Copyhype

Copyright protection vests automatically when a work is created and currently lasts for the life of the author plus 70 years. The duration of copyright protection is frequently cited as one of the major problems in current law – one critic says “copyright protection lasts absurdly long,” a not uncommon view. ¹See, eg, New York Times, Free That Tenor Sax, editorial, August 21, 2010: “That time period has been criticized as too long;” Techdirt, The Economist on Why Copyright Needs to Return to its Roots, April 20, 2010. Concerns over the length of protection are not universally held, however; see, eg, Mark Helprin, A Great Idea Lasts Forever. Shouldn’t its Copyright? New York Times, May 20, 2007.

Most commonly, arguments against copyright’s duration stem from the fact that all creative works, to some extent, build upon existing works. Too long of a time keeps new works from entering in the public domain, where they can be used without risking liability. There are also concerns that less-popular works may be lost forever due to the ravishes of time – archivists and librarians wary of preserving or displaying them without permission.

It would seem, then, that the length of copyright protection is an easy target for reform – indeed, many proponents of copyright reform address duration. However, several factors make copyright duration resistant to simple solutions. It’s easy to say “copyright lasts too long, make it shorter.” Taking on the subject is challenging; today, all I want to do, is give a broad introduction to copyright duration. I want to give a sense of the law as it stands now, then briefly survey some of the research and proposals regarding copyright duration.

Copyright Duration and the Law

The US Constitution gives Congress the power

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 [emphasis added] ²Article I, section 8.

The Constitution adopts the utilitarian model of copyright: government grants a limited monopoly in expressive works to authors that eventually expires, placing the works in the public domain. This is in contrast to the perpetual, “natural rights” model of copyright. The idea is that society and future creators benefit the most when expressive works aren’t locked up forever. But there’s a long time between now and forever; how long is a “limited time”?

History shows a gradual expansion of the limited time of copyright protection. The first copyright law, the Copyright Act of 1790, set the duration of protection at 14 years, dependent upon registration, with an optional renewal of 14 additional years. The initial period of protection was increased to 28 years in 1831. The renewal period was increased to 28 years in 1909, for a possible total of 56 years of protection (28 + 28). The Copyright Act of 1976 dispensed with the need for formalities in securing copyright protection (as well as the need for renewal) and set the term of protection to the life of the author plus 50 years. Finally, the Copyright Term Extension Act of 1998 (CTEA) increased the term to the life of the author plus 70 years. ³Anonymous works, pseudonymous works, and works made for hire received protection for 100 years after creation or 75 years after publication, whichever occurs first, under the 1976 Act; that increased to 120 years after creation or 95 years after publication under the CTEA. In addition, the 1976 Act extended the renewal period for works created under the 1909 Act from 28 to 47 years, increased to 67 years under the CTEA.

The Supreme Court has only once addressed whether the Constitution places limits on copyright’s term, in the 2003 case Eldred v. Ashcroft (537 US 186). ⁴Craig Dallon, Original Intent and the Copyright Clause: Eldred v. Ashcroft Gets it Right, 50 St. Louis Univ. Law Journal 307 (2006).  Even then, it did not answer “how long is too long.” In a constitutional challenge to the CTEA, both sides conceded that “life plus 70” is a “limited time.” ⁵Eldred at 199. The question the Court answered was far narrower – whether the Constitution’s “limited time” language prohibited Congress from extending the term of protection for existing copyrighted works. The Court said there was no such prohibition, despite the argument that Congress could effectively create an unlimited copyright term by repeatedly passing extensions.

Lawrence Lessig, who argued against the CTEA in Eldred, subsequently tried direct challenges against the constitutionality of the “life plus 70” term itself. The argument was raised and rejected by both the 9th Circuit – in Kahle v. Gonzales – and the 10th Circuit – in Golan v. Gonzales. Both courts accepted that Eldred did not directly address whether “life plus 70” was outside the bounds of the Copyright Clause’s “limited times,” but ultimately held that the Supreme Court had implied that it was not, foreclosing Lessig from succeeding in his claim.

International agreements also govern copyright duration. The Berne Convention – of which currently there are 164 member nations – mandates a minimum term of life of the author plus 50 years. ⁶Berne Convention, Article 7. TRIPs, an international agreement administered by the World Trade Organization, requires member parties to adhere to those provisions of Berne that include minimum copyright duration. ⁷TRIPs, Article 9.

Copyright Duration and Economics

Given the economic justification that US copyright law subscribes to, it follows that we would use economics to see how well the law is meeting its goal. An “optimal” term of copyright protection should be one that best balances all the costs and benefits to creators and society. But, economists have struggled with answering the question of what constitutes the “optimal” term of copyright protection.

