Three Dimensions of Copyright

Earlier this week, the EU extended the copyright term for sound recordings from 50 to 70 years, leading to the usual spittle-spraying outrage from bloggers who never seem to care much about music in the first place. What they got right, almost in spite of themselves, is that the current term of 50 years seems eminently reasonable. The new policy will mostly help record labels.

Most arguments against retroactive copyright term extensions tend to be illogical, hysterical or both. Arguing that copyright term extensions represent an undue limit on free speech, as Lawrence Lessig did before the U.S. Supreme Court, seems ridiculous. (The Court wasn’t convinced either.) Saying that this current move represents a “cultural disaster” seems to be pushing it as well. Free culture activists believe that the Internet has brought about a “Renaissance 2.0” and that copyright greatly restricts creativity. Both of those things cannot be true at once. Somehow, Chad Vader endures.

At the same time, it’s hard to see what good the term extension does for anyone except record labels; most artists signed that long ago have contracts that are one-sided even by music-business standards. This will not encourage the creation of new works, since the extension is retroactive. Most important, though, it gives the free culture crowd a flag to rally consumers against the concept of copyright in general.

The real problem with copyright is not that it legally lasts 70 years  – it’s that it actually lasts 7 minutes. Albums are available illegally online as soon as they’re released – if not before. The protection creators are supposed to enjoy has become largely theoretical. The U.S. Constitution empowers Congress “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Over the past decade, much of the discussion about copyright has centered on whether the laws still cover “limited times.” But the real issue is that they’re no longer securing anything at all. Although I am loath to click on a site that seems to combine farm equipment sales with book piracy, it looks like my own work is available illegally before it has even been published in the U.S. And while I don’t think highly enough of myself to declare this a cultural disaster, these kinds of sites definitely hurt my ability to write another book.

It might be useful to think of copyright in three dimensions: length, breadth, and depth. Let’s say the first refers to the term of protection, the second to how much it covers (in terms of what other creators can use), and the third to how effective the laws actually are. Since the rise of the Internet, we have extended the first and second at the expense of the third. And that’s the exact opposite of what we should be doing.

If copyright is supposed to encourage creation, we should have shorter terms, narrower coverage, and laws that can be enforced. That would allow anyone to use work after a certain amount of time. (We could argue about what the right term is, but 50 years seems reasonable to me; I would divide that into an automatic term of 25 years followed by another 25 years available on request.) It would give other creators a bit more freedom to make sample-based art. (This is tricky, but suffice it to say that I think Girl Talk should be covered by fair use but producers who sample as extensively as Puff Daddy should pay for the privilege.) Most of all, though, we need laws that actually work. The idea that I have the exclusive right to sell my own work doesn’t matter much if it doesn’t apply online.

Laws like this would also make more sense to the general public. We can all disagree on how long I should maintain the exclusive right to my work, or exactly how much that right should cover. But only the most ardent copyright opponents would suggest that I should not have that right at all. That’s what’s really at stake in the fight over online copyright – not how long protection lasts but whether it matters at all. Artists want effective protection. Free culture organizations funded by technology companies are against that. An additional 20 years of protection won’t mean much if the law doesn’t matter online.



15 thoughts on “Three Dimensions of Copyright

  1. Hi Robert (me again!), the main point about term extension is that it ensures royalty payments continue to be made to recording artists and musicians every time their work is played on the radio or in public performance. In other words, if your musicianship is still being enjoyed, and you are still alive, then it seems fair you get paid for that. It also balances up the unfairness between the composer term (life plus 70) and the recording artist (50 years from publication). People sneer about “Cliff Richard not needing the money” and indeed he doesn’t and he’s always said as much. But the people who played the backing music generally do. The PPL royalty cheque, small amounts though it may be, keeps many elderly musicians afloat. This isn’t a “pension scheme” as is said: if your music isn’t being played, you don’t get the royalty – so it’s entirely dependent on having played on something which is proving to be of enduring cultural worth.
    As for record companies, of course term extension doesn’t retrospectively incentivise investment, but it absolutely does finance future investment. Roughly 20% of revenue goes into A&R: the more revenue, the more investment, the more risks, diversity and opportunities for new artists. Anything which helps drive that is good for our culture and our economy.
    Extending term doesn’t make copyright harder to enforce – it’s already so difficult as to be past the point where incremental changes in length make it substanitally harder. If anything, it makes it easier: at the moment companies put out compilations with a mix of out and in copyright works, and hope that the blurry edge around works from 50 years ago will deter rightsholders from enforcing those which are in but nearly out. The extension will make it much easier to say categorically what’s in and out.

