Michael Eriksson's Blog

A Swede in Germany

Unfortunate U.S. copyright developments

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Copyright laws that extend too far into the future have long annoyed me, although I have written relatively little on the topic. However, as a part of a (much older) discussion of patents, I made several recommendations that are grossly violated by a suggested U.S. law*, close too passing. This included a strong focus on the author** (and the life of the author) of the work in question, limitations if the rights were sold to another party, and that the period that a copyright is valid, by law, cannot be extended.

*I draw more on a German article for my discussion, however.

**I will mostly remain with the generic term “author” below; however, in most of the relevant cases, it amounts to “recording artist”, “song writer”, “lyricist”, “composer”, or similar. I refer strictly to the author in the literal sense and not to the legal fiction implied by formulations like “for purposes of copyright law, the author of this work is XYZ”.

This suggested law could retroactively extend copyright* for some musical works to 144 (!) years, long after most of the original authors can be assumed dead**, and with no regard for transfer of rights.

*The law appears to focus strongly on “digital performance” and/or “transmission”; however, this would already cover, or could be interpreted to cover, a clear majority of all modern and copyright-relevant uses—and the proportion will grow over time. The effective difference between “digital performance” and “copyright” (in general) will likely be correspondingly small. In as far as a difference is present, virtually all of the below discussion remains valid after trivial modifications.

**Cf. calculations below; use common sense; or note that a very significant portion, possibly the majority, are dead even now—with almost fifty years to go.

The ostensible reason for this law could be seen as positive: Musical works created before 1972 have a weaker protection than works created later, based on previous changes to U.S. copyright law.

Practically speaking, this law comes too late to effectively provide the benefits it claims to provide in the majority of the cases; the time limits involved are out of proportion to newer works; and I would be very surprised if the true purpose was not to benefit the music industry, not the authors, in a highly questionable manner:

  1. Works created in the span 1923–1972 will, in a blanket manner, be protected until 2067 (!), effectively implying that almost all the original authors will be dead: Even someone as young as 15 when he wrote something in 1972 would have to live to an age of 110*, in order to use up the entire time of protection. Someone who wrote a work at age 15 in 1923 would have to be 110 right now, in order to enjoy even a day’s worth of additional protection. Even our friend from 1972, if still alive, would be 61 at the time of writing—better late than never, but… Of course, the overwhelming majority of authors were not 15 and the numbers look even worse when adjusting for a more realistic age.

    *With some reservations for the exact reference point of each of the involved years.

    If the law was actually geared at protecting the authors’ interests, it should have been shaped very differently—and passed a lot earlier. (Especially seeing that the interest in a given piece of music typically diminishes rapidly over time—the author’s death being one of the very few events that can cause a major new interest… Not only will the typical sales be less counted in items, e.g. CDs, but the price per item will also typically decline.)

  2. The years involved are likely based on the already hyperextended and disproportionate 95 years used for newer works: 1923 is 2018 – 95; 2067 is 1972 + 95. Now, using a number based on current rules might have been a reasonable idea, if it had been applied sensibly. A sensible application would have been to let the copyright expire in the year of the creation + 95. In other words, a works from 1972 would indeed be protected until 2067, but a work from 1923 only until 2018, a work from 1950 only until 2045, etc. The actually suggested implementation gives the owners of older works an unwarranted advantage over those of younger works.
  3. The law amounts to a change after the fact. I note in particular that there is no guarantee whatsoever that 2067 will remain the upper limit. Further, that counting from 1923 implies that almost all recordings ever made will be under copyright for the foreseeable future, possibly, eventually, forever. (To boot, those recordings that were made before 1923 will be of very poor quality by today’s standards, be it through differences in recording technology or through decay over time—if they have not been lost entirely…) Continuing the age calculations, chances are that both I and half of the readers will already be dead by 2067: I, e.g., would turn 92 in that year.

    All in all, this looks suspiciously like an attempt to ensure that music without a copyright is permanently limited to a minimum.

  4. The music industry is possibly the least worthy of protection of all the copyright related: The actual authors of the music are very often detached from the rights to it, and the music industry is infamous for taking unfair advantage of its musicians. Cf. e.g. [1] and the linked-to article by Courtney Love. The implication is that this law, even timing aside, would do comparatively little for the authors and a hell of a lot of for the music industry.

As an aside, I strongly suspect that the point of long copyright terms is not primarily to get royalties on older works—but to diminish the competition for newer and more lucrative ones: A rational consumer will think twice about paying top-dollars for the latest works when there are many, many quality works of old that are available for free or at a nominal cost. For instance, my own purchases of books* have diminished considerably over the years, in favour of Wikisource, Project Gutenberg, and other repositories of free readings. Note that the music industry is extremely driven by new material, new hits, new sounds, …, that rarely have what it takes to be of note even ten years later; and that it is likely the copyright industry with the most to lose from competition from older materials.

*Books, unfortunately, is one of the few areas where a sufficient quantity of copyright-free works exist, with e.g. movies and musical recordings being limited in time for technological reasons. The same principle would apply, however.)


Written by michaeleriksson

May 21, 2018 at 2:37 am

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