Today, the House Judiciary Committee Subcommittee on Courts, Intellectual Property, and the Internet is continuing its comprehensive review of US copyright law with a hearing on moral rights, termination rights, resale royalty, and copyright term.
Perhaps no other feature of copyright law is so widely criticized as its term — to the point where the declaration that “copyright lasts too long!” seemingly needs no further support.
But perhaps no other copyright doctrine is also subject to as much misinformation as the term of copyright. It’s not difficult to find those who are absolutely convinced copyright term will be extended within the next several years, because this is part of an indisputable pattern of extending copyright term every 20 years. These and similar assertions evaporate under the slightest scrutiny. Therefore, before we can have a useful discussion on the length of copyright protection, it’s necessary to look at how the current term of copyright protection evolved in the US and how that compares to copyright protection in other countries.
The genesis of copyright law
The journey begins in England with the Statute of Anne. Passed in 1710, the Act is considered the first modern copyright law, vesting exclusive rights to reprint books to any and all authors. The Act also limited the exclusive rights to a term of fourteen years, with an option to renew protection for an additional fourteen years. At the end of this period, the exclusive rights expired, allowing anybody besides the author or publisher to print and reprint the work. This length was borrowed from the term for protection of letters patent that the earlier Statute of Monopolies established in 1624. And that term was, according to one scholar, “based on the idea that 2 sets of apprentices should, in 7 years each, be trained in the new techniques” that were protected under such letters patent.
The United States was the second country to adopt a general copyright law. In 1790, Congress passed a Copyright Act that borrowed extensively from the Statute of Anne, including the “14 + 14″ year term. The law was passed with only the most cursory of discussion in the legislature, so the importation of Britain’s act almost word for word was likely driven by expedience more than anything else.
The third modern copyright law came out of France, itself also emerging from a revolution, and it diverged from Britain and the US in terms of duration. In 1793, only three years after the first US Copyright Act was passed, the French National Convention passed a decree providing for copyright protection lasting the life of the author plus ten years. (Thomas Paine, who “counted copyright agitation among his many other revolutionary interests”, was a member of the legislature that passed the French act).
The shift to a life-based term
England would follow France and adopt a term based on the life of the author shortly after the 19th century rolled around. In 1814, the term of protection was extended to the life of the author or 28 years, whichever was longer. In 1842, England extended the copyright term to the life of the author plus seven years, or forty-two years, whichever was longer.
The US did not follow suit to a life of the author based term, though it did bump up the initial term of protection to 28 years in 1831 (the renewal period remained at 14 years). And thus, despite being the second nation to provide for general copyright protection, it would fall behind international norms for the majority of its history. During the 19th century, many countries with copyright laws moved toward a “life plus” duration. One 19th century treatise provides this catalog:
Sweden, formerly perpetual, now for life and fifty years, no registration; Denmark, for life and thirty years, no registration or deposit; Switzerland, for life or thirty years; Russia, for life and fifty years, registration but not deposit being required, with complicated provisions as to new editions; Turkey, for forty years, or twenty for translations; Greece, for fifteen years, subject to royal extension; Mexico, which has perpetual literary copyright, registration and deposit being obligatory; Venezuela, for life and fourteen years, or deposit and registration; Chili, for life and five years; Brazil, for life and ten years ; Japan, for thirty years, with extension to forty-five.
France would be one of the first countries to settle on life of the author plus 50 years, adopting that term in 1866. Several other European countries would follow suit toward the latter half of the 19th century.
In 1887, the following countries adopted the Berne Convention, the world’s first multilateral international agreement on copyright: Australia, Belgium, Canada, France, Germany, Haiti, India, Italy, Liberia, Monaco, New Zealand, Spain, Sweden, Switzerland, Tunisia and the United Kingdom. The agreement set minimum standards for copyright protection that agreeing parties must extend to works of authors from member states. The original text did not address duration of protection, but that would soon change.
The US effort to join the international community
At the turn of the 20th century, US lawmakers looked to revise the copyright law. At that time, R.R. Bowker of the American Copyright League pointed out:
A copyright term extending through and beyond the life of the author has been adopted by thirty-seven countries, or more than half of those which have copyright laws, while five others give perpetual copyright; the term of life and fifty years is adopted by France and fourteen other nations, and although life and thirty years is proposed in Lord Herschel’s British draft, life and fifty years has also been proposed as an alternative in England.
