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Copyrights of posted stories.

tppm

Today I noticed that someone, presumably Lazzez, posted a Philip K. Dick story to SciFi. I'd have thought all of his stories were still under copyright. He hasn't been dead 70 years, as per the DMCA, nor even 50 years as per the Berne Convention.

Dominions Son
Updated:

@tppm

US copyright rules vary significantly for older works.

The US didn't fully implement the Berne Convention until the 1976 copyright act.

The story you are referring to is Second Variety. This is listed on Project Gutenberg as freely available. The original publication date for this story was 1953, so the rules of the 1909 copyright act apply and the duration of the copyright would have been 28 years from the date of first publication renewable once and once only again for a fixed term (though the extension term was increased in the 1976 act and again in 1998 but the original term expired before 1998 so that extension of the renewal term for works copyrighted under the 1909 act doesn't matter.

Also, under the 1909 act, works had to be registered with US Copyright office to be covered by copyright.

I would presume Second Variety was registered as it was published in a periodical.

http://www.copyright.gov/circs/circ15a.pdf

According to Project Gutenberg, The e-text was produced from the May 1953 issue of Space Science Fiction. So the initial copyright would have expired in 1981. Had it been renewed, the copyright would expire in 2048.

However, since this was a short story published in a periodical rather than in a book, renewal was probably not done.

Since this story had to be registered and explicitly renewed to still be under copyright, the US copyright office would have records of this and you can check with them if you think the story might still be under copyright.

Ernest Bywater

@tppm

The USA has never accepted the Berne Convention. so it has no application. When the US Copyright Act was first passed it had a time limit on it from the date of first publication, thus a copyright could expire while the creator was still alive. It also allowed for a renewal of the copyright. Since then the law has been changed at various times, but the time limit applied to anything has always been applicable from the date of publication or the date of renewal. Also, a creator can place their works in either public display and retain full copyright (which is what I do when posting to SoL), or put it in the public domain.

Now,as to the specific story you mention, it's also on the US Gutenberg Project which flatly refuses to handle anything that is under current copyright. The Gutenberg Project post has a statement to say the copyright had expired and not been renewed. It was originally published in 1953 and the US copyright on that version was for 55 years, thus it was out of copyright in 2008.

https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States

Replies:   Dominions Son
Dominions Son

@Ernest Bywater

The USA has never accepted the Berne Convention.


This is not true. The 1976 copyright act largely implemented the Berne Convention rules in US copyright law, at least for works initially copyrighted under the 1976 act.

Replies:   Ernest Bywater
Ernest Bywater

@Dominions Son

rules in US copyright law


For one brief period the US may have incorporated part of the Berne Convention in their law, they have never actually accepted or applied the Berne Convention itself, and none of the US copyright legislation I've been able to find has been aligned with all the aspects of the Berne Convention. One main reason for this is: to do so would result in huge numbers of corporately owned copyright to be moved in to the public domain, and others would have to be handed back to their overseas creators (or their heirs) because the original overseas copyright would apply in the US, under the Berne Convention.

Replies:   Dominions Son
Dominions Son
Updated:

@Ernest Bywater

"For one brief period the US may have incorporated part of the Berne Convention in their law, they have never actually accepted or applied the Berne Convention itself, and none of the US copyright legislation I've been able to find has been aligned with all the aspects of the Berne Convention."

Have you actually read the US 1976 copyright act without the 1998 amendments? My understanding is that apart from sections that exclusively deal with works originally copyrighted under the 1909 act and statutory damages for registered works, the 1976 act is almost all pulled directly from the Berne Convention.

Replies:   Ernest Bywater
Ernest Bywater

@Dominions Son

the 1976 act is almost all pulled directly from the Berne Convention.


As I said before it incorporated part of the Berne Convention, but still wen tit's own way. When you read the US 1976 Act you see it still has significant variations from the Berne Convention.

Under Berne the creator of the material has the copyright unless he intentionally signs it over to another either after the creation or as part of a contract before it's created. Also, if he creates something it's covered under the copyright laws of the country he creates it in, while the US law applies only to copyrights in the US and can be applied in a different way to works that are already copyrighted elsewhere. Also, the US copyright act incorporates the US definition of Work for Hire, which can apply beyond what the employee or contractor originally agreed to do, and they have no recourse.

