So Why Extend Copyright Terms Anyway?

I’ve been absent from the blogosphere for the past week because I was on vacation, attending to birthdays and parties and weddings (oh my!), but during that whole time I found myself thinking and reading about public domain. Really! This week I’m playing catch up and will be posting entries more frequently.

Ah, public domain. There’s so much to say—so much so that I feel like I don’t even know where to begin. I know I outlined what it is in my previous entry and I touched upon the Copyright Term Extension Act (from here on out referred to as CTEA). But boy oh boy did that Sonny Bono ever open up a can of worms.

The CTEA is called the Sonny Bono Act because Congressman Bono was a big proponent and sponsor of extending the terms of copyright. In fact, his wife and congressional successor, Mary Bono, is cited as saying that Sonny wanted copyright terms to last “forever”—terms that would violate the Constitution, which only allows copyrights to exist for a limited amount of time. The CTEA extended the terms of copyright to life of the author plus 70 years (so they added 20 years to the already existing 50-year term) and they also retroactively applied copyright to things that would have gone into the public domain. Of course this pissed off a lot of people. Even though the Constitution gave Congress the power to extend the terms of copyright (as long as the duration of the term was “limited”), there were many people who were against this, for a variety of reasons. And of course there were many people who were strongly for the lengthening of these terms—mainly copyright holders, media conglomerates, and the descendants of successful creators. But before we look at these folks and their points of view, let’s examine why Congress extended copyright terms in the first place.

The United States wanted to match the European Union’s copyright terms. This wasn’t just a case of competition. American authors wouldn’t be protected by the European copyright terms of life plus 70 unless the American copyright terms matched. Plus, the United States has become a major exporter of copyrighted material, so Congress figured the United States should lead rather than follow when it came to copyright terms. It would also allow for more timely collection of payments owed to the United States for its exported copyrighted materials.

The United States also wanted to encourage further investments in existing copyrighted works. How does one further invest in an already existing work? Converting things into new formats. Think of all the movies that existed before the advent of the DVD player. A lot of those movies that were previously only available on VHS are now also available on DVD (and other forms of media that I probably don’t even know exist because I’m a technological troglodyte). That’s a further investment. Thus Congress was embracing the fact that the advent of new technologies meant new opportunities for the exploitation of existing copyrighted materials.

Congress also wanted to be sure that the descendants of creators got their fair share of profits from a copyrighted work. Since people now have longer life expectancies, Congress said, it only made sense to extend the terms of copyright so that the children and grandchildren of authors and artists could continue to earn revenues.

Congress also believed that extending the terms of copyright would encourage the creation of new works. The reasoning for this one hinges on the previous point of providing for one’s descendants. Artistic creators testified before Congress saying that knowing that the profits from their works would be available for a longer period of time to their next of kin would give them added incentive to create further artistic works. Knowing that a creator could benefit from his or her creation for a longer period of time would encourage more people to be creators, Congress reasoned, and thus the arts and sciences would progress. The extended term of copyright protection would thus encourage the creation of more works than would otherwise be created, and this would thus lead to an increased number of works that would eventually land in the public domain when the copyrights expired.

Since the Constitution never specifies the maximum duration of copyright term, simply that the term must be “limited” (that is, finite), in theory Congress could continually extend the length of copyright duration so that works take centuries to reach the public domain. And herein lies the problem that has raised a rallying cry from opponents—something we’ll cover next time when we examine the pros and cons of the CTEA and how it affects the public domain.


USEFUL LINKS
A site all about copyright extension: http://www.copyrightextension.com/
The Senate Report 104-315 CTEA (if you really want to read the whole thing…): http://thomas.loc.gov/cgi-bin/cpquery/R?cp104:FLD010:@1(sr315)

It's History: The Last Segment on International Copyright History

It seems like the story of international copyright never ends, but I swear that it does, and I swear that this will be my last entry devoted to the topic. (Really!)

