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Protectionism Against the Past (or: Why are Copyright Terms so Long?)

June 5th, 2012 · 44 Comments

Under current law, this blog post will remain under copyright until 70 years after my death—which if I’m lucky means a century or more from the date of authorship. That’s an insanely long time when you consider that most economic studies have shown there’s almost no marginal incentive effect on production once you extend copyright terms much beyond the original span: 14 years renewable once, or 28 years total. Why would we needlessly lock away our own culture for so long?
One popular answer is the Mickey Mouse Theory. Though the effective commercial lifespan of the vast majority of copyrighted works is just a few years, a very few—like some of Disney’s iconic properties—continue to be immensely profitable for much longer. The owners of these properties then throw gobs of money at Congress, which ritualistically serves up a retroactive extension whenever these come within spitting distance of the public domain in order to protect their cash cows (or mice, as the case may be).

No doubt there’s something to that. Yet if that were the sole concern, you’d think the content industries would prefer a renewal structure that maxed out at the same term. The cost of renewing the registration of their profitable (or potentially profitable) works would be trivial for the labels and studios, but they’d also gain access to orphan works that nobody was making any use of. Our system, by contrast, seems perversely designed not just to provide extended protection for revenue-generating works, but to guarantee a minimal public domain.

Here’s an alternative hypothesis: Insanely long copyright terms are how the culture industries avoid competing with their own back catalogs. Imagine that we still had a copyright term that maxed out at 28 years, the regime the first Americans lived under. The shorter term wouldn’t in itself have much effect on output or incentives to create. But it would mean that, today, every book, song, image, and movie produced before 1984 was freely available to anyone with an Internet connection. Under those conditions, would we be anywhere near as willing to pay a premium for the latest release? In some cases, no doubt. But when the baseline is that we already have free, completely legal access to every great album, film, or novel produced before the mid-80s—more than any human being could realistically watch, read, or listen to in a lifetime—I wouldn’t be surprised if our consumption patterns became a good deal less neophilic, or at the very least, prices on new releases had to drop substantially to remain competitive.

If that’s right, there’s a perverse sense in which retroactive extensions for absurd lengths of time might actually, obliquely, serve copyright’s constitutional imperative to “promote the progress of science and useful arts”: Not by directly increasing the present value of newly produced works, but by shrinking the pool of free alternatives to the newest works. (Of course, any law restricting non-consumptive, non-commercial entertainment would have a similar effect.) If that’s true, though, it’s not enough in itself to justify the longer terms: The question is whether the marginal new content is actually worth losing universal free access to the older material. For reasons unclear to me, there often seems to be an undefended assumption that more newer stuff, whatever the quality, outweighs wider access to existing content at any conceivable margin. I’m not sure how you’d go about quantifying that, but it strikes me as wildly implausible on face.

Tags: Art & Culture · Tech and Tech Policy



44 responses so far ↓

  • 1 Gabriel Rossman // Jun 5, 2012 at 7:14 pm

    I’m afraid I don’t buy it. I just don’t find it plausible that Hollywood is actually afraid we’ll all stop going to the movies because we can watch Mickey Rooney/ Judy Garland movies for free. We can already watch old movies for very cheap but we have a strong expressed preference for going to see new releases rather than tuning into Turner Classic Movies.

    Rather it seems to be the Mickey Curve plus a question of incidence for transaction costs. In this sense it’s the same issue as copyright being automatic and not requiring registration. Both registration and renewal require the author to take an affirmative act to assert IP rights. Authors would prefer to be free of this responsibility but still have these rights. For evidence of my view, look at the legislative history of (failed) orphan works legislation. These bills would have implicitly been comparable to requiring renewal in that the author would have to take an affirmative act to maintain IP rights to an old work. The bills failed because authors (especially photographers) didn’t want to go through this hassle even though from the perspective of maximizing total social welfare it’s a no-brainer.

    I’ve was thinking of writing this up during my guest run for Megan but never got around to it. E-mail me if you want to see my notes.

  • 2 Luis // Jun 5, 2012 at 7:52 pm

    I think you’ve also overlooked the vanity of Hollywood, Julian. They genuinely think their wealth is based on producing original, creative stuff, so they don’t think that adding to the pool of public domain material they could draw on would be a boon to the industry.Try pointing out that a huge portion of the Disney fortune is based on “other people’s IP” (even Steamboat Willie was a parody, after all), or that they all aspire to some day get a “glamour” credit for doing Shakespeare in the Park, and they get very indignant.

  • 3 AC // Jun 5, 2012 at 8:20 pm

    On one side, we have a clearly defined system of actors- Disney, independent authors, et al, who benefit directly from an increase in copyright terms.

    On the other side, we have…well, it’s not clear. Our society as a whole may very well benefit, but it’s hard to pinpoint an individual or group that would benefit from a reduction in duration.

    So the direction of the push is one way only, and we end up with our current system.

    I’m also not buying your hypothesis, though the reason is perversely related to a fact you mentioned. The grand majority of consumer interest is focused on contemporary works and not content from a generation ago. People like the idea of unlimited access in principle, but our full attention is directed towards the present.