Replies:   Capt Zapp
Capt Zapp

@Ernest Bywater

Under Berne the creator of the material has the copyright unless he intentionally signs it over to another either after the creation or as part of a contract before it's created.


Which is why, in many cases, this'signing over' seems to be part of the 'user agreement' that nobody takes time to read.

Replies:   Ernest Bywater
Ernest Bywater

@Capt Zapp

'user agreement' that nobody takes time to read.


That's where the Berne Convention is superior to the US law. Under Berne it requires an active agreement with an original signature. The US basis of an implied agreement the End User License Agreements depend on aren't legal in a country where the Berne Convention holds sway. But that's only in regards to handing over created material.

Replies:   Dominions Son
Dominions Son

@Ernest Bywater

That's where the Berne Convention is superior to the US law. Under Berne it requires an active agreement with an original signature. The US basis of an implied agreement the End User License Agreements depend on aren't legal in a country where the Berne Convention holds sway. But that's only in regards to handing over created material.


US law requires a specific written instrument to transfer ownership of copyrights and it has to be specific as to what copyrights are transferred.

The "work for hire" doctrine does not transfer copyright ownership. It governs who is legally considered the original author/creator.

Work for hire requires actual paid employment. No end user agreement for any software package can create a work for hire situation.

Companies make a lot of claims regarding work for hire in employee hand books / contracts that wouldn't necessarily stand up if challenged in a court of law.

Any software end user agreement claiming to transfer ownership of the copyright of works not yet created would not stand up to a legal challenge.

Ernest Bywater

@Dominions Son

The "work for hire" doctrine does not transfer copyright ownership. It governs who is legally considered the original author/creator.


If I create something while employed for you under work for hire, and you end up as the legal owner of, then the copyright moves from me to you, thus it transfers from me to you. There have been cases I read about during the early 2000s where a person was hired to create 'x' as an hourly rate contractor, during their lunchtime (for which they didn't get any pay for the break) they thought of something else, and created it. When it was finished the company claimed it was there's due to the work for hire rules, despite it being well outside the contracted work, and the courts awarded the copyright to the company because it was done during company time while employed by them, yet it was time he wasn't paid for. Under Berne the company doesn't even get a look in, because it's outside of the agreement.

Even legitimate work for hire where the work done is part of the contract Berne gives the company the copyright, but they have to acknowledge the creator. That's not done under the US work for hire law.

As to the EULA, in most cases EULAs have nothing to do with creating works, but there are a couple which do, and they have things in them about the software company getting ownership. Not legal in most countries. The sort of software with this is the Apple one where you use their special software to create an e-book, it's terms give them control of the finished product.

Replies:   Dominions Son
Dominions Son

@Ernest Bywater

If I create something while employed for you under work for hire, and you end up as the legal owner of, then the copyright moves from me to you, thus it transfers from me to you.


No, it does not. Under work for higher, the employer is the owner of the copyright in the first instance. The employee never owns the copyright so there can be no transfer.

There have been cases I read about during the early 2000s where a person was hired to create 'x' as an hourly rate contractor, during their lunchtime (for which they didn't get any pay for the break) they thought of something else, and created it. When it was finished the company claimed it was there's due to the work for hire rules, despite it being well outside the contracted work, and the courts awarded the copyright to the company because it was done during company time while employed by them, yet it was time he wasn't paid for.


There have also been many such cases that the companies have lost. Generally, the cases the companies have won involved the employee using company owned equipment to create the disputed work.

Even legitimate work for hire where the work done is part of the contract Berne gives the company the copyright, but they have to acknowledge the creator. That's not done under the US work for hire law.


Because under US law, the company is the creator/author.

As to the EULA, in most cases EULAs have nothing to do with creating works, but there are a couple which do, and they have things in them about the software company getting ownership. Not legal in most countries. The sort of software with this is the Apple one where you use their special software to create an e-book, it's terms give them control of the finished product.


Control isn't necessarily ownership of the copyright. No such instrument can legally transfer copyright ownership under US law.

Replies:   Ernest Bywater
docholladay

@Dominions Son

Companies make a lot of claims regarding work for hire in employee hand books / contracts that wouldn't necessarily stand up if challenged in a court of law.


Most employees will not have either the money or the contacts to enable them to fight this in court.

Ernest Bywater

@Dominions Son

No, it does not. Under work for higher, the employer is the owner of the copyright in the first instance. The employee never owns the copyright so there can be no transfer.


