What’s the Proper Conservative Position on Copyright Duration?

 

Newspaper_advert_copyright_patent_and_trade_mark-318x330Who should conservatives side with in the battle between those who favor extended governmental protection for copyrights as the promotion of private property vs. those who believe that too much protection hurts consumers? Steven Tapp makes a strong argument in National Review that we should favor the former:

From the words and deeds of the Founders to the rulings of the Rehnquist and Roberts Courts, it is clear that the American free-market system is designed to promote private-property rights, including copyright, as the best engine of economic growth and freedom of expression.The public domain has its place as a venerable and valuable aspect of copyright law and reasonable people can and do disagree about the best way to write copyright law. But proposals to slash the duration of copyright to expand “public property” simply aren’t conservative.

Tapp is writing in response to a recent proposal by Derek Khanna, self-professed spokesman for conservatives on copyright issues:

In recent decades, a number of special interests called the “copyright lobby” have ensured their copyrighted works would never enter the public domain by keeping their copyright terms continuously elongated. The public-policy goals of this copyright-inflation movement have been in clear violation of the Constitution’s text and its original public meaning.

The recapture of works that would be in the public domain represents one of the biggest thefts of public property in history — and has had significant economic effects upon our culture, personal liberty, and economy.

Where do Ricochet members weigh in? Read both pieces and share your opinions in the comments.

 

There are 94 comments.

Become a member to join the conversation. Or sign in if you're already a member.
  1. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Most people agree that there should be some copyright protection in place. However, how to decide on an arbitrary number of years is not immediately obvious.

    One strategy is to look at each time the duration has been extended, and to look at why the extension was granted. If the justification for the extension is no longer reasonable, then repeal the extension.

    Repeat the process for every instance an extension was granted until you achieve a reasonable result.

    This could be a good “conservative” solution, because it is based on respect for tradition and skepticism about arbitrary change. The default position should be that older versions of rules are superior, except when a compelling case can be made for the newer version.

    In other words, instead of trying to pass new laws to fix problems made by other laws, we should simply repeal the bad laws.

    This eliminates the problem of trying to explain why your preferred arbitrary number is superior to their preferred arbitrary number.

    • #1
  2. JimGoneWild Coolidge
    JimGoneWild
    @JimGoneWild

    I think part of the problem is misstated, the copyrights on materials is being extended over and over again. But like patents, they should expire. Congress is granting the extensions. Let the free market work–End the Extensions.

    • #2
  3. Roberto Member
    Roberto
    @Roberto

    Washington thought 14 years renewable for an additional 14 years was quite adequate, at least he seems to have had no qualms about signing that period into law.

    If such a length of time was good enough for the Founders why not ourselves? That strikes me as the conservative position.

    Even Madison who was a copyright enthusiast correctly noted, “With regard to monopolies they are justly classified among the greatest nuisances in Government.”

    • #3
  4. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Another possible position:

    Copyright could last for the life of the creator, plus a number of years equal to the average American life expectancy at the time of the creator’s death.  

    In the case of corporate-created properties, copywright would last for a number of years equal to the average American life expectancy at the time of the property’s creation.

    This is roughly analogous to the “life+70 years” that applies in most other countries, but has the benefit of using a non-arbitrary method for calculating the number of “+” years.

    • #4
  5. JimGoneWild Coolidge
    JimGoneWild
    @JimGoneWild

    Misthiocracy: Copyright could last for the life of the creator, plus a number of years equal to the average American life expectancy at the time of the creator’s death.  

     Hmmm? To what ends? After you, the creator, are dead, you can’t benefit. What is the original purpose of Copyright and Patents?

