The Copyright Term Red Herring

The Copyright Term Red Herring by Leo Lichtman

March 3, 2015

With a recent news brief from Japan’s NHK World News vaguely claiming copyrights under the Trans Pacific Partnership (TPP) are “to last for 70 years,” various critics of copyright have used the opportunity to recycle their baseless allegations that the TPP negotiation process is being corrupted by major entertainment companies. The Electronic Frontier Foundation called for the entire TPP—a broad free trade agreement that has been in development for almost 10 years—to be killed. Others have resurrected the term “Mickey Mouse Protection Act” in an attempt to revive a tired campaign of misinformation.

The myth of how US copyright terms got to be life of the author plus seventy years is one of the most pervasive areas of historical revisionism in the copyright critic’s arsenal, as they argue that copyright terms will extend for as long as Mickey Mouse might enter the public domain. Instead of irresponsibly spreading a false narrative, it is much more beneficial to inform the public on how the copyright terms have evolved globally, and how this has affected US copyright terms, so that we can better understand the broader trend in copyright term length.

Mickey Mouse and the Pervasive Myth

It is clear that US copyright terms have been extended since the Copyright Act of 1790. Yet while copyright critics continue to focus on this expansion, they ignore why the terms have expanded, and how they have expanded in relation to every other country.

In 1790, the Framers recognized the paramount importance of protecting authors by passing our nation’s first federal copyright laws. This is especially remarkable, considering that only one year earlier, the Constitution was ratified and the First Congress was elected. The original terms, fourteen years with the option to renew after fourteen years, were enacted to match terms under the 1710 Statue of Anne. The similarities with English copyright law ended soon after though, as England, along with most of the developed world, dramatically diverged from US copyright terms.

Long before the term of copyright in the United States was life plus fifty years, most of the world (including England, which adopted a term of life plus fifty years in 1911) had already adopted durations based on the life of the author. In fact, only three years after the United States passed its first Copyright Act, France passed a decree providing for copyrights to last the life of the author plus ten years. Specifically, life plus fifty years and longer traces back to a principle adopted in Europe in the mid-19th century that copyright protection should last through the author’s life and the life of his or her direct descendants: the author’s children, and the author’s grandchildren. Because copyrights are based on something inherently personal—an author’s creativity—the three-generation principle was intended to ensure that those generations most likely to know the author personally could profit from the author’s work and be in the best position to oversee how the author’s work is used. This principle worked its way into the Berne Convention in 1908 (20 years before Mickey Mouse would make his public debut), and 40 years later, life plus fifty years became the mandatory minimum standard in the Brussels revision.

This principle played a major role in the development of US copyright law. Though the United States first adopted a term of life plus fifty years in the 1976 Copyright Act, Congress had been considering such a term as far back as 1906, and it continued to gain support. A 1961 Congressional study prepared for the Senate Subcommittee on Patents, Trademarks, and Copyrights, illustrates how a series of bills was introduced in both houses of Congress in the 1920s to introduce changes that would help the United States conform to Berne Convention. Among the proposed changes was the introduction of a copyright duration to last the life of the author plus fifty years. Though none of these bills passed, the records show that there was comparatively little controversy over the various provisions of duration; rather, these bills were halted for completely unrelated issues. However, by the time the 1976 Act was being drafted, this issue could no longer wait. The principle that copyright should protect the author and at least one generation of heirs was already well accepted by Congress, and the Senate Judiciary Committee cited the insufficiency of the then-56 year term, as well as the importance of adhering to the Berne Convention as among the primary justifications for instituting a term of life plus fifty years.

More than thirty years later, the United States considered a new bill: the Sonny Bono Copyright Term Extension Act, aimed to extend the terms by 20 years in order to take advantage of foreign markets. Copyright critics typically call this bill the “Mickey Mouse Act” due to a spread in misinformation that suggests that the United States primarily extended the bill as a result of Disney’s heavy lobbying to keep Mickey Mouse out of the public domain. Conveniently, critics ignore that foreign artists had already long benefitted from a term of life plus seventy years.

The idea for life plus seventy years gained foothold after World War II, as some countries in Europe began granting various copyright “wartime extensions.” The resulting hodge-podge of varying terms, along with the Berne Convention and other international treaties, which allowed countries to follow the “rule of the shorter term”, were critical in encouraging the shift to life plus seventy years. The “rule of the shorter term” principle permits countries with longer terms to limit protection of foreign works to the shorter term of protection granted in the country of origin. This means countries with shorter terms were effectively nudged to match the countries with longer terms to ensure that their works stay competitive abroad. Germany was one of the first countries in Europe to extend its terms, adopting a term of life plus seventy years in 1965. As a result of the “rule of the shorter term,” numerous other countries moved towards life plus seventy, as reflected in the WIPO Guide to the Berne Convention from 1971.

In 1993, in response to increased lifespans and a desire to harmonize terms in Europe, the European Union issued a Directive to all members to increase the minimum term of protection to life plus seventy years. Accordingly, if the United States retained its original copyright term of life plus fifty years under the 1976 Act, copyrighted works produced in the United States would potentially enter the public domain in Europe 20 years before copyrighted works produced in Europe. This would be especially damaging in light of the increasingly globalized marketplace, and the United States’ role as the leading producer of creative works, exporting more copyrighted works than any other country in the world. Thus, in response to the changing global climate, the United States responded to international norms to ensure that American creators were as protected as European creators.

History makes it clear that the move to a term of life plus seventy years represented a general international push towards such terms, wholly independent of the United States. While some of the TPP member countries do have current terms of life plus fifty years, half of them (the United States, included) have terms of life plus seventy years, or even longer. It is thus harmful and irresponsible for copyright critics to continue a paranoid campaign of misinformation that suggests the TPP is simply a “copyright policy laundering” vehicle to push our own copyright terms, when the truth is that life plus seventy years, or three generations, has long been the international standard.

The “Real” Term of Protection

Moreover, debates over copyright term detract from much more pressing copyright issues. The ease of infringement has made debates over copyright term relatively moot, like debating the height of a fence that people can simply walk around. Once a work is made available legitimately, it is only a matter of time before it is available from various illegitimate, exploitative outlets.

Accordingly, the focus should be on ensuring that our copyrights are being enforced in the first place. Copyright-intensive industries directly account for over 5 million American jobs and exports of copyrighted works continue to grow, accounting for over $150 billion in foreign sales (more than double that of agricultural products). Robust copyright protection is thus vital towards ensuring the livelihood of millions of Americans and the United States’ place as the largest exporter of culture. Robust copyright protection is also critical for ensuring that content creators can continue to develop legitimate services that give consumers new and innovative ways to access copyrighted works, as copyright theft impedes such development. Further, robust copyright protection helps curb exposure to all types of online security risks found on illicit sites, including malware and credit card fraud.

Unfortunately, illicit sites continue to attract large numbers of people, undermining our economy, innovation, and security. Focusing on copyright term in order to advance an agenda that would largely undermine creators is the wrong direction. The United States has remained a leader in innovation and a top exporter of culture in large part because we have some of the most effective intellectual property laws in the world. In order to remain leaders in innovation and ensure the continued success of our cultural industries, it is vital that we address enforcement head-on in our free trade legislation and not allow our robust intellectual property regime to be undermined.

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