Copyright law: inherently unequal?

Copyright law: inherently unequal?

Copyright law matters to you as a reader.

It has a huge effect on what is available to you.

Books that are not under copyright protection, that are in the “public domain” (owned by the public), are often available free as e-books. No one needs to be paid for the rights to publish those, and with the advent of e-books (and in particular, the exemplary and valuable work of Project Gutenberg), an effort has been made to take advantage of the low costs of production and distribution to let readers read them.

For books under copyright protection, it is that law which largely makes it possible for authors to make a living as writers.

By setting the rules under which books can be reproduced, the government creates a structure of compensation.

Certainly, it is possible to distribute works without regard to copyright, and to simply ask for people to pay for them, if they want. It is a stretch to see that generating the kinds of income we see through licensing of works, though. You could also have individual contracts to allow the reading of the books, but that would be unduly cumbersome.

So, copyright is important: and the fairness of the ability to use that copyright to make money from your intellectual property is important.

In the USA (and in many other countries), that opportunity is unequal.

Why?

The copyright terms are based on the life of the author plus a certain number of years (in the USA, it’s Life+70).

The intent here, presumably, is that the author and the author’s children (if any) can benefit from the creation of the book…and after that, the government removes their right to control the work, and it falls into the public domain (effectively eliminating its value as a way to generate income).

I’ve wondered before if the idea of a copyright term like that is a good idea in and of itself. See what is perhaps my most controversial post:

Should copyright be permanent?

There are those who simply don’t believe in copyright…if you create something, they argue that the society should have unencumbered (and uncompensated) access to it. I assume they also think it is okay to go into a stranger’s house and eat the food in their refrigerator, or to drive away with someone else’s car without their permission.😉

Let’s leave off the extremes of permanent copyright and no copyright, and just look at the issue of Life+a certain number of years: what’s wrong with that?

You want to know what’s wrong with that? Mortality.

Suppose a fifty year old writes and publishes a book. Let’s just say that, on average, that book is going to generate royalties of a thousand dollars a year.

We’ll further say that the author can be expected to live to be age 100.

That book will generate $120,000 for the creator and the estate: one thousand dollars each year of the author’s remaining life,then a thousand dollars a years for each of the subsequent seventy years.

Now let’s do that math with a twenty year old author.

Again, assuming they live to be 100, there are eighty+seventy years of copyright protection: that’s a lifetime value of $150,000. That’s $30,000  (25%) more.

Given the statistical probabilities of life expectancy, the older author won’t earn as much as the younger author for the same thing…and that’s unequal protection under the law, and should be illegal under the Constitution.

The “equal protection” of the Fourteenth Amendment actually only applies to the states, as I understand it, but in Bolling v. Sharpe, the Supreme Court basically said the Federal government shouldn’t have a lesser responsibility than the states, and so “equal protection” is sort of covered by “due process”. I’m not a lawyer, but that’s how I read it.

I’m surprised this hasn’t been successfully legally challenged, but given that Life+x years is a widely used copyright term in other countries as well, I assume there are treaties involved. That complicates things.

I also don’t like Life+, because it makes it much harder to figure out when something goes into the public domain! Just knowing when something was first published in the USA doesn’t do it (if the publication is after 1977), since you have to know when the last surviving author died. For famous authors, that’s not that hard to find…but not all authors are famous. With something like half a million independently published books a year now (I’ve seen that estimate), it’s going to be very difficult to figure out.

You often don’t even know the author’s real name…there is no requirement that they put that on a published work, and copyright exists even without registration (although it’s more difficult to go after infringers if you don’t register it).

Do I think a challenge to the Supreme Court could change Life+ to a finite term? I do think it could be successful, but I really don’t expect it to happen.

We will simply continue to institutionally disadvantage older authors as a group.

That is, unless there is really major overhaul of copyright, which I would like to see.

I still find the idea of permanent copyright, in exchange for greater Fair Use provisions, to be an intriguing idea. I’m not advocating for it, and it doesn’t seem to be what copyright was intended to do (the Constitution specifically calls for “limited times”), but things have massively changed in terms of content consumption in the past couple of hundred years.

The market value of Sherlock Holmes is arguably much bigger now than it was when the copyright term first expired, for example. One could argue that that is in part due to it having gone into the public domain (for the most part…some of the original stories are still under copyright in some parts of the world), allowing for more experimentation with the character (and perhaps more nimbly adapting to changing audience tastes).

I also have people say that they don’t like that it would be corporations owning the rights a hundred years after the author died, not the author and their descendants.