    • #5
  6. user_96427 Contributor
    user_96427
    @tommeyer

    I wrote about this last year, and strongly side with Khanna that our current policies favor copyright holders too much.  As I pointed out — had current copyright law been in effect when Tom Sawyer was published, it would not have hit public domain until 1980.  That would have been absurd because:

    To begin with, there’s the issue of enforcement: would it really have been worth the government’s time and energy to protect Clemen’s exclusive monopoly over Tom Sawyer in 1979, to say nothing of the negative externalities of maintaining a bureaucracy powerful enough to do so? Second, there’s the issue of controlling knowledge; should someone in 1979 have had the power to cease all production of new copies of Tom Sawyer, and to sic the Feds on anyone found making new ones? Third, would it have served the public interest to prosecute someone publishing new Tom Sawyer stories a dozen years after the death of the author’s last remaining decedent?

    Protecting creators’ copyrights and patents is an incredibly useful and important tool, and one of the pillars of a functioning market.  But we’re abusing it to little purpose.

    • #6
  7. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    JimGoneWild:

    Hmmm? To what ends? After you, the creator, are dead, you can’t benefit. What is the original purpose of Copyright and Patents?

    Around the world, the rule is “Life+70” in order to give the creator’s immediate family continued revenue from the product. In essence, it allows the creator to leave his intellectual property to his immediate heirs, but doesn’t allow his heirs to pass it along to their heirs.

    In the USA the rule is, “life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier,” in order to benefit corporate owners.

    Incidentally, the Berne Convention (to which the USA is a signatory) says that signatories must guarantee copyright protection for at least “life+50”, though they are allowed to protect copyright for longer if they choose.

    Therefore, yet another “conservative” position could be to revert to the minimum required by the Berne Convention, i.e  life+50.

    https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act

    • #7
  8. user_96427 Contributor
    user_96427
    @tommeyer

    If I may quote myself again:

    One of the biggest issues left out of Khanna’s analysis is the irony that fewer and fewer consumers are respectful of copyright laws, even as they expand ever further. Though things probably hit their nadir during the early 2000s — when legitimate ways to purchase digital entertainment were as rare and difficult as illegitimate means were plentiful and easy — pirating remains a serious issue, as well as an injustice to those who recently created a desirable product. When governments create laws that citizens refuse to follow, the usual options are to better enforce the law, or to breed contempt for it by not enforcing it. The better option is usually to reform the law to something both enforceable and sensible.

    Ensuring that living people are able to profit from their relatively recent labors without some moocher stealing their work strikes me as an excellent use for government. Doing so on behalf of long-dead men not only wastes taxpayer resources, but robs them of innocent pleasures and — possibly — new innovations derived from those works.

    • #8
  9. EJHill Podcaster
    EJHill
    @EJHill

    It should depend on the nature of the copyright and its holder.

    If you are an individual the right should remain with you until your death. Afterwards, your heirs should hold it with the same rights I would give corporations for “works for hire,” that is, use it or lose it.

    There are millions of copyrighted works that languish in vaults, collections and libraries. No effort is made at marketing them or distributing them to a paying public. Our cultural heritage in many instances is held hostage to “maybe.” Maybe somebody will pay to use this, maybe somebody will pay to remake this or maybe somebody will come up with something close and we can sue.

    Comcast/NBCU even gets you, the taxpayer, to preserve and catalog their property at the Library of Congress. You can access it if you want to travel to DC, otherwise hundreds of thousands of hours of broadcast history can only be heard or seen on bootleg tapes and files.

    • #9
  10. JimGoneWild Coolidge
    JimGoneWild
    @JimGoneWild

    EJHill: It should depend on the nature of the copyright and its holder. If you are an individual the right should remain with you until your death. Afterwards, your heirs should hold it with the same rights I would give corporations for “works for hire,” that is, use it or lose it.

     This makes more sense. I’m against the abuse of Copyrights (and patents).  

    • #10
  11. Guruforhire Member
    Guruforhire
    @Guruforhire

    I am in agreement with EJHill.

    • #11
  12. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    EJHill: If you are an individual the right should remain with you until your death. Afterwards, your heirs should hold it with the same rights I would give corporations for “works for hire,” that is, use it or lose it.

