What is the Optimal Copyright Term?
The 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?
image by NASA