    Posted by Richard Mollet | September 16, 2011, 10:13 am
  2. I don’t think copyright law (even long extentions) stifle creation or innovation… quite the opposite.
    If i can’t use what’s already been created… i’ll have to come up with something myself. (as an example)

    And don’t forget, in alot of instances, the copyright reverts back to the artist after a period of years. Big corporations don’t want to have to pay for their music they use in advertising or otherwise promotion their wares… alot of the “opposition” stems from these master advertisers tricking the ill-informed into becoming their militia.

    Posted by James_J | September 16, 2011, 1:31 pm
    • James, I am _certainly_ in favor of copyright; we are just really talking about how long it should last. As far as copyright reverting to artists, I did not mention that because it was not covered in this particular EU extension. As a matter of fact, I am not sure if any EU country law allows for reversion. Anyone?

      Richard, you make some excellent points as well, of course. Just to be clear, I don’t think extending copyright makes it hard to enforce. And I don’t think that’s an either-or choice, of course; you can have both. I do think it might be a question of winning a public debate, however. I worry that this term extension will make the spittle-spraying Cory Doctorow start to sound reasonable – a notion that most people would agree is chilling indeed.

      Posted by roblevine1 | September 16, 2011, 2:06 pm
      • The EU directive in question does, in fact, have reversion provisions: performers on a recording that is not available to the public 50 years after initial publication can ask the producer (label) to terminate the contract and reclaim their rights to the recording. The producer has a period of one year to make the recording available to the public or his rights under the recording contract expire and copyright reverts to the performers.

        (Source: Music copyright to be extended to 70 years for performers – European Parliament press release, the “Use it or lose it” clause)

        Personally, I don’t give stuff about what Doctorow and his ilk think, because:

        a. There are many benefits to performers (as opposed to copyright businesses) that stem from extending the term, which – for recorded music – is still noticeably shorter than copyright term for written works, for example; a number of them have already been mentioned by others here.

        b. A shorter copyright term primarily benefits publishing businesses who are disinterested in investing in creativity – like the operation Eric Eldred was running when the Congress went Sonny Bono all over him.

        Now, if somebody wants to run a business publishing public domain works, fine by me. However, I cannot think of one good reason to favour such businesses at the expense of still-living creators, whose works provide the value proposition to such a business or publishers who provided the original investment. Public domain publishers are bottom-feeders and should expect to be treated as such.

        On a different note, the anti-copyright crowd are painting themselves into a corner philosophically and economically (yet again) as the rally against term extensions, since their main idea for creativity is that creators should go it alone, without the help of publishers. Such a situation has twofold implications:

        1. Since the individual creator is unlikely to have resources comparable to a large publisher/label/studio, there is little chance of them securing a major market presence quickly. An individual creator’s career is much more likely to develop along the lines of gradually securing an ever stronger position in a market niche.

        2. Because of the aforementioned career dynamic, returns on investment need to be considered over a much longer term than in the case of a “summer blockbuster”-style offering. A DIY artist should – and will probably need to – be able to capitalise on her initial investments for many years in order to maintain a reasonable career, since her short-term revenues are likely to be small.

        Fortunately for the copyfighters, they don’t give a rat’s posterior about the creators and thus they don’t need to worry their pretty little heads about such inconsitencies in their position.

        Posted by Faza (TCM) | September 16, 2011, 2:47 pm
      • Rob,
        Sorry, i didn’t mean it to sound like you weren’t in favor of IP.
        …before i commented here, i was reading the typical rubbish at another site… (my blood tends to boil a bit on these topics, hehe)

        I totally agree on your point -that without adequate enforcement; any other measures are sort of a whitewash, & not dealing with the main issue at hand (of course that is: unfettered, rampant piracy)
        That said, any win for the musicians is to be applauded. I understand your view of a balancing act (mostly in the public perception), but to be fair… most of these same people (the vocal ones anyhow) are the ones who are regulars at TPB et al.