    I like it, but it would mean pulling out of the Berne Convention, which would mean that other countries would no longer be obligated to recognize US copyright laws.

    https://en.wikipedia.org/wiki/Berne_Convention

    • #12
  13. skipsul Inactive
    skipsul
    @skipsul

    You can blame Disney for much of this miss.  Every time copyright comes up for extension, the “Mickey Mouse” argument is wielded.  Basically it is this:

    – Mickey is a children’s character, associated with a family-oriented company
    – If copyright on Mickey expires, Mickey could be exploited
    – Exploitation would confuse and dilute Disney’s value as a family friendly company

    In other words, Mickey would do porno films if copyright on him expired (or so the argument goes).

    So blame Disney for this mess.

    • #13
  14. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    skipsul: You can blame Disney for much of this miss.  

    US copyright terms have been extended six times since 1790.

    Only four of those extensions happened while the Walt Disney Coporation has existed.

    So, one is free to blame the Walt Disney Corporation for about 66% of the problem.

    ;-)

    • #14
  15. Arahant Member
    Arahant
    @Arahant

    I think I am more for a pure fixed term.  (As a writer, composer, and musician, I intend to take full advantage of the law as it stands, of course.)  Why should it be life + some number of years?  We don’t do patents that way.  That’s 20 years from first filing date.  How is a copyrighted material different?  Why is it different if I create a totally new devise, like a transporter, than if I write a book or compose a song?  Why not twenty years for all or fifty or seventy (or fourteen) for all?  (Yes, I do know about the treaties.)  Why should an author who writes something when he is twenty possibly get a longer copyright than one who writes something when he’s eighty?  If they both live to be ninety, why should one get 140 years and the other get only 80?

    • #15
  16. user_96427 Contributor
    user_96427
    @tommeyer

    Toward the end of his article, Tepp cites the rates (Khanna) suggested for copyright:

    11 percent of all revenue earned in years 1–12;
    13 percent of all revenue earned in years 13–24;
    15 percent of all revenue earned in years 25–30; and
    10 percent of all revenue earned in years 30–36

    If this is something Khanna has advocated, I cannot find it, and certainly would not endorse it.  It also has massively higher rates than what Khanna proposed back in 2012:

    Free 12-year copyright term for all new works ± subject to registration, and all existing works are renewed as of the passage of the reform legislation. If passed today this would mean that new works have a copyright until 2024. 
    Elective-12 year renewal (cost 1% of all United States revenue from first 12 years ± which equals all sales). 
    Elective-6 year renewal (cost 3% of revenue from the previous 12 years). 
    Elective-6 year renewal (cost 5% of revenue in previous 6 years). 
    Elective-10 year renewal (10% of ALL overall revenue ± fees paid so far).

    • #16
  17. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Arahant: I think I am more for a pure fixed term.

    Once again, anything less than Life+50 means pulling out of the Berne Convention, which means other countries would no longer be under any obligation to recognize US copyright laws.

    On the other hand, the US has only been a signatory to the Berne Convention since 1988, which means that the US was been able to operate for 102 years without the Convention’s protection (the Berne Convention was first accepted in 1886).

    (BTW:  The Berne Convention also requires that copyright must be automatic. Signatories cannot require registration of works in order for creators’ copyright to be recognized.)

    • #17
  18. Seawriter Contributor
    Seawriter
    @Seawriter

    A copyright is a temporary monopoly on some intellectual product.  It provides the copyright holder with exclusive use of that product (as licensed) for the duration of the copyright.  In reality, a copyright is no more than a license to sue.  In most cases this means it favors major corporations over individual authors.

    I am an author. Once I bought into “life of the author plus 20 years.”  Today I believe 21 years renewable once is adequate copyright protection.  And only if copyrights are registered so its copyright status can be checked.  I believe this helps authors more than life of the author.

    Why?  Because 21 years is long enough to recoup the investment of time.   Then, give it to the public domain.  What if someone else publishes it and makes a fortune after copyright lapses?  For an individual author this good. It means many people are reading you work. That means there is a demand for new work by you.  That means you can get published again after having been forgotten.

    Words written for publication are a commodity.  Every commodity has a sell-by date.

