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.