philosophy: In the past decade or so, my thoughts on how to reform the trademark and copyright laws in this country (and others, I suppose) have undergone something of a radical transformation. The current laws are a mishmash of unethical backroom deals to keep trademarks and copyrights in the hands of large corporations, who can largely afford to buy the outcomes they want.

In my template for radical reform of those laws I would like it if any IP is owned by its original creator for up to twenty years from the point of first publication, and then goes into the public domain for any and all to use. However, at any time before that twenty year span bleeds out, you the IP owner can sell it to another person or corporate entity, who can have exclusive use of it for up to a maximum of ten years. That’s it. Then it cannot be resold. It goes into the public domain. So then, at the most, any intellectual property can be kept for exclusive use for up to about thirty years, and no longer, without exception.

I am a believer in the abolition of property intellectual and physical, however I am not a dreamer. I know for that to prove feasible we'll have to build a new society where exploitation and scarcity are also abolished, and that this will take time and effort. So for the interim, I think Willingham's proposal would be a rational compromise while we work towards the new dawn. It would also protect artists from corporate hitmen that alarm so many. I felt compelled to send Willingham my support as I'm sure he'll be under a Mammoth's weight of pressure from DC Comics and its owners to recant. Here is the text of my e-mail.

 Hello

I've just read your press release concerning your decision to give Fables to the public domain. I congratulate you on your decision and the clever way you've overcome the predatory ways of the DC representatives. I'm am archivist of social history and have fallen foul of the copyright system on many occasions while trying to share rare articles that have come into my possession so I share your frustrations.

I also found your copyright reform proposal to be a rational one in keeping with the spirit of Victor Hugo and the other original copyright advocates who wanted to check the power of business interests over art. I'm of the opinion that at some point in time the scales shifted and now most intellectual property agreements are designed to empower a corporation at the expense of the author, illustrator, musician and so on.

I am part of several groups that have been advocating for international copyright reform and your stance has met with approval and I hope will galvanise others in the future to take similar steps.

I look forward to your future endeavours and wish you luck in your fight to get what is owed to you by DC.

Warmest regards

I'll be watching this story very, very closely.

Kurosawa and the Public Domain

 

This week I crossed another film off my to watch list, Akira Kurosawa's Rashomon. My Blu-ray was the release by the British Film Institute (BFI) and I cannot fault the production, the image was sharp and the sound clean. My thoughts on the film itself? Well, there are a thousand other places for that, the film isn't public domain, so this isn't the place for another one. The film opened with a little info title stating that the work was reproduced with the full consent of the copyright holders which surprised me a bit, Rashomon was released in 1950, and a court ruling in Japan concerning compliance with international standards on copyright law stated that all Japanese films and possibly all films worldwide released in 1952 or before are in the public domain. 

If, like me, you're curious, sadly Godzilla was released in 1954. I checked that premiere date the second I learnt about that fact. I have no evidence, but I doubt the cut-off date being set before the release of Godzilla was a coincidence, in addition to being a cultural icon and symbol of Japan's media industry Toho the studio behind the big lizard is extremely powerful, connected and super aggressive about protecting its commodities. 

But 1950 comes before 1952, so shouldn't that make Rashomon public domain as well? Sadly not, there's another caveat to be taken into account. In 2006 the Japanese courts passed judgement on making pre-53 films public domain as a way of simplifying the transition to the Berne convention life+70 years approach in regard to releases during the old copyright system, in particular there was controversy surrounding a law passed in 1971 that set protection at 50 years after release, whereas today the term is 70 years after release for cinematic works. However, this did not end the matter once and for all. 

In 2007 due to a lawsuit involving Toho (what a surprise) over non-Toho approved releases of Akira Kurosawa's early movies made for the studio the Japanese courts ruled that for works published up to 1971 the previous legal code on copyright applies which set protection for a work at 38 years after the death of the director. Akira Kurosawa died in 1999 so take that into account and his early works won't be public domain in Japan until 2037. This whole thing is frankly ridiculous, a law that was change in 1971 which itself was changed in the 2000s is still somehow legally binding. 

So, what does this mean? Well, another win for big studio companies and a massive headache for everyone else who wants to make use of Japanese cinema and still remain on the good side of the law. The only positive of the ruling is that it ruled that the director alone is the original copyright holder of pre-1971 films, so we don't have to waste time looking up score and writing credits. I've come up with a rough formula to help determine public domain work regarding Japanese cinema (not legal advice)

1. 1985 was 38 years ago, so find a director who died then or before that date
2. Once established looked through their catalogue of work and make two lists, one for pre-1971 works and the other for pre-1953 works
3. Obtain legal representation anyway, as Japanese copyright law is heavy-handed and actively hostile to concepts such as fair use and derivative work, as Shinobu Yoshida found out after receiving a 2-year prison sentence (suspended for five years) and a million yen fine for let's play videos and anime episode recaps.

