R Street paper calls for shortened copyright terms and examination of international treaties
Authored by R Street Associate Fellow Derek Khanna, the paper breaks down the history of the U.S. Copyright Clause and the evolution of copyright term lengths, which have gone from a maximum of 28 years to virtually perpetual today.
“We have clear evidence that, rather than serving as an incentive to create, excessively long copyright actually hinders creation,” said Khanna. “New artists, directors and writers are unable to create derivative works without paying fees that can be so high as to make the cost of derivative works prohibitive or even impossible.”
In addition to hindering new creation, perpetual copyrights lead to a host of other problems, including historical works being unavailable to future generations, the growing number of “orphan works,” limitations on digital archiving and derivative works, higher transaction costs and a limited volume of publicly available content.
“When historical clips are in the public domain, learning flourishes,” said Khanna. “Martin Luther King’s ‘I Have a Dream’ speech is rarely shown on television because the speech is not in the public domain.”
Ironically, one of the companies pushing for longer copyright terms is among those who have benefitted the most from works in the public domain. Under current copyright law, there could never be another Disney Corp., as many of its most successful characters were based off of works in the public domain. These include Snow White, Cinderella, Sleeping Beauty, the Little Mermaid, Pinocchio, the Swiss Family Robinson, Aladdin and Alice in Wonderland.
“Under current policy, there will never be another Disney Corp., because the availability of new materials to use from the public domain essentially stopped in the 1930s,” wrote Khanna. “While Disney took and reused from the public domain, none of the works created by Disney, including derivative works based upon public domain works, has entered the public domain for others to build upon. If current policy is extended, they never will.”
Khanna recommends new copyright policy based on a House Republican Study Committee proposal in 2012. Under this proposal, there would be a free 12-year copyright term for all new works. Following that, there could be an elective 12-year renewal, at a cost of 1 percent of all U.S. revenue from the first 12 years. There would then be two elective 6-year renewals, at a cost of 3 percent and 5 percent of revenue, respectively. There is one final elective 10-year renewal period at a cost of 10 percent of all overall revenue, minus fees paid for the previous renewals. This proposal would terminate all copyright protection after 46 years.
Conversely, the proposed Trans-Pacific Partnership treaty is examining terms that would commit the United States to the current regime of life of the author plus 70 years, with some even proposing to extend the term to match Mexico’s term of life of the author plus 100 years. Signing such a treaty would make it nearly impossible for Congress to ever consider implementing reforms that are more consistent with the founders’ intent.
“The public domain of the future cannot be protected with constraints on prospective copyright duration – otherwise it will not exist,” said Khanna.