Mousetrap: The Copyright Deep Story Behind Today’s Lies

It seems that after Public Knowledge came out, guns blazing, and just plain making things up about copyright extensions in the new round of NAFTA negotiations, they and their supporters tried to tiptoe these statements back on Twitter by blaming the USTR for its lack of clarity. While I have little doubt that such vagueness is present—certainly if the USTR’s own press release is any indication—this does not excuse manufacturing a story and blasting it all over the internet, not least because a moment’s thought was all PK needed to conclude that what they were about to say probably wasn’t true. But once these things are on the internet and spread, well…what was never true in the morning will be true in many minds by five o’clock.

There are only two explanations for someone perpetrating an outright lie: ignorance or corruption. Either one is innocently misinformed and, therefore, unqualified to speak on the given subject; or one is purposely spreading falsehoods and, therefore, undeserving of anyone’s trust. And I suppose we have to acknowledge a hybrid of the two whereby one becomes so entrenched in an ideology (e.g. an anti-copyright agenda) that one remains willfully ignorant in order to feel less corrupt while spreading lies.

And that little sermon brings us to the tweet posted by Public Knowledge’s Senior Vice President Harold Feld, originally written to draw reader attention to the organization’s memo about the invented copyright extension in new NAFTA …

 

This is a fine example of a “deep story” as described by Alice Marwick in her paper about why we share fake news. For some Americans, their deep story is that immigrants are destroying the nation; for others, it’s a vast Jewish conspiracy; for many, it’s that vaccines cause autism; and for the anti-copyright zealot, it’s that Mickey Mouse has long been the primary (if not the sole) reason for term extensions in American copyright law. And because this is a deep story with roots in millions of minds, I’m not calling out Feld personally so much as by example; only he knows whether his tweet is more a manifestation of ignorance or corruption.

So, once again, I feel compelled to clarify a salient point about copyright history; and I apologize if this gets a little technical and arcane, but here it goes: Mickey Mouse had sweet fuck all to do with the current U.S. copyright term.

That’s not an opinion or a counter-narrative or an alternative fact. The Mouse story, while plausible and attractive to many, just ain’t so; and no self-respecting copyright scholar would allow it to be repeated as “history” because they know that the development of copyright term length dates back at least 160 years before Mickey first appeared on screen. Here’s a synopsis …

In Millar v. Taylor (1769), the English court held that a perpetual copyright existed at common law until statutory copyright—the Statute of Anne ratified in 1710—placed a limit (albeit a necessary one) on the duration of the term. By the late 1830s, France already had a posthumous term based on life of the author plus ten years; and England began debating a similar regime predicated on a bill that would have extended the term to life of the author plus 60 years. A version of that bill passed in 1842 with a term of life of the author plus seven years, or 42 years, whichever was the longer.

With the Berne Convention treaty of 1886, England, France, and other signatory nations much smaller than the U.S. continued to extend terms, eventually mandating life of the author plus 50 in 1948. Meanwhile, throughout the 19th century, the United States dragged its feet for about sixty years in ratifying any kind of international copyright law (doing so in 1891) and only codified a life-of-the-author-plus-50 regime in the 1976 Copyright Act—nearly 70 years after those terms were first adopted on a voluntary basis in Berne.

When the U.S. finally joined Berne in 1989 (103 years after its origination), this was just in time to play catch-up once again as Europe was about to coalesce into the EU in 1992. The European Parliament settled on a term of life of the author plus 70 years, thus providing grounds for the Copyright Term Extension Act of 1998, which amended the 1976 law to conform to the terms adopted by the EU and other key trading nations.

That’s a digest version of term length and how it got that way, but suffice to say that Mickey Mouse’s debut performance in Steamboat Willie in 1928 is not even a footnote in the evolution of widely-adopted, international copyright terms to which the U.S. eventually had to adhere if it wanted to join various trade agreements with some of its most important partners.

People are entitled to argue that copyright terms are too long, which is a perfectly valid topic for discussion and debate. But they are not entitled—least of all under the banner of a public-serving organization—to perpetuate conspiratorial nonsense in order to score symbolic social-media “wins” rather than provide substantive contributions. We have enough of the former in our current politics, and if that’s all the folks at Public Knowledge can bring to the table, then they don’t deserve a seat—either because they are unqualified or because they are dishonest.


Also see Brief History of US Copyright Terms at Copyhype.

© 2018, David Newhoff. All rights reserved.

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