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.