Why Copyright Extensions are Bad for Artists

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There has been a lot of talk in recent years about copyright terms and the seemingly never-ending extensions to copyright across the world. Currently, the EU is looking at the possibility of nearly doubling its copyright term on music recordings and the U.S. tacked on another 20 years to its copyright law just a decade ago.

Those who make a living from copyrighted works seem to support these extensions with an almost blind fervor. Though the current copyright term in the U.S. is the life of the author plus seventy years for works of personal authorship and 95 years for works of corporate authorship, many see “more” as universally being “better”.

The problem is that these copyright extensions come with a series of new problems and authors, musicians and others who support them may be unwittingly shooting themselves in the foot. The longer a work is protected, the more concessions they have to give up to make copyright viable.

In the end, most artists would do much better with a limited term of strict control than a century of dubious one. Sadly, we’re already seeing the signs of this problem and there may be no turning back.

A Brief History

copyright-term-chart

As this chart on Wikipedia illustrates, the copyright term in the U.S. has only moved one direction, up (Note: The Chart is by Tom Bell and is licensed under a Creative Commons Attribution ShareAlike 3.0 License).

To shorten a very lengthy story, the first copyright law in the U.S. was passed in 1790 and set the copyright term to 14 years with the option to renew for another 14. A follow up in 1831 extended the term to 28 years with the option to renew for another 14. Then in 1909 it was extended to 28 years with the possibility of another 28 year renewal.

Then, in 1976, the law was completely rewritten to provide authors with a term for their entire life plus 50 years and corporations a 75 year term. Both of those terms were extended by 20 years in 1998 with the most recent copyright extension.

In short, over the course of just over two centuries, we extended copyright from a max of 28 years to a term that could, depending on how long an author lives, last well over a century and a half. While this might seem to be a big win for copyright holders, who can now will their copyright interests to their great-grandchildren, it creates a series of problems that artists need to consider.

Give and Take

The problem for artists is that copyright law is about balancing the rights of the artist over their work with the needs of the public. The artist has a right to commercially exploit their work, the public has the right to free speech and to create works of their own.

If the balance between those two things is disrupted, the entire system grinds to a halt. It is a delicate, fluid balance that has shifted with technology and culture for over 200 years.

But what this means is that, if you give artists a boon, such as a huge extension to their copyright term, inevitably, they are going to lose rights somewhere else. If copyright holders want a copyright term that lasts for 150 years, they will only receive rights that are sustainable for that long.

It may seem to be impossible, especially since the process is so slow moving, but the legal backlash has already started and may hit home sooner than many think.

The Orphan Works Problem

The classic example of this push back is the Orphan Works legislation.

One of the problems with a copyright term longer than a century in many cases is that the copyright in the work actually outlasts the material it is created on. Photographs fade, hard drives deteriorate, paper rots, etc.

This means that it is impossible for those that wish to archive a work to do so before it is gone forever. Since, in many cases, the author can not be located and permission can not be granted, our lengthy copyright term virtually guarantees the destruction of countless works, many of which may be valuable to our culture and our history.

However, Congress, quite correctly, realized that the public has a legitimate need and is served well by having its history and culture preserved so, in response to that, it has made two runs as orphan works legislation (the last one dying last year before the election) and will likely make a third soon. These bills would have made it legal to use copyright-protected works, under certain guidelines, if the copyright holder can not be found.

This, in turn, puts a huge dent in the rights of an author, at least in terms of practical enforcement and, instead of having full rights over their work for a period of time, copyright holders now have to worry that their works could become orphans the second they place them on the Web or in any public place.

The orphan works problem is not going away and it will come up again soon. However, this won’t be the only issue of its kind. As copyright lobbies push the term toward “forever minus one day” they’re creating more problems with the balance in copyright and these problems will have to be resolved somehow.

