What Is A Fair Copyright Term?

James Wimberly writes in favor of drastically limiting copyright terms.

[T]he 21-year limit of Queen Anne’s Act (footnote) provided adequate incentives for authors; the 95 years or life-plus-75 years of contemporary IP law is a giveaway to a clever lobby of wealthy engrossers of the commons. If you don’t believe me, check out Justice Breyer’s dissent in Eldred v. Ashcroft and the amici brief in the case of 17 eminent economists. The SCOTUS majority didn’t pretend that the Mickey Mouse extension law was defensible policy, it just held that Congress was constitutionally entitled to its mistake.

Without defending our current copyright terms, I think that this demonstrates a complete ignorance of the IP world today. This is not medieval England. It only takes a handful of real world examples to demonstrate that. If we were to re-adopt Queen Anne’s law (which would, frankly, be a legislative and policy nightmare, because that would put us in violation of several international treaties regarding copyright), then one of my favorite novels–Ender’s Game–would now be in the public domain. Which means that the author, Orson Scott Card, could go to a theatrical version of the book tomorrow and not see a penny from the proceeds. In other words, some movie studio would be making millions of dollars off of it, and not a dime would go to the original author. Pretty nice deal for the movie studios–not so much for the author.

Now, let me state for the record that I do think that our current copyright terms were untenable. And if we lived in Alex-Knapp-o-topia, my copyright terms would be as follows:

  • For original authors, what I call the “Life and/or 50 Rule”–Authors keep the copyright in their works their entire life. Their heirs keep the rights for 50 years after the creation of the original work (as opposed to 70 years after the author’s death, which is the rule now).
  • For all other entities, copyright is 50 years after creation of the original work, period.

Effectively, this make copyright about 50 years long (plus however many extra years an author lives), which I think is a fair number of years to protect a work. 21 years, though, is just a ridiculously short period of time.

Update: Megan McArdle makes a similar point:

It is obvious to me that current copyright terms are too long. 21 years may not be enough to get writers to invest their all in their craft, but 95 years seems excessive; I don’t think we will get more work out of 35 year old authors by promising to someday pay royalties to their as-yet-unborn grandchildren. And clearly, retroactivity is a gift to corporate interests that is actively contrary to the public good. But there is a lot of middle ground between those two extremes.

And, frankly, I think that life for authors, and 50 years from creation for everyone else is perfectly reasonable. But let me be clear–I do think that the current terms are too long. But I also think that authors do have rights in their creations that move beyond merely “what’s good for society.” I don’t really have the time or inclination to articulate beyond that, but for those who disagree, bear in mind that not caring about screwing authors vis a vis copyright incentives isn’t going to be in the best interests of society if folks who might have otherwise created great art decide to do something else instead, like advertising.

FILED UNDER: Law and the Courts, Media, , , , , ,
Alex Knapp
About Alex Knapp
Alex Knapp is Associate Editor at Forbes for science and games. He was a longtime blogger elsewhere before joining the OTB team in June 2005 and contributed some 700 posts through January 2013. Follow him on Twitter @TheAlexKnapp.

Comments

  1. I can’t remember who proposed it–maybe Lessig?–but someone recently suggested a minimum copyright term (14 years?) but making copyright renewable for a fee, at least during the author’s lifetime; I can’t remember either what the proposal was for corporate authors, although I think there was a finite year limit for their renewals while individuals could renew their copyrights an indefinite number of times until death.

    Since Ender’s Game still has economic value to Card, it would make sense for him to renew its copyright; however, if in X years I can’t continue to derive any economic value from a random picture in my Flickr photostream it’d probably be best for me to allow it to lapse into the public domain. You could even do it without a fee, since the vast majority of works probably wouldn’t even be worth the minimal burden of going to a government website and filling out a form to record the renewal.

  2. David Shor says:

    Ok, so Orson Scott Card would not be able to profit off of the movie. What exactly is the damage here?

    Remember, writers and content producers are a very small percentage of the population, and should not have very high priority in social utility function.

    The only purpose of IP law is to increase production of information and research.

    But as you increase copyright periods, two effects come into play:

    1) The expected profit from writing a book becomes higher, increasing incentives to work.

    2) The expected profit off of your previous works go up, allowing you to live off of your previous work, decreasing incentives to work.

    Because the marginal value of money decreases pretty quickly, effect number 2 quickly overpowers effect number 1.

    Empirically, it’s fairly easy to determine a copyright period that maximizes incentives to create content(google “optimal copyright period”), and it seems to be around 14 years.

    Anything longer than that, is just an unfair transfer of wealth to content creators.

