Forever or a day?

Forever or a day?

Some Americans dislike the Constitution. Some dislike parts of it. Former senator and Musician Sonny Bono was one of the latter. Article 1 Section 8 of the Constitution says, basically, that it is Congress's job to promote progress through the securing for limited times to authors, exclusive rights to their writings, or in plain english, Congress has to provide a system of copyright for a short period of time, in order to 'promote progress'. I believe this is known amongst Constitutional scholars as the “Progress Clause'. Sonny Bono, former member of Congress, and more famously, musician (after all, who's not heard Sonny and Cher singing “I got you babe”?). Shortly after his death, his widow, Mary Bono, said the following in a statement to congress:
“Sonny wanted the term of copyright to last forever. I am informed by staff that such a change would violate the constitution. I invite all of you to work with me to strengthen our copyright laws in all the ways allowed to us. As you know, there is also Jack Valenti's [then head of the MPAA] proposal for a term to last forever less one day. Perhaps the Committee may look at that next congress” (144 Cong. Rec. H9946 9951-2 , 7th October 1998 )

So, whilst Sonny's proposal has been dismissed as unconstitutional, lets look at Mr Velenti's. He's a shrewd operator, and headed the MPAA through some of its more tumultuous times, VCRs, cable TV, and the initial widespread growth of p2p filesharing. As such he should clearly know his subject. Lets examine his proposal then, and see how it would actually work. Of course, much would depend on how it would be applied. Would it only apply to new material, or be retroactively applied? It would probably be educational to look at both.

1. Retroactive application.
First, lets analyse the less plausible option of adding it onto all material. Thus, everything in the United States will be copyrighted, unless and until those rights are comprehensively waived by the appropriate parties. And there is the first stumbling block. Who will be the appropriate party? Who, for instance, will have the copyright over Shakespeare, or for that matter, the Bible, to say nothing of the likes of Dickens, Clemments, or Lincoln. With the bible copyrighted (and try and find someone appropriate to waive that, obviously the Pope is potentially a giver, but Queen Elizabeth II would have a much stronger claim for the King James edition, since it could be considered crown property, or maybe you'd need to find an actual descendant of the House of Stuart) there goes freedom of Religion, and possession of a Bible whose printing was not approved by the rights holders would be guilty of copyright infringement. The likes of Barnes and Nobles, or Amazon.com would have to cease trading immediately, literature classes and courses would have to stop
We rely on public domain material constantly, for education, business or pleasure. What's more, neither bookstores, nor educators, couldn't just continue with materials that were already under copyright. As is widely (or from discussions with ordinary people in the street, possibly not widely) known, the large film, television and music companies started and grew much of their wealth from what was then in the public domain. Books did, and in many cases do likewise. Disney's Hercules, Little Mermaid, or Cinderella for instance. All of that sort of thing would be copyrighted, and without the appropriate rights being negotiated, they would be infringements. A canny rights negotiator could conceivably wipe out the likes of Disney either through exorbitant licensing fees (a practice much favoured ordinarily by the large movie companies) or through the courts using the damages system also lauded by the same people.

Clearly then, that option is out. It' does no-one any good at all, certainly wouldn't produce any progress, except in lawyers fees, and that is what, the constitution says, is the raison d'être for copyright, in the US. So, does the second option, applying this term to currently existing copyrights, do this?

2. Extension of current term
On then to this, the second option, the extension to near-infinity of all currently existing copyrights. This one, unlike the first scenario, doesn't have the inherent problems of redefining what is and isn't copyrighted, it does, however, bring into contention a form of 'why'. Why is it that works more recent than 1923 are so much more valuable than those that were made earlier? In what way does the extension of copyright terms for these more modern works promote progress?Why should a book written in 1922 get 75 years of protection, and one written in 1924 get 1,000,000,000 years? (or at least 95 years now, and longer if the term is extended before its expired)
If anything, thanks to the new technologies, increased mediums, the growth of populations and the conglomeration of the production companies, is it now cheaper and easier to produce the copyrighted material and distribute them than ever before, and yet the desire amongst those is to provide for ever longer terms. This is not providing progress. With it now being so easy to recoup initial expenses through multiple mediums, glib in-house marketing, and star appeal, but primarily through quality, copyright terms should be reduced, not extended. Indeed, as we have seen recently in the UK people did some work, and then stopped, to live off their copyright royalties. Now those terms are about to expire, and they're upset, because they're about to lose their income, they've known about it for years, but because of the then-perceived length of the copyright term, they didn't feel the need to attempt more progress in the field. These are examples of copyright inhibiting progress.

Of course, at the end, it all depends on how you define 'progress'. I personally define it as a way in which things are made better over time. Disney releases its 'classic' movies periodically on VHS/DVD, for short time periods only. The adverts go something like “now from the Disney vault, we've finally put snow White onto DVD, and its yours to own for a limited period. You loved it when you were a child, now you can finally buy it, since we've kept it locked up for years. Hurry up and buy it before we stop selling it and lock it up for another 20 years, until your children's children are around. How is that progress? It might well have been a storytelling masterpiece, and an animation tour de force, but that was then, not now. It has made much more than it ever cost to make. They've had their rights, they made a high quality film and profited greatly by it, now let it go.

Indeed, that does bring up another point against the extension of terms. With a much shorter term, the average quality level will steadily rise. A film, generally recoups its investiture in proportion to its quality. A high quality, well made film will bring in a set about (say $100Million) faster than a low quality film. Of course, a highly publicised film will also tend to make money, but its not so certain. Nor, for that matter do high quality films have to be expensive, or star many big names. The film cube was, to my recollection made for far less than $500,000 and has made far more than that in just the decade or so since its release, as well as being successful enough to have two 'sequels' (hypercube and Cube Zero). With shorter copyright terms, it would seem that in the drive for profitability, there will tend to be a rise towards more quality oriented movies, rather than big-name bonanzas and special effects thrown in willy nilly. There will be some, of course, but if you wait long enough, even a tiny stream of revenue can build into a large volume of water. With the current no-end-in-sight policy of copyright extensions, even if every bad movie ever made only makes pennies a week, they will eventually become profitably. Even if its through such means as being sandwiched two-or-three to a disc, and sold in dollar stores, as has happened with some, I'm lead to believe.

As i explained at the start, the whole point of copyrights, according to the US constitution, is to promote progress. At this point extending copyright any further is not going to do that. Indeed its not clear how the last extension did that. If the extension from 75 to 95 years didn't facilitate progress, how can any extension to eternity, less a day manage it?