That point, though, may be changing. As independent publishing becomes increasingly viable, more authors will retain their rights…and could have something to pass on to generations of descendants.

The other argument I get from people is about “cultural ownership”. Shouldn’t Shakespeare and Mark Twain’s works belong to everybody equally? I’m not quite sure why. If you can take the rights away from the family 100 years after it was written, why not 99? Then why not fifty? Then why not after one week? I just haven’t quite understood the logic of that, and I’d be happy to have someone explain it to me.🙂

What do you think? Is the copyright concept of Life+ unfair? It doesn’t matter how old you, the rule is the same…it’s just that we know that, statistically, the result won’t be: is that okay? Copyright terms have continued to get longer since they were introduced (in the USA) at fourteen years, renewable once (if the author was still alive…not a certainty, given life expectancy in the 1700s, and the age at which someone might publish back then)…do you think that will continue to be the case? Feel free to tell me and my readers what you think by commenting on this post.

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12 Responses to “Copyright law: inherently unequal?”

  1. Phink Says:

    I think it should be four score and seven years after it is published. Seriously, four score after publication sounds about right. I am the biggest capitalist you will ever find and even I don’t think forever copyrights are a good idea.

    • Bufo Calvin Says:

      Thanks for writing, Phink!

      So, what’s the difference between the government terminating the rights at 87 years or at 87 days?

      Let’s tell this hypothetical story…

      An author publishes a book at twenty years old. It’s an amazing book…gets critical acclaim, and popularity. Over the next eighty years, it’s adapted into two movies, a successful TV series that runs for a decade, a videogame, and some medium we don’t now about yet.🙂

      However, a few years later, the author is 104 years old…and still mentally sharp. The author has a grandchild (about sixty years old) with a horrible condition and needs a transplant. It’s a genetic condition…the author didn’t have it, but the grand-child does, and the next two generations are likely to have it as well.

      There’s been a big upsurge of interest in the book: the star of the Oscar winning movie version has recently died…and this is the role that made the actor a superstar. That’s created a lot of buzz about a remake.

      The author approaches a movie studio, as a way to make enough money to pay for the transplant, and to fund some research that might help the further descendants.

      The movie studio says, “Nah, we’ll just take a few years to line up the cast we want, and get everything in place…and then your copyright will have expired, so we won’t have to pay you anything for it.”

      What don’t you like about “forever copyrights”…in exchange for greater Fair Use rights? What I’ve explored is the idea that even current works could be used for academic and research purposes without clearance or compensation…but commercial uses stay with the rightsholder.

      • Phink Says:

        You know, as I was reading your post a light bulb went off and I thought ‘of course’. The Walton family’s interest in Walmart does not expire in the future. What if Walmart became public property in 80 years after Sam Walton died or 80 years after they opened for business.

        I think the flaw in my thinking came not from critical thought but rather from ‘the way it’s always been mentality’ and ‘forever is a long time’ mentality. Is the Harry Potter universe any less the property of J.K. Rowling than than the Papa John’s corporation is the property of Papa John. Would it be honorable and correct to seize his property in the name of public interest from his grandchildren? Wow! I can’t believe I was in favor of seizing private property, which is what a book is.

        Intellectual property is just as valid as any other property. As of 5 minutes ago I became an absolute supporter of ‘Forever Rights’. Thank you Bufo for bringing up this subject, which forced me to think about something that never crosses my mind. Though, and discussion, are such an important part of life and again, thanx for helping me see the error of my ways. Of course, others may think I am now on the wrong side but that’s OK too. If you live in a country where everyone agrees, then you do not live in a free country.

      • Bufo Calvin Says:

        Thanks for writing, Phink!

        I’m always glad when someone (including me) can see something from another perspective! That’s one reason I love the conversation that happens in these comments, and why I encourage people to tell me and others what they think.

        Going back to the idea that someone owes society their intellectual property because they were given protection against infringement by copyright law, and analogizes it to your example, it would be like saying that the Walton heirs owe Walmart to society because they were given fire and police protection for the buildings and inventory…and of course, for the trademarks involved. On one day, the store and name would be protected. On the next, the government wouldn’t stop anybody from going into the store and taking whatever they wanted, or calling their gas station mini-mart a Walmart.

        Why should that be the case for something wholly created by someone, which still has commercial value?

  2. Edward Boyhan Says:

    We have disagreed on this before. I vehemently disagree with you on the notion of permanent copyright. All intellectual property laws are an attempt to BALANCE the economic needs/desires of the intellectual creation with the desires of society to ultimately benefit from those creations. That is why there are time limits on patents and copyrights.

