They're Not Worthy

Why extend the copyright on works that no longer have commercial value?

Lawrence Lessig

Wired

January 2005

This New Year's Day, a wonderful thing will happen in Europe that won't occur again in the US until 2019: Copyrights on music and television recordings will expire. After a half century of monopoly protection granted artists in exchange for their creative work, the public will get its justly earned free access to an extraordinary range of both famous and forgotten creativity. Libraries, archives, and even other creators can spread and build upon this creativity without asking permission first. Songs from 1953 that seniors across Europe wooed their first loves to can be streamed across the Net for free.

Such a yearly event doesn't happen in the US anymore because Congress repeatedly extends the term of existing copyrights. The last extension in 1998 - the Sonny Bono Copyright Term Extension Act - was the 11th for existing works in 40 years, delaying any copyrighted song from entering the public domain for another 20 years. This practice is now inspiring copycats in Europe to similar plunder. Sir Cliff Richard - the most successful singles artist in British history - has launched a campaign in the EU to extend the term of copyright for sound recordings from 50 years to 95. Billions will be wiped from the books of European record companies, Richard warns, if governments don't act immediately.

If you know anything about this debate, you might wonder why this question has come up again. (And, for that matter, if you know anything about accounting, you might be puzzled why EU record labels get to book value for assets set by law to expire.) When Congress passed the Sonny Bono Act, we were told its purpose was to "harmonize" US law with European law. Turns out - surprise! - that in the most important categories of copyright, the act made US terms longer than those of the EU. Thus the pirates of the public domain are back, arguing that the EU must lengthen its copyrights to harmonize with those of the US. And as Mexico is about to extend its terms beyond those in Europe and the US, no doubt soon we'll be hearing calls to extend our terms to match those of Mexico.

This spiral will not end until governments recall a simple lesson: Monopolies are evil, even if they are a necessary evil. We rightfully grant the monopoly called copyright to inspire new creative work. But once that work has been created, there is no public justification for extending its term. The public has already paid. Term extension is just double billing. Any wealth it creates for copyright holders is swamped by the wealth the public loses in lower costs and wider access.

The urge to extend terms for commercially valuable work is understandable, albeit from the public's perspective, senseless. But the way that governments extend these terms is even more senseless. Rather than limiting this corporate welfare to those works that are commercially exploited (leaving the forgotten to pass into the public domain so libraries and archives can make them available cheaply), governments uniformly extend the duration of copyrights indiscriminately. The Sonny Bono Act, for example, extended terms for works from as far back as 1923, even though, as Supreme Court Justice Stephen Breyer estimated in Eldred v. Ashcroft, 98 percent of the oldest works are no longer commercially available.

It would be easy for governments to narrow term extension to those who want it by requiring copyright holders to pay a small fee. Even a very small fee would filter out the vast majority of works from automatic term extension. Most would enter the public domain immediately. Yet even this idea is ignored. Who can hear reason when billions are about to be wiped from the books?

Governments should end this game by tinkering with copyright terms for future works only. But if they're not strong enough to stick to this simple principle, they should at least limit their damage by restricting extensions to those works from which someone might actually benefit. That someone, no doubt, won't be the public. But there's no reason to extend terms when no one - not even record companies - could possibly benefit. Filter the forgotten from term extension, and we might forgive the senselessness that inspires Sir Cliff to sing again.

Email Lawrence Lessig at lawrence_lessig@wiredmag.com.