        The ones that we really need to win over are the law makers/legislators.

        Posted by James_J | September 16, 2011, 7:40 pm
    • I have this strange ambition to make a living writing speculative fiction. Even if I never attempt to create a derivative work based on a preexisting novel or story, I would benefit from shorter copyright terms in that they would reduce my research costs. All good fiction is based upon extensive research.

      BTW, it is much harder to write a good work based upon someone else’s creation than to write something completely original. For example, I really don’t know how I would go about capturing the atmosphere of an H.P. Lovecraft story or the psychology of a Frank Herbert novel. Having to obtain a license would be the least of the barriers to such a project.

      Of course, that fact doesn’t stop hordes of people from writing fan-fiction, but who would PAY to read fan-fiction even if the writers were allowed to sell it?

      Posted by mtm | September 17, 2011, 1:52 am
  3. I can’t find an excuse for copyright law in the first place. What we need is to be able to know who created something, so we can buy it from THEM! Or buy the fake knock-off. Culture will be the police. Since we are talking about music, how about sell the real song on HDTracks. Create a scenario where the merchant has to prove they are not selling the fake. Use advertising to teach the young that buying the fake makes you a flake. I fail to see how the artist suffers in any way by an enlarged fan base.

    Posted by vladtia | September 17, 2011, 4:35 am
    • I’m having a bit of trouble understanding what you are getting at, so correct me if I’m wrong. Your idea is that instead of copyright, we should foster a mentality of elitism through purchasing originals?

      Well… that does work, sometimes. Unfortunately, it only really works if the products in question are really expensive luxury goods – the kind that most people cannot afford. Only then is being part of the small elite who can afford this stuff a sufficient incentive.

      If – like most of us – you don’t happen to have a big enough pocketbook, fear not: there are countless spammers out there, with amazing offers on fake Rolexes.

      What you are proposing would require that recordings be sold at prices that would make the glory days of the CD market look like a garage sale. It might even work – provided the higher margins offset the reduced demand – but it would mean that only rich people could buy recorded music.

      Whatever happened to making culture available to the masses?

      Posted by Faza (TCM) | September 18, 2011, 2:45 am
  4. >>>! can’t find an excuse for copyright law in the first place.

    Well, there’s the Constitution. . . .

    >>>What we need is to be able to know who created something, so we can buy it from THEM!

    This is not so hard, but it does not seem to work. The Pirate Bay has not created anything, but it is very popular, since it offers better “prices” by breaking the law. That is why we need law enforcement.

    Posted by roblevine1 | September 17, 2011, 4:47 am
  5. Robert, I could not agree more.

    LIke you, I’ve found my copyrighted work in very odd places. For example a website that sells car repair manuals. (You’ve forgive me if I don’t share that link.)

    Besides illegal downloads there seems to be another side to this problem, which is people who claim to like an artist’s work, but then make copies to give to their friends. Giving no thought to how it might affect that artist they claim to like. It would seem that no amount of law enforcement can stop that. To combat this there needs to also be education about what is really going on. Aside from the rabble that always comment on blog posts, most people are completely unaware of the copyfight and, I believe, want to do the right thing for content creators, they just don’t always understand what that is, or more importantly, what that is not.

    I’ve given presentations about the the subject of respecting an artist’s copyright and how “sharing” is destroying the thing they love. (In my case music, but a we all know this effects movies, books, etc.) I am truly surprised at how many people tell me afterword they had no idea the impact of their behavior.

    So yes, we do need strong enforcement, but we also need education to strengthen awareness. And although your book and blogs about this help, I believe there needs to be more of a grassroots movement from the artists themselves, speaking directly to their fans, readers, viewers. and software users.

    Posted by the musicaldisconnect | September 17, 2011, 6:38 am
    • >>>For example a website that sells car repair manuals. (You’ve forgive me if I don’t share that link.)

