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Australian Gov’t Proposes a Economically-Justified Reduction in the Copyright Term; Authors Protest

5374200948_539b10fb1c_bThe Australian Productivity Commission’s draft report on reforming that nation’s copyright laws is continuing to spark incendiary rhetoric.

Before, publishers were protesting the recommended lifting of trade barriers on book imports, and now authors are objecting to a proposed reduction in the copyright term.

The Productivity Commission found in the draft report it released last month that when it comes to copyright, shorter was better.

While hard to pinpoint an optimal copyright term, a more reasonable estimate would be closer to 15 to 25 years after creation; considerably less than 70 years after death.

Naturally authors disagree.

Business Insider quotes author Richard Flanagan’s fact-free emotional tirade against the proposed term reduction:

“It may seem at the moment that the only thing that will save the Australian book industry is moving every publisher and writer into Christopher Pyne’s electorate, and making them all wear hi-vis jackets and safety helmets,” Flanagan began his address.

“The Abbott and now Turnbull governments’ record drips with a contempt for writers and writing that leaves me in despair. They want to thieve our past work, and, by ending parallel importation restrictions and territorial copyright, destroy any future for Australian writers.”

Flanagan’s tirade against the the Coalition was unrelenting in its savagery. He follows other prominent authors, including Tim Winton and Tom Keneally, the Australian Society of Authors and the Copyright Agency speaking out against proposed changes to the Copyright right.

There was no more substance to his diatribe than the average The Authors Guild screed against Amazon, and frankly, the facts simply do not support his position. There’s a strong argument that the benefits of reducing the copyright term far outweigh the costs.

But first, it’s worth pointing out that international treaties like the Berne Convention and the TPP have rendered this discussion moot. There’s simply no way for Australia to really reduce its copyright term, so this is less political debate than a theoretical discussion.

With that in mind, the Productivity Commission has a point.

3153515590_67fc4bafbb_bThe original justification for copyright, before corporations got greedy, was to provide a financial incentive to creators to make more works so that society as a whole can benefit when those works fall into the public domain.

Recognizing the need to balance the needs of creators with that of the public enables us to define the term "optimal copyright term". If you’ve been following copyright debate for long enough, you know that this is the length of time which enables creators to gather the majority of the economic value while minimizing the harm done to the public by the copyright monopoly blocking them from using the work.

What harm is done to the public, you ask?

As Nina put it, copyright can be viewed as a type of brain damage as applied to our shared culture.

An optimal copyright term would minimize the damage while maximizing the benefit to creators.

This is a point that economists have been debating for a couple decades now (if not longer), and while you can’t get them all to agree on a specific copyright term the general consensus is that death plus 70 years is to long. 99% of works have no value by that point, and the only parties that benefit are the corporations which control vast catalogs of works of negligible economic value.

5640739307_3c0057fc19_bInstead, economists have concluded that a term of 7 years, 14 years, or as long as 30 years would better serve the public’s interest.

I know that is going to make corporations howl, but according to the Australian Bureau of Statistics there’s solid data to back up the argument. Their stats show that most works make most of their revenue in the first few years:

  • the average commercial life of music is between 2 and 5 years. Around 70 per cent of musical originals provide a return in the first 2 years, with the remaining 30 per cent providing a return fairly evenly over the next 3 years
  • literary works provide returns for between 1.4 and 5 years on average. Three quarters of original titles are retired after a year and by 2 years, 90 per cent of originals are out of print
  • most original visual artistic works have finished yielding an income within 2 years, but the distribution is highly skewed and a small proportion of works receive income over a longer period. These works represent the majority of income received
  • the average commercial life of film is between 3.3 and 6 years. This estimate is benchmarked against similar international markets including the United Kingdom, Europe and the US. Very few films make money in their sixth year (ABS 2015b).

As I wrote earlier in this post, the facts are on the side of reducing the term of copyright to a more reasonable length of time, perhaps letting the public live long enough to see works created during their lifetime go into the public domain.

Alas, the bribe money is not on the side of a shorter copyright term, which is why the copyright term is extended again and again.

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Fahirsch May 20, 2016 um 2:41 pm

This picture from Wikipedia is interesting:’s_graph_showing_extension_of_U.S._copyright_term_over_time.svg

Mike Hall May 20, 2016 um 3:03 pm

I’m not convince by your "solid data", it sounds too much like a reflection of the old traditional publishers way of screwing up authors' careers. In the new world there is no reason why books should be out of print after two years, or at all, and plenty of hybrid authors are making money on the backlist their publishers abandonned.

If there is minimal demand for a work after 5 or 10 years I would question whether there is any cost to it retaining copyright protection – if nobody wants to read it no harm is done by keeping it in copyright, though we could do with making this protection depend on an entry in a register of copyright owners.