    Seawriter

    • #18
  19. Roberto Member
    Roberto
    @Roberto

    Misthiocracy:

    Arahant: I think I am more for a pure fixed term.

    Once again, anything less that Life+50 means pulling out of the Berne Convention, which means other countries would no longer be under any obligation to recognize US copyright laws.

    Indeed, one shudders to think. Imagine a world where say China, Russia, Vietnam etc. had absolutely no respect for US copyright.

    • #19
  20. Seawriter Contributor
    Seawriter
    @Seawriter

    Those who have not been published do not realize the importance of being in the public eye.  Owning a copyright to a book out of print for two decades prevents that.  You make no money from that copyright.  It has no pecuniary value.

    What that copyright does is prevent anyone else from using that work, especially if they have no means of contacting you.  So your work stays out of print, and you remain anonymous.  Whereas if it were in the public domain and republished you would be noticed and your career restarted. (Several SF authors republished by Baen come to mind.)

    Long copyright terms only favor large corporations.  They are immortal, and keeping stuff locked up works for them.  A good example is Edgar Rice Burroughs. After his death, rights to his books were sold to a corporation, who kept many of his works out of print because there “was no interest in them.”  Then Ace began publishing magazine versions of Burroughs’s works which were out of copyright.  They sold like hotcakes. 

    Readers were not served by the long copyright.  Burroughs was dead, so he got no benefit. 

    Seawriter

    • #20
  21. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Roberto:

    Misthiocracy:

    Arahant: I think I am more for a pure fixed term.

    Once again, anything less that Life+50 means pulling out of the Berne Convention, which means other countries would no longer be under any obligation to recognize US copyright laws.

    Indeed, one shudders to think. Imagine a world where say China, Russia, Vietnam etc. had absolutely no respect for US copyright.

    American movie studios rely more and more on revenues from Chinese movie-goers. Why do you think so many giant robot and giant lizard movies are made these days?

    Incidentally, China only signed on to Berne in 1992. Russia only signed on in 1995. Vietnam only signed on in 2004.

    • #21
  22. Z in MT Member
    Z in MT
    @ZinMT

    Copyrights should be valid as long as the value of the copyrighted work is higher in private domain than it would be in the public domain.

    Here is my plan:
    First, the original copyright is valid for 20 years free of charge. 

    After that the copyright is renewable indefinitely in 10 year increments. 

    To get the first renewal the owner must declare the value of the copyright, register it, and pay a nominal tax based on that value, in the range of 2 – 5% to be decided by Congress. 

    This is where the plan gets interesting. 

    Once the copyright has been registered, at the next 10 year renewal date the copyright automatically goes up for auction and the high bidder must pay the current copyright holder the winning bid plus the tax for the next 10 years. 

    If there are no bidders then the copyright automatically goes into the public domain permanently.

    This plan allows copyright material that has value in private hands to remain in private hands indefinitely, and material that has little value to be released into the public domain.

    • #22
  23. user_96427 Contributor
    user_96427
    @tommeyer

    Seawriter: I am an author. Once I bought into “life of the author plus 20 years.”  Today I believe 21 years renewable once is adequate copyright protection.  And only if copyrights are registered so its copyright status can be checked.  I believe this helps authors more than life of the author.

    I would also find this to be a huge improvement.  I wouldn’t be adverse to charging a small fee — no more than a few percent of revenue, and preferably less — for the renewal, but I could go either way.

    • #23
  24. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Seawriter: What that copyright does is prevent anyone else from using that work, especially if they have no means of contacting you.  So your work stays out of print, and you remain anonymous.  Whereas if it were in the public domain and republished you would be noticed and your career restarted.

    Authors are free to release their work into the public domain voluntarily, or to release it under a Creative Commons license (as Cory Doctorow does).

    It’s not like copyright law ties authors’ hands in this regard.

    • #24
  25. EJHill Podcaster
    EJHill
    @EJHill

    And when will I see any money for the games I’ve worked that now show up on ESPN Classic and the league-owned networks? Never.

    We need to differentiate among types of work.

