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.1See, for example, Timothy B. Lee, “15 years ago, Congress kept Mickey Mouse out of the public domain. Will they do it again?“, The Switch (Oct. 25, 2013); Jeff John Roberts, “Will copyright be extended 20 more years? An old debate returns“, GigaOM (Aug. 20, 2013); Eugene Volokh, “Copyright Extension Prediction?“, Volokh Conspiracy (Aug. 19, 2013). 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. 2Ronan Deazley, ‘Commentary on the Statute of Monopolies 1624‘, in Primary Sources on Copyright (1450-1900) (eds L. Bently & M. Kretschmer, 2008). 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. 3Fritz Machlup, “An Economic Review of the Patent System“, pg. 5, Study of the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, United States Senate, United States Printing Office, Washington: 1958.
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. 4See Oren Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Technology Law Journal 1427 (2010). 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.5French Literary and Artistic Property Act, Paris (1793), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org. (Thomas Paine, who “counted copyright agitation among his many other revolutionary interests”, was a member of the legislature that passed the French act).6William Patry, Copyright Law and Practice, Chapter 1 (BNA 2000).
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.7Copyright Act, London (1814), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer. In 1842, England extended the copyright term to the life of the author plus seven years, or forty-two years, whichever was longer.8Copyright Law Amendment Act, 1842, 5 & 6 Vict., c.45.
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).9Copyright Act of 1831, 4 Stat. 436. 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. 10R.R. Bowker, Copyright, Its Law and Its Literature, pg. 24 (1886).
France would be one of the first countries to settle on life of the author plus 50 years, adopting that term in 1866. 11Walter Arthur Copinger, The Law of Copyright in Works of Literature and Art, pg. 238 (1870). 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.12It did, however, set a minimum term of protection for translations. Around this time, it became common to provide different terms of protection depending on subject matter (such as one term for literary works and a different term for sculptures or phonographs) as well as different terms depending on authorship (for example, different terms for anonymous authors or corporate authors. For simplicity purposes, I will subsequently refer only to the term of a natural author of a literary work when I discuss copyright duration.
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.13S. 6330 and H.R. 19853, Section 18(c), 59th Congress, 1st Session. 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.14Copyright Act of 1909.
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.15Copyright Act of 1911. 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.16James J. Guinan, Jr., Duration of Copyright, Copyright Law Revision Study No. 30, Copyright Office (1957).
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.17See William Patry, Copyright Law and Practice, Chapter 1 (BNA 2000). 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.18Scott M. Martin, The Mythology of the Public Domain: Exploring the Myths Behind Attacks on the Duration of Copyright Protection, 36 Loyola L.A. Law Review 253, 260-61 (2002). (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).19Free Culture, pg. 134. 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. 20Copyright Act of 1976, 90 Stat. 2541.
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.21Council Directive 93/98, 1993 O.J. (L 290/9). The U.S., narrowing the lag behind international norms, adopted a term of life plus seventy in 1997,22Copyright Term Extension Act, 112 Stat. 2827. citing a need to harmonize protection with its global trading partners.23Senate Report No. 104-315, 104th Cong., 2d Sess (1996).
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.24Wikipedia, List of countries’ copyright lengths, visited July 14, 2014.
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.25In his recent book, Intellectual Privilege, Tom Bell spends considerable effort—including illustrations—to imply a correlation between US copyright term length and the entry of Steamboat Willie into the public domain before dismissing it by saying, “No one can, of course, say with certainty whether or to what degree lobbying by the Walt Disney Company drove those copyright extensions.”
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.
