Several events have been occurring recently that have caused me to want to revisit the topic of copyrights.
The driving event is the recent decision of Netflix to discontinue their DVD rental service. Since that is the pivital event, I want briefly go off on a tangent and discuss that.
When the announcement came, many people laughed and said “they still offer that?”. The answer is: yes, they still offer that (at least until September of this year), and it’s an extremely valuable service (and one which I have made constant use of since I joined Netflix in 2000). In the 23 years that I have subscribed to Netflix, I have rented well over 2000 DVDs (I can verify this in my Netflix rental history which they make available).
The reason this service is so valuable to me is simple. Netflix currently streams a little over 4000 movies. By comparison, Amazon Prime has around 7000, Paramount+ has around 2500, Disney+ has less than a 1000, Hulu has around 1500. These are numbers from a quick web search, and are not meant to be extremely accurate, but it gives a quick peek into what is available. How many DVDs are available on Netflix? Over 100,000!
Do you like foreign movies? Independent movies? Older movies? I do. Guess what… the vast majority of them cannot be streamed on any of the services. You either buy them or rent them.
To be honest, if I had to choose right now between Netflix streaming and Netflix DVD, and I could only have one of them (but it would keep working going forward), I would take the Netflix DVD option. It is, hands down, the best way currently available to get many of the movies that I want to watch. Streaming is decades behind Netflix DVD with respect to the movies that I want to see (and the way things are going, I don’t see it ever filling the niche that Netflix DVDs are filling).
Sadly, after September, that will not be an option any longer, so I’m unsure how I will be able to watch the movies I want. The only way that I really see is via. illegal sites, which I do not condone using. One thing that I do know… I no longer consider Netflix a critical part of my personal entertainment.
As a matter of fact, after September, I plan on doing a rotation. I’ll drop Netflix and spend a few months on Hulu to see what’s there. Then I’ll switch to Paramount+. Then something else.
As a direct result of Netflix dropping their DVD service, Netflix is going to lose me as a DVD customer (their choice) AND a streaming customer for a good part of the year. I plan on returning to Netflix periodically, but I will no longer be a long term subscriber.
And this brings me to my current topic: copyrights are monopolies!
Sole Ownership Monopolies
What is a monopoly? A monopoly is sole ownership (or nearly sole ownership) of something.
This is not in and of itself a bad thing. There are plenty of sole ownership situations. Sole ownership is a foundational piece of both patent and copyright law. For example, a drug company is sole owner of a drug that they develop (at least for a time). A company is the sole owner of a brand they create. An author, musician, or artist is the sole owner of the material they create.
So sole ownership is not a bad thing. But there do need to be additional rules stating what that ownership entails, and curtailing misuse of that ownership.
The primary misuses of monopoly misuse have typically been monopolies where a product or service was only available from one company and they used that as a means to charge more than the product or service was really worth. An example is the Standard Oil monopoly in the early 1900s where the Standard Oil company controlled virtually 100% of the distribution and sale of oil. Another example is the breakup of the Bell phone system in the 1980s where the Bell companies controlled the phone service used by pretty much everyone.
As stated, the primary problem caused by these monopolies is that the companies were able to charge whatever they wanted because they were the sole provider of the good or service. Eventually, the companies had to be broken up by force of law to break the monopolies.
Copyrighted material is sole ownership. When you buy a book, a DVD, or a CD (or a digital version of any of them), you do not actually own the material. What you own is a license to access the content. The actual content is still owned by the original creator.
This is as it should be. But there needs to be rules put in place, to provide that the monopoly is not abused. And I will state that one form of abuse would be to ‘force’ users to pay for something by the monopoly owner.
One could say that being forced to subscribe to Netflix is a bit different than being forced to pay too much for gas or for your phone service (both of which would be considered necessities), but it is really the principal.
In September, when I drop Netflix, I’m going to lose access to some shows that I really like, and that I really would like the option of watching. These include Queen’s Gambit (which I have written about earlier), Atypical, Stranger Things, and a handful of others. With sole-ownership of these (and other) titles, Netflix is trying to force me to be a subscriber to their service.
Rules For Copyright Materials
In order to counter these affects, I would like to propose the following rules for copyrighted material.
1) Copyright rules differ for individuals and companies
As I have written many times, rights belong to individuals. They do not belong to companies, corporations, organizations, or groups.
Companies do need some things that are guaranteed, and these are often called rights (though I actually wish a different term were used for these situations). For example, a corporation needs the right to own property, create contracts, sue people or other organizations, or own copyrighted material.
However, these rights should be explicitly granted (whereas individual rights are inherently granted by the mere fact of being an individual, and these rights must not be infringed on by the law).
So, I would definitely treat a copyright owned by the indivudual Stephen King different than one owned by the non-individual Disney corporation. All rules need to explicitly take into account both types of owners.
2) The right to claim ownership is perpetual
One of the fundamental properties of a copyright is the ability to claim ownership of the content. In other words, to put your name on it and say that you wrote it.
This property should apply forever.
In other words, nobody should ever be able to take a work by an individual (say Stephen King) OR a company (like Disney) and claim ownership of that work.
3) The right to financial ownership
This is the right that is central to most copyright infringement situations. This is the right to charge for a license to access the copyrighted material.
Currently, the right to financial ownership for an individual (or multiple individuals in the case of joint authorship) is for the life of the last living individual plus 70 years.
The rights for a corporately owned copyright are 95 years from the year of first publication.
I have written in the past about potential changes to these terms, but I’m not going to address this right now other than to say two things.
First, it is absolutely right to differentiate between the two types of copyrights.
Second, the length of this protection should be less for the corporation than the individual. I’m reasonably happy with the length for the individual owned copyright. I personally think that the length of the corporation owned copyright is currently too long. I think a 50 year length is more reasonable.