Foreseeable Consequences

What are some other potential consequences of a never-ending copyright term, consider some of the following possibilities:

  1. Legalized “Abandonware”: Abandonware is a term used to describe software that is no longer commercially available, like old games. Currently it is illegal to make copies of abandoned creations, software, artistic or otherwise, but with current copyright laws, a work that is not legally available disappears for many decades. It is foreseeable that there might be a legal shift to legalize some instances of copying unavailable works, possibly even including books, music, etc. On that front, Google Book Search may be a non-legislative start to the process.
  2. Compulsory Licenses: We already see compulsory licenses for a lot with nondramatic musical works but it is very foreseeable that we could see a future where these licenses are expanded to include other kinds of work including visual, written, etc. Though this might be preferable to the orphan works legislation, it would still create problems for artists wanting to control their name and image.
  3. Broader Fair Use Provisions: It is also wold make sense to broaden the fair use provisions of copyright law to counter the growing copyright term. We already have one of the broadest fair use systems in the world, but it has served as the main balancing force between copyright ownership and public interest. It would be a natural choice to expand even further as the term expands, possibly to include new variables such as availability of the work, age of the work (not just whether it is published) and so forth. Much of this is already weighed in some capacity, but it could be codified into the law and fair use exemptions could be greatly broadened.

The problem with all of this is that it requires new legislation and the one thing I’ve learned in years of watching copyright legislation is that new laws almost always equal bad laws. New laws mean unintended consequence, legal uncertainties and new problems.

However, the balance has to be preserved and we have to assume that if it takes new laws to achieve it, then new laws we will see.

Bottom Line

A simple, clear cut and shorter copyright term would probably suit more artists than a longer, ambiguous and limited one. The only copyright holders that benefit from such a system are artists with the resources to navigate the potential minefield and works that will continue to generate revenue decades down the road.

The copyright system is and always has been about a balance between creators and the public, if that balance becomes askew, once can rest assured that new laws will be passed to correct. Blindly trying to expand copyright law, especially through term extensions, there will be concessions elsewhere.

It’s time for artists to stop thinking that more is always better and decide what balance would work best for them while still maintaining the spirit of what copyright law is supposed to achieve.

If we can do that, we might finally bring some sanity to copyright on the Web and everyone would be a little bit happier.

22 Responses to Why Copyright Extensions are Bad for Artists

  1. RT <a rel="nofollow" href="http://twitter.com/plagiarismtoday">@plagiarismtoday: Why Copyright Extensions are Bad for Artists: http://bit.ly/fsHh Thought-provoking.

  2. Sigh. Will we ever understand proper copyright – http://bit.ly/fsHh

  3. RT @plagiarismtoday: Why Copyright Extensions are Bad for Artists: http://bit.ly/fsHh Thought-provoking.

  4. Sigh. Will we ever understand proper copyright – http://bit.ly/fsHh

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  6. “Why Copyright Extensions are Bad for Artists” http://tinyurl.com/c9llq8 (via <a rel="nofollow" href="http://twitter.com/CopyrightLaw">@CopyrightLaw)

  7. RT <a rel="nofollow" href="http://twitter.com/CopyrightLaw">@CopyrightLaw: “Why Copyright Extensions are Bad for Artists” http://tinyurl.com/c9llq8 – WORDS OF WISDON!

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  9. RT <a rel="nofollow" href="http://twitter.com/chrissyboy16">@chrissyboy16: RT <a rel="nofollow" href="http://twitter.com/CopyrightLaw">@CopyrightLaw: <a rel="nofollow" href="http://twitter.com/ProperRecords">@ProperRecords “Why Copyright Extensions are Bad for Artists” http://tinyurl.com/c9llq8

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  11. “Why Copyright Extensions are Bad for Artists” http://tinyurl.com/c9llq8 (via @CopyrightLaw)

  12. RT @CopyrightLaw: “Why Copyright Extensions are Bad for Artists” http://tinyurl.com/c9llq8 – WORDS OF WISDON!

  13. RT @Joscelyn: “Why Copyright Extensions are Bad for Artists” http://tinyurl.com/c9llq8 (via @CopyrightLaw)

  14. Col says:

    Is it actually the artists themselves pushing for these changes, or the big organisations with vested interests eg publishing houses, music publishers, law firms?

