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What’s the Proper Conservative Position on Copyright Duration?
Who 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.
Published in General
A few more comments on the graph.
Commercial enterprises normally use higher discount rates than what I have picked for relatively long lived investments. I think a historical treasury type rate of 4% is the lowest that is reasonable because we are talking about the commercial use of peoples efforts. Society has an interest in workers picking valuable ways to spend their time so lowering the discount rate to inflation or zero I think is not fair to the rest of us.
$10k/yr revenue is arbitrary, what is important IMO is to understand that even at low discount rates the original author of the property gets very little additional revenue after 40 years, while society may get a great benefit by not having to pay so much to copy the work.
I don’t see why in any case an author’s children should benefit substantially from the parent’s intellectual property , although I am not hard hearted enough to say they deserve nothing. So I can see extending past the death of the author but death plus a fixed number seems wrong to me.
Ross, good work bringing in the numbers on this. But I’d like to reiterate a point made elsewhere here.
The issue is this: There may not be a single author, or an individual “owner” to most copyrighted works. There are agents, distributors, publishers, corporations, collaborators, all of whom may own part of a work. If Publish A owns all of the collected works of Skipsul because I was a paid staff writer, my kids aren’t getting beans anyway.
The problem at issue is that the copyright system is currently ordered around this reality, not around the reality of individuals.
Some would argue this just promotes the practice of making your children co-authors of all one’s works.
Well, great. I’ve just been discouraged from investing. Like I said, I can adapt. But is it good for commerce? That’s another question. It can be argued from both sides for eternity.
The conservative view should be setting the rules at the beginning of the game, whatever they may be, and sticking to them.
This is how I deal with it. Deals were made. Investments relying on a certain landscape. I choose not to whine about it. I don’t lobby for extensions and I don’t cry about who may be abusing the present system.
When talking about inheritance, the question isn’t, “why should the children benefit from the labours of the parent,” but rather, “why shouldn’t a parent have the right to leave their wealth to their children?”
Saying that children shouldn’t benefit from their parents’ labours is the justification used for Estate Taxes.
The comments thus far focus on various practicalities of copyright duration and a number of good observations have been made. But perhaps it also should be considered just what a copyright is, or at least historically was. Copyrights protect ideas, sometimes simple ones and sometimes complex ones that rise to the level of “works.” My impression, however, is that ideas were not recognized as property per se under English common law but instead were traditionally said to be “free as air.” The notion of copyright was developed when the importance of incentives for new ideas shared with the public was recognized; it thus made sense to create a special but limited legal protection for new ideas for the benefit of the public as a whole — with the limitations being important for the reasons described by Madison and others and discussed in earlier posts.
As such, my guess is that a Burkean conservative wouldn’t compare copyright to the traditional right of property at all, but instead call it a progressive concept that has been driven by factional interests well beyond its original goals. If so, a conservative would return to copyright’s early limitations and duration.
Yes, simpler is better. Copyright law is notoriously complex and unclear. Organizations break copyright laws all the time and don’t even know it (like restaurants singing “Happy Birthday To You”). This gives too much power to copyright trolls–the ambulance chasers of the copyright world–who make a living off of coercing money from the unsuspecting. When you have to hire a bunch of different lawyers to figure out what a law means, there’s something wrong with the law. Only when laws are understandable (and ideally, short) does “ignorance of the law is no excuse” make sense. Picking an expiration number (or year) may seem arbitrary, but it’ll be much simpler for everyone.
Copyright protection is now way too extensive, and lasts way too long. But it’s never going to be reasonable again. Ever. Because too much of our economy now depends on the residual profits on such stuff. Congress is never going to oppose the likes of Disney when it’s time for Mickey Mouse to expire again. Eventually, you’ll see what amounts to perpetual copyright as more and more of the already weak economy depends on bread and circuses, err, excuse me, the media sector of the economy.
I’m not convinced that’s necessarily true.
The most recent extension to US copyright terms was in 1988. The world of media distribution has changed INCREDIBLY since then, and liberalization of copyright terms is a much more popular issue these days.
In 1988, the lobby opposing the big media companies wasn’t nearly as extensive or well-organized as it is today. In 1988, there was no Electronic Frontier Foundation, or people like Cory Doctorow.
As more and more people get used to downloading media, more pressure may be placed on Congress to relax US copyright terms to bring them more in line with global norms.
Maybe.
The Mouse has been the loudest snout in the trough, but there are plenty of big corporate snouts at the table. The Berne Treaty is more generous than I would be given a free hand, but it has the charm of being well and widely established.
