Re: Copyright Extension Bill Passes Congress

On Fri, 16 Oct 1998, John Logie <antrobus[_at_]ripco.com> wrote:
>
> Amy Stoller <redherring[_at_]tuna.net> wrote:
> >
> > It is the artists and other creators, and their heirs, who benefit
> > most directly from the copyright extension, but in the long run,
> > the public benefits as creative people are supported by the
> > proceeds of their work, and do not have to divert creative energy
> > into other ways to make a living. Thus, more original works are
> > created, and fewer are stifled. I'm not about to classify as a
> > "tragedy" the idea that there might be one or two fewer derivative
> > works a-borning if there are more original ones to make up the
> > balance.
>
> Ms. Stoller appears to be suggesting that the public will benefit from
> the diminution of the public domain.

It's not such an odd argument. The Founding Fathers adopted precisely that view in Article I, Section 8. The issue is not whether, but how to balance the benefit and costs of that "diminution."

> If President Clinton signs the legislation, we will experience a
> 20 year period in which virtually no works enter the public domain.

That's a nice way to put the point. To a great extent, authors have already gotten the benefit of their bargain under previous acts -- they "negotiated" their authorship for a given term. Perhaps there is a strong fairness argument that changes in a copyright term should not be retroactive in nature, but apply only to new works.

> This will have a demonstrable negative effect on those who prepare
> new editions of public domain materials. For example, the nice
> folks who make Dover Thrift Editions sell fantastically cheap
> editions of public domain texts. There is an obvious, tangible
> public benefit in continuing and expanding the supply of Dover's
> affordable versions of standard texts.
>
> As far as I'm concerned, S. 505 will not provide a benefit which
> counterbalances just the loss of the next 20 years' worth of Dover
> Thrift Editions.

And, of course, the Congress weighed these benefits differently. That's why we have representative government.

> I seriously doubt that any of the creators of "original" works who
> were unable to make a living before the extension will suddenly find
> new market for their works the day after the bill becomes law.

While agreeing that a work that has lost its vigor in the marketplace after the life of an author plus fifty years, or indeed after "just" 75 years is unlikely to suddenly find new life, it most certainly could happen. Indeed, the statement above is clearly way too strong: SOME lost works are rediscovered and made freshly popular all the time -- and likely at least a few works will find new life.

> I will also be delighted to stand corrected when (and if) we see a
> dramatic upsurge in the number and quality of "original" creative
> works. I seriously doubt that many (any?) creative people have
> been withholding their works because they believe that their
> compensation under life + 50 is inadequate, but their compensation
> under life + 70 will be satisfactory.

Ah, here's the rub. Probably, this same argument could be made for any change in the copyright term. Would an author withhold a work for a 14-year term over a 20-year term? A 20-year term over a 30-year term? A 30-year term over a "life of author" term? But so what? It is apparent that more for the deal is greater incentive, and beyond some threshold, more is barely noticable. The vast majority of authors are hoping for just a single short-term "bite," and would have equal incentive for just a few years. Longer terms benefit only the best and brightest of authors, and very long terms benefit only a few. But the benefits to publishers *DO* confer benefits to authors, for they make author's works that much more marketable, however more or less it may seem at the time to an author who has received another rejection letter.

> Instead, I suspect, publishers, studios and record companies will
> continue to pay roughly the same sums they have been paying, continue
> to demand (and in most cases, get) ownership of the creators'
> copyrights.

The royalty bases have been increasing steadily for years, which is one reason why the term extensions are being sought. Hence publishers, studios and record companies have in fact paid more and more each year.

> With these copyrights in hand, these "assigns" will continue to
> selectively and arbitrarily enforce these copyrights, sometimes
> legally stampeding those who wish to parody or fairly use protected
> materials, and under S. 505, they'll do it for twenty years longer
> than before.

The alienation right to a copyright is, in fact, a benefit to the author. If he or she could not sell exclusive rights to an author, publisher's would have less incentive (and hence pay less for the rights) to publish. The more valuable are those rights, the more authors will be able to extract for their transfer. That is the virtue of a free marketplace.

> This will result in fewer works which, while largely "original"
> announce their dependencies. S. 505 is at odds with a broad range of
> currently favored artistic practices including collage, pastiche,
> sampling, and parody.

Nonsense, of course -- this is just a veiled argument against Copyright generally, and not an argument particularized to the term extension. The argument would be true for any non-zero Copyright term, since during that term, any publisher *OR* author could, in theory, spend their monies terrorizing prospective new authors with ludicrous suits.

And, of course, *ANY* grant of exclusive rights to derive from a work will have the effect of reducing the amount of other works derived therefrom. The theory of Article I, Section 8 is that there is a corresponding payoff to society. Over the years, exceptions have been carved (first judicially, then by Congress) to provide for parody and small takings from prior works, and those likewise operate to counterbalance the author's parade of horribles.

Really, to the extent the author has argued here that the term extension provides, on balance, more bad than good, he has merely asserted so without argument or . To the extent his arguments are supposed to

The question isn't WHETHER a grant of an exclusive right is a good thing, but rather, WHETHER an extra 20 years provides in the margin more benefit than harm than merely life plus 50. The arguments made here would apply to *ANY* term, and therefore don't really address the present case at all, except to the extent of being mere arguments against Copyright.

> Ms. Stoller, would you oppose perpetual copyright? If you believe that
> longer copyrights = greater compensation for creators, why not maximize
> that compensation by maximizing the copyright? If you believe that
> longer terms = more original works, why not maximize the incentive by
> maximizing copyright?

To which I would reply, "would the author oppose the abolition of copyright? If he believes that shorter copyrights = greater numbers of works by derivative authors, why not maximize the benefit by minimizing the copyright? If he believes that greater terms lead to more terrorizing of the public by unjust suits, why not minimize the harms by minimizing the copyright?"

The truth of the matter is -- this is a balancing act, and a highly delicate one. Every one of the arguments made above cuts both ways -- and there is a natural counterargument for the other side. (And the same is true of the arguments of the other side as well.) Mere arguments that there exists a balance, and swinging the pendulum either way provides greater incentives for some, taking incentives away from others do not persuade, for they do not really tell how *MUCH* or how little the pendulum should swing. Merely gainsaying the arguments of the other side is oversimplistic, and largely equivalent to saying that the pendulumn must swing all the way to one side or ther other.

Anyone who pretends this isn't a hard problem has thought deeply enough about it. Copyright is a paradox -- it is a balancing between competing policies, and a little bit of "Zen" needs to be factored in to decide whether the "Three Bears" solution has been found. (Everything "just right.")

Only the Lord knows what is the "best" copyright term, and he isn't telling. Since we haven't any special knowledge, we use a rather peculiar, but time-honored solution -- we have our representatives in Congress decide. Eventually the political pendulumn will shift -- and the public's interest in copying will be greater represented than the public's interest in having author's compensated. Until then, perhaps we should ask the question, "Why have these bills passed virtually without the interest or concern, indeed even the notice, of the public?"

Andrew C. Greenberg
<werdna[_at_]gate.net> Received on Mon Oct 19 1998 - 12:39:16 GMT