Should copyright terms be shorter?

Mickey Mouse

The Green Party in the UK has found itself in a bit of hot water with the creative sector when it made a policy statement  that it would shorten copyright terms to 14 years. As far as I am aware, this is the first proposal of its kind outside of Pirate Parties. While I have some misgivings about the way the party has handled the issue, there cannot be any doubt that at least it has opened the debate again on what should be the ideal copyright term.

Generally I welcome proposals for shortening copyright terms, but I have to admit that the Green proposal, and some of its handling, has been naïve at best. The proposal is short, and it reads as follows:

“[I]ntroduce generally shorter copyright terms, with a usual maximum of 14 years”.

This is short on length and detail, but it seems to imply that the current term of lifetime of the author plus 70 years (with variations) is too long, and it should be decreased. I completely agree that the copyright term has been artificially extended to fit the needs of a few, what Tom Bell calls the Mickey Mouse curve, but the proposal fails to admit that the UK cannot unilaterally decide on copyright terms, this is a matter of international harmonisation. For example, Art 7 of the Berne Convention establishes copyright term at lifetime plus 50 years; the term Directive 2006/116/EC sets the duration to lifetime of the author plus 70 years. The discussion should therefore be not so much about changing copyright term, but about the reasons why duration continues to be extended internationally.

The Greens are supported by many creative types, so this proposal was met with some animosity, so much so that Green MP for Brighton Caroline Lucas to state in no uncertain terms that this proposal is not in the manifesto, and that she supports the creative industries.

What is going on? Why this proposal?

From what I understand, this is a policy that arose from a crowd-sourced exercise that the Green Party undertakes, and it is based on research conducted by Rufus Pollock which places the optimal copyright duration to 15 years. Tom Chance has written an unmissable article giving more detail about the proposals, and he states that the policy is to diminish the term to 14 years after the death of the author.

Ignoring the international perspective, I tend to favour a two-pronged approach consisting on the reduction of copyright term, but also to re-introduce registration. We could have a much shorter term subject to free registration and renewal. The Berne Convention makes it possible for copyright to exist as soon as the work is created, it flows from the pen to the paper as they say. Allowing registration again would make it harder to claim copyright, but would benefit society in the long run. The advantage of renewal is that it would let creators to profit from their work, and if it’s still viable they could renew the registration, but it would allow for works where the profit element is gone to slowly go to the public domain, enriching culture and helping us to tackle orphan works.  These proposals are not mine, they are part of the COMMUNIA network for the public domain, but I have yet to read any good argument against them.

Having said that, I still welcome that this has become an electoral subject.

Comments 5

  1. Hello,

    I share your position on shorter copyright terms.

    However, I’m much more reserved on reintroducing (or introducing, for the jurisdictions which never had it) registration. Indeed, it seems to me the absence of registration is indeed useful for “professional” copyright holders, but it is also invaluable to everybody, in that it is a strong position of equality of works, not a question of who is the best placed to protect his creations.

    Besides, it would create a very deep problem: what prevents people in good place in the chain of creation (such as editors, either the traditional ones or the recent ones, like Amazon) to easily obtain, possibly through contracts, all the rights to works submitted to them? The creator don’t own the rights anymore, and only gets what the contract intended to give as a compensation, which would certainly be less than what the creator could be entitled to under a non-registration regime.

    Even free, a procedure of registration takes time and requires knowledge: it may end up being counterproductive, protecting only important copyright owners, who can afford lawyers and/or automatic systems of submission, and creating a gap between informed and motivated people, and the rest of the population.

    I think a much more interesting idea, with less possible negative consequences, may be to have a clear and international definition of the public domain, which is often described negatively.

    It seems to me the combination of shorter terms and a clear definition of a public domain would combine social usefulness while allowing new uses of works, benefiting the general public through increased access and innovative use by companies.

    A counter-argument to my own may be that registration makes it easier to enforce public domain, but I think it unfair to the general public to put copyright protection further away and in the hands of IP offices, with different practices around the world.

    I’d love to hear your ideas back.

    1. Hi,

      I’m a recent convert to registration. Firstly, it would make it easier to establish a positive definition of the public domain, because it would be the default and you would have to do something to gain copyright. It also makes it easier to sell term reduction to owners by telling them that they can creates things.

      The only issue that I may have with the proposal would be with pictures, where there could be misappropriation of pictures by businesses.

    1. George Barker’s argument seems to be roughly that the empirical evidence for additional costs associated with (recorded music) term extension is poor and so should be disregarded, whereas his contentions – based on even less empirical evidence – should be accepted. Not very compelling is it?

      Empirical evidence of the effect of copyright (of any kind or extent) is pretty poor generally. This is unsurprising because we aren’t allowed to carry out controlled tests (if only). The little work on literary copyright in the US suggests that Landes and Posner are probably wrong. But that’s really about it.

      It is hard to fault many of Macaulay’s 1841 arguments which are as relevant to today as they were then (eg on discount rate, though he did not call it that).

  2. I think the idea of an initial (short) term without a registration requirement plus renewal on the basis that any renewed term is registered offers quite a few benefits. It means everyone gets the benefit for short periods, but after (say) 14 years, most people are not actually monetising their copyright. Indeed the overwhelming majority of copyright material ought to be in the public domain by that point and its owners are probably no longer bothered. If bothered they can register.

    This is roughly what William Patry proposed a few years ago at an SCL conference and also very similar to the position in the USA at one stage (hence, presumably, his attachment to it).

    Clearly it would need international treaty re-negotiation.

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