Copyright protection 70 years after death does not encourage creativity

Copyright law is about protecting authors by rewarding them for their creative efforts and encouraging them to create again. Of course, copyright law has recognised the public interest in the free circulation of valuable works and provided that copyright does not last forever – eventually, the work becomes the property of everyone. The question of just how long copyright should last necessitates a difficult trade-off between protecting authors, and safeguarding readers’ interest in accessing their works.

As part of its Free Trade Agreement with Australia, the US wants Australia to extend its duration of copyright retrospectively, to match the period of protection provided in the US where copyright expires 70 years after the death of the author. In Australia, the duration of copyright is already a very generous life of the author plus 50 years. The US has already obtained similar agreements from Singapore and Chile. Australia should not follow suit.

Copyright law is there to encourage creativity through by providing economic incentives for authors. Does extending the duration of copyright increase that economic incentive? If it does, then this positive outcome must be weighed against the corresponding detriment to the public interest in circumscribing the public domain (the group of works which are not protected by copyright). If it doesn’t, then it is difficult to see what other credible arguments exist for a change in the law.

A retrospective extension – one that applies to prevent works that were poised to enter the public domain from doing so – cannot provide an incentive for authors, because the authors of the works affected are dead. Dead men tell no tales, nor do they write much poetry.

Even in its prospective application, it is difficult to argue that the extension would provide anything more than a trivial increase in incentive. Expert economists, including five Nobel prize-winners, testified (pdf file, 63 Kb) in evidence before the US Supreme Court, that the additional incentive is minute when it is measured in present-day dollars: for instance, a one per cent likelihood of earning $100 annually for 20 years, starting 75 years in the future, is worth less than seven cents today.

So, if a retrospective extension doesn’t provide incentive, what does it do? It harmonises, say supporters. Australia is "lagging behind" the rest of the world in failing to institute the new "uniform" standard (life plus 70). Harmonisation would reduce costs associated with managing intellectual property portfolios because rights would expire at the same time in major markets. This point is made in a recent report commissioned by Australian copyright collecting societies. Precisely what extra costs arise from different copyright terms between trading partners is not at all clear.

For net importers of intellectual property, like Australia, increased copyright protection will generally result in a benefit to foreign copyright owners at the expense of domestic consumers. In this case, the trade imbalance is even more pronounced. Unquestionably, "harmonization" specifically favours the US – significant US works will be affected, including books such as The Great Gatsby, films such as The Jazz Singer, Tin Pan Alley songs by Gershwin and Berlin and Happy Birthday to You which would be protected until 2031. Few, if any, significant Australian works will be affected in the same way.

So it becomes clear what the real purpose of an extension of copyright duration might be. The US is protecting its own economic interests. This represents a trend. Historically, rather than serving any higher aspirations of encouraging creativity or protecting authors’ rights, extension of copyright has served the interests of large corporations in protecting very valuable copyrights. This was demonstrated by the Disney Company’s successful lobbying for copyright term extension in the US. Mickey Mouse was scheduled to enter the public domain at the end of 2003; he is now protected until 2023.

In any case, the diminution of the public domain which would accompany extension is difficult to justify. Supporters of extension argue that works are debased by falling into the public domain, where they are exploited by rip-off merchants supplying derivative products, and profiting from the originality of the artist. However, borrowing is not only inevitable, it is also an invaluable source of new art. History bears this out – Shakespeare’s Romeo and Juliet was an unlicensed adaptation of Arthur Brooke’s poem Romeus and Juliet (1562), and was in turn reworked by Leonard Bernstein in the musical West Side Story. Artists depend on a rich public domain. Disney itself created blockbuster films from public domain works – Pocahontas, Snow White and the Seven Dwarfs, and The Hunchback of Notre Dame – yet it won’t free Mickey.

Extending our copyright term by 20 years doesn’t really protect our authors, yet it still taxes our readers. In Australia, we’ve hardly debated the issue, yet it’s almost a fait accompli. Conforming might seem an easier option, but it’s certainly not the right one. Rather, it is simply an unthinking submission to the will of a stronger nation, and it’s our film-buffs, our literature-lovers and our art-enthusiasts who will foot the bill.