References
| ↑1 | See, for example, Timothy B. Lee, “15 years ago, Congress kept Mickey Mouse out of the public domain. Will they do it again?“, The Switch (Oct. 25, 2013); Jeff John Roberts, “Will copyright be extended 20 more years? An old debate returns“, GigaOM (Aug. 20, 2013); Eugene Volokh, “Copyright Extension Prediction?“, Volokh Conspiracy (Aug. 19, 2013). |
|---|---|
| ↑2 | Ronan Deazley, ‘Commentary on the Statute of Monopolies 1624‘, in Primary Sources on Copyright (1450-1900) (eds L. Bently & M. Kretschmer, 2008). |
| ↑3 | Fritz Machlup, “An Economic Review of the Patent System“, pg. 5, Study of the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, United States Senate, United States Printing Office, Washington: 1958. |
| ↑4 | See Oren Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Technology Law Journal 1427 (2010). |
| ↑5 | French Literary and Artistic Property Act, Paris (1793), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org. |
| ↑6 | William Patry, Copyright Law and Practice, Chapter 1 (BNA 2000). |
| ↑7 | Copyright Act, London (1814), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer. |
| ↑8 | Copyright Law Amendment Act, 1842, 5 & 6 Vict., c.45. |
| ↑9 | Copyright Act of 1831, 4 Stat. 436. |
| ↑10 | R.R. Bowker, Copyright, Its Law and Its Literature, pg. 24 (1886). |
| ↑11 | Walter Arthur Copinger, The Law of Copyright in Works of Literature and Art, pg. 238 (1870). |
| ↑12 | It did, however, set a minimum term of protection for translations. Around this time, it became common to provide different terms of protection depending on subject matter (such as one term for literary works and a different term for sculptures or phonographs) as well as different terms depending on authorship (for example, different terms for anonymous authors or corporate authors. For simplicity purposes, I will subsequently refer only to the term of a natural author of a literary work when I discuss copyright duration. |
| ↑13 | S. 6330 and H.R. 19853, Section 18(c), 59th Congress, 1st Session. |
| ↑14 | Copyright Act of 1909. |
| ↑15 | Copyright Act of 1911. |
| ↑16 | James J. Guinan, Jr., Duration of Copyright, Copyright Law Revision Study No. 30, Copyright Office (1957). |
| ↑17 | See William Patry, Copyright Law and Practice, Chapter 1 (BNA 2000). |
| ↑18 | Scott M. Martin, The Mythology of the Public Domain: Exploring the Myths Behind Attacks on the Duration of Copyright Protection, 36 Loyola L.A. Law Review 253, 260-61 (2002). |
| ↑19 | Free Culture, pg. 134. |
| ↑20 | Copyright Act of 1976, 90 Stat. 2541. |
| ↑21 | Council Directive 93/98, 1993 O.J. (L 290/9). |
| ↑22 | Copyright Term Extension Act, 112 Stat. 2827. |
| ↑23 | Senate Report No. 104-315, 104th Cong., 2d Sess (1996). |
| ↑24 | Wikipedia, List of countries’ copyright lengths, visited July 14, 2014. |
| ↑25 | In his recent book, Intellectual Privilege, Tom Bell spends considerable effort—including illustrations—to imply a correlation between US copyright term length and the entry of Steamboat Willie into the public domain before dismissing it by saying, “No one can, of course, say with certainty whether or to what degree lobbying by the Walt Disney Company drove those copyright extensions.” |
It is almost as if it is impossible to have a discussion about copyright’s length without derailing the argument. I have been hearing this rhetoric a lot on the pro-side recently instead of direct responses to the question. As if there was no such thing as somebody who could support the shortening of copyright’s length and call for stronger tools against piracy at the same time. Not that I am one of those people. The “red hearing” fallacy does not in any way invalidate the argument itself. Copyright length is something that people have every right to discuss and especially more so if it raises guilty consciences about the definition of the word “limited” from the other side – by all means say the clause in the constitution should be reworded. It is rather silly to say that until – or eventually when – all the anti-piracy measures are brought in, no serious discussion is to be had about lengths. You may even get more respect for the former by supporting the latter, which may not be a “marginal difference” I am sure you would agree.