  • 4 Stephen Winson // Jun 5, 2012 at 8:30 pm

    While I think it’s a good hypothesis, and the actual reasoning probably boils down to some combination of it and the Mickey Mouse problem, many of your theoretical consequences are actually happening under the current copyright regime.

    All across the media sphere prices are dropping, or discounts/sales/price drops are happening faster. New stuff is cheaper in nominal terms for books, music, films, etc, and indie publishing is making it much harder to maintain price levels in the few areas where they aren’t (video games). Even with the essentially static supply of public domain works, they’re endlessly mined for current commercial projects, and probably contributed to more actual reading of important classic books. On top of that, until the first sale doctrine is abolished (hah) people will continue to make money recycling the back catalog at grande latte prices.

  • 5 JZ // Jun 5, 2012 at 9:06 pm

    Plausible hypothesis. But why link a lack of competition — in this case from orphan works — to *more* innovation? That’s like saying that a movie theater that doesn’t have to compete with the food you could bring in yourself will have better offerings than one in which you’re allowed your own snacks. Shouldn’t the opposite be true — the concession would evolve to provide things that it has comparative advantage to provide *over* your snacks, rather than just selling you at insane prices what you could otherwise bring yourself.

    A world in which the present must more directly compete against the past doesn’t have to mean less innovation — it means more. …JZ

  • 6 Adrian Ratnapala // Jun 6, 2012 at 2:03 am

    I think JS is right that this is one incentive for pro-copyright lobbying. I can’t find it now, but a few weeks ago I saw a graph showing number of recent downloads vs. some kind of time axis. There was a huge step change at the point where the publications were too old to be covered by copyright. That’s for rather old publications, imagine how many more people will want the original Star Wars trilogy, or Kylie Minogue’s back catalogue!

    So I think with 28 year copyright terms, there will be much more “retro” culture consumed. You could argue that that it would make us backward-looking and conservative; but I don’t think it will. First, as JZ says it gives new producers more incentive to innovate (why pay for the cover when you can download the original). Secondly, I don’t think even an expanded retro culture will ever dominate — new stuff will always be more popular than old stuff, especially at the right price.

  • 7 K.Chen // Jun 6, 2012 at 10:01 am

    I have probably done much less research than you on this, but I’m pretty sure you’re suffering from some parochialism here. One of the major influences on copyright law and policy in general and in the U.S. in particular are the insanities of Europe. U.S. Copyright terms get extended because Europe decides to extend copyright terms and will only reciprocate within their borders if the U.S. does the same. These are mostly the same people who think that a creator selling a piece of art should in no way limit the artists’ perpetual right to not see that art resold or GASP! destroyed.

  • 8 Atomic Kommie Comics // Jun 6, 2012 at 1:37 pm

    “On one side, we have a clearly defined system of actors- Disney, independent authors, et al, who benefit directly from an increase in copyright terms.”

    1) You mean corporations (which own the VAST MAJORITY of copyrights) and independent authors.
    Disney’s just one of many corporations including Time/Warner, Viacom, Vivendi, etc.

    2) Before 1976, the term was 28 plus 28 (with renewal) for a total of 56 years.
    56 years is a quite reasonable period for an individual.
    How many pre-1956 books or movies have YOU read/seen recently?
    Under the old system, anything since 1956 could STILL be under copyright, if renewed, as of 2012.
    Most people reading this column weren’t even born before 1956!

  • 9 Tor M // Jun 6, 2012 at 1:56 pm

    I agree with what JZ wrote. Btw. you might be interested in this quote from 2009 by the Director General of GESAC (an umbrella organization for collecting societies in Europe) as part of a discussion about orphan works legislation in the EU: “What possible justification can there be for allowing a work to be used free of charge on the pretext that its author has not yet been identified? Not to mention that making such a distinction would be apt to undermine the market by encouraging users to use only orphan or purportedly orphan works in order to avoid paying remuneration.”

    In fact that statement prompted me, at that time, to write a blog post quite similar to yours (the title was “Protective tariffs against the past”).

  • 10 Why Does Copyright Last So Long? | The Penn Ave Post // Jun 7, 2012 at 10:16 am

    […] Does Copyright Last So Long? Posted at 10:16 on June 7, 2012 by Andrew Sullivan Julian Sanchez has a theory: Insanely long copyright terms are how the culture industries avoid competing with their own back […]

  • 11 paul barnsley // Jun 7, 2012 at 11:24 am

    I’m interested in the claim that incentive to produce has more or less dropped off for additional years beyond 28, which I’ve seen before but never really given any thought to. A raw calculation of value in the 29th year using a plausible-sounding 2.5% annual discount rate (the standard in Australian legal damages calculations, for instance) suggests that dollars then are worth exactly half as much as dollars now, which is still plenty of extra incentive. And even a 5% discount rate puts a 25% value on 29th year royalties.

    What am I missing?

  • 12 iluvcapra // Jun 7, 2012 at 12:31 pm

    I’m afraid the only person that can completely answer this question is the Honorable Sonny Bono, but he’s not talking.

    “They genuinely think their wealth is based on producing original, creative stuff, so they don’t think that adding to the pool of public domain material they could draw on would be a boon to the industry.”