    The framers understood that permanent protections could lead to the creation of economic dynasties. There is explicit language in the US constitution that recognizes that. There is in the US ethos (I believe) a desire for economic leveling. The creator should get all the benefits that the traffic can bear during his lifetime. His spouse and minor children should be taken care of as well. Our society is focused mostly on meritocratic principles. Adult children should find their own way they should NOT benefit from creative endeavors in which they had no part in creating.

    Also many copyrights end up under the control of corporations — this again I think tends away from the legitimate needs of society to benefit from past creativity — it should not be locked up in the cellars of corporate entities.

    BTW copyright is not just about books, but also much software — in fact there is a major case heading to the supreme court pitting Google vs Oracle over a software copyright issue.

    This is not just some issue of a poor lonely author, his heirs and assigns. The problem with permanent (or long terms — thankfully patent terms are reasonable) copyright is that over the long haul society suffers so that heirs and corporations which had nothing to do with the creation benefit.

    I can’t believe that I (a staunch conservative republican) just wrote the foregoing (:grin) — but there you are.

    • Bufo Calvin Says:

      Thanks for writing, Edward!

      Based on the meritocracy argument, would you be comfortable with a 100% death tax? When you die, everything you own goes to the government, which then uses it for “economic leveling”?

      If you aren’t comfortable with it at death, would you be comfortable with it at seventy years after death? If so, what’s the difference?

      I do think the political philosophies applied to this would be interesting…

      I would expect libertarians to oppose copyright, generally, with a belief that society would make sure authors are compensated fairly.

      My intuition would be that Republicans would tend to favor longer copyright terms, since that benefits people who have created a compensation structure. You write a book, you work hard, you earn the right to the compensation…without “seizure” for the public good.

      On the other hand, I could see Democrats going either way…favoring “societal good” by making works as publicly available as possible, or seeing copyright as protecting the “little guy” against the “big guy”.

      I’m an independent myself…I register as “decline to state”. I like getting campaign material from everybody.🙂

      From what I’ve read on the Statute of Anne (which formed the basis of our copyright laws), I don’t think it was really concerned with “copyright dynasties” in making limited terms. It was more to prevent the monopolization of the material during the lifetime of the author.

      Do you have a citation for where copyright and inheritance are addressed? I’d like to read it…I’ve found a little bit on it, but nothing where that seems to be expressed as a concern.

      Yep, I think pretty much everybody disagrees with the idea of permanent copyright.🙂 It’s one of things that I like on this blog, that people will respectfully disagree with me, and we can still go on to discuss other topics without rancor.

      • Edward Boyhan Says:

        It’s funny — as I was writing my comment, I was thinking about my position vis a vis death taxes (which I dislike), and also on the fact that my father died in 2010 — the one year in which federal inheritance taxes in the US were zero (:grin) — so I benefited there.

        I make a BIG distinction between INTELLECTUAL property and other kinds of property. The latter bucket I have no problems with being passed down unto the infinite generation.

        Intellectual property laws come about because society has an interest in providing incentives to the few people willing and able to engage in intellectual property formation because it is this formation that ultimately provides benefits to us all. If we did not provide compensation of some sort to these creators, then we would largely do without what they might have created to the detriment of us all.

        So compensate the creators and their immediate families, but then the fruits of their creativity redound to society — after all it was society which put in place those intellectual property protections that enabled them to benefit from their creativity in the first place — otherwise they might have ended up flipping burgers at the local Five Guys emporium (:grin). And society has not provided those protections out of the goodness of its heart — no it expects to benefit.

        I think copyright terms should be much shorter. Many of my concerns have to do with things other than books (where long terms on non-book items like software are arguably extremely harmful to the economy) — still I think it’s wrong that almost all of the most popular titles of a PG Wodehouse or a Rex Stout (both of whom died in 1975) are still under copyright!

        And for lesser authors of a similar time period because of their only middling popularity, and that the copyrights are held (or effectively controlled) by big tradpubs who decide things based on bottom line considerations, their works are out of print and not available at all — where’s the fairness in that?

      • Bufo Calvin Says:

        Thanks for writing, Edward!

        I’m glad the conversation continues!🙂

        It’s interesting: I think that the creator of intellectual property has much more entitlement to controlling the benefits of it into the future then someone who simply buys a piece of physical property. That’s a place we appear to differ. While, if I’m reading you correctly, you would be fine with somebody buying a Model T and then it being passed down through multiple generations (with ownership), you don’t feel the same about a story someone has written. The story has essentially infinite value, created out of nothing. Someone reading Dickens today can get the same value out of it (perhaps even more) than someone did reading it when it was first published. That feels different to me than that purchased car, or land, or toaster…as it does to you, but we seem to be falling on different sides of the fence.😉

        I don’t see how the government granting a copyright is something that needs to be “paid back”. Couldn’t the same argument be made about the police protecting your car from theft? “Yes, while your grandparent was alive, they owned the car. However, it’s five years later…and you owe us for the police protection during that period.”🙂 There is a lot of discussion about whether copyright grants a protection which otherwise doesn’t exist, or recognizes a “natural right” of the creator.

