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What is the Optimal Copyright Term?

7189560845_f80b6e6ac6_bThe TPP may have locked in a copyright term extension which required all 12 signatories to extend their copyright term to death plus seventy years, but not everyone has accepted that this is the way things should be.

Tim Harford, the Financial Times’s Undercover Economist, writes on his blog about the recent ruling over Happy Birthday to You. That ruling didn’t set copyright law precedent so much as it settled a minor point over who owned the copyright to the song, and in doing so it demonstrated just how many problems are caused by the current lengthy copyright terms.

That ruling did not, as some reported, declare the song to be in the public domain. Instead it merely said that Warner/Chappell did not own the copyright, and left the question of ownership unanswered.

We don’t know who owns the copyright, or even if it is owned. Thanks to overlong copyright terms, these details have been lost to the sands of time.  Harford uses that point as a springboard for a cost-benefit discussion on how long copyrights should last while still providing the optimal gain to creators:

So, bearing in mind that this is a pragmatic question, how long should copyright last? The current answer is 70 years after the death of the author — typically about a century. That is absurd.

Most books, films and albums enjoy a brief window of sales. Both author and publisher will have reckoned on making whatever money is to be made within a few years. Some works, of course, are blockbusters that continue to be valuable for decades. In such cases a century of copyright is valuable — yet redundant for the purpose of encouraging innovators. (The cases where works lie undiscovered for decades before finally finding a vast audience are too rare to shape any rational rules on copyright.)

The truth is that 10 years of copyright protection is probably sufficient to justify the time and trouble of producing most creative work — newspapers, films, comic books and music. Thirty years would be more than enough. But we’re moving in the opposite direction, with copyright periodically and retroactively extended — as though Antoine de Saint-Exupéry or James Joyce could ever have been motivated by the anticipation that, long after their deaths, copyright terms would be pushed to yet more ludicrous lengths.

He’s got a point.

Out of all the books published in the 1970s, how many are still worth republishing today? Is it even 5%?

Are there enough works of value 30 years to justify locking _all_ works down with a copyright term that is, as far as you or I are concerned, effectively forever?

The copyright term is now so long that nothing created during my lifetime (or even my mother’s lifetime) will go into the public domain before I die. That is effectively an eternal copyright.

And sadly, Harford was also correct when he explained why that’s not going to change:

Why don’t we see a more sensible system of copyright? Two words: Mickey Mouse. That is an oversimplification, of course. But the truth is that a very small number of corporations and literary estates have a lot to gain from inordinately long copyright — and since it matters a lot more to them than to the rest of us, they will focus their lobbying efforts and get their way. Mickey Mouse will enter the public domain in 2024 — unless copyright terms are extended yet again.

So what’s to be done?

Undercover Economist via BoingBoing

image by NASA

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fjtorres October 7, 2015 um 4:29 pm

Out of all the books from the 70’s?
Well, if you’re talking general fiction and bestsellers, probably none. Those rarely age well.

But genre fiction?
A lot. Probably a majority.
(Romance and mystery simply become period pieces. SF becomes alternate history. 😀 )
For something like fantasy and horror, nearly 100%.
If it was readable in 1970 it’ll be readable today.
You can probably go back to the 50’s and very little changes. To find a real difference in readability you need to go prewar and it is mostly because the genres themselves were immature.

Don’t forget, some genres are very respectful of their history and the backlist can be very good and valuable.

Maria (BearMountainBooks) October 7, 2015 um 4:53 pm

Life plus seventy barely takes care of the life of the author and kids. If you’re lucky and talented enough to have created something that still brings in money 70 years after your death, I think it’s great that the kids (and maybe grandkids) can benefit. I think we need to value individuals and their talents–and create a sense that it’s worth working hard to attain something that can benefit a person for life.

Nate Hoffelder October 7, 2015 um 6:18 pm

I think it’s time to retire the myth of the solitary creator. It may have been true at one time but it’s not true any more.

No music, no movies, almost no apps, and no books have a single creator any more. They all have multiple people who add to the work. With books this includes everyone from copyeditor to cover designer, dev editor, and illustrator, but with music or movies the list is even longer.

All (most) of those contributors were paid on the basis of work for hire. Can you come up with a good reason why the original creator shouldn’t be paid on that basis as well?

