How long should a good thing last?

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.

Comments

14 Comments so far. Leave a comment below.
  1. mtm,

    Limitless copyright would result in the suppression of historic works, contrary to the goals of copyright law. How, for example, could one license a two-hundred year old book where all of the intellectual property rights had passed through intestacy?

    • Well yes. Fair point. And I don’t think I would argue for indefinite copyright, for various practical reasons. But there are good arguments on both sides of the debate, some of which don’t get much heard. And, to your point, there are plenty of examples of property of various kinds staying much longer than 200 years in family ownership, being passed down the generations. And there are lots more examples of creative works more than 200 years old which maintain their relevance alongside their cultural and commercial value. The truth is that copyright law incentivises the creation of works in the first place but not, particularly, the continued availability of out of copyright or commercially non-viable works. The very old works which are still in general circulation (rather than being confined to libraries) are there because of their continued commercial value, not because copyright expired. The fact that the successors of those who created these rare examples are unable to benefit from them doesn’t strike me as innately fair.

      Obviously as I said there are good arguments on both sides (that someone should randomly benefit from something someone did 200 years ago could also be classed as unfair – although that argument can be applied more widely than copyright). I just get a bit suspicious when this is cast as a moral issue, an ideologically driven good-versus-evil showdown. Obviously legislators have to make judgements with the overall interests of society in mind, so obviously lines are going to be drawn somewhere, but I do think the debate has been corrupted somewhat by people with an agenda presenting their views as morally superior.

      • What exactly is innately fair about someone continuing to derive an income from work their great-great-grandfather did?

        The problem with long copyright terms are that it sets up an artificial situation which wouldn’t exist in other forms of business. If a father passes on a buisiness to his son which manufactures widgets, the son can’t expect to live off the widgets his father made and sold 50 years ago. He has to keep manufacturing new widgets and maintain a profitable business by himself. Even if you inherit land, it’s useless by itself unless kept productive, which requires constant effort. The only effort copyrighted works need is to ensure the royalty cheques keep coming in.

        Another important point- going back to our hypothetical widget manufacturer, the widgets only remain the manufacturer’s property until sold. Once you’ve made your money on them they’re not yours. Yet copyright owners can make a sizable profit on their works, and yet still retain ‘ownership’ for a long time. (This is mitigated, mind you, by the fact that creative industries are a hit-and-miss affair, and there’s no guarantee your next book/record/film will be as sucessful as your last.)

      • And what about fathers who pass on houses, heirlooms, paintings or just money to their offspring? There might be some tax to pay but it doesn’t expire (there is also tax when businesses are handed on of course). And land is valuable whatever you do with it, on the whole.

        Businesses, of course, need to be nurtured; objects less so. Most IP is worthless long before the term expires anyway, but not all.

        And there is only one type of property which has to be forfeited to the state in this way.

  2. Great blog! Completely agree with you.

    Just thought I’d share a bit of my own to get the debates and discussions flowing!

    http://sammy-charlesworth.blogspot.com/2011/11/project-1.html?spref=fb

    • Thanks Sammy… I looked at your page and I am not sure how clear it is what you mean when you say you’re “against copyrighting”. Do you mean you’re against copyright (i.e. anyone should be able to make copies of anything without restriction)?

      • Oh sorry, I haven’t really explained it very well in my blog.

        I guess I agree with the way Copyrighting works because I want to save the creative industry from losing out on money, as they’re losing out because of pirated films.

        I just need a way to introduce the creative industry to people who don’t know a lot about them and hopefully by creating a campaign, it’ll change peoples minds about pirating because of the effect it has on the industry.

  3. Well firstly the idea that copyright is the “property” of the rights holder is to some extent a misnomer. In a very limited way it behaves like reaal property- rights can be bought and sold, for example, and the holder has within limits, exclusive jurisdiction over its use. But unlike real property, it has a defined time-limit, and there is a clearly-defined concept of the public domain. After a while, consensus has it, works stop belonging to the author (or whoever the rights are sold to) and belongs to the whole of society.

    Secondly the idea that orphan works won’t necessarily stay that way isn’t guaranteed, and in the meantime, andy utility that could (and arguably should) be gained from those works- perhaps making a source of information available to researchers carrying out important research.

    Lastly it’s also important to note that the length of copyright terms have progressively increased over time, to an extent that cannot be simply explained by authors living longer. Is there any real justification for this?

    • That’s all true, but I guess to an extent it’s a philosophical debate. One important aspect of the current debate is that it needs to be held clearly and honestly. So we should not conflate issues. I am not, by the way, suggesting you have done so but your comment brought to mind some of the confusing arguments sometimes deployed by those who want to attack copyright in general and use copyright term as a basis for their attack.

      Clearly copyright is time-limited and there is much interesting debate to be had about how long that time should be. While we’re having the debate the law is currently clear and everyone is subject to it. As long as that is the case, it’s important for everyone to accept that while copyright subsists, it IS treated as private property and can’t simply be ignored. If we can have the debate on that basis and without conflating issues then it becomes a much more valuable and educational debate.

