How Valuable Are Works That Have Lost Value?

Picking up on one of the big copyright themes of the month—the re-opened public domain*—scholars James Boyle and Jennifer Jenkins were hosted last week by Joshua Johnson on his show 1A, produced by public radio station WAMU in Washington, D.C.  Boyle and Jenkins are leading members of the Center for the Study of the Public Domain at Duke University Law, and, as one might guess, advocates for shorter terms of copyright protection.  A number of topics unrelated to the public domain were covered, but I want to focus on the central theme the professors bring to the discussion.

Using the metaphor of the iceberg, Boyle and Jenkins tell us that better than ninety percent of works under copyright have lost market value—that, in fact, most works lose their market value well within twenty years after publication.  Based on these data—assuming we can take them at face value—they assert that copyright’s term of protection serves some “two percent” of works while doing a disservice to society by “locking up” the lion’s share of works that no longer even generate revenue for their authors.  

From these premises, they derive the conclusion that copyright is failing in its purpose to “promote progress” by sequestering a vast trove of material that might be used to produce new creative works and/or may be useful for libraries and archives. In this regard, I believe they overstate the value of the public domain for new authors while taking the wrong approach to solving a legitimate challenge for librarians.

The Public Domain and New Authorship

The view promoted by Boyle and Jenkins is over-reliant on the generalization that creators build upon works that have come before.  This is certainly true, but not necessarily in ways that can be taken so literally as to assume that authors need a certain volume of works in the public domain the way a farmer needs a certain amount of nutrients in the soil.  

Only a segment of creators at any given moment seek to use existing works in ways that implicate copyright; and a portion of those uses can still be accomplished through licensing.  Add to this the lion’s share of creative production that neither considers nor conflicts with existing copyrights, and it’s little wonder that what data we have reveal a general increase in creative output, even after the term extension of 1998. 

The “shrinking public domain” narrative with regard to new creation is hard to reconcile with, for instance, IIPA reports that continue to show growth year after year in the core copyright sectors.  And, as noted in my last post on this topic, when it comes to enforcement, copyright critics never fail to mention that we’re enjoying more creative output than ever before. So, clearly, authors are not choking on the lack of PD material in the air.

Mapping the Works Under Copyright

Meanwhile, if there is value to the “iceberg theory” Boyle and Jenkins present, it begs important questions on its own. The reality that most works produced in any given period (regardless of copyright) lose market value fairly quickly is both obvious and, quite possibly, irrelevant.  For instance, out of that large mass of submerged iceberg, how many works are so inherently transient as to be of little to no discernible cultural value?  How many diet books, romance novels, auto-repair manuals, self-help guides, exercise DVDS, etc. comprise the ninety-plus percent of “locked up works”?  I don’t know that answer either, but it should be addressed before anyone slings around big numbers for dramatic effect.

In his book (and I admit to not yet reading the whole thing), Boyle insists upon the need for empirical evidence thus:

“I want to offer a suggestion that in any other field would be stunningly obvious, boring even, but in the funhouse mirror of intellectual property appears revolutionary. We should make our policy based on empirical evidence of its likely effects and there should be a formal requirement of empirical reconsideration of those policies after they have been implemented to see if they are working.” 

That being the case, Boyle should agree that it is not sufficient to refer generically to “what creators might do” with works that fall into the public domain that they might not otherwise have done while the same works were under copyright.  Most articles and blogs on the subject tend to be tautological.  Look at what could be in the public domain!  Copyright on a work could last over 120 years!  Copyright terms started as 14 years with a 14-year renewal in 1790!   All of these sparkly bullet points, or tweets, are attractive to the already copyright skeptical, but none of these statements demonstrates how the current term is too long.

Addressing a Real Need

All that said, there is indeed a subset of zero-market-value works under copyright for which there is a clear social interest, and which Boyle and Jenkins address in their overall advocacy.  Where libraries or archives have obtained an interesting collection of works—say a body of obscure sound recordings from the 1930s and 40s—the institutions are frustrated by the fact that the uncertain copyright status of these works makes them apprehensive about building what could be a very useful online archive.

The inability to identify the rightholders in these cases (a.k.a. the “orphan works” problem), combined with the duration of copyright leaves the library or institution stranded.  And, as per the “iceberg” metaphor, these works aren’t making anybody any money anymore, so the fact that they’re captured by copyright functionally contradicts copyright’s purpose to “promote progress.”

I agree with this complaint in principle, and so do many copyright advocates.  But focusing on the length of terms to solve the issue is both wrongheaded and a needless waste of resources.  If we first acknowledge that the librarians’ problem in this case is actually the result of a relatively new opportunity (i.e. making works widely available online), this reframes the conversation in context to historic precedent whereby carve-outs in the statute have been made specifically for libraries, archives, and other non-commercial, public-serving institutions. 

Because American copyright terms match those of the 175 other signatories to the Berne Convention treaty, a stubborn agenda aimed at shortening those terms is almost certainly a futile exercise; and even if some incremental “victory” were achieved (i.e. reverse the 20 years since the CTEA), this would not entirely solve the uncertainty/orphan problem for all those works the libraries and archives would like to make available.  It is politically and pragmatically more realistic to collaborate with copyright interests with the aim of carving out a new, digital-age exception based on the class of user rather than the duration of copyright on the various works in question.  

Likewise, returning to Boyle’s and Jenkins’s iceberg narrative, it would probably be easier, and more useful, to advocate a new statutory exception for libraries et al than to attempt to correctly map the universe of non-market-value, copyrighted works and then try to demonstrate—other than by leap of faith—how those tide pools of sequestered material are in fact stifling the creative growth of the nation.  As stated, it’s a very hard case to make against the backdrop of the visible part of the iceberg—a body of works under copyright, and with market value, that is already larger than the average person can experience in a lifetime.

*January 1 was the first day that copyrighted works entered the public domain since passage of the term extension in 1998.  

© 2019, David Newhoff. All rights reserved.

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