[PGCanada] Lessig: The corporate welfare called copyright extension

[Michael Hart]

They're Not Worthy
Why extend the copyright on works that no longer have commercial value?
By Lawrence Lessig
Wired . Issue 13.01 - January 2005

This New Year's Day, a wonderful thing will happen in Europe that
won't occur again in the US until 2019: Copyrights on music and
television recordings will expire. After a half century of monopoly
protection granted artists in exchange for their creative work, the
public will get its justly earned free access to an extraordinary
range of both famous and forgotten creativity. Libraries, archives,
and even other creators can spread and build upon this creativity
without asking permission first. Songs from 1953 that seniors across
Europe wooed their first loves to can be streamed across the Net for
free.

Such a yearly event doesn't happen in the US anymore because Congress
repeatedly extends the term of existing copyrights. The last extension
in 1998 - the Sonny Bono Copyright Term Extension Act - was the 11th
for existing works in 40 years, delaying any copyrighted song from
entering the public domain for another 20 years. This practice is now
inspiring copycats in Europe to similar plunder. Sir Cliff Richard -
the most successful singles artist in British history - has launched a
campaign in the EU to extend the term of copyright for sound
recordings from 50 years to 95. Billions will be wiped from the books
of European record companies, Richard warns, if governments don't act
immediately.

If you know anything about this debate, you might wonder why this
question has come up again. (And, for that matter, if you know
anything about accounting, you might be puzzled why EU record labels
get to book value for assets set by law to expire.) When Congress
passed the Sonny Bono Act, we were told its purpose was to "harmonize"
US law with European law. Turns out - surprise! - that in the most
important categories of copyright, the act made US terms longer than
those of the EU. Thus the pirates of the public domain are back,
arguing that the EU must lengthen its copyrights to harmonize with
those of the US. And as Mexico is about to extend its terms beyond
those in Europe and the US, no doubt soon we'll be hearing calls to
extend our terms to match those of Mexico.

This spiral will not end until governments recall a simple lesson:
Monopolies are evil, even if they are a necessary evil. We rightfully
grant the monopoly called copyright to inspire new creative work. But
once that work has been created, there is no public justification for
extending its term. The public has already paid. Term extension is
just double billing. Any wealth it creates for copyright holders is
swamped by the wealth the public loses in lower costs and wider
access.

The urge to extend terms for commercially valuable work is
understandable, albeit from the public's perspective, senseless. But
the way that governments extend these terms is even more senseless.
Rather than limiting this corporate welfare to those works that are
commercially exploited (leaving the forgotten to pass into the public
domain so libraries and archives can make them available cheaply),
governments uniformly extend the duration of copyrights
indiscriminately. The Sonny Bono Act, for example, extended terms for
works from as far back as 1923, even though, as Supreme Court Justice
Stephen Breyer estimated in Eldred v. Ashcroft, 98 percent of the
oldest works are no longer commercially available.

It would be easy for governments to narrow term extension to those who
want it by requiring copyright holders to pay a small fee. Even a very
small fee would filter out the vast majority of works from automatic
term extension. Most would enter the public domain immediately. Yet
even this idea is ignored. Who can hear reason when billions are about
to be wiped from the books?

Governments should end this game by tinkering with copyright terms for
future works only. But if they're not strong enough to stick to this
simple principle, they should at least limit their damage by
restricting extensions to those works from which someone might
actually benefit. That someone, no doubt, won't be the public. But
there's no reason to extend terms when no one - not even record
companies - could possibly benefit. Filter the forgotten from term
extension, and we might forgive the senselessness that inspires Sir
Cliff to sing again.

Email Lawrence Lessig at lawrence_lessig at wiredmag.com.