Should copyright be permanent?

Should copyright be permanent?

Note: this is a re-post of an article which originally appeared in this blog on 2010/08/09. I am scheduled for major surgery on January 17th, and I don’t know how quickly I’ll be able to write after that. So, to keep the content going, I am pre-scheduling posts. It’s possible conditions have changed since I wrote it, but I’ll try to lightly edit these when that’s necessary for clarity. 

“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.”
—Article 1, Section 8 of the U.S. Constitution

This is going to be an unpopular suggestion.

I personally benefit greatly from copyright having a limited term.  A lot of the books I read are ones that are free to me, precisely because their copyright terms have expired.

Having a limited term undeniably benefits the reading public.

Why would I want to look at an idea that would take something away from you and me, something that has been in place in the US since 1790?

Times have changed, and I want to make sure that what was fair and logical when the Constitution was first written is fair and logical now.

That’s what the writers of the Constitution intended…that’s why there is the ability to amend the Constitution, and why it has been amended more than twenty-five times.

That’s the first argument I know I have to address.  The Constitution specifically says, “for Limited times”.  It would require amending it to make US copyright permanent, and that’s not likely to happen.

That’s why Jack Valenti reportedly suggested that copyright should be “forever minus one day”, so there was a limitation and it could be done without Constitutional amendment.

That is a trick of the “how”, though.  It’s not about the why.  I’m not going to try to suggest the how of making copyright permanent.  I want to look at if it makes sense.

Using the Constitution literally means one has to also question whether fiction should be copyrighted.  That’s not part of  “Science and the useful Arts”, as quoted at the top of this article.

What would happen if fiction couldn’t be copyrighted?  I think people would still write fiction, but you wouldn’t be buying it.  As soon as a book was released, copies could be made and distributed for free, under the law.  Essentially, you wouldn’t have professional authors.  If copies could be distributed freely, you wouldn’t have a business of publishing.

There are people who shiver at the idea of  a “business of publishing”.  They think art should be given freely, and be part of the culture.

If that’s the case (and there are people who argue this point), copyright laws shouldn’t exist.

However…

I think most people see the value of copyright to the society.  Let’s take an early driver of copyright concepts, the idea of making a map.  Maps of a coastline, for example, were difficult to make…even life-threatening.  Let’s say a cartographer took months carefully navigating a coastline, and made a map.  Once the technology was there, other people could easily copy that map and distribute it.  If the original mapmaker has no control over that, you are probably going to have a lot fewer maps made.  The drive to create the map may still be there in the individual, but what company will sponsor the expedition with no chance of financial return?  How is the mapmaker going to afford to take the time away from their normal profession to make the map?

I think that one seems obvious.  Does the public benefit if the map is given away for free?  Yes…assuming it exists at all.  If the map isn’t made because there was no one to finance the expedition and no one who could afford the time to volunteer to make the map, the public loses out on it.

I would suggest that the same thing applies to fiction.  Without copyright, the public would see fewer novels…they wouldn’t see zero novels, but fewer.

So, let’s accept that the idea of some copyright is justified for the sake of this article.

Why, then, should it be limited?

The concept itself seems odd to me.  When you set a time limit on a copyright, you give people a certain period where they can benefit from their own work.  We don’t do that with anything else (except patents, of course).

From a business sense, publishing a novel is somewhat like opening a restaurant.

People pay to enjoy the experience.  Most restaurants fail within five years, I believe.  Most paper novels went out of print within five years.

If you have a unique vision, though, a special experience, people can want to enjoy it for decades…centuries.

Imagine the government saying, “You have ten years to benefit from your restaurant.  At that point, even if you are fully booked every night, the public gets to take over your restaurant.  They don’t have to pay you any money to eat there.”

Some restaurants might take years to become popular.  If the restaurant is doing great ten years later, why can’t you keep charging for meals?

Let the public decide how long the value lasts, not the government.

I don’t think anybody made much of a flap over the original 1790 US copyright term being fourteen years because most works didn’t have a commercial value fourteen years later.

Technology has changed that.

We can now easily enjoy works that are decades old.  That’s certainly part of what has changed.

Many early movies have simply fallen apart.  In the early days of television, the shows weren’t recorded.  It either wasn’t possible, or it was too expensive.

Technology is not the only thing that’s changed, though.

When I liked listening to music from the 1930s and 1940s during the 1970s, that seemed crazy to a lot of people…certainly eccentric.  How many high schoolers in the 1970s listened to the Dorsey brothers?

How many high schoolers now listen to the Beatles or the Rolling Stones or the Ramones?  All decades before their time.

In the 1960s, nostalgia began to rise as an economic force.  You saw posters of W.C. Fields and Humphrey Bogart.  The Universal monster movies appeared on TV, and in the Aurora model kits.

Kids in the 1950s didn’t think fads of the 1920s were cool in the same way.

Star Wars is three decades old…Star Trek is four.  How many of the biggest moneymakers of 2009 were based on fiction more than fourteen years old?