And that si where the major difference between the US and Berne is. The person who creates it is always the creator, but the US laws say he isn't when it's done at work, unless he has a specific contract where the employer give him the control. Under Berne the creator is still the creator because it recognises. The failure of the US law to recognise this, even as an attribution is a moral wrong and unlawful in most of the rest of the world. thus showing the fault with the US law.

Re the work for hire case, the one we studied at the college was where the fellow was on hourly pay, and only paid while at the desk working on the specific project. He used his own notepad to make notes while eating his lunch, no company property involved at all, yet the courts gave ownership of the code on a totally unrelated project to the company because he did it while eating his lunch. Great laws - not.

As to the last comment on the odd EULAs with certain Apple products, they seem to think people creating things with that specific software does give them full control and copyright of the content involved. I'll let you fight it out in court with them.

Replies:   Dominions Son
Dominions Son

@Ernest Bywater

The failure of the US law to recognise this, even as an attribution is a moral wrong and unlawful in most of the rest of the world. thus showing the fault with the US law.


The US law generally does not recognize positive moral rights. And in the case of copyrights in particular the US Constitution do not allow for the recognition of perpetual moral rights.

I would argue that it is the rest of the world that has this one wrong.

Re the work for hire case, the one we studied at the college was where the fellow was on hourly pay, and only paid while at the desk working on the specific project. He used his own notepad to make notes while eating his lunch, no company property involved at all, yet the courts gave ownership of the code on a totally unrelated project to the company because he did it while eating his lunch.


The district courts and/or juries don't always get these cases right. Unless the case was appealed and there is an appellate court decision, it is non-precedential and has no impact on the meaning of the law itself.

If it was appealed and upheld, I would consider the claims that the project was unrelated to his work and or claims that no company resources were used less than credible.

I'll let you fight it out in court with them.


I don't use Apple products, so I wouldn't have any standing to challenge them in court.

Replies:   Ernest Bywater
Ernest Bywater

@Dominions Son

I would argue that it is the rest of the world that has this one wrong.


Sure, tell that the the heirs of Sir Arthur Connan Doyle. All his books were written by him, and his heirs own the copyrights under every country's laws except the USA. When he visited the US he wrote a short story and it was published in the US along with some other works previously published in England. The US courts held that the US publisher had the copyright to all the stories because they were first to publish them in the US, despite the British copies being sold in the US for years. He only gave the US publisher the right to publish them once, but the company claimed they have permanent rights to the stories and work hard to stop others doing anything with them, unless they pay fees to the US publisher. They never had full rights, but the crazy US laws let them push such claims within the US. The US laws are set to allow companies to steal from private individuals. And the way they apply the work for hire is the worst one.

The creator is the copyright owner, he created the item. Even when he does it to order. In which case there is a case to give usage and sale rights to whoever paid for it, but not when it's something they didn't order or pay for in any way.

Anyway, this has wandered off the track of the PKD story now being in the public domain in the US and thus legal for people to post.

Replies:   Dominions Son
Dominions Son
Updated:

@Ernest Bywater


All his books were written by him, and his heirs own the copyrights under every country's laws except the USA.


Even under the Berne Convention rules, the copyright on Sir Arthur Conan Doyles' works expired decades ago. Any living heirs today are entitled to nothing, own nothing, even under the Berne Convention rules.

Here is the text of the US constitution that authorizes the creation of copyrights and patents:


To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.


How does it promote the progress of science or the useful arts to give the heirs of authors rights to profit from old works while producing nothing new?

Personally, I see no moral case for any rights in any works to survive the author's death.

Not_a_ID
Updated:

@Dominions Son


How does it promote the progress of science or the useful arts to give the heirs of authors rights to profit from old works while producing nothing new?

Personally, I see no moral case for any rights in any works to survive the author's death.


Well, if one of their children or close associates was "given the torch" for a particular franchise, a case could be made. But such instances are rare, I am only aware of one off-hand. (Anne McCaffery)

Although the Asimov estate could be argued from a different angle as well.

Dominions Son

@Not_a_ID

Well, if one of their children or close associates was "given the torch" for a particular franchise, a case could be made. But such instances are rare, I am only aware of one off-hand. (Anne McCaffery)


But that child or close associate would be producing new works and would own the rights to those works. Giving the torch bearer right to the older works still has no benefit to society.