      Could you email me a link to the site? My email is under “contacts.” I am actually curious about pirate sites that use, or maybe just hide behind – I can’t tell – normal businesses.

      Posted by roblevine1 | September 17, 2011, 7:45 am
  6. the more technology expands it becomes more clear, that talent and the creative people should and must be respected and “PAID” for the works they Own and share, there is no law to Replace respect and honor !,..everyone knows you pay for what you use and Enjoy…digital shop lifting is a crime,..but you must care first…remember what your parents told you years ago!,.. put that candy back ,.. unless you PAY for it!,.for high level consulting-promotion/Connections -contact: Joseph Nicoletti Consulting-Promotion Ph 949-715-7036 musicbiz@cox.net

    Posted by joseph Nicoletti consulting | September 20, 2011, 11:36 pm
  7. Although I agree that it is very important that copyright is an enforceable right, I believe the expansion of both scope and duration of copyright over the last decades has steadily eroded the public support for copyright in general up to a point where many are every calling for its (complete) abolishment.

    What I find most disturbing is that copyright policies seem to be made based on the strongest lobbying group rather than sound economic research. The EC for instance requested an investigation from the IVIR on (among others) the effects of neighbouring rights extension. The resulting report however (http://www.ivir.nl/publications/other/IViR_Recast_Final_Report_2006.pdf is I’m not mistaken) was completely ignored, because its conclusions did not match the EC’s plans. The IVIR was not alone in its conclusions: several governmental research institutions came to the same conclusions: the expansion of neighbouring rights for another 25-45 years was of no economic value to the industry, but of detrimental value to the general public. In spite of that, the law was still pushed through, and in its wake caused yet more erosion in the people’s respect for copyright.

    I think that if we wish for people to respect our copyrights, we should also consider respecting their rights. That includes not using TPM/DRM to take rights that don’t belong to us, like the ability to import dvds from the US (region coding) or use media on the device of the customer’s choice. We should not be involved in defining what features a blu-ray player can and cannot have, and focus our efforts on the infringers rather than bothering our loyal customers. No customer ever woke up one morning, and thought: “I wish they would invent something that would limit the things I can do with the media I buy.”. The only people bothered by TPM/DRM are our customers; the infringers simply download the media without the TPM protection, and never even know it’s there.

    Posted by Pieter Hulshoff | October 18, 2011, 3:19 pm
    • @ P Hulshoff,
      On a practical level, you make a very good point. On a legal level, I am not sure what rights TPM/DRM takes away. I understand it’s annoying – as a consumer, I don’t like it either. But if you want to argue that it takes away your rights – from a legal perspective – you have to say what rights it takes away and what court has found this to be a problem.

      Posted by roblevine1 | October 18, 2011, 6:32 pm
      • I agree that it is hard to argue this from a legal perspective with the law as it stands, unless you want to pull in vaguely related rights like freedom of speech and human rights, which I’m not prone to do, that legal rights were taken away. Exceptions to copyright for instance are rights specifically NOT given to copyright holders, but they’re not legal rights to us as citizens. They’re defenses. The same goes for things like reverse engineering: it’s a defense to a claim. As such, the courts have very little to say to the matter: anti-circumvention laws were broken, and so the other party is guilty, no matter if other laws say that the purpose for the circumvention was legal.

        From a law-making perspective however, it’s a different matter. In the past, we’ve always crafted copyright law to be a careful balance, with strong rights, and exceptions to those rights. Anti-circumvention laws however have changed all that. I’m allowed to make private copies, unless there’s a TPM/DRM preventing that. I’m allowed to quote under certain circumstances, unless there’s a TPM/DRM preventing that. I’m allowed to import dvds from the US, but I’m not allowed to watch them here when there’s a TPM/DRM preventing that. I think it was a serious flaw to not put copyright infringement as a requirement towards anti-circumvention laws, because with the law as it stands a copyright holder can basically rewrite copyright law as (s)he sees fit. I strongly believe that the politicians should reconsider enacting this law, and changing it so as to only cover copyright infringement to prevent copyright holders from abusing its powers.

        Posted by Pieter Hulshoff | October 18, 2011, 7:17 pm

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