Shorten copyright terms? Okay, then what?

The subject of copyright terms kept popping up last week, so I’ll take the message and dive in.  I should be clear that I don’t have a strong opinion as to exactly what terms would be optimal at this point. Or to be more accurate, I don’t have the legal experience to account for all the implications of moving the needle by a specific value in either direction, but then neither do many of the voices insisting that terms must be shortened in the name of all that is holy, so take that for what it’s worth. Absent specifics, I’m not particularly impressed with the twin arguments, “copyright must be shortened because the Internet,” and “copyright terms are too long because they’re too long.”  The first generalization and second tautology are remarkably common and almost never supported by specific examples of the social value that would be derived by insisting upon more works’ early entry in to the public domain.

On the occasion of the new year, the Duke University Center for the Study of the Public Domain released this post woefully presenting a list of several classic and mediocre-but-famous works that might have entered the public domain on January 1 had it not been for the 1976 Copyright Extension Act.  As is typical of these articles, though, the post merely presents titles of familiar works and leaves the reader to conclude on face value that of course it’s a shame these things are still protected by copyright as though this fact has entombed them in impenetrable permafrost for the next 40 years.  To the contrary, nearly all of the works listed, especially the best ones, are freely or cheaply available for your enjoyment right now, so an implication that their continued copyrights are barring access can’t be what the author(s) are trying to convey.

Granted, a place that calls itself a center for the study of something should not require the reader to guess what its thesis might be, but I am guessing the folks at Duke want us to imagine secondary or derivative uses of these works.  If so, I will argue that one of the reasons their article and many just like it never offer particularly concrete ideas in this regard is that there aren’t that many good ideas to be had in this regard.  What, for example, might the study group at Duke suggest be done with Ingmar Bergman’s classic film The Seventh Seal other than, y’know, to watch it?  Or were they imagining the loss to cultural and economic diversity that might bloom from an unholy mating in a YouTube mashup with clips from Leave it to Beaver, all set to the song “Great Balls of Fire?” Even if such a video were to be produced and be brilliant and generate a billion hits, the service to the public would be little more than a fleeting diversion while Google monetizes the traffic, and we hope that someone still chooses to preserve The Seventh Seal in its original form despite owning no rights to its distribution.

On the subject of what might or might not be done with these works that can’t be done right now, the post lists Samuel Beckett’s play Endgame, and as a Beckett fan, I’m trying again to imagine without wincing what might be done with any of his plays other than to produce them in the manner in which they were intended.  In fact, the Beckett estate supposedly enforces strict control over the ways in which these shows are produced, and if you know the plays, you know why.  Beckett’s minimalist masterworks are conceived as a whole, with very precise direction, timing, and stagecraft written into the script.  Stray too far from the author’s instructions and you may have a play, but you won’t have a Beckett play.  This example begs a philosophical question about rights management that has nothing to do with money and certainly nothing to do with digital technology.  In fact, Beckett may be one of the best examples the Duke folks could have presented as a case for infinite copyright.  They and those who echo their positions should have to prove both culturally and economically the public value to be gained by curtailing the Beckett estate’s stewardship of these works.  NOTE:  The silence that follows is fair use (nerdy Beckett/copright joke).

Conjuring the theatrical antithesis of Beckett, the post also invokes the works of Shakespeare, whose plays were in some cases outright plagiarized, and they have also been produced in every conceivable (and several inconceivable) styles and media that take no end of creative license with the original texts.  And we do have to concede that even after a couple centuries worth of remixing The Bard, the original plays remain intact and eternally produceable in what one might call their classic form. Interestingly, though, invoking Elizabethan theater also provides a rationale for creating and preserving strong copyrights. Although Shakespeare and his contemporaries were very skilled, they were not necessarily original by contemporary standards.

If a theater company in Elizabethan or Jacobean London wanted to thrive and remain in the good graces of the monarch, it had to put on new shows at a fairly rapid pace.  After all, most of the population, working sixteen-hour days and dodging between plagues, had a life expectancy of 35, so there wasn’t much time to waste.  The stories and sources of stories were treated by the highly-collaborative theater companies as something like the Creative Commons of its time.  This helped produced fast theater, but not always fresh writing.  Still, the churn of 16th century drama serves the point emphasized in the Duke article when it quotes Judge Richard Posner, an occasional critic of IP laws, who says, “Romeo and Juliet itself would have infringed Arthur Brooke’s The Tragicall Historye of Romeo and Juliet…which in turn would have infringed several earlier Romeo and Juliets, all of which probably would have infringed Ovid’s story of Pyramus and Thisbe.”

Art is derivative of art. We all understand that. But to limit this principle to focus on any particular work or works is to misconstrue and belittle the creative capacity of nearly all artists.  It is common for people like the author(s) of this Duke article to provoke the half-thought with statements like “Imagine if Shakespeare hadn’t been able to borrow from the late poet Arthur Brooke,” but they always forget that the hypothetical notion cuts both ways.  We short circuit the thought exercise by only imagining the work that didn’t come to exist and never imagine the work that might have existed instead.  Shakespeare didn’t lack for imagination when he needed it, so yes, let’s absolutely imagine what he might have produced had Romeo and Juliet somehow been off limits; it might have been extraordinary.  Artists are always overcoming obstacles, and you will be hard-pressed to find a serious artist who says, “I simply can’t produce anything. It’s all been done, and it’s all restricted.” To the contrary, witness the diverse explosion of works and media in the countries that established and protected copyrights.

Of course, underlying the whole movement to reverse, limit, or abolish creator rights is the oft-asserted premise that the technological age in which we now live can only thrive and best serve society if we remove or restrict some of these old notions that creative works can be property.  And in their ebullient cheerleading, some of the messengers can get ahead of themselves as was the case when Julie Samuels of the Electronic Frontier Foundation claimed on a panel in New York City last year, “We want to see a thousand YouTubes.”  This statement is untrue in every direction, and even if we are to believe that Google might welcome 999 competitors, their existence isn’t economically feasible — and not because of copyrights.  If there are solid grounds for shortening the copyright terms for authors, let the case be made.  But let’s not get distracted by the vague prognostications of an industry that is unlikely to produce so much as two YouTubes when we can say for certain that copyright has produced a lot more than a thousand Shakespeares.

See related article:  “How Copyright Law Gave Us Star Wars” by Devin Faraci

David Newhoff
David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

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