The complexities of establishing rights and licenses on a whole lot of older properties represents a prohibitive risk to those who would return them to market, and under Berne that will continue for quite awhile. Everyone is afraid of sinking good capital into a property only to have an obscure niece discover a nullifying piece of paper in mom’s old shaving kit that blows any deal out of the water. It happens more than you might think, anyway.
The notion that rights and royalties shouldn’t be sold, traded, or inherited is just plain wrong. Property isn’t property if you cannot sell it. The notion that widows and orphans have a lesser claim to that property than some pajama boy haunting a couch in mom’s basement is worse than dubious.
Cory Doctorow is exactly what I would expect from a tech fan raised by Trotskyites, unreadable but intentionally offensive.
A few years ago, my brother posed that argument to me and at the time, I didn’t have a good response. I got to thinking about it, and realized that Santa Claus is in the public domain, yet in general, that hasn’t harmed the “brand”. I can think of one dark movie about Santa Claus called “Bad Santa” with Billy Bob Thornton. The movie is mostly forgotten, and Santa is still celebrated by children everywhere.
Peter Pan is in the public domain (though Disney’s portrayal probably isn’t). Again, the brand hasn’t been affected.
Disney’s Mickey Mouse argument was bogus.
My point about children goes to the length of the copyright period. That is, if the period is designed as life + 50, the plus number is specifically designed to benefit the author’s children or a buyer of the copyright. This IMO should be avoided. A fixed number allows the author to pass along or sell rights but does not give the inheritors additional rights the original author did not have. So I think a fixed number is better than a death plus number.
Btw none of this IMO points to what the conservative position should be. In answer to that for me, is that we should be looking to secure the rights of creator’s and we should be aware that we can use other relatively long term investments as a guide to what is fair. We should be aware that the longer the period the more unintended consequences creep in. And we should avoid a free for all because respect for property rights is a bedrock conservative value.
Well, the best position to take is one of stability, with only gradual changes. As Escalante pointed out above, he has already made his investments based on current law. Whatever changes are made to copyright would have to set a framework moving forward, leaving existing copyrights in place.
However unjust the past extensions have been, to nullify them would be a Regulatory Taking, and unjust as well.
Regulatory Takings are when a government takes away property, business, usage rights, income, etc., by a change in law. If you own rights to a song, and those rights are good for 20 more years, and a law change reduces your rights to say 5 years, then you have lost 15 years’ worth of value.
Or if you manufacture a item, and the government makes it illegal for you to manufacture that item, they have effectively taken your business.
Depending on the era, courts have had varied doctrines regarding compensation due, but any shortening of copyright for existing material could require governmental compensation, similar to Emminent Domain compensation.
In other words, what is in and under the current law would have to be grandfathered in. Any new law that had lesser terms, such as life+50, would be applied to new materials only, while the older laws, minus extensions might apply to current.
One wrinkle is that with e-books, no book is ever out of print. In fact, many e-books are never put into print in the first place. However, the conservative position in this debate is to follow the law as written. If the law were to be changed, however, I would favor indivduals and their descendants over corporations when it comes to the duration of the copyright.
One other change I would make has to do with duration. Material is copyrighted the moment it is created. I would start the timer when the work is published, rather than when it was created.
70 years after the death of the creator of the copyright is more than enough. The public would be better served if Winnie the Pooh were in the public domain, for example. Mickey Mouse is a corporate icon, so maybe one could make an exception there. The public might also be better served by a gradual phase-out of each copyright as the years fly by. Fan fiction, for instance, is often permitted by copyright holders. Perhaps fan fiction should phase in within 7 or 14 years of the death of the originator, with some royalty arrangement paid out to the heirs or corporate owners during that interim period before the copyright expires altogether.
In other words, “They screw things up. We continue. They take from our public to give goodies to their base and we slow the rate of increase of corruption.” Sorry but that sounds all too familiar. This can not be “the conservative position” unless ‘Party of Stupid” goes beyond a Republican habit to the very definition of conservativism.
If the government bestows intellectual property rights beyond the public interest, that is not private property but cleverly disguised graft. We have no business protecting it.
I’m not quite sure why copyright lasts longer than patents. Aren’t they both protecting the same thing? Intellectual property? In fact, because of the time it takes to put something into production, it could be argued that patent protection should be longer.
The American theory of intellectual property got hijacked by an effete European one which then opened the door to crony capitalism and special interest politics.
The Constitutional provision deals with “science and useful arts”, i.e., technology. The theory is that people need incentive to advance these. In the absence of intellectual property, one who invests time and talent in advancing technology will not likely be able to recoup his costs due to copying by others driving down profits. Thus, the Constitution grants power to Congress “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.”