Fast-forward (or rewind, depends on what point of view you're looking at it from) to America in 1976. Not only were we celebrating 200 years of existence, but the U.S. Copyright Act was also being revised, for two main reasons. One, the development of new technologies impacted copyrighted materials because of the fact that duplication of copyrighted materials was becoming easier than ever, and this led to confusion over what could be copyrighted and what constituted infringement. And two, the act needed to be revised in anticipation of the U.S. joining the Berne Convention.

That's right, folks. Pick those jaws up off the floor. The U.S. finally decided to join Berne (or, in 1976, at least to think about joining Berne in the near-ish future--good enough). So we revised away. The terms of protection were extended to life of the author plus 50 years and copyright protection was extended to unpublished works. Fair use guidelines were also established for copies made for educational purposes (there'll be more on fair use coming up in a near-future entry). After the '76 revision, the U.S. wanted other countries to be more stringent in protecting their copyrighted exports (especially technological exports, since it was the time when computers and software were starting to boom). Other countries gave us the "As if!" After all, we still weren't members of Berne, so even though we complained that other countries were too lax, we ourselves didn't even meet Berne's stricter standards.

So in 1988, over 100 years after its inception, the U.S. finally joined the Berne Convention through Congress's passing of the Berne Implementation Act. As part of this, the U.S. did away with the formalities involving copyright, such as notice and registration. These were no longer required in order for a work to be protected by copyright. But even though there was much fanfare when the U.S. revised the Copyright Act in '76, when it finally joined Berne the press was relatively quiet. Perhaps the U.S. was trying to keep things mum in order to NOT dissuade people from still registering for copyright (though now it was voluntary)? But even though it was now not required for people to register for copyright, there were still advantages, such as the ability to recover attorney's fees and statutory damages in the case of infringement.

So that, in a nutshell, is the story of the history of copyright here and in our interaction with other countries. Of course, more stuff has happened since then, but a lot of it I feel will fit better in other sections of discussion on this blog, so I'll hold off for now. I never really knew just how convoluted the history of copyright in America was, especially in this country's dealings with other countries. While the U.S. may have seemed like a sour grape by not wanting to join Berne earlier and being stingy with protection for foreign authors, it hasn't all been negative. The U.S. did emphasize the importance of protecting works and new technologies (and protecting works from new technologies) early on, before other countries saw the importance of this. And while I wish that the U.S. and other countries in the world could have happily gotten along in a hold-hands-and-sing-Kumbaya kind of way from the get-go, there's something to be said for the U.S. sticking to its guns and not allowing other countries to influence it and its decisions. While I don't 100% agree with everything the U.S. did during the course of copyright history, I do admire the fact that from the start, this nation recognized the importance of protecting the intellectual property of its citizens.

Juicier topics will soon follow, like fair use and public domain. This is going to start getting really interesting... I promise!

International Copyright: The Saga Continues

Picking up in 1891: 101 years after first adopting federal copyright protection, the United States finally passed an ammendment protecting foreign authors. But, as history (and the previous entry) proves, the U.S. wasn't going to give up without a fight. Or without being somewhat sneaky about things. The protection afforded to foreign authors by this U.S. ammendment involved some smoke and mirrors. For instance, foreign authors could keep their rights but foreign publishers had none. And foreign authors had to follow all sorts of strict conventions, such as registering and depositing copies of their works in the U.S. on or before their date of publication anywhere else in the world. Also, foreign authors' works had to be printed from type that was set in the U.S. The firm restrictions were eventually relaxed somewhat, though they were still far more strict than anything followed by Berne countries.

Meanwhile, Americans discoverd a "back door" into Berne that allowed them to reap the benefits of publishing in foreign countries without having to actually comply by what was set forth by Berne: if a work was first published in a Berne country simultaneously, it would be protected in all Berne countries even if the author wasn't a Berne author. This meant that many American authors were simultaneously publishing their books in Berne countries like Canada or England. This pissed off the Berne countries so they created a protocol that allowed its members to decide if they would deny protection to authors whose native countries didn't provide adequate protection to foreign authors.

At this point, the term "cat fight" is coming to prominence in my mind...