Copyright is a confusing slog of arbitrary decisions by powerful entities to promote and enrich other powerful entities. Someday I'll write about the Soviet Union's copyright history, at present I'm still trying to work out the timeline.

Death of the Author

 

When the topic of copyright term lengths come up or Friday nights as I call them, certain ideas and expressions start to repeat. One common one is the idea that terms should last for the life of the author and no longer. After all, a corpse can't cash royalty checks, and as I've discussed earlier, inheritance can be a protracted and vicious thing. So, why not let the decision of the Allmighty be a chance for wiping the slate clean?

A popular response is alarm at the hypothetical prospect of some big corporation knocking off some rising star to cut them out of the negotiations and save themselves the chore of humouring the artists concerns over the franchising of their intellectual property. I've heard variations of this for years, last night Neil Gaiman had a variation that posits the murder of J. K. Rowling in 2001. I used to think these were jokes and responded appropriately, polite and light laughter before moving onto some other topic. Furthermore, I've since learnt that this is a genuine fear that some people have and take very seriously and use it to motivate their positions on this subject.

I'm sorry, but I am confident in declaring that that will not happen if such a system were adopted. Given my obvious hostility to private capital, don't misunderstand me, my views do not rely on amoral cost and profit driven entities suddenly developing moral scruples or fear of punishment by a legal system that already privileges them. No, the reason why no corporation will off someone in this scenario because that would completely destroy the framework of Intellectual Property. In this scenario, the corporation arranging the murder doesn't get the artist rights, the rights cease to exist. The benefit would be no upfront fee, negotiation period and revenue splitting agreement, the cost would be no new IP from the artist and everyone else on the planet has the same opportunity you have and can crowd out the market with competition.

IP can be hard to think about, since it's fundamentally an abstraction. An author's story isn't the book on your shelf, that's the medium in which the story is communicated to the audience. I find it helpful to think about it like this, oil is a physical commodity, it's a resource that is created naturally through a process that takes millions of years. Say a large deposit of oil is discovered under a stretch of land, and that land is owned by someone. An oil company wishes to purchase access to that oil and the exclusive right to use it commercially, the owner will not sell, or won't sell for a price the company is willing to pay. Inheritance has been abolished, so once the landowner is dead the land becomes free for anyone. The oil company arranges an "accident" and in the process they have saved themselves the fee, but cost themselves exclusive access to that oil, other companies can tap into the field and drain it and sell their oil in direct competition with the company with the hitman on the payroll. It's possible that this company will still turn a profit off the oil they managed to tap and sell on the market, but the lack of exclusivity has prevented them from a higher yield of profit. In the UK we call this behaviour cutting your nose off to spite your face, it means actions that remove an irritant but cause far more damage.

You may be thinking this is a strange way of explaining the process if you're familiar with the frequent campaigns of murder and forced evictions that oil and gas companies carry out in parts of the world such as the Nigerian delta, but that's a consequence of property, not its absence. These horrific campaigns are happening with the direct knowledge and support of the authorities, who on paper should be intervening to stop them. And they are not removing populations to make the land and its valuable resources free for anyone to exploit them, they're seizing that land for themselves. After the removal of the local inhabitants and their resistance and witnesses, the land is legally given to the company to exploit. Property rights have done nothing to protect these people, on the contrary it has heavily incentivized human rights abuses and assaults on them. If property were to be abolished, these communities would be far safer because there would be nothing to gain from funding a war of extermination in remote areas. Property is theft, it also in many cases murder.

It would be the same thing in the creative economy. Yes the company doesn't have to cut Rowling or King or whoever royalty checks, but now every other company and independent can churn out rival product. What makes IP so lucrative as a commodity that high sums are exchanged is the right to exclusive profit.

When J.K. Rowling signed with Bloomsbury to publish Harry Potter that property was off limits to every other publisher and when Warner Brothers to make the movies, no one else can unless the deal is ended, and they secure Rowling's agreement. If anything, I can see contract killings as more likely to happen under the current system of copyright, where terms last decades after death and contracts can be drawn up transferring exclusive rights to remuneration and commercial activities until the rights expire. Alan Alexander Milne died in 1956, yet for decades since that time Disney had exclusive rights to Whinnie-the-Pooh as a commercial asset until last year when that character entered the public domain in the United States. Death is not an obstacle to corporate profiteering, and contracts and Wills can be challenged by entities that can afford the best legal representation. Multiple creators have lost the rights to their creations while still alive and able to pursue resistance, see Jerry Siegal and Joe Schuster, the creators of Superman. 