The length really ought to be zero, frankly. Anything else is just going to lead to precisely the slippery slopes we see now, where there is no such thing as “too much copyright”. The free-rider problem that artists are burdened by can be more morally solved with assurance contracts. This is by no means a claim that artists have no right to life, liberty and property (on the contrary, it is strongly in favour of). Not all abolitionists refuse to take the property question seriously.
Speaking of slippery slopes, in some ways the evolution of the Berne Convention is far MORE worrying than the Steamboat Willie conjecture. With conventions and treaties such as this, consensus becomes harder to break. Copyright is after all more than an economic theory and a philosophy: it is a mentality. It is hard to imagine any one of the signatory states, never mind that state’s voters, proposing to the other states that lengths should be shortened without strong political and commercial resistance. Though I doubt it would be the same reaction if the proposal was to lengthen instead. In that case, all that is needed is that damn euphemism that always seems to come up when copyright attitudes of one democracy must make way for another: everyone must “harmonize”. Regardless of your position on copyright length, the idea that democratic accountability be eroded like this should make anyone raise an eyebrow.
“Anything else is just going to lead to precisely the slippery slopes we see now, where there is no such thing as “too much copyrightâ€.”
Is there such a thing as “too much ownership of land”? Because the notion of “owning” land is exactly as illusory, arbitrary, and government-backed as copyright. If I put up a sign that says “NO TRESPASSING” and I file a deed with the city clerk then I’m in charge of a particular space of land. I don’t have to even put up a fence around it to receive the full protection of law and total control over the use of that space.
” Is there such a thing as “too much ownership of landâ€? ”
Through your ideological lens, there would be if I insisted that I could make and trade pirated copies of other people’s works within the privacy of my own land/home. In fact, it would justify raiding the lands of traders on the other side of the planet if activity such as that were happening. No other property system to my knowledge claims the entire WORLD be within a “fence” like this, invisible or not.
Through my lens, however, I can swap pirated copies for dangerous chemicals, dangerous firearms, blueprints for a bomb plot, poisonous plants, anything that would require a reasonable degree of preemption and the analogy would still hold to refute such a stupid absolutist assertion.
In fact what you have just described is a warrant for safeguarding any symphony of any kind, which would include new words of the English language. A word is a symphony of letters, after all. That’s what you get when you can never have “too much copyright”. Or is it only now after I’ve brought this up that we are suddenly going to talk about “limits”?
There’s a reason why it’s called a “slippery slop fallacy”
Slippery slopes almost always come from vagueness.
It is not, for example, to the credit of copyright legislation that it is gigantically complicated, and encourages cliques of lawyers to laugh at those fools who just “do not know what they are talking about” – a dangerous thing in itself. Advocates of Occam’s Razor such as myself naturally find such books of unnecessary constants repellent. And even more so with books of biblical contradictions. Copyright is both, in my view. For instance, I do not know why people like to praise copyright law, when it adds new clauses for specific technological situations, for being “adaptive” to new technology. To me, that word is another word for “reactionary”. And it shows. This coming from a philosophy that is supposed to hold true regardless of technological advancement.
It is ultimately this huge convoluted mess that comes from thinking you can cast objective judgment over a subjective matter: namely, the subjective matter of expression. Ownership of expression does not seem to be something that can be reconciled with freedom of expression. Not so without falling into all the kinds of traps that history has seen from those who always claim that they can make objective judgments on expression, and are the exception to the many before them who have also tried and failed. What exactly is the difference between “blasphemy” and “derivative works”, “if English was good enough for Jesus…” and “the author insists one language only!”, and the transparent “remixes” that occur when the Bible plagiarises from the Torah, and the Koran from the two before? Copyright in some ways is a much GRANDER claim that somebody is fit for casting censorship: it is the claim that somebody can know originality when they see it. An extraordinary claim. That they have proof that no similar work existed before, which is itself trying to prove a negative.
