Translations will sometimes be somewhat ambiguous, but most will not be. The question is not whether the translation is correct, but whether the intent was a translation. Any ambiguities should generally be resolved to be a derivate work. In any case, the rights for a “translation” would be no greater than the existing rights today.

With regard to Lanhane, translators will enter contractual agreements with the original authors as occurs now.

The question of a chilling effect is a real one. However, I’m fairly certain that the benefits outweigh the harms. People are going to want to make money from derivatives. If integrity is so important to them that they will forswear all derivatives, I’m not so sure that will be much harm. After all, most people want to make as much money as possible, which means they will have to license derivatives. Given that parody and fair use for criticism will still exist, what does the close holder of derivative rights gain?

I don’t think sequel writers will have too much of a disincentive. After all, you want to read Harry Potter by JK Rowling, not Ernie Miller, right?

Equal licensing does have the effective of severely reducing anti-competitive behavior.

Mr. Miller.

First, please excuse the poorly formatted prior response; It’s obviously been awhile since I used html.

Second, on the subject of “translations”, I think there will be numerous ambiguities inherent in that term. The German Harry Potter project resulted in much debate as to what constituted a “proper translation”. Many Japanese Lit professors have butted heads about ‘correct’ translations of Saigyo (thankfully in the public domain). At what point is the translation a ‘de facto translation’ placed into the immediate proximity category versus a derivative work which takes into account value added from the translator? How will you measure degrees? Sounds too much like obscenity law to me..

On media, I think Dennis Lahane put it well in a recent Fresh Air Interview . He said he’d never go through the process of adaptation again, because working a 400 page novel into a 2-hour movie (or abridged book on tape) paralleled having part of himself surgically extracted. Emotions aside, I’m sure he’d suggest the end result is sometimes a substantively different work. Should the royalties paid enter some sliding scale system depending on how closely the derivative resembles the original?

Additionally, a “non-discriminatory” license might have a chilling effect. If the author fears opening her work to what she might consider ‘misuse’, she might never license the work at all. To date myself, Xavier Roberts might never license Cabbage-Patch Kids for fear they might be turned into Garbage-Pail Kids (bad example – fair use and parody), but what if licensing had allowed creation of an adult version – not protected by parody.

The last example you give may create an incentive not to create. If an author has a choice between writing a sequel, and thus enabling all others to profit off copy-cat sequels while diluting the “brand”, or not writing one and simply continuing to profit from the undiluted original, they may choose the latter. The fans would lose for want of a sequel.

On equal licensing, I think it’s a good idea. Movie makers fear nothing more than bringing to light the inequity in their licensing contracts. It may forestall anti-competitive behavior, or in the very least open playing fields a little.

As I stated before; I’m all for a shortened derivative work term (for that matter a shorter copyright term), but I fear regulations so abstruse they might not mete out their original purpose. Even as it stands copyright law uses the Walt Whitman defense, “Do I contradict myself? Very well then I contradict myself. (I am large and contain multitudes)”.

I think we need to do a couple of things here.

First, I think we need to distinguish between what I call “translations” and true derivatives. Translations, whether between language (Harry Potter from English to German) or media (Harry Potter the Movie), should remain the property of the copyright holder for the length of the original copyright. The definition of “translation” should be fairly narrowly tailored.

Second, I would offer a concept I call the “non-discriminatory” license. That is, you don’t have to license derivatives, or license them at any particular price, but if you do license, you must license to all on the same terms. Moreover, you may not discriminate on the basis of content.

If you license toys for McDonald’s, you must license toys for anyone else on the same terms, and you may not include a clause that would allow you to censor particular toys based upon their content (we don’t like how your toy depicts our characters).

Btw, this would go for sequels. Even if the original author writes a sequel, they must set a licensing price that would allow others to write sequels. They could set the licensing price absurdly high, of course. However, they would be taxed on the licensing fee independently. So, if they set the licensing fee at $100/book for a sequel … and then sold 1,000 of their own sequels for $30/book … they would be taxed as if they had made $100,000, not $30,000.

Though I’m all for it, I can’t see the idea being any more popular with the anti-Eldred crowd than a full roll-back of copyright protections.

One would think the Movie Studios would be agush at the prospect of not having to deal with litigation stemming from derivative works.
However, this will probably not be the case because of the potential losses to future cash cows like “Gone with the Wind” the video game.

Though, after considering some possible upsides, I think the biggest winner would be CliffsNotes.

Amen! The first idea that even begins to make sense.

We’re entering an era of utter madness where copyright is concerned. I often deride lawyers for being word-wizards and this condemnation is no more deserving than in the area of copyright law. We’re to the point now where judges are actually entertaining law suits over word snippets.

I’m to the point now that I don’t want to create anymore. I don’t have the time to research whether or not my hard work is infringing and I can’t afford to pay someone to do the research for me. So, I’m just going to chuck-it until we get out of this fog of insanity.