Extending Duration of Copyright Protection: A Detriment to Public Interest - Term Paper Example

Extending Duration of Copyright Protection – a Detriment to Public Interest I. Introduction. Copyright history is a relatively short one. It was not until the 18th century that the rights of the authors in their works started to be recognized in legislation. The process started in the UK and continued throughout Europe and the United States. It was accompanied by various challenges to which legislators had to seek adequate solutions. One of these challenges was the need to fix a proper term of copyright. How long should the author – or the author’s heirs, or other copyright holders – retain the exclusive rights in the author’s works? This is an important question not only for legislators and authors, but also for the general public. It also affects the creative industry as a whole. As soon as copyright expires for a certain work of art, the work in question enters the public domain. Then it can be freely used by anyone who wishes to. It can be altered or transformed into another art form which can later be sold for the benefit of the new creator. Therefore, copyright duration is of great importance for creators, for businesses and for society as a whole. II. Facts. A. History. The first copyright law in the United States was enacted in 1790. It stated that copyright lasted for 14 years with privilege of renewal for term of 14 years. The next change in copyright term occurred in 1831 when the first term was increased to 28 years. The possibility for renewal remained, again for another 14 years. The renewal period was extended to 28 years in 1909. The following major revision of US copyright law was the enactment of the 1976 Copyright Act. According to its provisions, works, created on or after January 1, 1978, were protected during the period of the author’s life and 50 years after the author’s death. For the first time the author’s rights were guaranteed for his entire lifetime. Finally, in 1998, the Sonny Bono Copyright Term Extension Act provided for the extension of the term of copyright to the life of the author plus 70 years after the author’s death. Thus the period became the same as it is in the European Union. B. Legislature. According to the Constitution, Congress has the power to enact copyright laws in the United States. All laws regarding copyright and related issues are contained in the United States Code. They became part of the Code as Title 17 in 1947. The latest revision of the legislation concerning copyright duration is the enactment of the Sonny Bono Copyright Term Extension Act in 1998. III. Discussion. Copyright extension is a subject which has been frequently raised over time both in Europe and in the USA. In the past few years the topic has been widely discussed within the EU. In the USA copyright extension has already happened a few times, the last being as soon as 1998. As a result the term of protection now consists of the life of the author plus 70 years after the author’s death. Further extension, however, would be detrimental to public interest. In order to prove the validity of such a statement it is necessary to evaluate the arguments of both sides in the discussion on a possible extension. A. Support for extending copyright protection. 1. It will increase income to the U.S. Longer copyright protection means longer period during which the author, or, in general, the copyright holder receives compensation for each use of his/her copyrighted work. Therefore it can be argued that such an extension will increase the income of copyright holders and, consequently, the income of the state (through taxes, etc.) If we take into consideration the fact that creative works are often used in high profile industries like the show business, it may be argued that an extension of copyright duration will generate considerable revenue for copyright holders, therefore increasing the amount of the taxes they pay. 2. It will foster development of ideas in arts The compensations for authors are a major subject in any discussion on copyright protection. Historically, authors have often been deprived of adequate protection, especially before the establishment of the basic provisions of contemporary copyright law. Moreover, with the advent of new technologies and especially of the World Wide Web, distribution of creative content has become easier than ever. Copyright infringement on an international scale has also become easier, further increasing the fears of authors and copyright holders. As a consequence, the proponents of the idea of copyright extension may argue that longer terms of protection will settle those fears, thus encouraging authors and creators to work. Writers already have the security of retaining copyright in their works for their lifetime, but a further extension of the period of copyright after the author’s death may encourage them further, because it would secure their heirs for a longer time. 3. It will ensure better preservation of works Another argument for copyright extension could be better preservation of works of art. As long as copyright exists for a certain artistic work, there is a copyright holder – or holders – who not only collects royalties, but also, ideally, takes care for the preservation of the work. When copyright expires, such duties may continue to be performed by the institution which possesses the work but this would only apply to famous and valuable works. The rest may easily be forgotten and left without maintenance. Therefore, an argument for copyright extension may be that the longer a creative work is in copyright, the longer there will be people taking care for its preservation. 4. Congress has the power to set duration of copyright Within the frame set by the Berne Convention, US Congress has the power to set the duration of copyright in the USA. The Berne Convention is a major international agreement on copyright to which the USA are a party and which requires that all participating countries ensure minimal standards and terms of copyright protection. The Convention requires a minimum term of protection of 50 years, but grants the countries the right to set longer terms. Therefore, Congress has the power to ensure an even greater term of protection of copyright, making such an idea possible from a legislative point of view. B. Opposition to extending copyright protection. 