(No doubt the best example of a person who considered himself suitable of casting objective judgment over expression was a man called Oliver Wendel Holmes, when he compared the Yiddish speaking Socialists warning Americans in a language most of them could not even read of a fire in Europe they must do everything to avoid, as FALSELY yelling “fire” in a crowded theatre with the intent of causing a crowded panic in, supposedly, poorly designed fire exits. Upon this analogy, Holmes sentenced them to prison. If you’re gonna bring up pathetic exceptions to freedom of expression, do yourself a favour. Don’t go up to your government and protest the banning of yelling “fire” in a crowded theatre. Go up to your government, and protest for the banning of fire drills. Let’s see how fucking committed to this premise you are. Remember that episode of the Simpsons, when Mr Burns gives the plant a fire drill practice and all the employees go crazy? We all know what the point of that gag was. I say Holmes is the best example because inept fools like to parade his situation as some kind of grand fable, showing themselves their very own slippery mentality of censorship that proves my point further.)
I am highly suspicious of those who meddle with expression and claim they are the exception to history, and no slippery slope will apply to them. The person who commented above you has clearly demonstrated no sense of limits. I am also doubly suspicious of those copyright advocates who would claim that it is actually freedom of speech that is the slippery slope! Against their utopian property rights! Well, I do not think it is the least bit arrogant to cast a bit of doubt over this.
WTF are you talking about? That made so little sense as to be laughable…
Good job. This is a great summary of an important topic in Copyright Law.
In fact is so great that, with your permission, I’d like to translate it into Spanish an publish it in my blog, where I write about this kind of subjects (IP, Freedom of Speech, etc). I already translated another article, you can find it here http://entremedios.org/2013/05/03/la-libertad-de-prensa-no-es-lo-mismo-que-la-libertad-de-expresion/.
Of course I’ll give proper citation, including a link to your blog, and you will be welcome to use my translation freely.
You have my email.
Thank you.
I love my grandchildren dearly. I do not see any reason whatever that they should continue to collect royalties on my work while others, who may be my literary heirs, are prevented from making use of it in quotation, reprint, adaptation or parody. I believe it was Richard Scheckner who had the inspired idea that if copyright was to be extended 50 years beyond the author’s death, 25 years should be for the authors heirs, and the next 25 should be collected by, and form the financial foundation of, the National Endowment for the Arts. That way the young would be funded by the successful, dead and the NEA would become self-sufficient without government help. Alas. It’s an idea too far for our mickey mouse corporate culture.
Or we can let the artist decide, as we do under the current system. If she wants to leave her works to her grandkids, fine. If she wants to dedicate them to the public domain, fine. If she wants to donate them to the NEA, or the NRA, or the AAA, fine. I don’t see why Richard Scheckner, or anyone else for that matter, gets to tell artists what they have to do with their own work.
Terry–
Remember, copyright is artificial and basically arbitrary within certain constraints. It’s not up to the mere artist to decide what copyright law should be; it’s up to everyone else, and rightfully so, since we’re the ones who are obligated to follow it. It’s only their work insofar as they created it. Like the old joke about the painter trying to keep working on his canvas after it’s in the museum, ‘Now it belongs to us.’
No, I’m not talking about copyright law, I’m talking about an author’s copyright, which is freely alienable and assignable, including through testamentary devices.
Well, you were replying to Janet, whose quote dealt with copyright law mandating an assignment as part of a quid pro quo for a longer copyright term. I had assumed that your response was in reference to that, and not a non sequitur about assignment. Whether or not a copyright is alienable and assignable (and it’s not, quite, even today, between moral rights and termination of transfers) is up to lawmakers, not authors. Authors only get choices within the boundaries others establish for them.
Copyright is no more “artificial” or “arbitrary” than any other property right.
Freetopia–
That’s exactly correct. All property rights are artificial and arbitrary (at least beyond the point of what the owner can personally defend against the world). Copyright is no different in that regard.
Real property right is not some kind of universal sovereignty right either. Sure, you “own” your land. But if you even fail to cut your grass for a few weeks, you are going to get in trouble for it by big bad government.