  3. Dave Schuler says:

    Alex, I don’t see that you’ve made a case that a shorter copyright is unjust but I do think you’ve made a case that a shorter term for copyrights incentivizes merchandizing and distributing, which would seem to me to be a good thing.

    Take your example of Ender’s Game. Doesn’t a short term encourage Card to get the movie made now rather than later?

  4. Dave,

    That presumes that the power to make the film is within Card’s power, which it isn’t, necessarily.

    Further, one could write a book, have it live it utter obscurity, only to have it “discovered” 22 years later, and have a studio make a mint while the author lives in a cardboard box.

    I fail to see how that would be just.

  5. Alex Knapp says:

    Anything longer than that, is just an unfair transfer of wealth to content creators.

    You do realize that most writers and musicians make a pittance, right?

  6. Alex Knapp says:

    I can’t remember who proposed it–maybe Lessig?–but someone recently suggested a minimum copyright term (14 years?) but making copyright renewable for a fee, at least during the author’s lifetime; I can’t remember either what the proposal was for corporate authors, although I think there was a finite year limit for their renewals while individuals could renew their copyrights an indefinite number of times until death.

    The problem with this idea is that it could be really burdensome. Take George Will, for instance. He probably has good economic incentive to keep the copyrights on his columns, for example, so that he can always preserve the reprint rights. So now he has to keep track of 500+ pieces? The problem is even worse for prolific photographers like, say, Anne Leibovitz. The burdens of registration and renewal are the reason why they stopped being mandatory in the first place–people weren’t paying attention, and lost money on their works after the copyrights expired and corporations pounced on the works to exploit them after they didn’t have to deal with the authors anymore.

  7. Mithras says:

    In other words, some movie studio would be making millions of dollars off of it, and not a dime would go to the original author.

    This argument proves too much. If your worry is that someone other than the original author of a work might make money someday from material in the public domain, then the solution is to make copyright perpetual. I’ll also note in passing that very few works become blockbusters; the odds of something in the public domain doing so is vanishingly small.

    The concerns expressed by both Knapp and Steven Taylor seem to be emotional reactions to the prospect of an author who is (a) still living and (b) not well off seeing his or her work made into a commercial success. But most of the works we’re talking about are those copyrighted by large corporations, which never have to die. If a corporate copyright holder has a fixed time to make money from a creative work, which then enters the public domain, what is the harm?

  8. Dave Schuler says:

    Further, one could write a book, have it live it utter obscurity, only to have it “discovered” 22 years later, and have a studio make a mint while the author lives in a cardboard box.

    Or it could not be “discovered” for 150 or 1,000 years. Are you making an argument for perpetual copyright?

    Steven, both you and Alex have asserted a justice argument for copyright, in your case presumably a perpetual copyright, without ever proving such a case.

    I see no justice in an institution that never created anything being paid perpetually because some real live human being actually created something once upon a time but that’s the situation that current law does enable.

    Books, poems, music, and “useful inventions” don’t fit the Lockean notion of property very well and the Founders wisely did not extend that notion to them. Nor does that idea exist in the common law of the time. The Constitution does not contain a generalized law of intellectual property. That’s a modern notion and I suspect it’s largely based on the efforts of the corporate giants Mithras mentioned above.

    Note, too, that after the extension of the copyright in 1999 the number of copyrights issued annually has actually fallen. That doesn’t sound to me like the extension satisfies the constitutional encouragement rubric for government-granted monopolies but, unfortunately, in this particular case the Supreme Court has elected to defer to the Congress.

    I’d be satisfied if “intellectual property” were not transferrable but it seems to me that reducing the term of a transferrable copyright is eminently sensible and just.

  9. Alex Knapp says:

    I’m not sure how I could have been more clear–I’m advocating life for authors, and 50 years from creation for everyone else.

    Also, Dave, the number of registered copyrights is different than the number of copyrighted works.

  10. Dave Schuler says:

    Unfortunately, there’s no way to measure the total number of new copyrighted works. But we can measure the number of registered copyrights and their number has gone down.

  11. Bithead says:

    Software would seem the fly in this soup. Copyrights on software are night on meaningless after 15 years, much less 50.

  12. David Shor says:

    “You do realize that most writers and musicians make a pittance, right?”

    Yes, I’m aware. But frankly, we should not use copyright laws as a form of welfare, the costs to society are simply too high.

    There are 3 main costs to extending copyright beyond the optimal period(approximately 14 years).

    1) As I talked about before, authors live off their previous work, decreasing incentive to work. This decreases the amount of content that society can produce.

    2) Quite simply, people are deprived of their ability to consume content that they would have consumed if it were free. This is usually justified by “if the price was 0, then nothing would be produced”, but beyond the optimal period, that is no longer true.

