Quote of the Day - Writing

No man but a blockhead ever wrote except for money. - Samuel Johnson

I write professionally. A good chunk of my income - whether I am receiving royalties or writing work for hire - is a product of copyright laws. If anyone could take what I have written, republish it themselves and collect money for the sale of my work without compensating me, I would have no incentive to write. Except to amuse myself. Mind, I do write for my own amusement. That is what my Ricochet writings are. (Although I tell myself it is to market myself as a writer, that is just the excuse.) Yet for most of what I write, I receive compensation.

Many non-writers assume because I write, I favor very long copyright periods. The longer I hold copyright on a work, the more money I get. But it does not work out that way. Extremely long copyright periods reward only two groups: large corporations and lawyers. The biggest losers are often the content creators, even if many of them believe otherwise. The reason lies in the nature and purpose of copyright.

Intellectual property law is relatively recent. It emerged around the time of the printing press. Before that books were tangible goods, like furniture or real estate–created longhand and individually. So was most artwork before the invention of reproduction technology. Michelangelo made a painting or sculpture, was paid for it, and went on to the next piece. Dante did not write the Divine Comedy, nor did Chrétien de Troyes write Launcelot, for royalties.

But once books, music and artwork could be copied and mechanically reproduced, people noticed something. The greater the financial reward to create works - or inventions - the more were produced. In short order, legal concepts like copyright and patents emerged. By the time the American Constitution was penned, it was standard practice. Congress was even authorized to pass laws (in Article I, Section 8):

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.

Note the purpose of copyright and patents. Not to enrich authors and inventors. Not to provide them with perpetual income. "To promote the progress of science and the useful arts." To maximize the flow of ideas. Otherwise why bother?

People follow the money. Authors and inventors are given a limited-term monopoly on their writings and inventions. (I include artwork and music as "writings" for this discussion.) The payments they receive under that monopoly (an exclusive arrangement we are most carefully taught is A Bad Thing) remunerate the inventor or author for the effort they spent creating it. Once the copyright or patent expires, the monopoly disappears.

The question is: what duration of monopoly should be set to maximize the flow of ideas? It's generally understood that if we set too short a period, the compensation fails to match the effort required to create the work. People will not bother to create. What many miss is that too long a period also discourages creation, and slows the progress of science and the useful arts.

For an example of the latter, look at patents. The term is 20 years. Imagine if the term were for the life of the creator plus 100 years. The airplane, for instance, would be under patent until 2048. Think how that would have handicapped the progress of aviation. Another example is more recent. Back in 2000-2010, you may have heard a lot about patent trolls. These were folks who filed patents for things like podcasts, and then proceeded to hit podcasters up for royalties. That discouraged the progress of a budding medium. You have not heard much of them recently. Why? Because patents expire after 20 years. Most of those patents were filed in the 1990s, and any monopoly held has vanished.

For copyright, what is the progress-maximizing term? What length do you set it to encourage production of writing while simultaneously maximizing derivative work? (Derivative work is anything using something for which a copyright was held or once held.)

For example, say I write a book that includes photographs. If the image is under copyright, I must obtain permission and pay a fee to use it. If I cannot find the copyright holder, I cannot use the image. If I find the copyright holder and the holder demands a fee I determine exorbitant ($1,000 for US use, $2000 for worldwide use, first printing only, $500 for each subsequent printing), I will not use the image. But if the copyright had expired, I could use the image.

Derivative use goes beyond using an image. It can include a melody or characters. One reason so many role-playing games use "halflings" for hobbits is that the Tolkien estate has hobbits under copyright.

That is not all bad. Louise Penny should have an expectation no one else can write stories about Chief Inspector Armand Gamache of the Sûreté du Québec, set in Three Pines. But it can get ridiculous, as with Sherlock Holmes only entering the public domain in this century.

Originally, Congress set the copyright length at 14 years, renewable once for another 14 years. Then it was changed to 28 years, renewable once for 28 years. Today, copyright for new material lasts for up to 120 years—a long time to lock an idea up. (Thank God, you cannot retroactively lengthen a copyright.)

As an author, I tend to believe 28 years is probably about right. If the goal is to promote the progress of science and useful arts. Through experience, I can tell you that an author receives most of the revenue for a work in the first decade after publication. If you have not earned back what you expended after 28 years, in most cases you will not. For the three-sigma high cases, where the work generates significant income after 28 years, the author has certainly received fair compensation for their effort in creating the work.

Once a copyright expires, others can use the material. Maybe not in ways the author intended, but in new ways. Some better, some worse. Just as there are better and worse ways to build and use aircraft. Just as every manufacturer installs intermittent windshield wipers because that patent has expired. The more ideas circulated, the more are created and the more get recirculated.

Does an author benefit from having their copyright expire during their lifetime? Sometimes, yes. Unless you view copyright as a system of pensions for popular authors.

An example: An author publishes a story. That type of fiction goes out of style 10 years later. The author abandons writing because the market has dried up. Thirty years later an anthology collection is being assembled. The editor finds a story by that author perfect for the collection. If it is still in copyright, and the editor cannot find the copyright holder, he lays the story aside, and it never gets republished. If there is a 28-year copyright term, it is in the public domain and can be included. The author is still alive and gets rediscovered. A fresh demand for the author's work develops, and suddenly the author starts selling again.

Such was the good fortune of Christopher Anvil, a 1950s-60s science fiction writer. Some of his copyright-expired 1950s work was published in an anthology (which paid him the going rate for the story, when he got in touch with the publisher). Then the publisher reprinted Anvil's backlist still in copyright (paying royalties) and signed him for new work.

Short copyrights may benefit readers. Writing is hard. George R. R. Martin was and remains popular. He has written little over the last 20 years. He could, but he does not need to, sitting like a dragon on a cushion of royalties. If the older copyrights expired, ending the flow of royalties, would he be motivated to start writing again? It would hardly matter what he wrote; he would get a fresh golden flow of royalties.

A personal example. Copyright constrains what I write about. I write history. I confine myself to periods before 1950 because most material published before then has entered the public domain. (All material published before 1929 is now in the public domain.) It is safe for me to use them. Would I write about the Korean War or Vietnam, if I were not constrained by image copyrights? Almost certainly. Am I the only author so constrained? I doubt it.

Long copyright terms do not benefit most individual content creators, either. A copyright (or patent) is simply a license to sue. Only in the most egregious cases could an individual author afford to sue someone infringing on a copyright held. And only the most successful authors—ones still receiving significant royalties after 50 years—will have an interest in suing. For 99% of individual copyright holders, whether the creator or the creator's heirs, the juice is not worth the squeeze.

In practice, long copyright periods favor only one group: large corporations that keep lawyers on salary. The nature of the process means they alone can economically file copyright infringement lawsuits. It also means that author estates, knowing the creators' individual copyright will bring them next to nothing, have an incentive to sell the copyright to corporations (generally for pennies). The corporations then lock up the work, slowing its dissemination. This is directly contrary to the intentions of copyright and patents in our system.

Long copyright terms are sold as a means to compensate authors. They do not. The winners are lawyers and large corporations. Coincidentally, most legislators are lawyers, and the major donors to their campaigns are large corporations.

Funny how that works.