An early version of a US revision bill in 1906 proposed a term of life of the author plus fifty years. The proposal was ultimately dropped in favor of the existing convention of a set term with an optional renewal term, as this was seen as more favorable to authors. The renewal term, however, was extended to match the initial term of 28 years.
The Berne Convention, which was gradually adding new member parties, had set a voluntary minimum term of life of the author plus 50 years in 1908. England adopted this term in 1911, which extended to its Commonwealth Countries — Australia, Canada, India, New Zealand, etc. Other countries would slowly but surely follow suit, and Berne made the term mandatory in 1948. The decades following the US enactment of the 1909 Act saw a number of unsuccessful efforts to join Berne, hampered in part by two World Wars and a Great Depression. Bills introduced in 1924, 1925, 1926, 1930, and 1940 called for a term of life of the author plus 50 years; advocates for this term also voiced their views at hearings on other bills during this timeframe.
But it would not be until 1955 that the US began in earnest the process that would lead to the 1976 Copyright Act, the current law. In that year, Congress appropriated funds to the US Copyright Office to engage in a series of studies on issues relating to copyright revision. One study covered the duration of copyright and noted that by this point over half of all countries with copyright laws protected a work for life of the author plus 50 years.
In this group are Australia, Austria, Belgium, Canada, Chile, Costa Rica, Czechoslovakia, Denmark, Ecuador, Finland, France, Germany, Great Britain, Greece, Guatemala, Hungary, Iceland, Eire, Italy, Lebanon, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Paraguay, Switzerland, Syria, Turkey, Union of South Africa, and Vatican.
Some countries had longer post-life terms and some had shorter; however, by the 1950s, the US stood alone with the Phillippine Islands in diverging from a “life plus” copyright term.
By 1965, a general revision bill included a term of life of the author plus 50 years. But revision efforts stalled, primarily due to stark disagreements over a number of unresolved issues such as library photocopying and community antenna television providers. Congress was concerned about the inequities that would fall upon authors because of a bogged-down legislative process, so during this time period, it passed a series of nine interim extensions to copyright duration. (Lawrence Lessig counts each of these nine interim extensions when he makes his famous claim that Congress extended copyright term 11 times since 1962 and also defines this series of interim extensions preceding the general revision as “a practice that has deﬁned copyright law since). The revision finally passed in 1976, going into effect in 1978, over a century since France adopted a life plus 50 term and decades after most every other country had followed suit.
But the US continued to lag behind. In 1965, for example, Germany adopted a term of life of the author plus seventy years.
The shift to “life plus 70″
A 1971 guide from WIPO on the Berne Convention, which then consisted of over 60 member parties, explained the justification of a life plus fifty term:
By computing the term of protection from the date of the author’s death, the Convention binds the work to its creator. Honest men can differ on how long this should be: some feel it should be for ever since the nature of the work of the mind remains, throughout the ages, a reflection of the character of its creator. Like a fine piece of furniture, it gives pleasure to generation upon generation. But the particular nature of intellectual property, resulting in a need, in the interests of the public at large, for it to be made known without let or hindrance for the enrichment of culture, suggest some limit on the duration of the monopoly enjoyed by authors and their heirs in the exploitation of their works.
It is not merely by chance that fifty years was chosen. Most countries have felt it fair and right that the average lifetime of an author and his direct descendants should be covered, i.e., three generations.
In 1993, the Council of European Communities, finding that “the minimum term of protection laid down by the Berne Convention, namely the life of the author and 50 years after his death, was intended to provide protection for the author and the first two generations of his descendants; whereas the average lifespan in the Community has grown longer, to the point where this term is no longer sufficient to cover two generations”, directed its Member States which hadn’t already granted the term to adopt a “life plus seventy” copyright duration. The U.S., narrowing the lag behind international norms, adopted a term of life plus seventy in 1997, citing a need to harmonize protection with its global trading partners.
Today, 167 countries are Member Parties of the Berne Convention and provide for a minimum of life of the author plus fifty years. Over 65 of these countries provide for life of the author plus seventy years, while an additional seven provide greater length.
How long should copyright last?
One can argue over the “optimal” length of copyright protection—a discussion beyond the scope of this already lengthy article—but one can’t assert after surveying this history that, for example, Congress extends copyright every time Disney’s Steamboat Willie is about to enter the public domain.
Copyright duration is a hot topic. But it is also a bit of a red herring. Creators’ main concern is lack of effective protection now, so the length of protection is somewhat a moot point. And issues raised by user communities are only tangentially related to duration, meaning any changes to term would only result in marginal differences to the real issues.