Question

3. Copyright duration in Canada is the creator of the works lifetime, plus 50 years from the end of the calendar year that the creator died. Presumably, the copyright creates incentives to produce creative work (because the author or copyright holder receives the royalties for the use of the copyrighted materials). But the author obviously cannot keep receiving the royalty after he or she dies! Explain how extending the copyright protection beyond the author life creates the incentives to produce creative work.

Answer 1

Introduced in Britain in 1709 by the Statute of Anne, copyright initially protected creative works for 14 years, with the option to extend that by another 14 if the author was still alive. The need for protection was – and still is – indisputable.

Over the years, however, the length of the copyright period has steadily lengthened, beyond the point where it can be considered an incentive. In 1842, the term in Britain was extended to 42 years, or the life of the author plus seven years. By 1911, it had become life plus 50 years and, in 1996, it was extended again to life plus 70 years for a “literary, dramatic, musical or artistic work” (sound recordings are currently protected for 50 years).

This situation is essentially ridiculous. A copyright period that extends beyond the life of the author is clearly not an incentive to create – whatever rewards you offer, John Lennon is unlikely to write any more songs (although the music industry did include the names of several dead musicians among the 4,000 whom it listed in 2006 as supporting a further extension, so perhaps it might work after all).

Even as far back as the 18th century, publishers knew that arguing for a legal monopoly for their products was unlikely to succeed. So they framed the argument around the artists and got what they wanted. Today’s arguments, whether in favour of copyright extensions or against “piracy”, are always couched in the same terms: it’s about protecting artists and creators.

But copyrights are now increasingly likely to be owned by corporations, not by individuals. These companies will argue that they have invested in creativity, even if they didn’t do the creating themselves. But very often, they simply bought the rights from a company that once invested in some long-dead artist, or from that artist’s relatives. It’s not about creativity, it’s about revenue – which is perhaps why, in the US, copyright extensions have tended to happen whenever Disney is about to lose the exclusive rights to Mickey Mouse.

As it stands, the true purpose of copyright has been subverted. In fact, it’s now an active disincentive to create. For a record label, investing in a new artist is an expensive business, and it can be hard to predict who will succeed. Far easier to make money from the rights you already own: get the latest talent show winner and have them record one of your proven hits, and watch the cash roll in.

Calling for shorter copyright terms is not anti-creative or anti-business. It’s not about wanting something for nothing. Once work is in the public domain, it can enrich our culture, in the form of transformative works such as Romeo and Juliet (which borrowed heavily from an earlier publication) or Ulysses. It can be made available more cheaply, benefiting schools or charities. And it can create new business opportunities, such as allowing specialist record labels to release archive recordings that a big firm might consider uneconomical.

Though the Hargreaves Review didn’t consider copyright terms, the Gowers Review of 2006 did. It highlighted two reports, one arguing that the optimal copyright length “is at most seven years” and another saying that beyond 25 years, “the extra incentives to create as a result of term extension are likely to be very small”.

Copyright must return to being a law that is about the incentive to create. Possibly the most significant recommendation from the Hargreaves Review – which the Government supports – is that future changes to copyright law should be evidence-based. All the evidence from economists suggests that the copyright term is too long. It’s time for the Government to set our culture free.