Tag Archives: CTEA

To Kill A Mass Market Paperback and Access to Knowledge

Just weeks after Harper Lee’s death on February 19, 2016, a notice was issued that the mass-market version of the classic novel To Kill A Mockingbird would no longer be authorized for publication.  The mass-market version, used by countless students over the years, was priced at a much more affordable $8.99 than the trade paperback versions’ list price of between $14.99 and $16.99.  Students and schools who want to purchase new copies of the book will be forced to pay the much higher costs of the trade paperback.

This news is just the latest example of the problem of our current, excessively long copyright term.  Although the reason behind this decision has not been made clear, allowing the heirs of an author to control the legacy of a work and restrict access long after the author’s death can lead to unfortunate consequences.

The purpose of copyright is grounded in the U.S. Constitution: “To promote the Progress of Science and useful Arts.”  The benefit of the public good, through the promotion of access to knowledge, is a key measure of the progress of science.  Yet with copyright term extending far beyond the life of the author — life plus seventy years in the United States (notably, a term that extends far beyond international standards) — access to knowledge can be curtailed and restricted even after the author is long gone.  Dissenting in Eldred v. Ashcroft, Justice Breyer noted that the Copyright Term Extension Act which lengthened copyright term in the United States to its current term, the “primary legal effect is to grant the extended term not to authors, but their heirs, estates or corporate successors.  And most importantly, its practical effect is not to promote, but to inhibit, the progress of ‘Science’–by which word the Framers meant learning or knowledge.”

How does the current copyright system incentivize current authors to promote the progress of science or to produce more works?  Breyer questions in his dissent in Eldred:

How will extension help today’s Noah Webster create new works 50 years after his death? Or is that hypothetical Webster supposed to support himself with the extension’s present discounted value, i.e., a few pennies?  Or (to change the metaphor) is the argument that Dumas fils would have written more books had Dumas pere’s Three Musketeers earned more royalties?

Indeed, it is unlikely that Lee wrote To Kill a Mockingbird with copyright term in mind.  In fact, when Lee published her novel in 1960, copyright term was significantly shorter: 28 years with the option to renew for an additional 28 years.  It wasn’t until 16 years later when the 1976 Copyright Act was implemented that the copyright term in the United States was measured against the life of the author, and 1998 when the Copyright Term Extension Act extended the term from life plus 50 to life plus 70 years.

Instead of the copyright on To Kill a Mockingbird expiring this year, as it would have under the copyright law at the time of Lee’s writing and publication of the novel, the rights to the novel will continue for the next 70 years.  Apparently, the first move by Lee’s successors-in-interest is to inhibit access to knowledge by prohibiting the publication of affordable copies of the novel.

 

Copyright Term Extension and the Public Domain

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.