Copywrong?

 

“The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works first published prior to 1978, the term will vary depending on several factors. To determine the length of copyright protection for a particular work, consult chapter 3 of the Copyright Act (title 17 of the United States Code). More information on the term of copyright can be found in Circular 15a, Duration of Copyright, and Circular 1, Copyright Basics.” 

From FAQs at Copyright.gov/help

The notion that the term of copyright “depends” should tell you that “it’s complicated.” The enabling section of the Constitution, Article I Section 8 | Clause 8 – Patent and Copyright Clause of the Constitution, was created in a different era. Recording, printing and copying were beyond basic. Over the years, the copyright statutes have passed, been amended, extended and excepted. In 1790, Congress passed its first copyright statute, granting copyright holders exclusivity for a whopping 14 years. By 1831, it doubled, with the possibility of a further 14-year extension. Effectively, like the much shorter “patent,” copyright gives the copyright owner a monopoly in their work... and very importantly, the exclusive right to create “derivative” (spin-off) works based on the original.

We forced the losers in WWII to accept a longer duration of US copyrights (a money-wrench in the exploitation of international rights), and the United States has entered into a number of international treaties that pushed and shoved our duration into compliance with international standards. We spent decades with differing durations of international vs domestic terms of copyright. The term of copyright is unjustifiably long, as you an see from the summary above. Since just about every creation on this planet is somewhat derivative, dealing with copyrights (not “copywrites”) that last about a century seems to be excessive by any standard. That Congress constantly changed the duration rules only added to the confusion.

Copyrights are today a huge business. From film, television, digital media, music, software, fashion, gaming, etc. are mega-tech-huge. Including patents, intellectual property businesses/values are well over 40% of our nation’s economy. This is truly important, because the entirety of the Patent and Copyright Clause of our Constitution was directed “To promote the Progress of Science and useful Arts…” Patents generally do not extend beyond 20 years, but copyrights, well the absurdity of the length has resulted in all kinds of machinations to temper that extreme: from introducing limited exception for “fair use” to giving individual US copyright creators a right to terminate grants of their copyrights after 35 years (which many foreign jurisdictions refuse to enforce other that as the US itself). But the long duration of copyright has one clear beneficiary: corporate America.

Patents represented a pragmatic reality for corporate America. Technological change was occurring so rapidly that even a 20-year patent seemed long. Businesses wanted to build on older patents, so having a shorter term was essential. But the commercial value of a creative copyright usually did not have the same “life or death” consequences of, say, a pharmaceutical patent, so a longer term of copyright did not seem to be a socially critical. And besides, for a copyright to have real value almost always required mass exploitation which almost inevitably required a corporate investment in production, marketing and distribution.

For creative conglomerates, like major studios and networks, they had a little “for hire” clause in their agreements with individual creatives they employed. The employer, not the creative employee, owned the copyright. And the fact that almost every form of creative intellectual property was effectively a cultural derivative gave these mega-owners (referred to in the statute as “authors” even though they were almost always companies) amazing power to curtail spin-offs and other derivative works. In short, the longer the term of copyright, the less “promotion” of creativity.

Yet when Congress acts to extend copyright, it almost always speaks in terms of benefits for those individual creators. As Michael Hiltzik, writing for the January 1st Los Angeles Times notes: “The argument for extending copyright terms has always been that the extensions give creators or their heirs that much more time to collect income and therefore incentive to keep their creative juices flowing, and who could object to that?

“As [Jennifer Jenkins, director of the Center for the Study of the Public Domain at Duke University] and other copyright experts point out, however, only a minuscule fraction of published creative works generate income for more than a few short years. The impetus for extending copyright duration comes almost entirely from corporate enterprises intent on squeezing the maximum income from creative franchises.

“In 1998, Walt Disney Co. pushed for enactment of the 1998 federal law known as the Sonny Bono Act after its chief promoter in Congress. The act set copyright duration at the author’s life plus 70 years, or 95 years after publication for works done for hire.

“But it’s vanishingly unlikely that a posthumous 95-year term would be an incentive to any living artist or writer. It was, however, a bounty for Disney, which at the time was facing the expiration of rights to the earliest films featuring Mickey Mouse and the looming cutoff of the royalty spigot.

“Thanks to the extension, the rights to the first Mickey Mouse cartoon, ‘Steamboat Willie,’ won’t expire until Jan. 1, 2024 — assuming Congress doesn’t extend copyright duration again.

“Whether the rules as they stand today serve the public interest is open to question. Consider the stringent control exercised by the estate of the Rev. Martin Luther King Jr. — mostly his children — over his speeches and writings such as the ‘I Have a Dream’ speech he delivered at the Lincoln Memorial on Aug. 28, 1963.”

A few years ago, I delivered a keynote address to gathering of patent, trademark and copyright lawyers. I excoriated the excessive duration of copyright as dramatically antithetical to promoting true creativity. All forms of art are, after all, culturally derivative. I noted that the original term of copyright – 14 years – was more inline with reality than the excessive current terms. I was expecting to be assaulted with boos and perhaps pelted with eggs mixed with tomatoes. Instead, I was greeted by a standing ovation. What does that tell you?! How about the first film to win the Academy Award, the 1927 production of the silent film “Wings" just entered the public domain on January 1st?

I’m Peter Dekom, and given a bottomless pit of global corporate campaign contributions and lobbying, the notion of individual creativity has fallen prey to corporate greed.