Tuesday, August 18, 2009

A Plan for Copyright Reform

I've been following the recent loss of rights to Superman, and what it will mean for DC Comics AKA Time/Warner AKA one of the handful of legal owners of modern American culture. Copyright expiration's benefits should now be obvious to Time Warner whose vice-like grip on Superman lasted so long that even the most obscure flaw in their copyright was uncovered. If they had been forced to continuously update their portfolio, this would never have been an issue, as they would have long since transitioned their brand identification over to newer intellectual property, rather than being forced to suddenly surrender a large portion of their interest in it.

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.

Executive summary for those in a hurry:
  • Copyrights should expire after 10 years, but be renewable up to twice.
  • Those works which return dramatically well on their investment, and become significant to the culture should be denied renewal in order to free up our cultural touchstones for derivative works, ease of access and so forth (examples are given that demonstrate how this would benefit producers and consumers).
  • A phased approach should gradually ease the system into place to avoid administrative bottlenecks.

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 durations

Instead 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
In the case of the first and second categories, works are protected for a term of 10 years. This term can be renewed up to two times for a total of 30 years. However, each renewal comes with two caveats. The first addresses orphaned works: the party renewing a copyright must publish, perform or display the work to a significant audience within one year of renewal or be in default of their copyright. This default can result in loss of copyright and fines (though fines should only be collected in cases where no attempt to publish or perform the work was made). A list of revoked renewals must be published every year so that the public can be sure of which works have been revoked.

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 version

This 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

Examples

The 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:
  • Armageddon
  • Saving Private Ryan
  • Godzilla
  • There's Something About Mary
  • A Bug's Life
  • Deep Impact
  • Mulan
With 10 years' perspective it's fair to say that while they were successful, none of these films dramatically redefined their cultural niche, though Saving Private Ryan might come close. There is some chance that that film might be identified as culturally significant enough to release to the public domain. It's more likely that within the film media, all renewals would be granted for 1998.

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:
  • Grease
  • Superman
  • Jaws 2
  • Halloween
  • Animal House
  • The Deer Hunter
All of these films are either considered "classics" (Grease) or have largely been left out of the cultural collective memory (Jaws 2). Of them, Superman is probably the only film that might have been released to the public domain early (due to its redefinition of the superhero genre in film and the subsequent, though delayed, impact that that has had). Keep in mind that it would have been based on the Superman comics which would have long-since begun expiring, so while copyright would protect the script, the characters would already be available for other works. In fact, the realities of such a system might not foster such long-lived, iconic franchises but rather new and original characters who are derived from themes but not specific characters from previously expired works. As previously mentioned this would include works such as West Side Story and Forbidden Planet which create newly copyrightable works out of existing, public domain themes and storylines.

Transition plan

The 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 effects

This 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 ramifications

Internationally, 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.

Conclusions

Something 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
Any plan that addresses these concerns will substantially improve the situation.

Side issues and special cases

There are a number of additional issues which plague the current copyright system. I have not addressed many of them above, since the goal was to provide a concise plan to address the largest issues. However, it is worth noting some of these issues before moving on from the topic.

Software

Computer software has been gathered up under copyright law, and yet it doesn't actually fit within the scope of the original concept of copyright. It may be that proper addressing of software might not be possible without also dealing with software patents and trade secrets. These three areas of protection should work in concert to provide sufficient protections to software authors and publishers without stifling innovation. What makes this even more complex, however, is the fact that open source software development's success has demonstrated that such protections may not be as strongly needed in the software field in order to spur innovation. Certainly the success of companies such as Google, Red Hat Software and even older players such as IBM in the open source model can be used as examples in crafting a form of protections that benefit all software developers and users.

Audience participation in creation of new works

As technology fosters more and more of the creativity involved in the creation of copyrighted work to be collaborative, the line between publisher and consumer becomes less defined. In modern interactive art forms such as massively multiplayer video games (MMOs), increasingly the user is partaking in the development of the storyline associated with their avatar or character. This is a very complex and difficult relationship to understand under modern copyright law, which is why such interactive art forms tend to come with long and complex legal agreements which consumers must agree to before they are granted access. It is unclear if there is a way to modify copyright law to address these issues, but as games like Second Life have demonstrated, the lines between interactive fiction and financial markets may not be as thick as they once were, and if the law can ease this transition without imposing short-sighted expectations, then it should.