4) The right to financial ownership is applicable only if being sold
The right to financial ownership should only apply to works which are available at roughly the same level (price) that they were when at their highest availability.
Another way to look at it is the author’s right to financial ownership is only applicable to works that are currently available for purchase at the same general availability they have been in the past.
If an author withdraws the content, or makes it unavailable for purchase, it is no longer protected since the author is no longer using that product for financial gain.
So, a book that was available to the mass market must remain available in the mass market, or else it is no longer protected financially, and it should be allowed for a publisher to republish the work (for profit) without the author’s permission. Note that even in this situation, the new publisher could not claim ownership of the content.
This rule should apply to both individual and coporate owned copyrights.
5) When transferring financial ownership, the new owner is treated in the same way as a corporation.
The rights to individual ownership of a copyright is limited to the ownership of the author and (due to the life+70 length) their direct heirs.
In all other cases, transfer of the financial ownership to a non-creator should convert the copyright to the non-individual rules (even if the ownership is being transferred to other individuals). Only the actual creator (or their direct heirs) can be an owner with all of the rights of an individual.
6) Financial ownership does not include the rights to force memberships or other financial requirements due to the monopolistic characteristic.
Here’s the biggest rule change that I would like to see.
Copyright ownership should not include the ability (or at least, not the long-term ability) to impose additional financial requirements (including memberships) due to the monopolistic properties of the copyright.
So, in order for Netflix to maintain financial ownership of a property, that property must be available WITHOUT the requirement that I subscribe to Netflix. At most, there should be some limited period (perhaps 6 months to a year) where they can make it exclusively available to Netflix subscribers, but at a certain point, to maintain financial protection, that must be available to non-subscribers (either via a streaming rental/purchase or DVD, etc.).
Note that there would NOT be a requirement to license the content to competing streaming companies. The requirement only applies to making the content available to individuals.
In this way, when I leave Netflix in a few months, I have the option to purchase the content that I want so that I’ll be able to watch it without being a subscriber.
One other thing that I would like to address is derivative works.
This is something that came up for me a couple of years ago when Amazon set out to make a new Lord of the Rings series (Rings of Power). As a side note… I feel they failed pretty terribly. For me, they didn’t succeed in creating a single character that I had any real connection to (and Galadriel was outright idiotic). However, that’s a separate problem.
The issue that really interests me is that they had to pay some $250 million dollars for the rights to create what is essentially a derivative work for something published some 80 years ago.
Here’s something that I believe that goes against what all of the big copyright owners (think the Tolkien estate or Disney) want: when you have an idea, and you publish it, you no longer have sole ownership of the idea! Yes, you have sole ownership of the specific content that you created, but an idea, once placed in someone else’s mind, is now partially their own.
The Lord of the Rings is the perfect example of this. I first read the Hobbit and Lord of the Rings in elementary school. I loved them! Those books, more than any other book I’ve ever read, has influenced who I am, and what I enjoy. Elves and dwarves have existed since far before these books, but they are clearly defined in my mind (and this goes for many other people) as how Tolkien described them.
The Middle Earth is not just some fictional environment. It is an environment that I grew up in… that I fantasized living in… that I wanted to explore.
In other words, the Middle Earth is not exclusively owned by Tolkien or his heirs. It is partially owned by me and every other person who read those books and made them part of their life.
Now I understand the need to protect the author from derivative works, but this right should NOT receive the same level of treatment that financial ownership should receive.
I think that during the time that Tolkien was writing and publishing works that occurred in that setting, derivative works should not be allowed. But after a suitable period where the author is no longer adding to the story, the ability to restrict derivative works should be removed.
I do believe the Tolkien estate has the right to financial ownership of Tolkien’s works right up to 70 years past his death (which will be Sep 2, 2043). So if someone wants to create a story set in the Middle Earth that is outside of his writing, I personally do not believe that they have the right to restrict this.
And if they did not have that right, there is no way that Amazon would have needed to pay $250 million. They would have had the ability to say “We’re going to create something set in Middle Earth but not covered in any of the works owned by the Tolkien estate; but we’d actually like to include some of that too, so we’ll pay $20 million for those rights; take it or leave it.”
It’s not that I’m a huge fan of Amazon (and as I mentioned before, I feel they absolutely failed with season 1 and I have no intention to watch season 2), but the principle here is that the Tolkien estate does own the actual published works… but they do not (or at least they should not) be sole owners of all of the ideas that Tolkien put forth.
That does not protect the content… it stifles it. We’re left a state where only a big business like Amazon can afford to add on to the Tolkien canon as opposed to some talented author who has a good idea for a story set in that universe, but lacking the $250 million dollars necessary to buy the rights.
And BTW, do you want to see what would happen if a talented writer were allowed to add to the Tolkien canon? Go read Dennis McKiernan. In 1984, he had the idea for a sequel to the Lord of the Rings. He wrote it and tried to get permission to set it in Middle Earth, but he was denied permission. McKiernan’s publisher encouraged him to rewrite the story in a different world, so he did, creating the world of Mithgar.
The first stories are clearly intended to be Middle Earth stories (and were called ripoffs by some detractors), but McKiernan went on to write quite a few other stories (there are 17 books at this point) that have fleshed out that world nicely, and though influenced by Tolkien, they can easily stand on their own.
Had McKiernan been able to expand on the Middle Earth stories of Tolkien (who only published the original four; all of the others were just notes that he apparently didn’t consider worth publishing); we would have a number of very well written stories that would pay homage to Tolkien.
We’ve lost that opportunity thanks to the restrictions that the Tolkien estate has been able to place on derivative works.