Justice Breyer cites an amicus brief filed by 17 economists in his argument in his dissent in Eldred that the CTEA’s “life plus 70” was unconstitutional. ⁸Eldred at 255. Those economists conclude that the costs of the CTEA’s copyright duration outweighed any benefits realized by creators. However, economists Stan Liebowitz and Stephen Margolis, in a direct response to the 17 economists’ brief, note that existing empirical research doesn’t definitively conclude what length of protection provides the maximum benefit proportional to creators and society. ⁹Liebowitz & Margolis, Seventeen Famous Economists Weigh in on Copyright: The Role of Theory, Empirics, and Network Effects, 18 Harvard Journal of Law and Technology 435 (2005).

In light of these arguments, a few researchers have attempted to tackle the question of optimal copyright duration. One example is Rufus Pollock, who concludes that the optimal copyright term is 15 years. ¹⁰Forever Minus a Day? Some Theory and Empirics of Optimal Copyright (2007). Others have examined what effect term extensions have had, such as Png and Wang, who found an 8.5-10% increase in movie production in 19 countries which had extended copyright protection from “life plus 50” to “life plus 70.” ¹¹I.P.L. Png & Qiu-Hong Wang, Copyright Duration and the Supply of Creative Work (2006).

Proposals

Many people have proposed shortening copyright term from its current length. The proposals vary in length but are typically a set number of years. Also common are proposals that reintroduce registration formalities to copyright, tied in to a fixed initial term and combined with optional renewal periods.

The best known example of this type of proposal is Lessig’s Public Domain Enhancement Act, introduced in Congress in 2003 and 2005 with little success. The bill would have set an initial period of 50 years of protection, with a fee of $1 every ten years to maintain copyright protection afterward. Failure to pay the maintenance fee would result in the expiration of copyright protection.

Joseph Liu proposes an alternative to reducing the length of copyright protection that addresses some of the concerns of its critics. ¹²Joseph Liu, Copyright and Time: A Proposal (2002). He argues that courts should expressly consider how old a copyright is in their fair use analyses – giving more latitude to creators who make transformative use of older copyrighted works than newer ones. He notes:

[O]ver the course of the copyright term, the impact of protection on copyright incentives wanes, as does an author’s moral claim to the fruits of his or her labor. At the same time, the societal interest in ensuring widespread access to works and in encouraging re-use and adaptation of copyrighted works increases. By considering time in fair use analysis, courts can adjust the scope of copyright protection to respond more dynamically to these changes in copyright interests over the length of the copyright term. ¹³Liu at 412

While not directly related to the issue of copyright duration, I would include proposed legislation regarding “orphan works” here. Orphan works are those works where the creator is difficult or impossible to find – foreclosing even authorized use of a work without risking liability. Libraries and archives especially confront the problem of orphan works. The current length of copyright protection (and the removal of formalities) has resulted in a vast number of older works which cannot be utilized by these institutions. Orphan works legislation had been highly anticipated to pass through Congress in 2006 and 2008 but ultimately failed. The US Copyright Office has a comprehensive report detailing the problem and outlining its proposal.

Drawbacks to Proposals

As noted above, copyright duration is governed not only by US law, but through several international agreements. In addition, the Berne Convention prohibits formalities as a prerequisite for copyright protection, a feature numerous proposals share. Any proposals to reduce the copyright term below the minimums of these treaties would either require (1) amending the treaty, (2) withdrawing from the treaty, or (3) running afoul of the treaty and accepting the consequences. Patrick Ross of the Progress & Freedom Foundation notes that these proposals tend to fail to consider the implications any of these courses of action would entail.

Besides the complexities of international law, many of the proposals also ignore the complexities of economics. Copyright is a lightening rod for outrage, and copyright duration seems an easy target for reform, so it’s natural that a simple solution like “copyright is too long, make it shorter” would be attractive. The 14 year term of the first Copyright Act operates as a model. After all, the Framers were smart enough to make the Constitution, so it follows that they would be smart enough to make a copyright law that works in today’s world.

Professor Thomas Nachbar advises caution when following this logic though, saying it would be a mistake to assume “the Framers faced the same copyright-related problems that we face today.” ¹⁴Thomas B. Nachbar, Constructing Copyright’s Mythology (2002). “Given how profoundly the markets for intellectual property have changed since the time of the framing, we should be wary of historically based arguments that the Constitution speaks to the modern problems of intellectual property law,” he notes. “It would be nice if the Framers had possessed the super-human prescience and intelligence to do so, but we shouldn’t rush to embrace myths that tell the story of how they did.”

Conclusion

No doubt, the duration of copyright protection will continue to occupy a central place in the copyright debates. I will most likely explore the topic in more detail in future posts, with this article serving as merely an introduction. Arguments and proposals concerning term length touch on many different areas and involve a complex array of factors. For now, I can only say that I share Nachbar’s cautionary approach – addressing copyright duration doesn’t provide any “easy answers” to the multitude of criticisms aimed at copyright law in general.