Maria (BearMountainBooks) October 7, 2015 um 6:48 pm

While nothing is created in a void, much of who continues to get paid can be easily decided upfront (and has little to do with copyright and more to do with contracts). Some trad houses have very successfully done work for hire. That is up to the author to decide how they want to be paid because they are going to be the ones to put butt in seat and write the words and get them approved/bought. If work for hire works for them, that’s fine. (Kensington ran an imprint for years that was done via work for hire.)

If I create a work and hire people who agree to "work for hire" as editors, that agreement does not include paying them past that work. But all of that is between those working on the project–not really the whole copyright argument (which is that it should somehow just revert to the public good for anyone to sell or profit from, a public that has not worked on the project and may add very little to the project.)

A reader finds my book and pays for it. That may happen to last past my lifetime and maybe the lifetime of a kid or grandkid. It may benefit my heirs as opposed to me, but there’s no reason it shouldn’t last past my lifetime. MANY people invest in land for their kids or a house. An author invests in creating a book and may do so with the intention of supporting herself and her family past her life. WHat if she dies when the kid is 2? Is that kid then just supposed to get a job??? How would it be fair to say, "Oh, you are dead, too bad you died early. Your kid has no rights to inherit your book so we’re just reverting it to the public. Your kid can starve even though you spent your life creating something that people are willing to pay for.

The reason for copyright is to give the product value–rights that can be sold. Just like any commodity–land, house, food, whatever. It gives the author the ability to make a living because if everyone could just cut and paste and upload and download, there would be no value and no reason to create stories. Being able to pass on this thing of value makes it all the more WORTH investing in as an author. No one works their entire life hoping to leave nothing to their children. No one buys a tangible good like a house and hopes the government just comes in and gives it away when they die.

The argument that more than one person helps really has nothing to do with copyright. You could easily write a contract that all those who helped have some portion of proceeds from sales (And that is what a publishing house does. It holds the ability to sell certain rights for whatever the agreed upon time limit and they continue to benefit just as much as the author or more so).

If I choose to sell audio rights via Amazon, I can choose to have the narrator get half the royalties. That narrator is then entitled to longer proceeds than if we do "work for hire." The narrator also owns copyright on the NARRATION. The author still owns the rights to the story. But many narrators PREFER to be paid upfront. That’s just an agreement between parties.

Maria (BearMountainBooks) October 7, 2015 um 6:56 pm

BTW, when it comes to cover design, the cover designer often retains the rights to that cover. So, for example, when I got the rights back for Year of the Mountain Lion, I either had to pay the cover illustrator again or come up with my own cover. It was not a work for hire. It could have been, but it was not. My point is that MANY of the contributors are paid as work for hire along the way and some are paid more than once for the work, depending on how that work is used. Most cover illustrators sell various rights to a cover that may only include "sales to 250k copies" and very often are NOT exclusive. That means they can resell elements or even the whole design. They own the copyright–they are not work for hire. Narrators sometimes use the same rules. It is not just authors who have copyrights on these things. There are often people who own copyrights to the fonts on the front cover and they are paid multiple times for that font. So to ask WHY an author shouldn’t be work for hire–she can be. But she needs choices, just like anyone taking any kind of job. Copyright provides those choices for her because it protects her from other people borrowing her characters/world/stories and selling them.

So again, it’s not a copyright issue so much as a contract issue for how a "creator" or "contributor" chooses to be paid. There are lots of options.

neuse river sailor October 7, 2015 um 7:54 pm

I do think there should be some reasonable copyright but it makes me cringe when I see arguments that lack of copyright means "…there would be no value and no reason to create stories." Really? No reason? None? Maybe not as many reasons, and maybe none for some, but do you really want to argue that, without a potential monetary payout, there is no reason, never, none, to write a story? So if a story can’t be monetized, it has no value, no reason? Emily Dickenson never made a dime off her poems, so they have no value? T.S. Eliot was so wealthy that any money he made off his works was a pittance, so his work has little value? I wonder if some people just don’t understand the creative instinct, just don’t understand the primal need that people meet in themselves. They must not, or they wouldn’t devalue creativity to the extent of saying that demonetizing it makes it worthless.

