Re: actuaries and copyright extension

Trotter Hardy writes:
>
> Paul [Heald] suggests that that there is no added incentive, and
> particularly that there is no added value to a work between a 50-yr
> and a 70-yr term. But doesn't that also mean that there is no
> detriment? . . . It seems to me, n short, that for the most part
> "ex ante value to author" and "ex ante value to the public" will
> rise or fall together, not inversely.

     This argument would have validity, at best, only to purely prospective extensions. It provides no justification for the current bills, which will create immediate detriment by keeping 20-full years of material out of the public domain, without even an arguable increase in incentives.

     Furthermore, comparing the present values of those few works that will still be producing royalties 50 years after their authors die with the present value of the public loss with respect to those same works fails to take into consideration the largest piece of the public loss. Trotter's argument assumes that the value to the public from the public domain is only that no royalties must be paid on works that retain value. That is, indeed, a loss, but I agree that its present value may be small, just as is the present value of the potential gain to current authors. However, the real loss to the public results from works that will NOT be created at all in the future, because the underlying works on which they would have been based are so tied up in copyright knots that the then current authors will choose to work on other things. Historians, biographers, archivists, documentary authors, and many others are heavily dependent on a broad public domain, often in works that may have no economic value but as to which the transaction costs of obtaining the necessary permissions are too high to justify the effort. These costs rise exponentially with the period of duration, because the number of potential partial owners of the copyright have a way of multiplying themselves.

Dennis S. Karjala
Professor of Law
Arizona State University
Tempe, Arizona 85287
602-965-4010
602-965-2427 (fax)
dennis.karjala[_at_]asu.edu Received on Thu Apr 18 1996 - 18:07:11 GMT