Copyrights Last Too Long! (Say the Pirates): They Don’t; And Why It’s Not Changing Anytime Soon

Stephen Carlisle July 15, 2014

It’s useful to read editorials and opinion pieces written by people with whom you disagree. It’s important to know what they are thinking, and what facts they have at their disposal. While visiting the TorrentFreak website, this article popped up as one of the “most commented” posts. It is “How to Crack the Facade in Any Copyright Monopoly Discussion,” and is authored by Rick Flakvinge, the founder of the Swedish “Pirate Party.” ¹ It posits the following:

“So why does the monopoly last 70 years after the author’s death? I don’t know of a single author who keeps writing books after they’re dead and buried. The copyright monopoly term is at least 70 years – a whole lifetime – too long. And if it is that obviously 70 years too long, then it’s absurd in the first place.”

The easy course would be to dismiss this statement as a mere tautology, ² uttered by someone who is the founder of the “Pirate Party,” and hardly a disinterested commentator. But let’s examine this statement more closely.

The underlying proposition here is not that copyrights are too long, but that the whole idea of copyright is “absurd in the first place,” and should not exist at all. ³ To say this is an extreme minority view is putting it mildly. There are 170 nations which are a signatory to the Berne Treaty, which guarantees the international protection of copyrighted works. ⁴ The number of nations which are not a party to any of the five major copyright or intellectual property treaties ⁵ is 14, the most notable of which are Afghanistan, Iran, Iraq and Ethiopia. ⁶

But is there a point to be made here? Are copyrights too long? At the outset, these arguments are based on a half-truth. The copyright term for an individual is indeed the life of the author plus 70 years after death. ⁷ Yet, the target of these arguments is uniformly the so called “big copyright” players, namely the Hollywood motion picture and television studios and the music recording industry. These copyrights, being founded on the doctrine of “work made for hire” last for a much more modest 95 years. ⁸ Still too much?

So let’s agree with the Pirate Party. Copyrights are too long. Let’s bust the term of copyright back to what it was under the 1909 act. This would be a term of 28 years, renewable for another 28 years, or 56 years total. Now with this greatly reduced term of copyright in place, will you stop pirating “Game of Thrones?” ⁹ Will you stop pirating “Dallas Buyer’s Club?” ¹⁰ Of course not. A non-partisan study found that out of 1021 available BitTorrent files, less than 1% contained non- infringing material. ¹¹ All of the 476 BitTorrent movie files surveyed were found to contain infringing material, and were heavily weighted towards recent movies, of which 60% were in the English language. ¹² We do not find large amounts of file shares for Andy Hardy movies or the Marx Brothers. It’s the recent Hollywood blockbusters that get ripped. This merely confirms what was stated above: any copyright is too long for the pirates.

Now do we want creative people to keep on creating, even when they reach an advanced age? You would think that we do. Stephen King is 66 years old. Would we like him to continue to write creepy stories? Of course we would. Neil Diamond is 71 years old. Would we like him to keep writing songs? You bet. Would they continue to do so if they knew their copyright would soon die with them? Probably not.

The 1909 act provided for a strict term years, so all copyright lasted for the same amount of time. Would that solve the problem? Well, Irving Berlin lived to be 101. ¹³ Under the term of copyright provided by the 1909 act, he would have outlived most, if not all of his copyrights. This is why the length of copyright extends beyond the author’s death.

It is not a stretch to compare the ownership of a successful copyright to ownership of shares in a successful company. Should the heirs of Steve Jobs be totally divested, without compensation, of their stock in Apple 70 years after his death? No one has suggested this. Should the heirs of Walt Disney be totally divested of their shares 22 years from now? Family fortunes are often passed down from generation to generation, and there seems to be no groundswell of public opinion saying this should not be so. Just because the copyright act likewise provides for some measure of “inheritance,” does this now make copyrights illegal, immoral, and as some say, unconstitutional? Well, the answer is no. And the person giving the answer is the Supreme Court of the United States.

The Sonny Bono Copyright Term Extension Act, passed in 1998, extended all existing copyrights for an additional period of 20 years. ¹⁴ While the act was widely derided as the “Mickey Mouse Protection Act,” the most immediate beneficiary was Winnie the Pooh, first published in 1926, who was scheduled to frolic into the public domain a short three years away in 2001. ¹⁵

The law was immediately challenged in court as unconstitutional. It was argued that extending existing copyrights for 20 years did nothing to advance the “progress of science and the useful arts” as the copyrights were already in existence and incentivized. ¹⁶ They also argued that the extension violated the First Amendment’s guarantee of free speech. ¹⁷ The challenge was rejected by every Court that considered the question. ¹⁸ The Supreme Court ruled that even though life plus 70 years is a long time, it is still a limited time, and the First Amendment“securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches. When, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” ¹⁹ The Supreme Court affirmed the decisions by the courts below in a 7-2 vote. Not close by Supreme Court standards.

One can disagree with the decisions of the Supreme Court. I certainly do from time to time. Yet the failure to prevail on the arguments at any level of the Federal Court system indicates that rationale of the challengers is highly flawed and untenable.

