It’s Copyright Week! Let’s talk about copyright cronyism
Yesterday was the first day of Copyright Week 2015. You can follow the campaign and learn more at EFF’s handy website. Here are the themes for each day of the week:
- Tuesday, Jan. 20: Transparency
- Wednesday, Jan. 21: Building and Defending the Public Domain
- Thursday, Jan. 22: Open Access
- Friday, Jan. 23: You Bought It, You Own It
This year, R Street is one of a small number of right-of-center organizations participating. This is a shame, since libertarians and conservatives long have been the most vocal opponents of crony capitalism, regulatory capture and government-granted monopolies running amok. With conservatives in control of the House and Senate, and House Judiciary Committee Chairman Bob Goodlatte poised to advance reform, their voices are more important than ever.
You don’t have to go deep into the weeds to see how our current copyright system is an arena that exemplifies big government cronyism. Just take a look at the graph below (via TLF) showing the repeated extension of copyright term.
Today, it’s nearly 580 percent of what it was in the original 1790 Copyright Act, contrasting sharply with a relatively modest 43 percent growth of patent terms, and with the framers’ more limited view of intellectual property. Worse, these extensions were always retroactive, and coincided with the interest of high-dollar rent-seekers looking to protect their revenues.
Take, for example, the most recent extension, the Copyright Term Extension Act (aka the Sonny Bono Act). When it was signed into law by President Bill Clinton in 1998, it tacked on on another 20 years of copyright protection for major works that were about to expire — such as Superman, Mickey Mouse, “Gone With the Wind” and George Gershwin’s “Rhapsody in Blue.”
While it was pitched for its trade benefits, in reality, this was a windfall for wealthy estates and corporations that owned these works (who also lobbied extensively for it), at the expense of the public’s ability to reuse and reimagine them.
While copyright has a clear mandate in Article I of the Constitution to provide incentives for creative works, its limits have become more opaque as it has evolved through the courts. As Thomas Nachbar writes for the Heritage Foundation’s Guide to the Constitution, historically, “the court has deferred to Congress’ view of its own powers.” So while these retroactive extensions plainly fail to meet their constitutional purpose, the courts have largely left the issue up to Congress.
This, unfortunately, is just one example of copyright cronyism. As the week goes on, look forward to more content from R Street advancing free-market ideas for reform.
For a more robust discussion of restoring constitutional copyright, check out Tom W. Bell’s book Intellectual Privilege published by the Mercatus Center, and R Street’s paper on copyright term length by Derek Khanna.
For those in Washington, R Street is hosting a Hill briefing on January 26 with Public Knowledge and Rep. Jared Polis, explaining the fundamentals of copyright law and its challenges in the Internet age. You can RSVP here: http://copyrightbriefing.splashthat.com/