    I’ve worked in Hollywood for a decade, and I’m not sure I’ve ever met a working professional that believes this — we can be crass, but not as deluded as you may believe, and most people understand the subtleties between art (requires originality) and entertainment (demands familiarity). Also, I don’t understand how adding material to the public domain encourages “originality.”

    Mr. Sanchez, I submit that the real reason Bono made sure copyright lasts so long is because he wanted to make sure he got every penny he could when Ford used “A Cowboy’s Work is Never Done” on an F-150 ad.

    The kids on TPB are a threat to the large media corporations, but most working artists are animated by the fear that the quality and fame of their work will simply be pirated by other large corporations to create ads and sell products. Some artists are also bothered by the implications of other people they don’t know reusing and recontextualizing their pieces — Lanier wrote about this issue in particular, and this will tend to be an issue as long as we’re going to claim that a recorded work is art and the creator has any kind of droit moral.

    As a commercial artist, I’d be concerned that shortening copyright terms wouldn’t really benefit anyone but ad agencies, and would cheapen our cultural heritage. I’m not particularly happy with the rentier status quo, but it has succeeded in preventing the flower of 20th century culture being regurgitated back on us in tampon ads. You almost wish that after 30 years the copyrights would go into a National Trust to live out their term of meaningfulness.

  • 13 Geoff // Jun 7, 2012 at 6:25 pm

    I wonder what thoughts anybody has on the closely-related issue of ownership of the characters: for instance Disney owns Mickey Mouse, Iron Man, etc. and so prevents anybody else from using these ideas to create more works. It seems pretty clear to me that there’s not much real benefit to the broader society here, although of course it’s a way for artists or the corporations they work for to make more money. It seems likely that this kind of ownership of a broader idea ought to be much less than even 14 years if the goal really is to foster more production of creative content.

  • 14 ??? // Jun 7, 2012 at 6:49 pm

    It’s also within the realm of possibility that these corporations are effectively lazy and/or wish to not spend the money or resources required for a renewal structure.

    “…but most working artists are animated by the fear that the quality and fame of their work will simply be pirated by other large corporations to create ads and sell products.”

    Which wouldn’t be an issue if it weren’t for the fact that many are co-opting the system now as it is by placing their songs in ads.

  • 15 DavidT // Jun 7, 2012 at 11:54 pm

    Is it not possible that some members of Congress agree with Mark Twain and Mark Helprin that copyright should last forever like other property rights http://www.bpmlegal.com/twain.html
    and realizing the obvious unconstitutionality of this, seek to make it approach that limit as near as possible?

    I’m not saying that I agree with Twain or Helprin; see
    http://wiki.lessig.org/index.php/Against_perpetual_copyright for counterarguments. But what I am saying is that there *are* people who see, not copyright but the *limitations* on it as a necessary evil…

  • 16 Uri // Jun 8, 2012 at 8:36 am

    It’s worth mentioning that keeping works out of the public domain also prevents their use in new creative works by anyone but media conglomerates. Big corporations don’t care about public domain because for them every work is essentially public domain: they can afford to license any copyrighted work, and can afford the legal risk of using orphan works. So limiting the public domain saves them not only from competition with older works, but with new works from the vast amount of creators that don’t have the necessary resources.

  • 17 Intellectual property law roundup - Overlawyered // Jun 26, 2012 at 12:30 am

    […] are copyright terms so long? One theory [Julian Sanchez] […]

  • 18 Don // Jun 26, 2012 at 10:15 am

    I think you are missing the descendants of extremely creative people who are part of these games. These are people who’s parent, aunt, uncle, cousin made some valuable piece of IP, and insist that it is only fair that they get to continue to make money off that IP long after the person is dead.

    Show me one dead person who continues to create original content because they care about their income stream.

    But I can show you lots of uncreative descendants who continue to try and figure out how to live a life of leisure on the backs of some one else’s creativity.

  • 19 Laure // Jul 14, 2012 at 12:31 pm

    Kind of late to this one, but I think it’s a premise that has become more plausible- not so much for enacting the legislation as for attempting to hold on to it. The reason new things are important in large part results from a combination on limits to marketing dollars (which, due to increasing noise from many sources of distraction, are ever increasing) and human neurological bias towards novelty. But old things can be new again and certainly a competing noise, especially if they are free and have already had huge marketing pushes to draw on. The fundamental issue with entertainment and copyright, though, is this notion that the exlusive rights can be owned by a third party for extensive lengths of time. That notion creates a whole host of underlying assumptions that just don’t always add up with the technical realities of today.

  • 20 Jordon Myers // Aug 24, 2012 at 2:01 pm

    Honestly, if the copyright law was still at most 28 years, this would push people to create more things, and create better things to make them as much money in that 28 years. I’m not incredibly intelligent on the subject of technology or law but that’s just what makes sense to me. It creates more competition which leads to more innovation.

  • 21 Cato Unbound » Blog Archive » The Way Forward on Copyright Reform // Jan 7, 2013 at 1:08 pm

    […] further shows that our system of copyright is suboptimal at best and significantly counterproductive at worst. For much of our history, copyright required […]

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