Recasting copyright

EDITORS NOTE: This is something I wrote on copyright 7 months ago now? I've gone through this with people, but it seems like my notes are complete than I thought. I've even left in my very rough plan, which is the big blocked off bit that has DELETE surrounding it. And this is how I procrastinate, productively...

An approach concerning artistic control

Roughly: Commercial publication rights and commercial derivative-works rights. Commercial publication rights are just that: they are a copy-right, a right to copy that is legally restricted and legally enforceable (how long should this last? I have no idea, but not comparatively long. Estimates range anywhere between 7 to infinity, but i'm banking on somewhere between 17-20 years.
Economists could chip in here and compute some optimal period based on sales and social welfare and all that jazz.)

Commercial derivative rights on the other hand last for the life of the artist. Non-commercial derivative works are exempt...completely. If someone uses some Radiohead track for the background music for their funny cat video on youtube (though gods knows why, and I don't really want to find out), I seriously don't think this is worthy of moral consideration to the artist. If someone creates some kind of mashup between works in copyright (say, between Jay-Z and Radiohead, and proceeds to call it Jaydiohead [link]) and proceeds to release it non-commercially, that strikes me as okay as well.

However: if said derivative work is released in a commercial sense, then original rights-holders can take action. If the derivative work itself is used in a commercial fashion (say, in an advertisement or related some such), then the author of the derivative work can take action.

CONUNDRUM: What happens if some particular derivative work is used in a commercial sense, and the derivative rights holder actually agrees and licenses his derivative work? Is he liable to the original artwork authors? Is he required to obtain permission from the original artwork authors? I feel not, but something feels uneasy about that.

What's up with that: how come book authors maintain and own copyright, and yet bands/musicians routinely give it up? Book authors effectively license their commercial publication rights to publishing houses, while maintaining their own copyright. Why do bands give up their commercial publication rights and their commercial derivation rights to major publishing houses?

You can roughly equate non-commercial derivative works with fair-use, fair-dealing, etc etc.

Pour example of all this: Take Radiohead's (look, I like Radiohead) seminal masterpiece Ok Computer. Released in 1998, it has so far been in MGM's copyright for approx. 10 years. Ideally, i'd rather Radiohead own the copyright, and licenses out the commercial publication rights to them for 20 years or whatever.

After a 20 year commercial publication period, i.e. from 2018 onwards, the original record can be published and distributed without royalties having to be paid to copyright holders (you can stick the damn thing online if you like). However, if someone wants to create some kind of commercial derivative work using Ok Computer, then they have to get in contact with commercial derivation rights holders (ideally Radiohead, but possibly MGM if that ended up being the case) and figure out a licensing deal or pro bono or whatever.

The issue of versions: doesn't matter. If 10 years after the release of OK Computer, they come out with some re-mastered super-deluxe version, that is okay. The original work will go into (semi)public domain, and the new version will begin the 20 year cycle.

The main difference between this system and current systems of copyright and public domain and so forth is that currently, copyright encompasses both commercial publication rights and commercial derivation rights for a long, long time. When the work passes into the public domain, no authors have to contacted in order to assess commercial derivation or commercial publication issues. This separates that into two different domains.

Commercial derivation rights and commercial publishing rights dissolves when the original copyright holder cannot be reasonably located within a reasonable period of time and effort [Don't even begin to tell me how weaselly that sounds.]. If a band breaks up, commercial derivation rights gone. Author dead, commercial derivation rights gone, and so on.

Obviously all the above does not in any way remove attribution rights. You can't go around claiming some particular work of art as your own if it in fact isn't. This can apply even long after the original author is dead and the works in the public domain. Shakespeare et al. I'm even willing to apply criminal charges to add some teeth to this, though ideally, i'd rather not.

Many many issues: Problems arise with multiple creators (even with straightforward multiple authors, does copyright expire when one but not the other author dies?). Corporate owned copyright (perhaps make it illegal or impossible for corporations to own copyright? But obviously, issues: what about films, albums, even advertising that require collaboration between large teams, related to first point.)

DELETE

Artists given fuller control of their copyright. Copyright reconstituted or reconsidered at least through not the financial incentive of exclusive distributive rights (given that changes in modern distribution make creation and duplication trivial), but rather through the lens of creative controls: artists don't care about the money they make (they do, but not primarily, atleast within this view), but they do care about who or what is being done with their work. Essentially, this comes down to a massive expansion and improvement of fair-use (or fair dealings, or whatever; they're all synonymical for the sake of this argument) rights for non-commercial derivative works. In this view, copyright would exist for the length of the owners' life, shorter than today, but certainly longer than many people advocate.

DELETE