    3) Copyright laws drastically increase transaction costs and make production of derivative works more complicated. Look at the difficulty of rescuing orphan movies, or the prosecution against fan-works.

    These costs, when added over the entire population, far outweigh any gains to the relatively small amount of authors.

  13. David Shor says:

    “That presumes that the power to make the film is within Card’s power, which it isn’t, necessarily.

    Further, one could write a book, have it live it utter obscurity, only to have it “discovered” 22 years later, and have a studio make a mint while the author lives in a cardboard box.

    I fail to see how that would be just.”

    It does not seem just to impoverish the rest of society for the good of an author. The author knew the risks when he wrote the book.

    There is no other profession(Except farmers) where “justice” is taken into account, and I see no reason why writers should get special treatment.

  14. Michael says:

    that would put us in violation of several international treaties regarding copyright), then one of my favorite novels—Ender’s Game—would now be in the public domain. Which means that the author, Orson Scott Card, could go to a theatrical version of the book tomorrow and not see a penny from the proceeds.

    Well perhaps if they hadn’t re-written the screenplay 4 times, it would have been made into a movie well within those 21 years.

    That said, you can’t say that the compensation Card has already received from Ender’s Game is so small that it wouldn’t have been economically worthwhile for him to have written it in the first place. You can’t claim that without the promise of movie revenue 22 years later, he never would have written the book.

    How does a copyright law benefit society by guaranteeing an artist more compensation than would be needed to encourage him to create his art? A copyright term only needs to be long enough for the majority of content creators to receive adequate compensation to make the initial creation economically desirable. Anything longer than that means you’re paying more for a product than market forces would settle on.

  15. Michael says:

    Further, one could write a book, have it live it utter obscurity, only to have it “discovered” 22 years later, and have a studio make a mint while the author lives in a cardboard box.

    I fail to see how that would be just.

    If the book made no money for 22 years, then suddenly a studio makes money off it, perhaps the studio is adding the value. Also, copyright laws are for the benefit of society, not of the artists. It doesn’t matter if an artist is screwed by copyright law, the only thing that matters is whether or not society is screwed by copyright law.

  16. Michael says:

    You do realize that most writers and musicians make a pittance, right?

    Yes, and writers, artists and musicians have been making a pittance throughout our history, which is filled with some of the best works of art ever produced.

    If Da Vinci would paint the Mona Lisa for $5, what justification do you have for a law that requires he be compensated $500?

  17. Michael says:

    Software would seem the fly in this soup. Copyrights on software are night on meaningless after 15 years, much less 50.

    Copyrights on software are fine, it’s patents on software that cause problems. Microsoft can control the Windows source code until the sun stops shining, but they shouldn’t be able to prevent people from using a mouse to interact with software.

    You can re-use the plot of Ender’s game as much as you want, and many people have made lots more money doing just that (I’m looking at you, J.K. Rowling). But imagine if Card had patented the plot, so that no other author could write a book about a youth with special abilities battling his family, his own personal demons, and an evil greater than himself, who always seems to know what to do to save the world?

  18. Jeffrey W. Baker says:

    I think that it was convincingly demonstrated that the most recent copyright term extension could not possibly have represented an inventive for creators. The net present value of royalties 100 years hence is almost indistinguishable from zero, therefore the extension beyond 99 years did not constitute an incentive for creation of new works today. 50 years is pretty reasonable.

  19. The problem, Alex, is that you misunderstand the basic intent of copyright. It’s not for making money, its about promoting progress. Making money is the consequential incentive, not the intent.

    The progrress cause of the US constitution say that it is for the progress of the science and usefull arts, and whilst I’m all for OSC (but I wasn’t a fan of enderverse books 6-8) with the book locked to him for the next hundred year, how does that promote progress? The movie version of Enders Game/Shadow has been in process for what, 5 years now? With the rights locked to OSC, the ability to make a film is based on who has money to throw at it, not who would make the best film. Drop copyright down to 14 years (or my prefered term, of 14years automatic, and an optional 14 year renewal) and stuff from the mid-70’s and earlier can be made into films by anyone. Maybe then movies will PROGRESS from the current crop of bad acting with eye-candy.

    Right now, the ability to produce anything based on anything remotely modern is restricted to those that have money. It’s a closed market. How does this match the intent of copyright?

    I have been more than willing to debate this topic with anyone that’s wanted to do so. For some strange reason, the MPAA, and other companies seem unwilling or unable to do so – probably because they know their position can’t stand scrutiny.

    Andrew Norton
    Administrator
    Pirate Party of the United States