      On orphan works, you’re right that outcomes can’t be guaranteed but if they are attractive and positive then surely we should all work towards them, the more so if the same approach also gives rise to a more diverse and vibrant marketplace for copyright works more generally. If there is some enormous cache of un-utilised value locked away in orphan works surely the best way to discover and exploit it is via the market?

      • Well I certainly don’t see myself as conflating anything, and I also believe that how the law treats things now plus the philosophical implications are very much intertwined.

        You are perhaps right that the rights of the creator or rights holder over the duration of copyright term are clear in the law, but that’s not quite the same thing as it being property. Or at least, it isn’t freehold, but leasehold. Under such conditions, as I understand things, the lessee has the right to ocupy and use the property, and can buy or sell these rights, but doesn’t strictly own the property and has rights only until the lease runs out, after which they revert to the true owner. If “intellectual property” truly belonged to the creator, in the freehold sense, those rights would not run out. The true owners in this sense are the people at large, as represented by the state and international treaty setups.

        This I think is very important, as is why it is the case. Ideas and information, for one thing, are not the unique ‘ex nihilo’ product of their authors, but generally build on what went before, whether it be the obvious direct adaptation of an older work, or the borrowing of themes and contents. A new work will in turn feed countless others. There’s the whole “Death of the Author” concept (from the essay by Roland Barthes) which states that meaning in a literary text shouldn’t be confined to what the author “meant it to say” but rather what the audience ascribe to it. (The author then can’t truly control it and thus take ownership of it.) You could add that for anything that becomes popular, its fans almost feel as though they “own” it anyway. They care about what the author does with a work or franchise, and complain when they don’t like what they see. Look at something as trivial as the “Han shot first” debacle with Star Wars. Lastly, we understand that a given point, cultural heritage is too important to be left in the hands of the few, and belongs to everyone. Hence public domain.

        Yet of course we still have the idea of “the author”, who after all puts their efforts into the making of a work, it’s “their idea”, they feel as if they ought to own it and control what happens to it, it seems natural that they shoul, and if nothing else, offering their work to others means they ought to be at lest paid for their services. Copyright is, essentially therefore, a compromise. It allows creators or distributors certain rights, but to say they “own” it in the true (or freehold) sense, legally or otherwise, is a flawed concept.

        So why does this matter for term lengths? Well, those who would argue that copyright is property would erhaps feel as though they want to hold it indefinitely, which could be a strong reason for the tenedency towards ever-increasing term lengths. On the other hand, you have those who think no-one truly “owns” information or ideas, for whom the very idea of copyright should be eliminated altogether, or at least minimised only enough to let creators make money from their works. The question is, just where do you make the compromise? If you drift towards the former end, long terms seem right. If you drift towards the latter, long terms seem unjust. Frankly we ought to be asking ourselves, what is copyright really, and why is it there in the first place? To me, the idea of freehold-style ownership of intellectual works just isn’t there, and the fact copyright terms were much shorter (initially 28 years with the Statute of Anne) suggests the idea that the author should maintain control of a work even for the length of their lifetime was never meant to be the case. If this is not made clear, those who argue for freehold ownership of “IP” will simply wish to try and enshrine what is seen as the natural rights which follow.

        Regarding orphan works and market forces, I don’t think you can leae such things in the hands of the market. Market forces are at the whim of profitability, and there’s a fair bet that the rights holder will not release an unpublished work merely bcause one researcher finds it important to his own work- unless perhaps he has plenty of money, which likely as not he won’t have. Market forces assume that what you value more, you’ll pay more for, which isn’t always realistic or at least fair. They also do not account for the fact that rights may not always be clear- which I think is the truer meaning of “orphan work” than merely something unpublished- something cannot be released if the rights are uncertain.

      • I don’t think the freehold/leasehold comparison works very well. Copyright isn’t a finite thing, you don’t make a claim on a piece of property which is then denied to someone else because you got there first (the same is not true of patents, of course, but that’s another discussion altogether).

        Creativity is, in its way, infinite. Nobody is denied space to do their own thing just because you did your thing first.

        That being the case, and the converse also being true (nobody has to create anything, and if they don’t the “space” will just be a vacuum, there will be nothing taking the place of the un-created work) why is it fair to think of copyright as something which is on loan from the state to the creator?

        You must also remember that copyright does not protect ideas or information, only the expression of them. You have complete freedom to be inspired by something which someone else created – and you’re right that all creativity feeds off the work of others. It always has done, and nobody has waited 70 years and more after being inspired to create the product of their inspiration (or, at least, if they have they probably died first)

        We have to bear in mind that there are two arguments here. One is based on the long history, tradition, legislative bargaining, established practices and business imperatives which make up the copyright status quo. Obviously this is the reality of the world we’re in.

