Re: actuaries and copyright extension

On Wed, 17 Apr 1996, Trotter Hardy wrote:
>
> OTOH, I am not sure that there is much detriment in doing so. Paul
> 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? The
> reason that there is no difference in the value of a work between a
> 50 yr and a 70 year term is that no one cares about such works. If
> no one cares about them, then there isn't much detriment. If there's
> a lot of detriment, then the difference in value must be significant--
> and hence it will serve as an incentive. It seems to me, in 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.

The problem with Trotter's argument that the extra 20 years has no negative effect is that it assumes that when a copyright holder ceases to have an interest in and ceases to actively enforce his copyright, it has the same effect as if there were no longer any copyright in the work. But this is not the case. So long as any copyright holders continue to enforce their copyrights to the full extent of the term and copyright holders are not compelled to comply with any formalities to keep their copyrights active, the public must assume that all copyrights are being enforced to the full extent of the term. If one out of a hundred copyright holders decides that there may be some reason (econonmic or otherwise) for contining to enforce a copyright after he has ceased to make a work available, and we continue to live in the litigous society that we do in the US, then those who would preserve and make available works when the copyright holders no longer do, will not because of fear of the 1 in a hundred. So the preservers have to wait out the full duration. 20 years can make a big difference in whether something is saved for the future or lost for eternity. The ketogenic diet languished for 50 years because there was no money in it. It is returning to favor, not because it will generate money but because it cures a disease and saves lives. But at the time it was revived, the knowledge was being kept alive by one person. She might not have lived another 20 years. The early writings on it might not have survived either. The public interest is not tied directly to the current value of a work. In many cases, it may be very important to the future value of society that we not allow a copyright holder whose economic views may be short term to control the long term availability of knowledge. Every step toward a longer term trusts the future of public knowledge to each individual copyright holder. Given the growing short term materialism of our society, I don't like the prospects of that approach. It gambles too much on all copyright holders making the right decisions. I'm sorry to say that these days I don't have a great deal of faith in our governments making the right decisions either. But at least with a shorter term, it allows a greater pool of actors to realisticly take action and thus increases the chance that information will be preserved for the public to inherit something that is still around when it enters the public domain. As you can tell, I'd be much happier if we were shortening the term instead of lengthening it. And given that most copyrighted works earn most of what they ever earn monetarily in the first few years of exploitation, I don't think we would lose much incentive by shortening the term. If we run the future by being concerned only with the "for the most parts", we may also lose what doesn't fall in the "for the most part." Copyright isn't just for the most part -- the comerically exploitable. It used to be, but with the abolition of formalities, it now has a lot of unintentional consequences for what is no longer or never was commerically exploitable but still has other value.

Mary Brandt Jensen		University of Mississippi
Director of the Law Library	University, MS 38677
Assistant Professor of Law	cnicopy[_at_]sunset.backbone.olemiss.edu