I do think that life+70 is too long, especially for work done when tbe author was young. Also, I’m not convinced that all mediums deserve the same term. Photographs, for example, could have a much shorter term, possibly with the right of renewal for the very few for which someone would want to extend the copyright.

Darcy Conroy May 20, 2016 um 7:29 pm

You make many excellent points about parallel importation and copyright beyond the author’s life benfitting only corporations but your assertions that copyright should end within the creator’s life do not stand up and are astonishing coming from a publication called The Digital Reader based as they are upon assumptions from 'old publishing' like this one: "literary works provide returns for between 1.4 and 5 years on average. Three quarters of original titles are retired after a year and by 2 years, 90 per cent of originals are out of print".
Anyone writing for The Digital Reader should understand that a) nothing goes out of print anymore and b) the entire reason 'new publishing' promises a chance for writers to make any kind of living from their work is because it allows for longtail sales – that is, it allows readers to find the full back catalogue of a writer whose work they discover and like. The fundamental mechanism of the publishing economy readers' natural instinct to finish a piece by a writer and, if they liked it, to say to themselves "That was great. What else have they written?" There is NO valid argument to suggest that just because that moment comes 10 years after a book was written that the author should not benefit from that reader seeking out their work.
You are making the same error that Nina does in the video you embedded, and the same mistake Richard Flanagan makes (again and again) and that is not seeing a separation between writer/creator and publishing house/corporations. While the creator lives, they should have every right to choose who and how their work is used (without being accused of causeing brain damage to the creative mind – how ridiculous) and should have the ability to make money from their own labour and to stop those they do not want making money off their labour from doing so, too. The solution is not to wipe out creator’s rights entirely (as Nina would do) nor to limit them to some arbitrary number of years – the solution is to make them indivisble from the creator. A creator’s rights to exploit their work are based on the idea that a person’s labour is valuable and should be compensated – no other person, and certainly no corporation can make that claim over someone’s work so it makes no sense for that right to be transferable.
Let’s try not to throw the baby out with the bathwater, eh?

Michael Prior May 21, 2016 um 12:01 pm

I think the Austrainian Bureau of Statistics is forgetting something. How many people have made careers out of a series of books or movies. If copyright is limited to just a few years it allows other people to exploit both derivitaive right in the idea of sequils but also who would license a book for a movie if copyright only lasts 5 years? by the time most movies would be finished being made the book would be close enough to being out of copyright you would never have to involve the original author of the work.

Nate Hoffelder May 21, 2016 um 12:19 pm

You should go back and read that again. No one said copyright should only last five years.

The PC proposed a reduction to 25 years, not five.

The ABS merely said that most works don’t make money after the first few years. It did not recommend making the term that long.

John May 21, 2016 um 5:47 pm

I’m an NZ author. We’ve tinkered over here with numerous law changes (not copyright so far) and the net result is six major publishers have departed our shores and our writing community has disappeared. You could argue market forces and economies of scale prevail now with 90% of books being purchased from overseas giant publishers. Arguably their products are better and cheaper than NZ made books. The point we’ll never know is if we’ve missed an opportunity to grow our industry – particularly the export sector of Kiwi publishing.

Mackay Bell May 21, 2016 um 7:07 pm

It’s absolutely absurd to say that the "average" commercial life of whatever is "X" given we have entered just the beginning of a digital age where the commercial life of all art can be extended indefinitely. Artists for the very first time in history can now distribute on their own and take advantage of unlimited shelf space. Whatever these statistics are based on, they are completely irrelevant now.

Moreover, just because most artist efforts don’t become mainstream successes, and/or corporations abandon old works in favor of new, doesn’t mean the creators of successful work should be punished by having their copyright protections taken away from them.

There are good arguments for strengthening fair use, but really none for forcing creative works into the public domain, other than the desire of certain people to take advantage of them for free. Compelling counter arguments can be made that less access to public domain material might force corporations to pay artists more to create new material. (Disney’s preference for public domain fairytales is very much related to not wanting to share profits with writers for the creation of original material.) If, to just pick one example, big studios can use any music they want for free after 25 years, there is less incentive for them to hire musicians to make new music for their films. I can’t think of anything more absurd than the idea that major films could be packed with old Motown hits and the writers of them get nothing.

This is really just the "free beer is good" argument with some odd trappings of technobabble about access to media. It might sound nice if everything was free. Why shouldn’t food be free, and housing, etc. Experiments along those lines have failed.