The limited time gives incentive, but allows the public to eventually enjoy the full benefits.
The problem is that others tried to get into the act. Copyright was deemed to cover writings outside the realm of Science and the Useful Arts and then even non-writings/non-inventions/non-discoveries in non-useful arts (e.g., sculpture, paintings, etc.).
This departure resulted not from the Constitutional promotion purpose, but a doctrine called “moral rights”.
The “moral rights” argument was basically that artistes, who are better than everyone else, have a divine right to control all use of their work to prevent their moral inferiors from making any use of it. Once the moral rights crowd took control, several dynamics took off. First, moral rights are not inherently time limited like the promotion purpose is. Thus, the term stretching took off.
Arguably, there is less public benefit to expiring copyright in fine arts than in scientific writings. However, as the useless arts began to dominate, the term started getting extended even for scientific writings. Once corporate interests became involved you had a situation of concentrated beneficiary, diffuse victim. Disney makes billions from copyright extension so it can spend tens of millions lobbying. You probably suffer only a few thousand dollars in losses per year a few dollars or cents at a time. You may not even notice and have no incentive to spend a million dollars lobbying. Disney and its ilk have powerful allies in the “moral rights” crowd of artistes, etc.
But to be a “Conservative” means avoiding radical immediate change unless necessary. An immediate rolling back of copyright terms would be disruptive. A gradual reform that looks forward would be more likely to succeed in passing, and would not be attempting to confiscate property in the name of justice.
Don’t fret about past injustices (that’s the job of Liberals), worry about fixing the system.
Some might argue that the modern conception of Santa Claus, popularized as it was by Coca-Cola and Macy’s, represents in and of itself a harmful bastardization of Saint Nicholas’ “brand”.
Also, Silent Night Deadly Night:
Decisive is good.
A slow rollback may never happen. A rollback that occurs 4 (or 50) years after passing may be cancelled or reversed before it comes into effect
Going slow means opening a sore that will stay open for years. Every election it can be used to rally opponents, lobbyists and funding.
Going quickly sends the message that we can. It means that excess intellectual property rights will be understood to be the fragile and politicized things they are. Getting another 20 years will, therefore, be less valuable and less worth battling for.
I’m not actually so certain that radical action is better. (I have some sympathy for Misthiocracy’s suggestion of honoring the Berne Convention.) But it is quite wrong to say that slower is always better or safer. In terms of policy, it produces unstoppable ratchets like the expansion of government spending. In terms of politics it produces the 1st marine division’s motto in reverse:
Monopolies create inefficiencies, lower supply, and raise prices. The justification for the government to create monopolies by issuing copyrights is supposed to be that it is a necessary evil – necessary in order to incentivize authors to create original works. That is the only justification for allowing what would otherwise be a blatant violation of antitrust laws and of sound economic principles.
If there is an author anywhere who thinks he can make a credible case that he would not create original works without the incentive of knowing that, 50 years after he is dead, his grandchildren would benefit from those works, I would like to hear him try. For now, count me skeptical.
Sorry, there should be no copyright law.
If what you have to say is worth saying, and you want to say it, say it.
The idea that persons will not say something unless they have a government guarantee of income from what they say is absurd.
Freedom and reality will sort out how it works, but the creative life is part of existence, a naturally occurring happenstance, and often not as highly valuable as the sayers think.
I love War and Peace, and it is eminently re-readable. I am profoundly grateful for its production. It never fails to stir me, whatever part.
But what Tolstoy did was the product of something deeper than copy-right.
Patent and trademark are different matters, although even they are too expansive and should be circumscribed by the concept of fraud.
Why is freedom so difficult for humans?
And BTW, this topic is very much related to the issue of education, which is highly distorted by both the Left and the non-Left for different reasons.
The systematic acquisition of knowledge is no esoteric or bizarre process, incapable of most of mankind without the help of a coercion. It happens naturally.
How to think is similar, dependent on how people interact with each other, usually through the mediation of a family, a mother and a father primarily.
Knowledge and how to think are radically different values depending on the individual considered.
How amazing it would be if each of us was different in no respect.
The consequences of things as they actually are, no doubt challenge the intellect.
Challenging the moral, the compassionate, the ethical, the loving, is an entirely separate question.
That’s the hijacking of copyright law by the non-useful arts. On the one hand you note the artiste will create due to emotion, not financial incentive. On the other hand, that emotion causes them to demand infinite copyright.