Does Copyright Need Fixing?

William Patry, believes it does.  In his new book  How to Fix Copyright  published by Oxford Press he suggests that creators should be required to register their copyright after a certain period of time in order to maintain them and that rights of out-of-print books should revert to their creator.  Definitely interesting concepts and perhaps a solution to the books that sit in limbo – no copies available yet not available to copy and share with those who would benefit by their use.

I first ran into The Patry Copyright Blog a few years ago, right about the time he decided to cancel it and then reinstated it for a short while to publicize his book,  Moral Panics and the Copyright Wars.  I found his take on copyright interesting.  His opinion is backed by a prestigious history.  Currently a  Senior Copyright Counsel at Google Inc., he served as copyright counsel to the U.S. House of Representatives, was a Policy Planning Advisor to the Register of Copyrights, has been a law professor, and has practiced law on a private basis.  Besides the two books mention above, he is the author of an eight-volume treatise on copyright law as well as a separate treatise on the fair use doctrine.

In an opinion piece published 31 Jan 2012 on CNN Opinion, Time to Update Copyright Law,  Paltry states “ As we adapt to the digital age, arcane copyright laws that offer no benefit even to the current copyright holder must be reconsidered. A sensible approach would not act as an obstacle to future generations who want to create something new.”

In a December post on Bloomberg view Copyrights Are No Longer About Copies, Paltry discusses issues such as “licences vs. sales”, the inability to transfer the works you’ve purchased to another device, digital locks and other restrictions imposed on today’s purchases of creative works.  This series of 3 posts is intended to be a preview of his book.  Check it out!

(c) 

Lists, Recipes and Genealogies – Copyright Law

Thank you “Cyndin” .  In a comment to “Great-Grandma’s Cherry Pie”  she  correctly points out that lists are not protected by copyright.

The US Copyright Website states “Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions. Copyright protection may, however, extend to substantial literary expression—a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.”

Only original works of authorship are protected by copyright. “Original” means that an author produced a work by his or her own intellectual effort instead of copying it from an existing work.

So, we come to the question, what makes a recipe subject to copyright?  The definition above gives the answer.  Most recipes have directions, descriptions of how to use that list of ingredients, explanations of the process, pictures of the final result, and the best ones give a little bit of the history of the recipe as well.  So the mere ingredients of the Cherry Pie would not be subject to copyright but the written description of the process to create it might be.  The more creative the telling of the recipe, such as my Mother’s Spamburgers (complete with my sister’s fantastic art work) the more likelihood copyright applies.

The Copyright Office goes on to state that if you want to keep a recipe secret you probably shouldn’t publish it or file a copy with the Copyright Office.

So…….in a sense recipes are like genealogies.  Our basic family group sheet is just a list of facts.  Births, marriages, deaths, census listings, military service, no matter which fact it is not subject to copyright law.  What makes a genealogy subject to copyright?  The descriptions, the explanations, the process of combining facts to make a whole, the thought process used to compile the families.

How often have you heard, “I shared my genealogy and they put it online?”  While there might be some ethical problems with this, it is usually not a copyright issue.  Unless they use “your stories” and include your thought process in making connections they are only posting facts.  Like the recipes, if you want to keep it secret you might not want to share.

Be creative.  Turn your genealogy into a wonderful story and you will have copyright protection for your work.

But here’s one last thought….a shared recipe resulted in a better Cherry Pie.  A shared genealogy might well do the same.  You might find new collateral family and they may lead you back to earlier generations, or even better those new found relatives might have stories that they are willing to share with you.

Great-Grandma’s Cherry Pie – A Copyright Puzzle

Great-Grandma made the best cherry pie in town.  No one was sure of the secret ingredients in that recipe, but everywhere she went she was asked to bring “the pie.” Everyone begged her for the recipe, but she shared with no one.  It remained hidden in her recipe box to the day she died.

Great-Grandma died without a will in 1940.  Her only child Grandma inherited everything she had, including the recipe box.  Grandma now became the hit of the party circuit, the provider of “the pie.”  Grandma died in 1965 and left everything she had to her two children Mom and Uncle Harry.  They easily divided the treasures of her life….except the Cherry Pie recipe.  That they shared.  Uncle Harry, a wonderful cook, received a copy of the original card and the recipe box.  Mom received the original card.  Both now became the hit of every party with their contributions of the pie.  In fact, Uncle Harry even made an improvement to the original, adding something special to the crust.

Uncle Harry died in 1990 and willed the recipe box and all it’s contents to his daughter, Jill.  Mom died in 1994 and left her estate to be divided in 6 parts.  One part went to each of her 5 surviving children and 1 part was divided 2/3 to her deceased son’s daughter and 1/3 to his widow.  They now were all entitled to the recipe.

So, in 2011 Jill submitted the recipe to a contest for the best Cherry Pie and won a $5000 prize.  One of the requirements to the submission was that the recipe be previously unpublished and that company holding the contest would be able to highlight the recipe in it’s next cookbook.  Mom’s daughter, Jackie, was dismayed as she was in the process of writing a cookbook called “Great-Grandma’s Cherry Pie.”  Each claimed the other didn’t have the right to publish the recipe.

So the question is, who own’s the copyright to Great-Grandma’s Cherry Pie Recipe?

Well…. Jackie by virtue of her mother’s will would be entitled to a 1/12 share (1/6 of 1/2) in the Cherry Pie recipe.  Her siblings would also have 1/12 share each, her niece 1/24 and her sister in law 1/36).  Jill on the other hand, was bequeathed her father’s entire share and thus would be entitled to a 1/2 share of the copyright to Great-Grandma’s Cherry Pie recipe.  But….Great-Grandma died in 1940.  The copyright to unpublished works extends 70 years beyond the death of the creator.  It is 2011 and therefore the Cherry Pie Recipe is no longer subject to copyright.  It is in the PUBLIC DOMAIN!   Jackie can publish her book without any complications of copyright from the company that held the pie contest, hoping for an exclusive.

Jill, in fact,  submitted  Uncle Harry’s improved recipe.  Uncle Harry did not die until 1990 so his changed recipe is subject to copyright until 2060.  Jill owned that copyright and can happily enjoy the $5000 she won and the company does have an exclusive on the changed recipe.  Jill shared her bounty by having a big party for her cousins and their extended families.

The preceding account is fictional.  No such Cherry Pie recipe has come down the generations from my Great-Grandma.  However, my daughter is the hit of every holiday gathering  with her wonderful Cherry Pie.  Don’t ask her for the recipe, she’s not telling and it’s likely to be another 130 years before it hits the public domain!

Happy Holidays!!!