Okay, not too many people want to go back to a fourteen-year term.

How short makes sense, then, if the economic value is still there?

A current widely used term (in Europe, the US, and South America) is Life+70 years.

The copyright lasts for the life of the author plus seventy years.

That is presumably to say that your children and grandchildren can benefit from your work.

That seems inherently unfair.  First, if I write something that people are willing to buy for two hundred years, why shouldn’t it benefit my descendants for that long?  Why does the government get to say my family can benefit for so long, but no longer?

Second, it seems ageist, and I’m somewhat surprised it hasn’t been successfully challenged on those grounds.

If a twenty-five year old writes a bestseller, it is likely (but not inevitable) that she or he will get more economic benefit out of it than a ninety-year old who writes a bestseller.  I don’t understand that.

Of course, a twenty-five year could die at twenty-five.  A badly-timed step off a curb or a drunk driver could see that.

“Sorry, kid…your grandfather could have provided for you, but he was in the wrong place at the wrong time…so we say you can’t make any money from that classic he wrote.  Oh, I know your buddy can…but her grandmother lived to be 108.”

The other thing is that the “Life plus” means its harder to figure out if a work is in the public domain or not.  Let’s say you buy a book published in 1980 at a garage sale.  You’ve never heard of it before, but it’s great.  The printing company is out of business.  You’d like to make it available to other people.  You Google the author…no information.  You can’t tell if it’s okay to publish it or not.

It would save a lot of money and time if we weren’t in doubt about whether or not something was in copyright.

I’d suggest that rightsholders have to keep on file with the Copyright Office a way to contact them…that would make things simple.

One of the arguments I’ve had people make against this idea is that they don’t want corporations to control classic works of art.  “Would you want Sony to own the works of Beethoven?”

If it’s okay during the copyright term as it is now, why isn’t it okay two hundred years from now?

If Disney can own The Lion King now, why can’t it own it later?

What changes?

Is it great that college theatre groups can do Shakespeare without paying royalties?  Sure, that’s great for the community!  Wouldn’t it be great if they could do Wicked?  Um…wait, you say, Stephen Schwarz is still making money from that.

Right…so what would be wrong with Shakespeare’s descendants doing the same?

What would be wrong with the company that bought the rights from Shakespeare still making money on it?  What has changed about the relationship between the consumer and the work?

I’ve seen arguments that a permanent copyright would stifle derivative works.  Should Arthur Laurents (West Side Story) and Cole Porter (Kiss Me, Kate) have had to pay Shakespeare for Romeo and Juliet, and The Taming of the Shrew?

Why not, if Shakespeare contributed to the success of those works?  I’m not saying we shouldn’t have West Side Story: I just don’t see what is wrong with compensating someone (or their descendants or the company to whom they sold the rights) for their contributions.

The next obvious question to me is academic and research use.  Yes, I would considerably strengthen Fair Use (USA) and Fair Dealing (UK), as part of this package.

For example, I would let high school students get a book for free for a limited time (which could be done easily with e-books).  Maybe you get three months to read To Kill a Mockingbird when a teacher certifies that you are taking a class with that as part of the curriculum.  At that point, it deletes itself from your device…to get it permanently, you have to buy it.

Would that cut into some sales now?  Initially, yes.  When I managed a brick and mortar store, we did sell quite a few copies of Tom Sawyer when it got assigned.

I think that would be more than compensated by a permanent copyright term.

Colleges would not have to get clearance for even contemporary audio works to be used in a classroom…that’s more complex in the UK than it is in the USA, currently.

I want works to be available for academic and research purposes.

I think people should pay for recreational use.

Would this be difficult to establish?  Absolutely.  Not only would there be the US constitution with which to contend, there would be international agreements.  Some countries (notably Canada and Australia) have shorter terms than the USA now, some have longer (Mexico, for one).  If we did have the longest term on the planet, that would be a huge economic advantage for us in the forever environment of the digital age.  My guess is that other countries would quickly follow us, so as not to be left behind.

If you think permanent copyright is a bad idea, I don’t think you need to worry too much.  The obstacles are probably insurmountable, for now.

As a concept, though, what do you think?  Yes, it would be a big takeaway from the majority of people (even though many people don’t take advantage of it).  I think, though, that making the majority happy at the expense of the minority isn’t always the right thing to do.

Feel free to let me know what you think.

[2019 note: in the past more than eight years, I’ve thought about this a lot. I do think it could genuinely work…permanent copyright in exchange for greater Fair Use rights for study (and preservation). It seems like it would benefit society in a few ways: greater exposure to contemporary works for study, more incentive to create and preserve works…but I still don’t think it will happen or that many of my readers will agree with me. 😉 ]

Join thousands of readers and try the free ILMK magazine at Flipboard!

All aboard The Measured Circle’s Geek Time Trip at The History Project!

This post by Bufo Calvin originally appeared in the I Love My Kindle blog.