  15. It is hard to say really. You see a lot of artists support these extensions, especially older ones that likely have the largest back catalogs and the most to gain, but it us hard to say where the pressure is coming from. It could just me largely proxy pressure from the labels. We will never know.

  16. suzanne says:

    I was reading your post over a blogging tips today about the screen shots. I 100% agree about the importance of including images with posts and was also thinking about the importance of citing those images. Then I looked up and saw the name of your other blog and found myself here. Thanks for this very valuable information. I wonder if you have posted about before or have any tips for how (or if) a visual artist can embed something into their files to alert them if they are used without permission on the web? I've had a couple of instances where my work has shown up on others sites without proper citation. Had I not happened to stumble upon it I'd never have known it was there….

  17. I've written about a few things but I'll go over some of the best sites real fast. First, Tineye (http://tineye.com) is a great visual search engine, just upload your image and it should find matches, even if they have been modified. Second, if you are willing to spend some money, Digimarc MyPictureMark (https://www.digimarc.com/mypicturemarc/) can be applied to your images before you upload them and their spider can alert you to new uses. PicScout (picscout.com) can do something very similar.Right now the nature of the technology makes it more difficult and more expensive to track visual images but the tech is coming down in prices and I expect some new services within the next few months to a year.Definitely consider subscribing as I'll be posting here about them as they come up :)

  18. Wex says:

    You mean it would suit artists who are not successful and need to rip off of others to try and make a name for themselves. I think copyright should last the lifetime of the artists. My creative work is my career and it is something I built up over the years. Why should I allow someone to take my work and put it on a shirt for their own profit? The problem with the orphan works legislation is that it was a ruse to take rights away from living artists. That is why it failed. Funny that legislation with the purpose of making older images free to use also tried to make it so that living artists could not be awarded damages in infringement cases and would have to pay court fees as well. I think copyright for the life of the artist is the best route to take. Or just make it protected until the date that the artist would turns 100. That way even if the artist dies young his or her family can control the market that their loved on had built up. Not sure if 70 years after the death of the artist is a god thing though. That should probably be dropped. And please don't suggest that copyright blocks creativity or obstructs the flow of art history. Copyright is here because the market is very different than it was when van Gogh and others were alive. Many artists fought hard for the right to protect their works so it is funny that a few generations of people who want everything for free has pressed to strip artists of those rights.Many visual artists and musicians support copyright. Geoff Tate just spoke about how important it is and he makes the point that copyright law has not burdened his creativity. If art and music should be free than I guess every book written should be free as well. But then what is the incentive to publish those works in the first place? Copyright is a right. Fair use is a defense. But we have people looking at it the other way around. The United States is a country that is grounded in business. Why do so many people not want artists and other creative people to run their business with all the protections that other business people have? True, da Vinci did not have to worry about copyright because it did not exist at that time. But the technology and ease of making profit did not exist either. People who want copyright gone are behind the times.

  19. Wex says:

    Again the problem with orphan works legislation is that it is supported by people who don't want copyright in the first place. Why does a bill that is designed to free works that are old or abandoned have to harm the rights of living artists? Why did it call to take away damages that infringers are hit with? Why did it call to put the burden of court costs on the copyright owner? When you have artists like Shepard Fairey and Richard Prince using works with total disregard for their peers it is obvious that copyright is needed now more than ever. Fairey runs a company by the way, Obey Giant Art Inc.. So do you want artist ran companies to be able to use any image they want? That would hurt art because the only people who would thrive on those terms would be people like Fairey and Prince who are already wealthy and can already afford to mass produce the works of others. A good copyright policy is not giving up rights I might add.

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