A while back, I wrote up this plan for copyright reform that addresses such issues and explains how copyright reform benefits consumers and producers of copyrighted content.
Copyright in the U.S. is a Constitutionally-mandated system that seeks to achieve a singular benefit: the enrichment of the public domain. It seeks to do this through providing creators of copyrightable works with a period of time when they can reap the benefits of their works exclusively, but in exchange they will eventually lose all protection and the work will enter the public domain.
So, in order to understand this fully, we need to understand what the public domain is. At its simplest, the public domain is our culture. It is the combination of symbols that we all understand, phrases that carry common meaning, works that we can all derive from or modify, etc. As an example, the works of Shakespeare are all in the public domain. There is no restriction on movie directors making a new version of Hamlet, nor are there any prohibitions against the creation of derivative works such as West Side Story (based on Romeo and Juliet) or Forbidden Planet (based on The Tempest). Because these works can be re-told in any form from a faithful reproduction to a radically different story told within the context of the original (such as Rosencrantz and Guildenstern Are Dead), our culture can continue to adapt their meaning in order to be relevant.
Copyright therefore, seeks to enrich the public domain by making the creation and publication of works profitable for a time in exchange for their eventual release. Discussion of the public domain, of course, can't exist without a discussion of fair use, and for that I direct you to an excellent fair use piece on the Google Public Policy Blog.
How long should copyright last?There are many ways to measure the period of time over which copyrighted works should be profitable. Certainly if a work were protected for less time than it takes, on average, to recoup its publication costs, then the system has failed. On the other end of the spectrum, a work which is no longer relevant which enters the public domain might well provide little or no benefit to the culture. Moreover, works which last a very long time and are still relevant typically retain their relevance by achieving the status of cultural icon. It can certainly be argued that this process is not wholly the author's or publisher's doing. The culture itself takes part in the establishment of its own icons, and when mere popularity gives way to the entrance of a work into the cultural language, it is difficult to justify continuing to assign the benefits to an individual rather than to the culture as a whole.
The real problem here, however, is that there is no set period of time that meets these criteria. A work might return its publication investment over the course of 10 years or it might return that investment over the course of the opening weekend of a popular film. Relevance is even harder to measure. A song that was relevant to a particular generation might maintain that relevance for 20 to 40 years while a painting that was relevant to a particular change in aesthetic style might conceivably maintain that relevance indefinitely. So it becomes very difficult to set a fixed duration for copyright protection.
It is clear that for many works a period between 10 and 30 years is ideal. Even as the pace of cultural change has increased, this time period has remained fixed because it represents the period of time over which major changes in a generations tastes and interests shift.
There is also the problem of "orphaned" works. These are works that remain under copyright protection, but are not being published or performed actively, effectively removing them from the cultural landscape. In this case, copyright protection benefits no one, and therefore a means should be found to remove such protections. Typically suggestions for solving this problem have focused on the renewal of copyright after a certain period of time, which serves to neatly resolve the issue, but might create a new sort of problem where publishers simple mass-renew all works for which they hold rights without any intention of further publication.
Multiple durationsInstead of assigning a single number to copyright term, this proposal seeks to benefit authors and publishers in multiple classes. These classes are:
- Orphaned works
- Actively published works
- Culturally significant works
As with the current system, copyright for the first 10 years would be automatic. That is, there is no need to file to protect copyright of a work until it is 10 years old.
Culturally significant works would be protected by the same system. However, each year a panel of experts, appointees and other interested parties would meet to determine which (if any) expiring works have both become culturally significant and have benefited their authors and publishers far beyond the norm. For example, a movie which has earned many times its original costs and which is still widely popular and involved in the culture might qualify. These culturally significant works are not renewed (either at the 10 or 20 year renewal), as it is assumed that they have both benefited their creators substantially and have rapidly ingrained themselves upon the cultural landscape. What's more, most such works will have already spurred the creation of follow-on works which are still protected.
As an example of this final category, let us use the 1977 film, Star Wars. In this extraordinary case, the studio responsible for publishing the film, within three weeks of the film's release saw their stock price doubled to a record high. It would be difficult to argue, 10 years later in 1987 with two sequels one of which made $538 million worldwide, that 20th Century Fox had not reaped the rewards of this film. It is also unarguably the case that Star Wars had entered into the cultural language. The film spawned a generation of explosive growth in the science fiction film industry, a revival in science fiction writing and no end of fan films, parody and homage, not just in film but in song, art and other media which continues to this day. Removing copyright protection from this film would have left George Lucas an multi-millionaire in charge of one of the most successful special effects studios in the world among other roles, and 20th Century Fox would have had a decade to re-invest the rich proceeds that the film netted them.
The goal is not to remove protections from works which are hitting the zenith of their potential returns, but rather to slide the scale back to account for those rare works which so rapidly integrate themselves into our culture that they have already achieved that zenith long before comparable works would have.
It is also important to note that different media have different metrics for success. Comparisons between media should never be made in absolute terms (where obviously, film dominates the equation).
