And the Beat Goes On
Larry Lessig has started off the new year with an excellent article in the January, 2005 issue of Wired:
They're Not Worthy:
Why extend the copyright on works that no longer have commercial value?
This New Year's Day, a wonderful thing will happen in Europe that won't occur again in the US until 2019: Copyrights on music and television recordings will expire. After a half century of monopoly protection granted artists in exchange for their creative work, the public will get its justly earned free access to an extraordinary range of both famous and forgotten creativity. Libraries, archives, and even other creators can spread and build upon this creativity without asking permission first. Songs from 1953 that seniors across Europe wooed their first loves to can be streamed across the Net for free.
Lessig explains that this annual event doesn't happen in the U.S. because Congress keeps extending the length of time that creative works retain copyright protection. Our representatives have done this 11 times since 1960, and so in this country, it will be another 15 years before the public domain expands.
Does this make sense? Let's go back to the fundamentals.
According to the U.S. Constitution, copyright exists "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". That is, the Constitution presumes we (society) will get more inventions (books, songs, movies, etc.) if we set aside some amount of time when only the inventors (authors, songwriters, producers, etc.) can profit from those works. When we extend the term of copyright, so the theory goes, we're offering greater incentives to the creators of intellectual property, and thus can expect them to create more.
In 1998, Bill Clinton signed the Sonny Bono Copyright Term Extension Act into law, lengthening the term of copyright by 20 years.
"Bob, we understand you didn't feel motivated to write any new songs because those copyrights would only last until 50 years after you were dead. But, see, now we've added an extra 20 years, so you'll still be earning money 70 years after you're dead. You'll write those songs for us now, won't you, Bob?"
Let's not worry for now how many new songs have been written since 1998 under the life-plus-70-year term that wouldn't have been written under life-plus-50. The question to ponder is why the extension was made to apply to works that already existed. Their authors had already decided that the "limited period" in effect at the time was adequate. Extending that period for works already in existence could have no conceivable impact on the creation of new works. A nice little puzzle, isn't it? For more on this particular question, see the history of Eldred v. Ashcroft, a case that challenged the Sonny Bono law and other copyright extensions. Regrettably, the challenge failed, ending with a 7-2 Supreme Court decision in January, 2003.
Returning to the Lessig article and the difference in copyright terms between the U.S. and Europe, we read that the sponsors of the 1998 extension said it would "harmonize" our laws with those of Europe. The harmony, though, has turned out to be one-part: Our copyright terms and Europe's are still out of alignment. But that problem is easily solved. Now Europe can use the lengthened U.S. term as justification for extending their own copyrights, and on and on we'll go in a never-ending search for the perfect chord:
This spiral will not end until governments recall a simple lesson: Monopolies are evil, even if they are a necessary evil. We rightfully grant the monopoly called copyright to inspire new creative work. But once that work has been created, there is no public justification for extending its term. The public has already paid. Term extension is just double billing. Any wealth it creates for copyright holders is swamped by the wealth the public loses in lower costs and wider access.
After you've read the Lessig article, here are some additional resources on copyright terms and their impact on society:
As noted by the Duke Center:
Our economy, culture and technology depend on a delicate balance between that which is, and is not, protected by exclusive intellectual property rights.
Many feel that this delicate balance has tipped damagingly in the direction of overprotection of intellectual property rights. After reviewing Lessig's article and the other material, you may, too.
Steve
This message reflects the opinions of the author, and not necessarily those of EDUCAUSE or its members.
