Articles
The fallacy of long copyright protection
Tobias Schonwetter · Cape Town (South Africa) · 3/4/2007 10:07 · 26 votes
This month, iCommons' resident copyright columnist, Tobias Schonwetter, challenges the benefits of ever-longer copyright protection.
'Copyright should last forever less one day!'
(Jack Valenti, long-time president of the Motion Picture Association of America)
The debate over the adequate term for copyright protection is as old as copyright legislation itself and fortunately, participants in the discussion have in general shown more respect for the public interest than Jack Valenti when he made this unfeasible remark. Despite this controversial discussion, a consistent and worrying trend for ever-longer copyright protection has continued over the last years.
For instance, in the United States the copyright term was only extended twice over a period of 150 years. However, during the ensuing 45 years between 1962 and 2007 copyright duration has been extended 11 times with the result that copyright now basically lasts for 70 years after the death of the author, or 95 years for a work of corporate authorship. Just as a reminder, copyright protection under the English 1710 Statute of Anne (arguably the world's first fully-fledged piece of copyright legislation), new works were protected for 14 years from the date of first publication, renewable for another 14 years if the author was still alive at the time when the first term expired. In the European Union the copyright term was also extended a few years ago to 70 years from the death of the author, and Mexico has in the meantime introduced a term of protection for selected works of 100 years after the author's death. By the way, the term for patent protection in most countries is only 20 years from the filing date of the application. Against this backdrop, it is about time to pick up on this topic again.
I don't want to beat around the bush here: I firmly believe that the current term of copyright protection is significantly too long ' not only the 70 or more years provided for in numerous national legislations these days but even the minimum term of protection of 50 years as stipulated in the Berne Convention for the Protection of Literary and Artistic Works. Such a long protection term is usually utterly unnecessary. Sound economic analyses have shown that the commercial life of the vast majority of creative works of any kind is very short, although modern technologies have undoubtedly potentially increased the commercial life of works. In his book Free Culture, Lawrence Lessig pointed out the fact that in 1930 10 047 books were published of which only 174 were still in print in the year 2000. Therefore, our current laws are tailored for the few exceptional cases rather than the normal situation. Such an approach is inherently dubious and - more importantly- diminishes the public domain substantially with obvious detrimental effects for the development of humankind.
Necessary or excessive?
Copyright protection is often referred to as a necessary means to incentivise the creation of works. This argument is proposed to justify further extensions of the copyright term, but it is obviously ill-conceived, especially as far as the extension retrospectively applies to older works; or are we seriously discussing an additional incentive for the creation of a work that has already been created ' possible by an author who has long since died? As far as the creation of future works is concerned, the argument neglects the fact that these days the actual authors are often not the copyright holders of the works they create. More importantly, no empirical research has ever proved that prolonged copyright protection increases the output of protected works. Because it doesn't.
A simple calculation illustrates how excessive the duration of copyright protection already is. Let us assume a copyright term of 50 years after the death of the author is applied to a work, and that the author dies at the age of 75 and the author, as well as, his child have children at 25. The author dies the same year his great-grandchild is born; this descendant will have a child 25 years later, and only when this child's child (the author's great, great, great-grandchild) is born another 25 years later copyright protection expires.
Against the backdrop of such far reaching protection, extending copyright is unlikely to cause the creation of a single additional work that otherwise would not have been created, particularly if one considers the above-mentioned short commercial life of most creative works. We must, after all, not forget that we are dealing with a legally sanctioned monopoly. It is for these and other reasons that a number of leading economists - including 5 Nobel Prize winners - argued, albeit unsuccessfully, against extended copyright protection in the United States of America through the Sonny Bono Copyright Term Extension Act of 1998 (CTEA) in 2002. Supreme Court Justice Stephen Breyer wrote in this regard that he 'cannot find any constitutionally legitimate, copy-right-related way in which the statute will benefit the public. Indeed, in respect to existing works, the serious public harm and the virtually nonexistent public benefit could not be more clear.'