Fbone October 7, 2015 um 9:41 pm

Maria, that is what life insurance is for. Term insurance is very cheap and more reliable.

fahirsch October 8, 2015 um 7:54 am

Go back to the Constitution. The Founding Fathers never intended that copyright be eternal.

Nate Hoffelder October 8, 2015 um 8:01 am

It’s funny you should mention the Constitution. The original 28+28 year term would have given nearly all the commercial value to the creator, fix the current orphan work problems, and provide max benefit to the public domain.

Will Entrekin October 8, 2015 um 8:01 am

Out of all the books published in the 1970s, how many are still worth republishing today? Is it even 5%?

I don’t know the answer to either of those questions. What would make republishing them "worth" it?

Maybe a better question is to how many of them would you like access? I don’t know that I want to buy everything, or read everything, but I’d like to be able to if I wanted to.

I also don’t think the argument that multiple people, like copy-editors and cover designers, are involved in the creation of a book really says anything about ownership or implies much about copyright. I think a good editor is much like a good producer of a CD; integral, even critical, to the process, for sure. But in the end, Hysteria is still Def Leppard’s album, not Mutt Lange’s.

Nate Hoffelder October 8, 2015 um 8:06 am

"I don’t know the answer to either of those questions. What would make republishing them “worth” it?"

I was thinking of whether it would be worth investing the money to reprint a book or scan it and make a POD/ebook version. For most titles, I doubt it.

fjtorres October 8, 2015 um 10:47 am

Converting pbooks to ebooks is not rocket science nor terribly expensive. The only particularly labor-intensive part is proofreading and any English major intern can do that. I’ve proofed entire books in less than 4 hours (hint: MS Word flags 90% of the issues). Using a chain of interns (the way the Potter books were pirated on release day) can easily average 1 book per intern per day. Minimum.
That works out to $100-200 if you actually pay the Interns.
A cover and conversion is a few hundred but if you’re cheap you can give it a generic cover and feed it straight to Kindlegen from the Word file.
Total direct investment even with cover is a few hundred bucks.
Price it at $3 and you’re in the black in less than a year, selling one copy a day.
Or you can do what the movie studios do and bulk license them by the thousand for a fixed period and up-front cash payment for a subscription service. Instant cash from a dead asset.
The only thing that makes backlist "expensive" to tradpubs is their overhead and their reliance on frontlist release window revenues.

A readable book is a readable book whether it is fresh off the Chinese printing plant or written thirty years ago. And if you haven’t read it is literally as good as new.

Not converting backlist is a waste of assets and something no tradpub can afford, moving forward. That right there will solve the mythical "orphan works" problem.

Dan Meadows October 9, 2015 um 10:32 pm

Well, one reason it shouldn’t extend into multiple future generations is the public domain. Copyright terms extending over a century are suffocating it for the benefit of an extraordinarily small percentage of creative works. Copyright is supposed to be a balance and part of that is the public domain. No creative works are produced that don’t draw on elements of the culture the artist lives in. You can’t reap from the culture, profit from it for over a century before you have to give back and sow, after the vast majority of works will be useless or long-since mired in obscurity.

If your hypothetical author had a property valuable enough that a 2 year old child can grow up and live comfortably without having to get a job, then she would have likely made a nice chunk already. Why shouldn’t artists do the the same thing as most everyone else and use the money they make from their work to provide for their and their family’s future? And if a property is so valuable decades upon decades later, it’s likely trademark would protect it in many similar ways. And with trademark, you actually have to use and defend it to keep it, a notion totally congruent with copyright’s stated intent to "promote the progress of the useful arts and sciences." If the property is valuable enough that it’s earning a century on, then it shouldn’t be a problem maintaining those trademarks indefinitely, into future generations. That would also put a stop to collecting and squatting on rights for decades like many media companies do now.

Overlong copyrights benefit a tiny minority at the expense of everyone else (even themselves if they could see past the dollar signs). Creating an artistic work is not the same thing as building a business. You can certainly do that around the artistic works, and that business could be handed down generationally. But the works themselves have to return to the culture in a reasonable amount of time to be useful to that culture in order to seed the ground for future artists (and their own future works). That’s not happening now and it’s likely part of the reason we’re seeing increasing amounts of recycled properties being cranked out from our largest entertainment producers.

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