It’s Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation! Today’s topic is “Building and Defending a Robust Public Domain: The public domain is our cultural commons and a public trust. Copyright policy should seek to promote, and not diminish, this crucial resource.”
The current copyright term in the United States goes well beyond the international standard of life of the author plus fifty years and is now set at life of the author plus seventy years, or ninety-five years for corporate works. This term is unacceptably long and does significant damage to the public domain, depriving the public of a storehouse of raw materials from which individuals can draw from to learn and create new ideas or works.
Each year, Duke’s Center for the Study of the Public Domain does a roundup of everything that could have entered the public domain if the term prior to the 1976 act, which was set at twenty-eight years plus another twenty-eight years if renewed. The term has been changed twice since then, once by the 1976 Copyright Act which set the term at life of the author plus fifty years, then again in 1998 to the current term.
The list of works that failed to enter into the public domain as a result of these two changes to the copyright term is always an impressive one. This year’s highlights include works like T.H. White’s The Once in Future King, Chinua Achebe’s Things Fall Apart; or Michael Bond’s, A Bear Called Paddington. These works will go into the public domain in 2054. Notably, because of the Copyright Term Extension Act, the public domain has essentially been frozen; works under copyright at the date of implementation of the act in 1998 retained their copyright. The public domain will not see any new works due to expired copyrights until 2019.
The United States’ copyright term is unacceptably long and does not represent the international standard. Most countries in the world adhere to the Berne Convention standard of life of the author plus fifty years. In fact, where copyright term exceeds this international standard, there have been calls to reduce the term.
Many stakeholders, including the Library Copyright Alliance, called for a reduction of copyright term in submissions for the EU Copyright Consultation. The draft report on the Evaluation of the EU Copyright Directive was recently released and “Calls on the Commission to harmonise the term of protection of copyright to a duration that does not exceed the current international standards set out in the Berne Convention.” If accepted, harmonization of copyright term would actually result in a reduction of term for many countries to life plus fifty years.
Reduction of copyright term makes good policy sense as long terms restrict access to knowledge and exacerbate the problem of orphan works. Furthermore, the economic evidence does not justify the current copyright term. In fact, the UK-commissioned independent review by Ian Hargreaves found:
Economic evidence is clear that the likely deadweight loss to the economy exceeds any additional incentivising effect which might result from the extension of copyright term beyond its present levels. This is doubly clear for retrospective extension to copyright term, given the impossibility of incentivising the creation of already existing works, or work from artists already dead. Despite this, there are frequent proposals to increase term . . . The UK Government assessment found it to be economically detrimental. An international study found term extension to have no impact on output.
Such lengthy copyright terms make little sense, particularly in light of today’s digital environment. Works are often published on the Internet, resulting in increasingly ephemeral content. Such content may have little to no economic value to the copyright owner, yet still remains under copyright protection until seventy years after the author has died. Policymakers should carefully consider the economic evidence and rationale before extending copyright terms and diminishing the public domain.