Replies:   Not_a_ID
Not_a_ID

@Dominions Son

It does allow them to retain control over the setting those works were in. Although I'll agree the time frames given can be nuts. I can understand the estate of an author whose penultimate work that sell billions of copies at the age of 67 being passed when you have a 20-something author likewise start churning out best-selling works, and live to be 90... and only have the expiration counter start on their stuff at that point, nearly 70 years later.

Ernest Bywater

@Dominions Son

Even under the Berne Convention rules, the copyright on Sir Arthur Conan Doyles' works expired decades ago. Any living heirs today are entitled to nothing, own nothing, even under the Berne Convention rules.


Which makes the claims of the US publisher even more outrageous, because all his works should now be in the public domain, but not in the USA.

Replies:   Dominions Son
Ernest Bywater

@Dominions Son

How does it promote the progress of science or the useful arts to give the heirs of authors rights to profit from old works while producing nothing new?


It gives them an income left by the creator. However, how does allowing a company to tie up the works and demand payments from people years after the creator died. Can't have it both ways, boyo. The companies, themselves, never produce anything new, anyway.

Replies:   Dominions Son
Ernest Bywater

@Dominions Son

Personally, I see no moral case for any rights in any works to survive the author's death.


So you don't allow a person to write his memoirs and leave it to his kids so they can get something from it. OK, quickest way to get something into the public domain is then to kill the creator. Woops, we have more dead creative people that way.

Replies:   Dominions Son
Ernest Bywater

@Not_a_ID

Well, if one of their children or close associates was "given the torch" for a particular franchise, a case could be made.


One of E E Doc Smith's students was requested to complete his unfinished works by Smith just before his death.

Dominions Son

@Ernest Bywater

hich makes the claims of the US publisher even more outrageous, because all his works should now be in the public domain, but not in the USA.


Agreed, but that was a problem with the 1909 copyright act, under which the publisher was able to claim the US copyright in the first instance.

The 1976 act in the US created automatic copyright to the author under US law and that can't happen anymore.

Dominions Son

@Ernest Bywater

It gives them an income left by the creator.


Copyright is not a moral right. It's a right granted by society because in the long term society benefits. That income stream for the heirs does not benefit society in any way.

However, how does allowing a company to tie up the works and demand payments from people years after the creator died.


How is that any worse than allowing the heirs to do so?

Dominions Son

@Ernest Bywater

o you don't allow a person to write his memoirs and leave it to his kids so they can get something from it.


For a while maybe. For decades after his death, no.

OK, quickest way to get something into the public domain is then to kill the creator. Woops, we have more dead creative people that way.


Since the murderer wouldn't profit from the work becoming public domain, it is absurd to suggest that such a thing would be likely to happen.

Ernest Bywater

@Dominions Son

Since the murderer wouldn't profit from the work becoming public domain, it is absurd to suggest that such a thing would be likely to happen.


It would depend on what was copyrighted, wouldn't it. If the murderer can't use it due to the copyright, but can once it's public domain, then the death is to their advantage.

Replies:   Dominions Son
Ernest Bywater

@Dominions Son

For a while maybe. For decades after his death, no.


How is it different to let the kids have the interest income from his investments after his death? A person works to give something to his heirs, and thus leaves them what he can. U S Grant had nothing when he died, except his memoirs, which he'd recently finished and left them to his heirs as their inheritance, they sold well and they had some income from them. How is this different to any other creator leaving their works to their heirs?

Replies:   Dominions Son
Dominions Son

@Ernest Bywater

t would depend on what was copyrighted, wouldn't it. If the murderer can't use it due to the copyright, but can once it's public domain, then the death is to their advantage.


But the murderer still wouldn't be able to profit from using it because everyone else could use it as well.

Dominions Son
Updated:

@Ernest Bywater


How is this different to any other creator leaving their works to their heirs?


Because no other works can be sold over and over again in perpetuity.

Patents last for only 20 years from the date they are issued, not x decades after the death of the inventor.

Physical artworks such as paintings and statues can only be sold once whether by the artist or his heirs.

Again, the purpose of copyright is to benefit society by encouraging the creation of new works.

Copyright terms that are too long are actually counter productive, because they encourage people to sit on old works and collect royalties rather than working to create new works.

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