It’s not uncommon to read or hear in the news about legal actions taken by the copyright owners of movies, music, and software, intended to address what the content owners are constantly telling us is a torrent of copyright infringement. Extravagant claims are made about the amount of money being lost to so-called “pirates”, although a moment’s thought should be enough to see that any specific claims must be fairly dubious: first, because there is no really accurate way of estimating the amount of unauthorized copying that actually takes, place, and second, because of the extremely questionable assumption that, if only legal sanctions were more effective, all of those illicit copies would be translated into sales.
The most recent issue of The Economist has a very good leading article (editorial) on copyright, its history, and how it ought to be changed. In something like its modern form, copyright came into existence 300 years ago, when Queen Anne of England gave Royal Assent to the “Act for the Encouragement of Learning” on April 10, 1710. The Act, sometimes called the “Statute of Anne”, granted authors and publishers a legal monopoly in producing and selling their works; but it was a monopoly that had a specific and finite lifetime:
Parliament had given them rights, but it had set a time limit on them: 21 years for books already in print and 14 years for new ones, with an additional 14 years if the author was still alive when the first term ran out. After that, the material would enter the public domain so that anyone could reproduce it. The lawmakers intended thus to balance the incentive to create with the interest that society has in free access to knowledge and art.
The idea caught on. The US Constitution, in Article I, Section 8, gives Congress the power to establish copyrights and patents.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Owing to lobbying and legal pressure brought by the entertainment and publishing industries, the “limited Times” have been getting longer and longer. Copyright holders in the US now get 95 years of protection.
The Economist argues, and I would agree, that there is no very good reason to believe that longer copyrights have a significant effect in encouraging creativity. They do create problems of their own: there is a class of “orphan” works, still technically under copyright, for which the copyright owners cannot be identified. Copying them, even in the interests of preservation, may someday result in a lawsuit. Furthermore, I would argue that excessive copyright terms and protections actually discourage creativity, at least in a relative sense, by increasing the rewards, not to the creative process itself, but to rent-seeking by legal contortions.
Economically, also, it appears that current rules favor the producers too much. One of the original justifications for copyright was that it would make more attractive the investments needed to produce, for example, physical books. But in today’s world, where content is increasingly in digital form, the marginal cost of making additional copies is very close to zero. You may remember from Economics 101 that marginal cost bears some relation to equilibrium price in a competitive market.
There is also a large and growing body of content being produced without any expectation of direct economic return. This blog, licensed under a Creative Commons license (see the “Legal Stuff” section on the side), is one example; the entire “free software” movement is another. Somewhat ironically, the licenses used for these works require copyright law to be enforceable, but the aim of the licenses is to ensure that the authors get proper credit, and prevent original material, offered freely, from being bundled into a commercial product. The Project Gnu General Public License is probably the most well-known example. It allows you to use, modify, and re-distribute software licensed under its terms, provided that you must offer the same licensing terms.
The editors sensibly propose that copyright terms should be cut back, and that extensions should be evaluated on their merits. As with its use in free software licenses, copyright law can be a useful tool, but it is not an end in itself.