So, no, there is no danger to the lives of creators if the term of copyright were to be set to life. But hey, if you're still convinced then let's shift the debate to a fixed term of copyright regardless of the living condition of its creators, that would erase even the remotest chance of this happening.

About an e-mail

 Yesterday I received a surprising e-mail, it was about copyright which wasn't surprising half my inbox is taken up with that. The odd thing was that the e-mail wasn't accusatory, it was asking for my help. I won't share the e-mail because I think it's bad practice to publicize private correspondence but I'll summarize its contents here.

1. The sender represented an established educational institution
2. That institution is located in Germany
3. They were having trouble contacting the rights owners of a film they wished to use.
4. Said film was L'Atalante by Jean Vigo (a personal favourite)
5. Did I know who the rights holders were or if the rights had expired?

That's the gist of the conversation. If you're wondering why I'd get randomly contacted about L'Atalante, it's because my channel has uploaded a cut of the film with English subtitles, and it's done pretty well if you'll permit the light bragging. The curious thing though is that they found my e-mail address through my Esperanto translation blog. Still in the dark on how that happened. Anyway, I immediately understood the confusion, the reason this person couldn't find the rights holders to negotiate for usage is because they do not exist. 

L'Atalante was written and directed by Jean Vigo and the music was composed by Maurice Chaubert. Jean Vigo passed away shortly before the film was released in 1934 from tuberculosis, and Maurice Chaubert died in combat in 1940 defending France from the German invasion. These facts are tragic, they were both very talented people, and it gets even sadder when you factor in that Vigo and his wife lived in poverty as none of his four films were financially successful in his lifetime. I remember reading an account of Vigo's work that described a situation so bleak that he was forced to sell his camera to raise funds for him and his wife.

This tragedy does mean that all of Vigo's four movies, Apropos de Nice, Zero for Conduct, Jean Taris, Swimming Champion, and L'Atalante are in the public domain in his home country of France and in mine. They also fell into the public domain in the United States of America, since their financial failures in France killed any chance they had of being distributed and thus registered in the United States. I conveyed this information to my new correspondent, so problem solved, right? Well, there is a problem, or more accurately a potential problem. The correspondent and the institute are German, the reason why that matters is that German law has done something very strange in regard to copyright law, well it's done many strange things on that front, I've been meaning to write something up about Germany's situation for a while, so consider the rest of this blogpost a sneak peek. 

The German state, like most European nations, is a signatory to the Berne Convention, and has a term of 70 years after death of the principal authors. So, under that record, L'Atalante should be good to use there as well. However, anyone who uploads public domain material online can tell you getting angry letters or content blocks by companies with GMBH in their letterheads is a frequent occurrence. Why? Well to be blunt copyfraud, at best these companies have licensed a German language version of a foreign film or just made one without authorization and then used that as a pretext to lobby and bully international entities and individuals to remove their "competition".  

The reason for why Germany is so notorious for this behaviour is because there are many loopholes in Germany IP legislation that creates just enough ambiguity for a cottage industry of copyfraud abuses to thrive. This legal grey area isn't helped by the way German law handles international property. If you read German copyright law, you'll notice some very strange and vague passages about international treaties forming the basis of protection in law.

In all other cases, foreign nationals or enterprises whose principal place of business is
not located within the territory to which this Act applies enjoy protection under international treaties. Section 121 (4) sentence 2 and sections 122 and 123 apply accordingly.

 What this passage and the other references are saying is that intellectual property not created by German citizens in Germany is to be handled by nation to nation treaties. To explain further why this is an incredibly dangerous standing, most nations give precedence to their own copyright system for domestic works and apply concepts of country of origin and of shorter term to foreign works, in short if the laws of your country say book X is public domain it is public domain, and if the laws of the country of origin of book X say it is public domain, but your country does not, then it becomes public domain in your nation as well. It's a bit tricky, but all you have to do is consult your own nation's copyright standards and those of the original country. 

What Germany has done here is forced its citizens to become experts on international relations between the German republic and every other nation it has relations with. If the German republic has signed a treaty with another nation that covers intellectual property, and you wish to make use of an IP from that country, you better contact a lawyer to read through the provisions for you. There are treaties between the United States and Germany and German's have been legally censured for using material that should be public domain in Germany but is still under copyright in the US, and many German companies use their business relations with American ones as excuses to try and enforce their contracts globally. 

I have no idea if there is a similar treaty between Germany and France. Annoyingly, German copyright legislation doesn't specify or list which treaties have an impact and are enforced, it just says international treaties can be applied and left it up to the courts. So, I informed the representative of this possibility and recommended that they consult their legal department for advice. 

And that was pretty much it. One thing I'd take away from this experience is don't worry too much if you find IP law extremely confusing, apparently the people in charge of important cultural institutions who have access to legal departments also can't make sense of it.