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.
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:
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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This post by Bufo Calvin originally appeared in the I Love My Kindle blog. To support this or other blogs/organizations, buy Amazon Gift Cards from a link on the site, then use those to buy your items. There will be no cost to you, and a benefit to them.