The argument is not "copyright gives artists motivation to create more work." According to the Berne convention, copyright is a human right. It’s the right to be acknowledged, and rewarded, for your original contributions to the human race. The guy who thought up Star Wars brought a lot of joy into people’s lives. He has the right to make a lot of money from it. People who don’t want to pay, can invent their own thing. Thousands and thousands of barely changed Star Wars rip-offs have been produced in books and movies that are already taking advantage of the ideas he created. They don’t have to be able to say "Use the Force" or the name "Luke Skywalker."

Let the Wookie win.

puzzled May 21, 2016 um 7:43 pm

Hmmm… Are we starting to see a new meme from the authors?

"the old data on copyright is meaningless because it doesn’t truly reflect the changes wrought by digital"

A simple solution to reform copyright is to reduce the length of copyright, but allow it to be extended, at a reasonable, but relatively significant cost (to minimise mass renewals by the publishers). By requiring registration, it is easy to determine whether or not a work is under copyright, something that becomes next to impossible in the current scheme, as witnessed by the difficulty in attempting to publish orphan works, not to mention something as ubiquitous as "Happy Birthday".

To the authors that claim that digital means that their work will always be 'in print', this only applies if the publisher wants to keep the digital version available.

Mackay Bell May 22, 2016 um 3:15 am

This is not a new meme. Mark Twain (like many writers) self-published in the 1800’s and was very involved in arguing for the original US 50 year extension. (He felt 25 years was unfair.) It’s hard to understand why, as he was aging, Twain should have lost any ability to profit from the great books he wrote when he was younger. He also argued that his children should benefit from them. Not quite sure why taking away his rights would help society.

Just because Nina felt inconvenienced by having to get the rights to an old song doesn’t mean all artists should have to lose control of their works in their lifetime (or the lifetime of their children). She states that all music is controlled by a few corporations. Well, it isn’t. The Beatles control their catalogue. Yes, lots of artists get taken advantage of, but that doesn’t mean we should punish the ones that do hold onto their rights. (Particularly in a digital age.)

Also, a very important note is that in order to get one of the Mickey Mouse extensions, those big corporations had to agree that writers could revoke ANY contract after 35 years if they were unhappy. So all U.S. writers have the right to take back their copyrights after 35 years. Cutting copyright to 25 years would mean writers would never get their rights back if they signed a bad deal to begin with.

It’s kind of amazing with all the hand ringing about how writers don’t get paid anymore because of the internet, we would try to roll back one of the few tools they do have to get paid.

Darcy Conroy May 21, 2016 um 10:09 pm

You, too, are making the same mistake assuming publishers are the only ones putting out books. Writers no longer need publishers – they themselves can keep their work "in print" and make money from it – this is what is now happening. Mid-list authors are getting their rights back from publishers who are no longer publishing it and, for the first time, are able to live off the longtail sales. If the copyright were made 15 years many of these authors would return to needing second jobs because the moment their own PR paid off and they resurrected interest in their writing, the publishers could just take advantage of that and start printing them again, or put out eBooks and make money from them again without paying a cent to the author.
I know it’s never applied in the publishing industry but their is such a thing as a creator’s moral right to make money off their own work before anyone else does. This is an industrial dispute – writers have been exploited by publishing for long enough.

Fjtorres May 22, 2016 um 12:34 am

Midlist authors *were* getting their rights back.
It has since become harder and harder and is by now well-nigh impossible.
Traditional publishers are now well aware of the value of even slow-selling IP. Pretty soon they’ll even notice the value of non-selling IP.

Mackay Bell May 22, 2016 um 3:20 am

Writers of any works created after 1978 can revoke the copyright of any contract they sign after 35 years. A long time, yes, but it’s important writers know that. They can start renegotiating 10 years before hand so they have some leverage before insisting to revoke.

Darcy Conroy May 22, 2016 um 10:07 pm

Yes, you’re right and it indeed proves the point – there’s a process the trad publishers seem to go through now when an author makes a move for their rights according to the "out of print" clause in their contract. The first step of which is to almosr immediately fire out an eBook to undermine the assertion that it is out of print. Of course, they don’t release it anywhere that the book might compete with one of their currently annnointed authors (I remember one author who reported that the suddenly-in-print eBook was available only from the publisher’s Greek site, nowhere like Amazon where they might actually sell).

Rasputin May 22, 2016 um 7:15 am

Funny how Australia is so much more progressive that the USA and the UK.

Hannah Steenbock May 23, 2016 um 5:57 am

"Literary works provide returns for between 1.4 and 5 years on average. Three quarters of original titles are retired after a year and by 2 years, 90 per cent of originals are out of print."

This is no longer true with ebooks. So at least this part of the argument is demonstrably false.

Having said that, +70 years after death really is a long time, and only befits publishers and estates.

Sita Sings the Blues on Copyright | An American Editor May 30, 2016 um 4:01 am

[…] to The Digital Reader for bringing Ms. Paley’s TED talk to my […]

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