Monday 19 November 2012

Is the term of protection of copyright too long?

Last Friday the Republican Study Committee published a policy brief entitled "Three Myths About Copyright Law and Where to Start to Fix It", which Techdirt labelled as "surprisingly awesome".

The brief analysed the "possible reforms to copyright law that will lead to more economic development for the private sector and to a copyright law that is more firmly based upon constitutional principles". It argued that the current US copyright regime has retarded the creation of a robust DJ/Remix industry, hampers scientific inquiry, stifles the creation of a public library, discourages added-value industries and penalises legitimate journalism and oversight.
The brief suggested the following four potential policy solutions: statutory damages reform, expansion of fair use, punishing false copyright claims and heavily limiting the terms for copyright and creating disincentives for renewal.
However, the day after the brief was published the RSC issued a statement retracting it. The Executive Director of the RSC, Paul Teller, sent an email saying:

"We at the RSC take pride in providing informative analysis of major policy issues and pending legislation that accounts for the range of perspectives held by RSC Members and within the conservative community. Yesterday you received a Policy Brief on copyright law that was published without adequate review within the RSC and failed to meet that standard. Copyright reform would have far-reaching impacts, so it is incredibly important that it be approached with all facts and viewpoints in hand. As the RSC's Executive Director, I apologize and take full responsibility for this oversight. Enjoy the rest of your weekend and a meaningful Thanksgiving holiday...."
It is hard to find any information on the RSC's website, neither the brief nor the statement retracting it are there, however you can access a copy of the brief here thanks to InfoJustice.

The suggestion by the RSC brief  to reduce the term of protection is particularly interesting and has already been much discussed. Article 7 of the Berne Convention provides for minimum copyright protection of 50 years plus life, and current US law grants copyright protection for 70 years after the date of the author's death.
Both seem relatively long, in particular compared with the limited protection granted to inventions by patents. As you can see from the graphic to the right, copyright term in the US has increased steadily over the years. Before 1978 (which is when the US Copyright Act 1976 came into force), copyright was protected for an initial term of 28 years, renewable for a further 28 years, giving a maximum term of 56 years.

An interesting post by the Center for the Study of the Public Domain, at Duke University, lists the works (published in 1955) that would have come into the public domain this year had the US Copyright Act of 1976 remained in force. These include:
- J.R.R. Tolkien's The Return of the King, the final installment in his Lord of Rings trilogy.
- Vladimir Nabokov's Lolita.
- Richard III, Laurence Olivier's film version of the Shakespeare play.
- Various scientific journal articles about the synthesis of DNA- and RNA-like molecules, the effect of placebos, the experimental confirmation of the existence of the antiproton, fibre optics, and the synthesis of mendelevium.

There is a certain irony that utility patents are currently protected for 20 years from application whereas articles containing know-how required to make the products of the patents can be protected for 70 years.

In the US there is a registration requirement for copyright, which makes it possible to see how many rightsholders still rely on copyright in works published in 1955, by looking at how many of them renewed their copyright registrations after the first 28 year term. The Center for the Study of the Public Domain has done the maths: 85% of authors did not renew their copyright (for books 93% did not renew). This means that if the pre-1978 law were still in force, 85% of the works created in 1983 might have come into the public domain this year.
The Open Government Dialogue suggests that: "Life of the author plus 50 years is enough to take care of the author and his family, and that is really what copyright protection is all about. The corporations are not people and do not need such protection to be successful." The above evidence indicates that a term of protection of 28 years is sufficient.

The RSC's policy said that:
"It is difficult to argue that the life of the author plus 70 years is an appropriate copyright term for this purpose – what possible new incentive was given to the content producer for content protection for a term of life plus 70 years vs. a term of life plus 50 years? Where we have reached a point of such diminishing returns we must be especially aware of the known and predictable impact upon the greater market that these policies have held, and we are left to wonder on the impact that we will never know until we restore a constitutional copyright system."

The RSC's policy suggested that the term of copyright protection should be reduced to 12 years for all new works, with various renewal periods but with an upper limit of 46 years' copyright protection. This would contravene the Berne Convention however given the retraction of that policy we are unlikely to see any change in the US law any time soon.

I would be interested to hear what readers think: is the current US protection of 70 years plus life too long? Is the Berne Convention minimum of 50 years plus life too long? Given that copyright is more and more often used to protect technology, should the term of protection of copyright be aligned with that of of patents?