        I lean in the direction of “natural right”. I feel like I should have the ability to control something I wrote, because I wrote it…not because it may hypothetically benefit society in the future.

        Society does benefit from a work while it is under copyright…I don’t think i’s a “goodness of the heart” issue. When someone is being compensated, the work is still impacting society…and the government is collecting income taxes on the royalties.

        I don’t see anything wrong with copyright still existing on Wodehouse and Stout. Would it be nice to be able to read them legally for free? Sure. Do I feel like I have the right to do that? Nope…

        On your last point, I think a requirement to publish is a reasonable thing. You have to keep the work available to the public (even at a cost) to maintain ownership of it. What prevents a company from placing, say, a $10,000 price tag on a novel to keep it out of the hands of the public? Reversion of rights for lack of sales…something which I think would become increasingly common with licensing of something with a forever copyright, and which does exist now in many contracts.

  3. tuxgirl Says:

    I may have said this before here, but I prefer a different form of copyright. It is an attempt to mitigate most of the downsides of current copyright law, and I believe would be acceptable in terms of not disadvantaging specific authors.

    In my hypothetical system, there would need to be a publicly accessible database in order for the system to work.

    All works would have an initial copyright term of 25 years (or some other reasonable yet short length). At that point, a nominal fee (let’s say, $50) can be paid to extend the copyright an additional 5 years. That renewal can be completed every 5 years for as long as the copyright holder (and/or their estate) wishes. So, a copyright holder that is earning more than $10/year (or is willing to pay that much to hold onto the copyright) can have that copyright permanently. But, it still protects orphan books from being lost if there is no known copyright holder.

    There would need to be some adjustments made to handle treaties — perhaps auto-renewal for items where the work occurred outside the US until it reaches the copyright term of the country where the work occurred? And the starting period would need to be handled. Perhaps any works that have existed for longer than 50 years start with only 5 years, anything that has existed between 10 and 50 years starts with 15 years, and anything between 0 and 10 years old counts from when it was first created. (Assuming my math is correct, that should make sense).

    I would prefer to remove the ability to sell copyrights or assign them in anyway besides through an estate/inheritance/will. I don’t like the idea of a large corporation or someone rich buying up other people’s copyright, then holding onto it forever.

    The exact numbers in this could easily be adjusted, but I think it’s a sane set of defaults. I can’t imagine many copyright holders for whom $50 would be too expensive for a 5 year renewal on the copyright.

    And with a publicly accessible database, it would be simple for anybody to check whether a specific item is public domain or not.

    • Bufo Calvin Says:

      Thanks for writing, tuxgirl!

      I agree: a publicly searchable database of all US copyright records seems like it would be very useful and a considerable economic boon to the country. It astonishes me that the online database

      http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&PAGE=First

      only goes from 1978 onward. It doesn’t have to go back beyond 1922 (those are in the public domain anyway), but they clearly have the records for earlier than that and digitizing them can’t be that big of an expense.

      I do think $50 would be a burden on many copyright owners. Many people don’t make $10 in a year on something they have published…but it would certainly generate a lot more income for the government from copyrights (unless it resulted in many fewer copyrights being filed and renewed).

      However, I am fine with a requirement to keep something publicly available in order to maintain the copyright, similar to how trademarks work. Maybe a three year period on that each time, although I’m a bit reluctant to add the complication to a flat term.

      If we had the publication requirement, it might mean that an author needs to make a work available for free, if they can’t find a publisher or they don’t publish it themselves (the latter is going to be increasingly an affordable option). However, it doing so, they wouldn’t surrender their rights, and could release it with DRM (Digital Rights Management).

      I think your system is a possibility…I don’t think it would be applied retroactively, though.

  4. Peter Willard Says:

    Have you ever read “Melancholy Elephants” by Spider Robinson? He published it in 1983 and it has some interesting things to say about copyright. It is available online at http://www.spiderrobinson.com/melancholyelephants.html

    • Bufo Calvin Says:

      Thanks for writing, Peter!

      I’ve read Spider Robinson (Callahan’s Crosstime Saloon), but not that one…I’ll take a look, thanks!

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