As I understand it, copyright exists to encourage creativity by granting the creator a temporary monopoly allowing them to profit from their work. That makes good sense. However, in the US copyright laws are nearly as convoluted as the tax code, and the duration is insane.
The basic rules in the US:
- If you invent something, you can patent it for 20 years, but you have to apply for a patent.
- Any written work or performance is automatically copyrighted, but you have the option to formally register the copyright. You have to register before you can sue someone for plagiarizing you, and if you didn’t register at the time of creation it can be difficult to prove who created the work first.
- If you perform a song, it is copyrighted for 95 years.
- If you write something, including a song, it is protected for your lifetime + 70 years.
- Companies automatically hold the copyright to works produced by employees for 95 years.
For more details there’s a good summary at Cornell.edu.
So, what’s wrong with that?
If you invent a cure for cancer in your basement and you patent it, you will profit from your invention for 20 years. But, say a 20 year old guy writes a song about how you cured cancer. If he lives to be 70, he and his family profit from that song for 120 years: 6 times as long. Obviously the system is out of whack.
That is messed up. How did we get this system?
Copyright has been evolving since it was created. Here’s a brief history of the duration for material written by an individual in the US:
1790 - 14 years
1831 - 28 + 14 year optional extension
1909 - 28 + 28 year optional extension
1976 - Life + 50 years
1998 - Life + 70 years
The duration has been extended every time, but that may reverse. With an unexpected burst of common sense, the UK voted to not extend their performance protection from 50 years to 95 to match the US. It’s not a reversal of trend, but it is encouraging.
Should patent protection should be extended to match?
I have not been able to find with a sane reason for copyright to extend past the lifetime of one person, and there are good arguments that it should be shorter. For the first 186 years copyright existed, people produced great works with significantly shorter protection. If copyright expires relatively quickly, the artist is encouraged to keep producing, adding to the public good, and others are free to build on that original work. Everybody wins. The longer artificial monopolies are extended the more we retard our collective evolution. I’m not sure what the sweet spot is, but the 20 year patent duration seems to work pretty well.
Why hasn’t patent protection increased like copyright?
My guess is that the system has evolved in the interest of large corporations with political power in both cases. I think the majority of true innovation in physical stuff comes from individual tinkerers and small startup companies who get the patents. Therefore, on balance, the large established companies that usually manufacture and distribute that stuff are better served by shorter patent protection. Drug development is the exception that proves the rule. New drugs tend to be discovered by large companies because the development and testing costs are so high, and the big drug companies are always pushing for longer patent protection.
With copyright, the opposite has been true. Large companies with distribution systems in place have been able to force individual creators to give up their rights because they have had so much more power in the negotiations. It’s in the interest of the large companies to keep extending copyright.
So, what’s going to happen?
Scott McCloud points out that two things have been happening at the same time: 1) protection for intellectual property has been growing to lengths that are overextended and 2) the cost of mass distribution of that property has dropped to zero.
To me that means these trends will continue:
- The decision about what is worthy of publishing is becoming more democratic. Anyone can publish whatever they dream up, and the stuff that is really good tends to rise to the top. A guy with skills like Erik Mongrain can get popular on YouTube before he ever produces a CD. Hopefully we’re already to the point that he won’t need a record company contract. He’ll at least be in a better position to negotiate the terms.
- Because of free publishing and distribution, even if you’re just OK, it will be possible to make a little money in the long tail.
- Copyright protection will slowly come back to reasonable durations as large companies lose their power over creators.
However, for that to happen, we need to keep the current free market of ideas. If the big corporations and lunatic/senator Ted Stevens can defeat net neutrality, expect this silliness to continue.
:: Greg London | Bounty Hunters, Map Makers & Gold Miners: Metaphors for Designing Fair Intellectual Property Laws
copyright, greg london, patents, the long tail