The term of copyright is a controversial and much argued issue. How can we minimise any negative consequences without robbing anybody of their property?
Copyright lasts a pretty long time. If I live to 75, the copyright in this article will finally expire some time in 2114. After that it will be in the public domain, out of copyright. Anyone will be able to use and my successors – probably my great-granchildren – will no longer have control over it. But until then you’ll need my, or their, permission to do anything with it.
Of course the chances that anyone will have even a remote passing interest in this article in even a few years are pretty remote. It won’t take a century for this article to be forgotten, an irrelevant piece of ephemera. Despite that, the law as it stands hands the same protection to everything, from the emails you send and receive every day to the great works of William Boyd, The Walt Disney Company and your brother-in-law.
Good arguments against long copyrights
This gives rise to many, and sometimes quite emotive. arguments. People rail against the length of the protection, claiming corporate interests are trying to monopolise and protect their greatest assets. Disney, frequently, is blamed for copyright term extensions which coincide with the looming expiry of rights in early Mickey Mouse cartoons. Opponents of the long term of copyright have many eloquent and outspoken supporters.
Another common complaint is that most of the content protected by this long copyright term doesn’t want to be. Despite being effectively abandoned by its authors, who have long since stopped caring about their work of decades before, nobody can use it without their permission which – if they can’t be found – can’t be given. So huge amounts of work – so-called “orphan” work – is caught in a sort of copyright limbo, effectively held in stasis while the copyright clock slowly ticks down to its eventual transition to the public domain.
Economists talk about economic incentives, and say nobody creates anything with a mind to a hundred years or more of payback to justify their efforts, and copyright term should only be as long as needed to create the incentive to create something in the first place. So a few years is more than enough.
Copyright term means you only temporarily own your own work
All of these arguments step around one key point: copyright is property. It belongs to someone. And the law forces them to give up ownership of it at some stage, whether they like it or not.
When you stand back and think about it, that’s kind of strange. It doesn’t happen with many other kinds of property which, generally, you own indefinitely. Why should copyright ever be given up at all? It’s not as if it’s a shared, natural resource or something. it’s yours – you made it. Without you it wouldn’t exist. So why shouldn’t it stay yours?
Why shouldn’t my work stay mine?
One answer to this question is a cultural, or moral one. Copyright should pass to society, to the public domain, for the public good. We should all have access to knowledge, and copyright should only exist as an incentive to create things in the first place. Once your investment in creating it has had a good chance to be re-couped with profit, copyright should end. That way the greater interests of society are served.
Another, the subject of much anguished hand-wringing in the USA, is because the US Constitution (sometimes treated, to cynical British eyes anyway, with a little too much quasi-religious reverence) says that copyright should be for a “limited time”. Speculating about what the founding fathers meant by this is a peculiarly american way of tying yourself in knots.
What does it mean in the real world?
My instinct is to think about the realities. Where, in real terms, can the negative impact of copyright terms be seen? Can we, on the other hand, see any positive impacts?
As I have said before, one of the great balancing acts performed by copyright is to limit appropriation of something (copying) without limiting inspiration. The truth is that almost all creative work can trace its inspiration back to something someone has done before. Because copyright encourages access to knowledge, and doesn’t limit what can be done with that knowledge, it drives creation of vast amounts of new work all the time. Which I think is a good thing. The economic incentives are strongly to create new things rather than re-cycle old things.
I suppose this does mean that some old things get lost along the way, effectively impossible to re-commercialise without risk because the copyright owner can’t be found (although, as an aside, the risks are often quite small and manageable). But I’m not sure that is the terrible tragedy it is often portrayed as. There are lots of arguments, many of them theoretical, about the negative impacts, but even where they’re real I think the best solution is for the law, and technology, to incentivise commercial solutions than to reduce copyright term and simply appropriate the value from those who created it.
A bad moment for change
We should also think about the moment we’re currently in. One of the main reasons why works become orphans is because it stops being commercially viable to exploit them. In the physical world of content there are always costs involved in keeping something available, even if you don’t sell any. In the digital world that’s not true – once something is digitised it can sit in a server waiting for a buyer at virtually no cost at all.
That means that many of the things currently unavailable or considered “orphan” could be brought back into commercial availability by the people who own the rights. What was previously lost can be rediscovered and brought back into circulation. We’re already seeing this happening with e-books – there are plenty in the Kindle store for £1 or less. And with digitisation of printed books possible for about $50, the investment is low enough to encourage huge amounts of books to be brought back into print. In other words the commercial incentives are just beginning to be enabled by technology, now would be a bad time for the law to intervene.
Ultimately, creators choose copyright
There are good arguments on all sides of the copyright term discussion. You can equally well argue for a perpetual copyright term (as Mark Helprin, with some contortions to avoid arguing against the “limited time” decree of the US Constitution, does) as an incredibly limited one.
In truth most of these arguments are a thought experiment, an exercise of imagining how much better the world would be if only it was the way you want it.
Personally I’m inclined to the view that copyright term is fine, too long for some purposes, too short for others but in the end if you have to have one rule to apply to all material, longer is better. We should be looking to address any perceived unwelcome side-effects using technology and commercial solutions.
The truth is that the law shouldn’t need to decide. Creators can choose to put their work wholly or partly in the public domain any time they choose. Projects like Creative Commons exist to make it easy. The law as it is gives creators the chance to make their own choice about how much they want to take advantage of their copyrights.
The reality is that most of them choose not to give up their rights. Which to me means that the argument for forcing them to do so by reducing copyright term needs to be overwhelming.
In my view that argument has not yet been made.