Ignored in most of this debate was this important point. A key factor in the SBCTEA’s passage was a 1993 European Union (EU) directive instructing EU members to establish a baseline copyright term of life plus 70 years and to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. By extending the baseline United States copyright term, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts. ²⁰ While it may satisfy the cynical nature of anti-copyright activists to paint long copyright terms as a sell out to Hollywood, ²¹ the real driving force for longer copyright terms comes from Europe, not Hollywood, and the need for the United States to protect its copyrights abroad requires the adherence to treaties that mandate long copyright terms.

Let’s take jazz for example. Jazz is one of the great American art forms. Yet, in its home country, jazz is regarded as fringe genre. I can tell you from 26 years of experience working with jazz artists that jazz music is revered in Europe and particularly so in Japan. I would also say that without the protection of U.S. copyrights abroad, a jazz musician would find it difficult, if not impossible, to make a living. It is the presence of these treaties that make the continued viability of jazz as an art form possible.

On the flip side, copyrights are big business, and an important part of the U.S. economy. The United States creates some of the most valuable copyrights in the world. In the year 2007, businesses and government spent $278 billion dollars on computer software, or close to 2 percent of the Gross Domestic Product of the United States. ²² In that same year, U.S. artists produced $71 billion dollars’ worth of long-lived entertainment originals and $96 billion dollars of short-lived artistic products such as television, radio and internet programming. ²³ The accumulated capital stocks of these assets in 2007 are estimated to have been $468 billion for software and $536 billion for entertainment originals. ²⁴ These figures have far reaching economic effects.

The Walt Disney Company is more than just a film studio. It operates 11 theme parks and 44 resorts in North America, Europe and Asia, and operates four cruise ships. ²⁵ Walt Disney World in Florida employs more than 66,000 people, spending more than $1.2 billion on payroll and $474 million on benefits each year. Walt Disney World is the largest single-site employer in the United States. ²⁶ Anyone can see from this single example alone, that the creation and protection of intellectual property is responsible for the employment of an awful lot of people. Certainly Congress understands this, and thus protecting those assets abroad becomes a very desirable goal. These require that the United States enter in to treaties with foreign countries to insure the protection of U.S. copyrights. Here is where the real push for long copyright terms comes from.

The Berne Convention copyright treaty is the foremost copyright treaty in the world. At last count, 170 nations have agreed to its terms. ²⁷ The treaty was first signed in 1886, ²⁸ so its ideals are not new. The United States did not become a signatory to the Berne Treaty until 1989, ²⁹ more than one hundred years after it was created, so the U.S. had virtually no role in the creation of the treaty, or its fundamental principles. The primary advantage of the Berne Treaty is that a work created by a citizen of a Berne signatory, is protected in all other Berne nations automatically, without the necessity of individual, country by country, registration. ³⁰

The desire of the United States to join the Berne treaty required a vast rewrite of the existing U.S. copyright laws. Firstly, the Berne treaty provides that there be “no formalities” required of an author to obtain copyright protection. ³¹ Therefore, the U.S. system which required registration as a prerequisite for protection, and a renewal filing for continued protection, had to be abandoned. Next, as amended in 1971, Berne nations were required to have as a minimum term a period equal to the life of the author, plus 50 years after death. ³² So the previous system of 28 years, plus 28 years conditioned upon a physical filing, had to be scrapped as well.

So any proposal that the United States revise its length of copyright duration to anything less than the life of the author plus 50 years is a non-starter, unless there is going to be a wholesale repudiation by Congress of the Berne Treaty and the benefits of near universal protection of U.S. copyrights around the globe. Similarly, the suggestion of some that continued copyright protection be conditioned upon a physical filing and the payment of a substantial fee, would also violate our obligation under Berne to insure that copyright protection exist with “no formalities.”

As the Supreme Court only hears cases involving “live” controversies, they are not going to revisit the constitutionality of the current copyright term anytime soon. That would require that Congress again lengthen copyright terms in the next four years, an event that I do not see as happening. Reading between the lines of the Supreme Court’s opinion in Eldred v. Ashcroft, I think the clear message is that, while constitutional, the length of copyright protection had reached its logical outer limit.

Indeed, at the hearing held by the House Subcommittee on Courts, Intellectual Property and the Internet, on July 15, 2014, not one witness, nor any member of Congress, came forward in support of a longer copyright term. Several panelists offered up the observation, that in view of rampant piracy, the existing copyright duration is almost meaningless. In his testimony, Thomas D. Sydnor, II noted:

“Today, too many creators and investors find that the practical term of their US copyright protection is best measured in hours or days, not years or decades. Consequently, even the most principled analysis of how long copyrights should last, (if they could actually be enforced, in practice, and even by individual creators and small-and-medium sized creative companies), can become depressingly academic and even misleading, if enforcing copyrights becomes prohibitively expensive, time-consuming, and disfavored.” ³³

As for the pirates, their arguments are falling on deaf ears. In the U.S., several high profile cases involving unauthorized file sharing have resulted in massive judgments. ³⁴ In Sweden, the founders of the Pirate Bay website were sent to prison. ³⁵ Despite fielding nearly a dozen candidates in the most recent European Union Parliament elections, they won only one seat, and lost the two existing seats they had. ³⁶ Perhaps contempt for the rights of copyright holders is not as universal as the internet would have you believe.