1. It will increase costs to the public The first argument in defense of copyright extension – greater income for the state – poses the logical question: who will pay the price. The answer is: the public. As soon as copyright expires for an artistic work, it enters the public domain. This means that everyone can use the work, change it, translate it, publish it, and build upon it, etc. without having to pay compensation to the copyright holder, as there is no longer a copyright holder. If the entering of a work in the public domain is delayed by extending the term of protection, everyone who uses it will continue to have to pay compensation. Therefore, the costs for the general public will increase. An interesting example in this respect is the court dispute between Clare Milne, the granddaughter of A. A. Milne and Slesinger Inc. A. A. Milne, the British author of Winnie the Pooh, died in 1956. According to the law which was in force in the UK back then copyright in his works should expire in 2006, 50 years after his death. In the meantime, however, a series of disputes arose over the merchandise, movie and other rights in Winnie the Pooh for the United States. These rights were first sold by A. Milne himself to what was to become Slesinger Inc., then Slesinger Inc. sold them to Disney. As a result both Slesinger Inc. and Disney, together with Clare Milne have been involved in court disputes over the mentioned rights. These disputes did not end until 2009. If we fashion the possibility of a further copyright extension, we should expect more court disputes which will consume both time and money. The longer copyright exists for a certain work of art, the longer legal disputes will arise. This will lead to an even longer period during which the work will not be free to use, on the contrary – it will generate expenses through legal disputes. Besides, such disputes will arise after the author’s death and will concern the author’s heirs who will become more and more distant over time. As a result, society will have to pay so that the great-great-grandchildren of authors can receive royalties. 2. It will decrease creativity in arts All works in the public domain can be freely used by anyone. They can not only be republished and copied, but also used as a basis for new works. A novel in the public domain, for example, can be used by another author who can create a parody, a screenplay, or a play based on the novel in question. Thus creativity is stimulated. If, however, copyright protection is extended, this will mean that works will enter the public domain later and creators won’t be able to use them for a longer period of time. As a result, creativity will be deterred and artists will lose access to a significant amount of creative content. What is more, an extension of copyright protection will not so much benefit authors and their heirs, as other copyright holders. A truly valuable and commercially interesting work of art has all the chances of its rights being bought by a large company. The authors themselves or their heirs often decide to sell the rights in a book, a song, or a performance. Therefore, the true beneficiary of a possible extension will be big businesses, not authors. A very interesting example in this respect is the court case Rogers v. Koons in which Koons was found guilty of copyright infringement because he had used Rogers’ photograph for a basis of his sculpture. Although Koons did violate Rogers’ rights, the story can be viewed from a different perspective. What Koons did was create a new work of art based on a preexisting one – a practice which is common in art history. The original work in this story – Rogers’ photograph – is a work in copyright and it will continue to be such for a very long period of time. Therefore, if this already long period is extended even further, more and more artists will have to pay compensation to Rogers’ heirs, which, in turn, will mean that only the wealthy ones will be able to benefit from the photograph. In this scenario, it can be argued that an extension of copyright will in fact benefit only the wealthy users of copyrighted content. Therefore, creativity in arts will be decreased while social barriers are increased. 3. It will affect negatively innovations and new business ventures Not only artistic creativity, but also scientific creativity and innovation will sustain damages should the term of copyright protection be extended. In the words of Judge Alex Kozinski, said while expressing a dissenting opinion for the 1993 White v. Samsung Electronics case: “Creativity requires a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.” The history of both art and science shows that new works, new ideas and important innovations are often developed out of older ones. Therefore, if copyright is extended, this will make the public domain poorer and the creators – artists and scientists alike – will have fewer opportunities to develop their ideas in any given point of time. This, in turn, will increase the cost for the public. Innovations are primarily meant to be useful and efficient, and, therefore, to save money. If the opportunities for creating innovations are less due to longer copyright, it may be expected that these innovations will be delayed with all the costs such a delay implies. 4. The Constitution calls for protection but not perpetual copyright There should be no disagreement on the fact that copyright protection is essential in the contemporary world. Modern economy largely relies on creativity and innovation which need to be protected in order to lead to prosperity. However, copyright protection cannot be perpetual. The Constitution gives Congress the power “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”. (Article I, Section 8) This text obliges Congress to ensure copyright protection for authors and inventors, but it also prevents it from enacting laws that would make copyright protection perpetual. IV. Conclusion. A. Extending copyright protection is against the spirit of the U.S. Constitution. The inclusion of copyright in the US Constitution shows the relation between copyright and key American values. Both copyright and patent rights are included in the Constitution with a clearly stated purpose: Congress has the power “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”. (Article I, Section 8) The progress of science and useful arts – this is the reason why copyright is so important that it is included in the Constitution. This is also the reason why not only the rights of authors but also the rights of the public need to be secured. This is achieved through the specification “limited times”. Therefore, an extension of the duration of copyright would be against the spirit of the U.S. Constitution and the values it embodies. B. Extending copyright protection is harmful to the general public. When it comes to copyright, overprotection may prove to be as harmful as underprotection. The price of overprotection through extending the duration of copyright will be paid for by the creators, by the new businesses, and, ultimately, by the public. It is normal for an author to want compensation for each use of his/her creative works. However, if such compensation becomes unlimited in time, this may have a negative economic impact on society which would be forced to pay over and over again for one and the same thing. Moreover, the beneficiaries would be the big companies that hold the rights in the most famous works of art. Such companies would benefit financially from a copyright extension which, in turn, will have a negative impact on smaller businesses and, consequently, on competition. Therefore, copyright extension would be a detriment to public interest. Works cited Miller, Roger Leroy, Frank B. Cross, Gaylord A. Jentz. Cengage Advantage Books: Essentials of the Legal Environment, 3rd Edition. New York: Cengage. 2011. Print. United Stated Copyright Office, Library of Congress, Web, 7 May 2011. < http://www.copyright.gov/ > „Against Perpetual Copyright”. The Lessig Wiki, Web, 7 May 2011 < http://wiki.lessig.org/index.php/Against_perpetual_copyright > 17 U.S.C. Rogers v. Koons, 960 F.2d 301; 1992 U.S. App. LEXIS 5792, April 2, 1992, Decided Milne v. Stephen Slesinger, Inc., Case No. 2:02-cv-08508-FMC-PLAx, UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, 2009 U.S. Dist. LEXIS 94925, September 25, 2009, Decided. Read More