More legible versions of the above images can be accessed here:

Map showing copyright term worldwide
© Balfour Smith, Canuckguy, Badseed
Expansion of copyright term in the US
© Vectorization: Clorox (diskussion), Original image: Tom Bell.


dawog said...

I strongly believe that the original 14 Yr copyright term with only one renewal allowed, registration required, was perfect. I also think the 12 Yr term proposed in the RSC policy brief is also acceptable, especially with the varying cost penalties applied to renewal terms.

In absolutely no case should a copyright term be allowed to exceed a total of 50 years (and that's at least 22 years to much).

Just my 14 cent opinion...

Anonymous said...

I totally agree that the copyright term has got out of control. The effect of this is a shift in the de facto goal of copyright law away from rewarding creators and towards the protection and maintenance of established capital assets.

While this would be fine if it was an economically reasoned position that had been developed with clear and open legislative intent, it seems to me that the shift has in fact happened by the backdoor and without any particular economic justification -- except for protecting established industries (like traditional music/media) from the need to innovate and compete.

It is most unfortunate and very ironic that in many cases (mashups and parody are the go to examples) copyright creates more risk than reward for creators.

Andy J said...

The principal argument used to support extensions of the copyright term says that the oeuvre of a successful author, artist, composer etc is equivalent to another person's pension, and that thus the post mortem element is there to support the author's spouse and offspring after his/her death. The reason for increasing this period from 50 to 70 years in many jurisdictions seems to be that people live longer now than they did when such concepts were brought into the early Berne Conventions. Clearly a spouse who survives for 70 years after the death of the author is a somewhat rare thing, but even assuming this remains a sensible method for calculating a copyright term, why should the same hold where the rights owner is actually not a human being but rather a corporate entity?
Perhaps we should consider changing the law so that an assignment of copyright to anyone other than a natural person (or possibly a trust in favour of the author's immediate family) immediately converts the term to a fixed period (say 50 years) following creation, first publication or making available to the public of the work. Similarly where the first owner of copyright is the employer by virtue of CDPA Section 11 (and its international equivalents), the term would automatically be 50 years from creation. Since something similar already exists with regard to sound recordings (notwithstanding the recent extension to 70 years) and broadcasts, the system could have a certain symmetry which it currently lacks. Also since I suspect that, de facto, most first owners of the copyright in films will actually be companies (even though they may be personal vehicles for the director, producer etc) and so should be swept up by the s 11 provisions, this would add further coherence to the otherwise varied current system of copyright terms. To complete the picture, much the same approach could be applied to performance and database rights.
Clearly there would need to be additional regulations to prevent corporations just buying perpetual exclusive licences instead of assignments, but that would not be too difficult to resolve. Perhaps the key to this particular problem lies in continuing to deny mere licencees any standing to bring civil actions for infringement, or to press for criminal prosecutions for infringement.

john walker said...

Child prodigies are very rare, most successful publications are by authors of about 30 years+ of age (and most spouses are of roughly the same age) therefore a term of 50 years would cover a 30 year old author until he or she is 80.

As best as I understand it the reason for extending the term of copyright back in the 1850s was that many authors were dead by 40-50 and therefore there was a real problem of relatively young widows and children, in a society that had no proper welfare system.

Eric said...

A couple of minor points:
"There is a certain irony that utility patents are currently protected for 20 years from application whereas articles containing know-how required to make the products of the patents can be protected for 70 years."

It should be mentioned that the patent term is a flat 20 years, but the copyright term is n+70, so very often the actual term is well more than 130 years.

"In the US there is a registration requirement for copyright"

Again, a minor point, but we don't require registration. It's now optional, and only required if you want to sue.

Also, I like Andy J's idea, but I wonder how that would work with respect to copyright recapture? If I sell rights to a company in my novel, does it become life plus 70 again if I sue to recapture under §203? If I then want to sell it to a new publisher, can I only offer them fifteen years of exclusive rights, or does the 50 years reset?

Anonymous said...

I like Andy J's idea about a copyright term that converts on first assignment. There is slight echo here of the idea in some of the historical legislation where the later part of the term was not assignable.

I seem to remember someone once telling me that rational for the length of copyright term was so that it saw out the children and grandchildren of the creator.

I'm not sure how this has any economic justification though.

R. Lee said...

If one wanted to make the argument on "constitutional principles", they should go back to the so-called Copyright Clause in the Constitution which states Congress has the power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." A strict reading of this would be that copyright is designed to promote social good; therefore the limited monopoly authors were given is means to achieve that end. If the end of promoting the progress of science and useful arts is not achieved through life +50 or life +70 years protection, then the terms are unconstitutional.