        What I am talking about is the basic principles. If you stand back from the status quo, and stop treating is as divine commandments for a moment (the 28 year term in the Statute of Anne wasn’t “meant” to be anything other than the reflection of the political and practical environment of its time. The Statute of Anne wasn’t handed down on tablets of stone by God, after all), what is actually fair and reasonable? I’m just not sure I agree with you about leasehold and freehold. I don’t actually favour perpetual copyright but for practical more than ideological reasons.

        By the way, on orphan works, where do you think this great lobby has come from? The reason for all the noise is that someone has seen a chance for some profit! I think the market would take this space in very interesting directions, actually, once the practical problems were solved. They won’t be any day soon, so perhaps it’s moot, but the future problems can be substantially mitigated. In a world where permissions were easy and cheap to obtain, and the costs of production were low, I think a whole new creative world would emerge of people doing clever things with stuff which everyone had written off. Not to mention the obvious and straightforward opportunity from republishing old works with a close-to-zero cost of delivery. Don’t write off markets too easily, profit isn’t a dirty word and delivers many more positive outcomes than perverse ones.

      • Of course perhaps I am missing your main thrust here- of course those against copyright should be aware of what the law actually does say, and not ignore it merely for their own ideological purposes- unless of the view that one has no moral obligation to follow what one percieves to be an unjust law, of course.

        Thus, it is one thing for us to discuss what the law should be, another to discuss what it is. The trouble is, is your assessment- or perhaps mine, given I’m much less of an expert in these matters- correct? Is the term “intellectual property” in the very laws perhaps confusing and cotradictory?

  4. Somehow the software doesn’t allow replies to be nested any deeper, so I’ll try and deal with it as best I can.

    1. On inheriting property: you are talking about tangible objects (or perhaps land) which has some inherent value in itself. Information is not only an intangible, but the effort and cost required to reproduce (i.e. copy) it is negligable. Tangible products, once sold, make no more money for their maker without investing exactly the same amount of effort, money and materials to produce another. Moreover informaton which can be easily copied is a non-scarce resource whose value could easily be reduced to negigable. Maintaining copyright for so long is an artificial attempt to maintain value in both these areas.

    It’s difficult enough getting or heads round the idea that you can own an intangible, of course. If we started thinking of the creation of works offered to the public for money as a service rendered, another intangible not treated as “property”, we might start understanding the nature of copyright a little differently.

    2. Re. the freehold/leasehold comparison: no, it’s not a perfect analogy. But what other form of “property” has an expiry date after which any rights the holder has ceases?

    The fact it is recognised that a “public domain” ought to exist into which a work passes suggests to me that the creator does not completely own the work, much the same as leasehold. Most people do see this as right and fair. I explained in a previous post, and above, why I don’t think that a creator should irrevocably “own” a work in perpetuum.

    3. On basic principles vs. the status quo: I would imagine that laws don’t happen without reason. The fact that copyright terms seem to have been much shorter in the past suggests to me that having copyright terms of such length is hardly an absolute, and suggests something about the original reasoning for copyright and the public domain being somewhat different from what justifies the present setup. Why is it fair now to limit the rights on a work now for such a length of time, but not then?

    I suspect most of the reasoning has to do with protecting the right of the author to make a profit on their work, perhaps to encourage creativity by limiting the availability of less-than-original ideas. But it would seem just as unfair to limit this perpetually, if only because some things become part of the popular culture and thus a common heritage.

    4. On creativity and inspiration: I suppose theoretically it is infinite, but there are still quite clear limits on what works and what doesn’t. Most people would probably rather listen to Mozart than Stockhausen, say, and if the latter represents what innovation in ‘classical music’ became in the 20th century, then clearly it is running dry in terms of what has broad appeal. Some things are going to inevitably become similar to others, and how similar is too similar?

    Yes, of course, ideas themselves are not copyrightable, only the form those ideas take. But many works have been directly based on other works, or have been so obviously similar to other works they probably would have invited a lawsuit if they’d been done without permission were they not in the public domain. That room to manouvre might still exist, but would not be as easy if license had to be negotiated and royalties paid.. Yet we still see these things as being worthwhile.

  5. 5. On orphan works (again): I am sure markets can take things in some interesting directions, though when it comes to an easy way to obtain permissions: how are you going to do that?

    No, profit isn’t a dirty word (as long as it is honest profit), but it isn’t necessary alll the time when it comes to running a society.

    I doubt it’s necessarily always a case of “follow the money” where lobbying is concerned- as I understand there are interests in the academic world (and academics aren’t generally in it for the money given what they tend to get paid!) You also get, say, the abandonware scene which is basically eople wanting to donload old retro games for nothing- site owners don’t make any money off downloads themselves. It’s just people wanting to play old games they once enjoyed but can’t, because no-one is re-releasing them. As I commented elsewhere, another reason people turn to piracy because they can’t get what they would be quite legitimately able to pay for. The markets could be working here, but they’re not.

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