The short versionThis plan therefore calls for:
- 10 year copyright terms
- Ability to renew copyright term twice (total of 30 years)
- No requirement for registration for the first 10 years
- Registration required for subsequent renewals
- Renewal blocked for the most successful and culturally significant works
ExamplesThe year is currently 2008. Let's review what this might mean to our existing world of film this year (assuming no transition period, which would almost certainly exist, for sake of example). Films are used as an example, here, because they are a media format that most people are exposed to and which have relatively widely published revenue statistics from which to make a first-pass judgement of success.
The first impact would be to films released in 1998. Here is a list of some films that would likely be renewed and continue to be covered by copyright, sorted by worldwide box-office returns:
- Saving Private Ryan
- There's Something About Mary
- A Bug's Life
- Deep Impact
1988 on the other hand, saw the release of Rain Man, a film whose cultural impact was quite significant and whose financial success far outstripped its mere $25 million budget. It might well not be renewed, but again, this is a difficult call and all renewals might well be approved.
Films from 1978 would expire into the public domain this year. These would include:
- Jaws 2
- Animal House
- The Deer Hunter
Transition planThe easiest way to transition from the existing period of copyright to the new would be to consider all currently copyrighted works to have been newly released in the year the legislation changes are passed. This provides them with an additional 10 years of absolute protection and as much as 30 years in most cases. This quickly eliminates concerns that any existing business will be impacted immediately and even for the most iconic items of the last century which would be expired upon the first application for renewal, 10 years is more than sufficient time to make appropriate plans.
There are problems with this simple plan, however. First of all, it would lead to a massive inflow of renewal applications 10 years after the laws were changed. That would place a large burden on the U.S. Patent and Trademark offices. Further, it would be very difficult to identify the most culturally significant and successful works from most of a century all at once.
To ease the transition, works could be staggered by decade. Those works produced in the late 1920s would be up for renewal in 10 years after the laws were changed. The next year, works from the 1930s would be up for renewal. The next year, works from the 1940s and so on. In this way, works produced in the 1990s would actually have as much as 37 years of protection, and the surge of old works requiring renewal would increase each year for 8 years (or 9 depending on when such laws were enacted) and then the cycle would begin anew with the 20th anniversary of the law and the second renewal. This would also give the public domain interests (libraries, archives and universities for the most part) time to absorb these newly released works.
Side effectsThis plan has many side effects, some of which are foreseeable and some of which most likely are not. Of those that can be foreseen, the widest impact comes from the industry practices in print, film and other media which surround current copyright law. Royalties, for example, are a common compensation tool used to supplement payments to authors, artists and performers. These royalties have been calibrated over time based on expected returns and any change to the copyright system could impact those returns (though it should not be assumed that revenue related to a work whose copyright has expired would drop to zero). These side effects certainly argue for the careful transition from one implementation of copyright law to another, however, new royalties arrangements can easily be devised which accommodate the new system.
Another interesting side-effect would be the change in the relationship between print and film. Today, most works of fiction printed by major publishers are immediately "optioned" for film rights regardless of the likelihood that a film will actually be made. If copyright expired after 10 years on works which the publisher saw no value in renewing then this optioning process might become secondary to finding untapped wells of quality fiction in books which had not caught the public attention. In one sense this is an excellent benefit to the culture, as orphaned works would be revived and renewed. In another sense, authors and publishers might see fewer optioning agreements for works which were ultimately not likely to become films. Since it was never the purpose of copyright law to provide this sort of arbitrage over the potential value of works transitioning from one media to another, it does not seem as if contracting that market would alter the value of copyright law, but it is one more item to consider.
More generally, these changes would result in an explosion in the depth and breadth of the works available to the public domain. What impact that will have is difficult to predict, but certainly that is more in line with the original intent of the Constitution than the current system that the U.S. has.
International ramificationsInternationally, the U.S. has signed treaties agreeing to extremely long-lived copyright terms. These treaties would have to be re-negotiated in order to move forward with a new copyright system. However, the effort required to accomplish this would be returned. Today copyright is routinely violated in some countries. However, if there were a rich well of relatively modern public domain works to draw on there would be radically less incentive to infringe on the remaining, shorter-term copyrights. This is a simple result of the change in cost-benefit. If you can duplicate decade-old DVDs of the most popular movies of the age without any risk, most of the businesses that infringe today would do so. Only a handful would continue to infringe on existing copyrights and those would be easier to police and contain as examples.
ConclusionsSomething must be done about copyright law. Today, the U.S. is working hard to extend copyright law as far as the U.S. Supreme Court will allow, and this will ultimately negate the benefit that the Constitution foresaw in granting copyright protection in the first place. Ultimately, these laws become a subsidy to the entertainment industry rather than a mutually beneficial relationship between producer and consumer of artistic work of all media.
While this plan would be likely to produce useful results, any number of alternatives have been proposed. The key elements of sustainable and enforceable copyright law are:
- Expiration of copyright within a short number of decades
- Consideration of "orphaned" works
- Public access to expired works