Having said this, I do not contest that the financial incentive associated with copyright protection is one way (of many) to stimulate creative output. Moreover, I acknowledge the authors' desire to be adequately compensated for the time and effort they invested. Long gone are the times when creative minds could work without taking financial aspects into consideration because they were sufficiently funded by patrons, the government or the church. Yet, an ever-longer term of copyright protection is not only an impractical but perilous way to achieve both increased output and fair compensation. Automatic copyright protection is the default situation in many countries. In other words, subject to a few rather simple conditions, no action is required from the author for the work being protected for 50, 70 or even more years after the author's death. Of course, the negative impacts for the public domain (this essential pool of free knowledge on which we all depend in order to further development) are grave.
Solutions
In my opinion two measures are necessary and suitable to address this problem. These measures require concessions from both sides, advocates for the public domain and the authors / right holders alike, but will eventually benefit most people involved. Firstly, the term of copyright protection needs to be drastically reduced in national legislations and hence the relevant international treaties need to be adjusted in this regard. Extensive empirical research is necessary in order to establish the appropriate protection term which should be in conformity with the average commercial life of the specific kinds of works. In this respect I suggest a rather generous determination. If necessary, further sub-categories for works can be introduced. I am convinced that in many instances 10 years of protection or even less will prove sufficient to accommodate the financial interest of the creator.
Secondly, right holders should have the opportunity to renew their protection for one or even more times. That way a longer exploitation of exceptionally successful works becomes possible. Admittedly, this procedure could entail a significant administrative effort and it might raise relatively high costs for a country to set up and maintain a system like that. Yet, the macroeconomic benefit of a facilitation of access to information for the public of this magnitude is apparent and outweighs the expected difficulties. Moreover, in other areas of intellectual property law, namely patent and trademark law, a renewal requirement is common practice and works satisfactorly - and the experiences for example in the United States with the formal requirement of a registration for copyright protection until 1989 were not solely bad. The imposition of a renewal fee would lower the costs for the state and prevent copyright holders from carrying out useless renewals. The renewal requirement in the US was sporadically criticised for having caused the unintended loss of a number of copyrights. This might be true. However, even worse, the current copyright system causes by contrast the unintended lasting of countless copyrights, with a devastating impact for the public domain.
'Copyright should last forever less one day!'
(Jack Valenti, long-time president of the Motion Picture Association of America)
The debate over the adequate term for copyright protection is as old as copyright legislation itself and fortunately, participants in the discussion have in general shown more respect for the public interest than Jack Valenti when he made this unfeasible remark. Despite this controversial discussion, a consistent and worrying trend for ever-longer copyright protection has continued over the last years.
For instance, in the United States the copyright term was only extended twice over a period of 150 years. However, during the ensuing 45 years between 1962 and 2007 copyright duration has been extended 11 times with the result that copyright now basically lasts for 70 years after the death of the author, or 95 years for a work of corporate authorship. Just as a reminder, copyright protection under the English 1710 Statute of Anne (arguably the world's first fully-fledged piece of copyright legislation), new works were protected for 14 years from the date of first publication, renewable for another 14 years if the author was still alive at the time when the first term expired. In the European Union the copyright term was also extended a few years ago to 70 years from the death of the author, and Mexico has in the meantime introduced a term of protection for selected works of 100 years after the author's death. By the way, the term for patent protection in most countries is only 20 years from the filing date of the application. Against this backdrop, it is about time to pick up on this topic again.
I don't want to beat around the bush here: I firmly believe that the current term of copyright protection is significantly too long ' not only the 70 or more years provided for in numerous national legislations these days but even the minimum term of protection of 50 years as stipulated in the Berne Convention for the Protection of Literary and Artistic Works. Such a long protection term is usually utterly unnecessary. Sound economic analyses have shown that the commercial life of the vast majority of creative works of any kind is very short, although modern technologies have undoubtedly potentially increased the commercial life of works. In his book Free Culture, Lawrence Lessig pointed out the fact that in 1930 10 047 books were published of which only 174 were still in print in the year 2000. Therefore, our current laws are tailored for the few exceptional cases rather than the normal situation. Such an approach is inherently dubious and - more importantly- diminishes the public domain substantially with obvious detrimental effects for the development of humankind.
