Mac Musings

How to Change Copyright Law so It Once Again Serves the Public Interest

Daniel Knight - 2005.01.31

Copyright law was created to protect writers from pirate publishers in the early days of affordable printing presses. Historically copyright was for a limited period of time - 28 years in the U.S., and renewable to 47 years or even 67 years.

After copyright expired, works entered the public domain, which meant anyone could use them. All works created prior to 1923 - with the notable exception of "Happy Birthday to You" - are in the public domain. Works created from 1923 through 1977 may still be under copyright if copyright was renewed; if not, they have entered the public domain.

Mickey Mouse

Enter Mickey Mouse on May 15, 1928. The embodiment of the Disney corporation, Mickey Mouse remains under copyright protection. As noted in the Wikipedia, "Disney has lobbied for and achieved repeated copyright term extensions from the United States and the European Union that have prevented the character from entering the public domain. Disney's lobbying efforts have contributed to the ability of other copyright owners to extend their copyrights as well."

Today copyright extends 70 years beyond the author's death - or 95 years in the case of a work made for hire.

Copyright law has gotten out of hand. Copyright was created so the author of a work could benefit from it for a limited amount of time, after which the work would enter the public domain. Today copyright has become virtually unlimited, because Disney and other lobby for longer and longer copyright terms.

There are some limitations on copyright applied. Called "Fair Use," copyright law in the U.S. specifically allows quoting from a work in a review, using it in the classroom, parody, and making a copy of a work you own for your own personal use.

It was the last of these that helped people justify MP3 swapping on the Internet. "It's there so people who have the tune on disc, tape, or LP don't have to go to the trouble of digitizing it themselves." And that, of course, lead to rampant piracy.

As in the beginning of copyright law, affordable technology threatens the rights of authors and artists to control their copyrighted works.

Digital Rights Management

The solution has been for publishers to create better and better anti-copy solutions. I recall one high-end audio newsletter that was printed in blue in on red paper to make photocopying virtually impossible - so was reading the newsletter! Videotape was often protected with Macrovision, and now some CDs have protection schemes as well.

The benefit to the publisher is obvious - piracy is made difficult, and profits are protected. The benefit to the public is nonexistent, since we often lose the right to make backup copies of our video libraries for personal use.

Apple's FairPlay technology is a step away from overly strong protection. Anyone who buys music from the iTunes Music Store can make backup files, burn them to CD, or put them on iPods to their heart's content. But they can't play back the Apple-supplied tracks on any computer that isn't authorized to play them.

I think FairPlay balances the needs of the public with those of the publisher, so I see the Hymn Project (which unlocks iTMS tracks, claiming this allows you to exercise your fair use rights) as a silly waste of time - if not a violation of copyright law itself, since it is the copyright holder who licenses Apple to sell these tracks with DRM installed.

Too Long

I believe publishers have a right, if not an obligation, to do what they can to prevent piracy without infringing on the fair use rights of their customers. At the same time, I believe that copyright law no longer serves the public interest as much as it serves the interests of publishers.

And this isn't only true in the States. Most countries now support the life-plus-70-years copyright, which means that most modern material won't go into the public domain until it's long forgotten, especially as the average life span continues to increase.

A Better Solution

In reality, modern copyright law doesn't allow new material to enter the public domain unless the author deliberately places it there. All works, magnificent and mundane, are protected practically forever.

I'd like to see everyone go back to the old way of doing things. Copyright forever - which is what is happening with changes in copyright law - doesn't serve the public interest. There must be a mechanism whereby works can fall into the public domain after a certain time if copyright is not renewed.

Under current copyright law, it's not necessary to file anything with the government. Whatever you create is automatically covered by copyright law for your life plus 70 years, and you don't have to spend a penny to obtain that copyright protection.

The government is giving away copyright for free, although there are some advantages to filing paperwork and paying to register copyright. But as it stands now, your works are protected for a long, long time.

The solution is to stop giving away perpetual copyright. Here's my proposal:

Change the term of automatic copyright from life-plus-70 to twenty years from creation or first publication. Beyond that, require the copyright holder to pay to renew the copyright every ten years. If the work is commercially viable, the owner will pay to do so. If not, it will fall into the public domain.

Further, impose an escalating fee structure, so that it costs twice as much to renew copyright as it did ten years earlier. This would reduce the incentive for copyright holders to keep renewing works that no longer have commercial import. (Remember, it was to protect the commercial interest of copyright holders that copyright law was created.)

Place an upper limit on copyright, maybe at 100 or 120 years.

What this does is change copyright law so it serves the public by allowing noncommercial works and works that are no longer commercially viable to enter the public domain. It also serves the public interest by requiring those who keep works out of the public domain to pay a fee for doing so.

Not only would this better serve the public interest, but it might cost Disney and others a lot less than lobbying for ever-increasing copyright terms while still protecting their works from pirates.