    • #25
  26. Arahant Member
    Arahant
    @Arahant

    Misthiocracy: Authors are free to release their work into the public domain voluntarily, or to release it under a Creative Commons license (as Cory Doctorow does). It’s not like copyright law ties authors’ hands in this regard.

    Actually, I was about to make a similar comment.  The author is always free to release the work.  Similarly, on a site like Amazon, they offer many options to give readers deals.  One can set it up so people can have it for free or as someone on Ricochet does, allow them to have the book for free if they do a review on Amazon to get the name out there.  There are many options.

    • #26
  27. Z in MT Member
    Z in MT
    @ZinMT

    Going further the registration, auction, and fee collection, while regulated by Congress, should be privatized among several competing private entities, who would be funded by a share of the auction fees. 

    Registered copyright holders could choose which copyright registry they prefer, and can switch registries at anytime (however, the auction fees on transferred properties would have to be shared on a pro-rated basis with the prior registry company).

    I think the beauty of this plan is that the registries could not only hold the title, value, and register number, they could actually hold the copyrighted work itself.  These companies would then be able to make the registered works searchable and purchasable under agreements with copyright holder.  The registry companies would have an incentive to protect and grow the value of the copyrights in their portfolio because that leads directly to their auction revenue.

    What I envision is a whole new industry where content creators are more closely connected with content distributors and content consumers.  Think iTunes and Amazon as copyright policy.

    Additionally, the original copyright holders have a distinct advantage in the auction as they only have to pay the tax and not the full value.

    • #27
  28. Roberto Member
    Roberto
    @Roberto

    Misthiocracy:

    Roberto:

    Misthiocracy:

    Arahant: I think I am more for a pure fixed term.

    Once again, anything less that Life+50 means pulling out of the Berne Convention, which means other countries would no longer be under any obligation to recognize US copyright laws.

    Indeed, one shudders to think. Imagine a world where say China, Russia, Vietnam etc. had absolutely no respect for US copyright.

    American movie studios rely more and more on revenues from Chinese movie-goers. Why do you think so many giant robot and giant lizard movies are made these days?

    Incidentally, China only signed on to Berne in 1992. Russia only signed on in 1995. Vietnam only signed on in 2004.

    Hmm… so even though copyright is widely and persistently violated over a period of years and years movie studios are still generating more and more revenue from these markets. Interesting.

    • #28
  29. user_138562 Moderator
    user_138562
    @RandyWeivoda

    I understand the international treaty angle.  Ideally, though, I’d like to see it be the life of the author OR 30-40 years, whichever is longer.  The author can collect royalties until he or she dies, but if it’s been over 40 years since it was published, the descendants get nothing. If someone dies a week after publishing a best seller, their heirs should get some royalty money.  But life PLUS 50 or 70 years?  I don’t think so.  And if Congress keeps extending it another 20 years every 19 years or so, nothing currently protected will ever go into the public domain.

    • #29
  30. Sabrdance Member
    Sabrdance
    @Sabrdance

    1.)
          skipsul
    :

            In other words, Mickey would do porno films if copyright on him expired (or so the argument goes).

     Someone needs to inform Disney of Rule 34. (SFW links, no I’m not going hunting for Mickey Porn!)

    2.) I’m fine with life+50, but it has long seemed to me that we need to punch up both fair use and protections for derivative works.  It is ridiculous that fan fic has the threat of lawsuit hanging over it.  First, most of it isn’t good enough quality to threaten the original authors, and second -if it is good enough quality to threaten the original author, then it’s probably good enough to read -and thus using copyright to squelch it would violate the spirit of the copyright clause.  By all means, protect the author’s trademark, but not the fictional character.

    3.) Fun fact, according to Ed Glaeser, NYC’s publishing industry was built on copyright infringement.  It was the first city ships from England would reach, and the publishers would race to the docks, buy the newest European books, and try to have their own editions published in only a few hours.

    • #30

Comments are closed because this post is more than six months old. Please write a new post if you would like to continue this conversation.