Necessary or excessive?
Copyright protection is often referred to as a necessary means to incentivise the creation of works. This argument is proposed to justify further extensions of the copyright term, but it is obviously ill-conceived, especially as far as the extension retrospectively applies to older works; or are we seriously discussing an additional incentive for the creation of a work that has already been created ' possible by an author who has long since died? As far as the creation of future works is concerned, the argument neglects the fact that these days the actual authors are often not the copyright holders of the works they create. More importantly, no empirical research has ever proved that prolonged copyright protection increases the output of protected works. Because it doesn't.
A simple calculation illustrates how excessive the duration of copyright protection already is. Let us assume a copyright term of 50 years after the death of the author is applied to a work, and that the author dies at the age of 75 and the author, as well as, his child have children at 25. The author dies the same year his great-grandchild is born; this descendant will have a child 25 years later, and only when this child's child (the author's great, great, great-grandchild) is born another 25 years later copyright protection expires.
Against the backdrop of such far reaching protection, extending copyright is unlikely to cause the creation of a single additional work that otherwise would not have been created, particularly if one considers the above-mentioned short commercial life of most creative works. We must, after all, not forget that we are dealing with a legally sanctioned monopoly. It is for these and other reasons that a number of leading economists - including 5 Nobel Prize winners - argued, albeit unsuccessfully, against extended copyright protection in the United States of America through the Sonny Bono Copyright Term Extension Act of 1998 (CTEA) in 2002. Supreme Court Justice Stephen Breyer wrote in this regard that he 'cannot find any constitutionally legitimate, copy-right-related way in which the statute will benefit the public. Indeed, in respect to existing works, the serious public harm and the virtually nonexistent public benefit could not be more clear.'
Having said this, I do not contest that the financial incentive associated with copyright protection is one way (of many) to stimulate creative output. Moreover, I acknowledge the authors' desire to be adequately compensated for the time and effort they invested. Long gone are the times when creative minds could work without taking financial aspects into consideration because they were sufficiently funded by patrons, the government or the church. Yet, an ever-longer term of copyright protection is not only an impractical but perilous way to achieve both increased output and fair compensation. Automatic copyright protection is the default situation in many countries. In other words, subject to a few rather simple conditions, no action is required from the author for the work being protected for 50, 70 or even more years after the author's death. Of course, the negative impacts for the public domain (this essential pool of free knowledge on which we all depend in order to further development) are grave.
Solutions
In my opinion two measures are necessary and suitable to address this problem. These measures require concessions from both sides, advocates for the public domain and the authors / right holders alike, but will eventually benefit most people involved. Firstly, the term of copyright protection needs to be drastically reduced in national legislations and hence the relevant international treaties need to be adjusted in this regard. Extensive empirical research is necessary in order to establish the appropriate protection term which should be in conformity with the average commercial life of the specific kinds of works. In this respect I suggest a rather generous determination. If necessary, further sub-categories for works can be introduced. I am convinced that in many instances 10 years of protection or even less will prove sufficient to accommodate the financial interest of the creator.
Secondly, right holders should have the opportunity to renew their protection for one or even more times. That way a longer exploitation of exceptionally successful works becomes possible. Admittedly, this procedure could entail a significant administrative effort and it might raise relatively high costs for a country to set up and maintain a system like that. Yet, the macroeconomic benefit of a facilitation of access to information for the public of this magnitude is apparent and outweighs the expected difficulties. Moreover, in other areas of intellectual property law, namely patent and trademark law, a renewal requirement is common practice and works satisfactorly - and the experiences for example in the United States with the formal requirement of a registration for copyright protection until 1989 were not solely bad. The imposition of a renewal fee would lower the costs for the state and prevent copyright holders from carrying out useless renewals. The renewal requirement in the US was sporadically criticised for having caused the unintended loss of a number of copyrights. This might be true. However, even worse, the current copyright system causes by contrast the unintended lasting of countless copyrights, with a devastating impact for the public domain.
tags: South Africa policy-law copyright
extracted from:Creative Commons
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