All this back and forth does indeed seem catty, especially when we can see that the majority of the rest of the world was cheerily humming along under the happy umbrella of Berne. Why was the United States so resistant to foreign protection? Because American publishers were reaping huge benefits from the sale of foreign books--books that they weren't paying foreign authors to use.

But by midway through the twentieth century, things absolutely needed to change. The tumultuous first half of the century (war, depression, more war) meant that the tussle over copyright was shelved in favor of other things. But after the United States emerged victorious from World War II not only as a world superpower but also as a huge exporter of entertainment, the need for a less isolated (perhaps even sobbish?) stance on foreign copyright was necessary. The United States still wasn't interested in Berne, whose countries by this point had added "moral rights" that allowed authors to prevent mutilation of their works and whose authors were protected for life plus 50 years (U.S. term was a max of 56 years), so it decided, "If you can't beat 'em, create something that'll placate 'em." Here the Universal Copyright Convention (UCC) was born.

Despite being negotiated under the brand new United Nations Educational, Scientific, and Cultural Organization (UNESCO), the UCC was really created for the U.S. It was the only country that really needed to get itself straightened out in terms of foreign copyright because the rest of the world happily held hands under Berne. By 1955, the UCC went into effect, protecting the United States through a lower level of protection. A minimal protection time period of 25 years was established, so the U.S. was covered with its twenty-eight-year first term of protection. The UCC also got rid of the manufacturing stipulations and the need for a formal registration of copyright. Now all that was needed was for the author to indicate his or her name and the year of publication next to the copyright symbol of a "c" enclosed in a circle.

The fact that the United States had finally caved in, in its own unique way, was enough for the other Berne countries, and authors from other countries started using the UCC copyright notice on their works. This went on for 33 years, until even more changes. (Stay tuned for more on that in the next entry.)

I think one of the things that amazes me so much about the United States' unwillingness to play nice with basically the rest of the world on the copyright issue up until this point is the fact that freedom of speech was purportedly of such great value in the U.S. Free expression and freedom of the press were encouraged and in fact protected since the very infancy of the country. So why then did the same country make it so difficult for authors from other countries (who were freely expressing themselves) to have some level of protection from being taken advantage of? Was it an "our way or the highway" mentality? Did the U.S. feel threatened? Was the U.S. just being greedy and allowing publishers to swindle foreign authors for as long as possible?

International Copyright, Part 1: America versus England, or, Mo' Money, Mo' Problems

So the brand-new United States took the time to protect its authors by creating copyright laws right from the get-go, using laws that were based on those being used in other countries such as England. But even though the U.S. was eager to borrow heavily from England's laws, it wasn't in any hurry to share content fairly. In fact, the United States has often been a rather does-not-play-well-with-others player in the game of international copyright.

For the first 101 years of American copyright law's existence (1790-1891), the act only protected American authors. There was no thought given to foreign authors, but this wasn't a rarity as many other countries also hadn't bothered with protection for foreign authors. In the 18th century, there were very few American authors who could produce books, so the majority of books in America came from other countries. This situation didn't last for long though; by mid-nineteenth century, the list of notable American authors was growing (think: all the "dead white men" with three names you had to read in your literature survey courses), and America was now a contender in the international literary marketplace.

"Hmmm," thought the British, "those rapscallions across the ocean who thumbed their noses at us and were cocky enough to think they could start a country all on their own... the writers over there aren't half-bad."

And while the British were noticing the American authors, they were also noticing the impunity with which American publishers printed books. Sure, they were printing the books of all their Thoreaus and Emersons. But they were also printing works by foreign authors, mostly those of British authors, without securing copyrights and without really caring what the end product was like. This pissed the British off and led them, in 1837, to submit to Congress a petition demanding that foreign authors be protected in the U.S., citing the fact that the "reputation and property" of British authors were being harmed by the uncopyrighted publication of their works in the U.S. The American publication of foreign works was also hurting American authors, the British petition went on to say, because the uncopyrighted foreign works were much cheaper for American publishers to produce than copyrighted domestic works. This meant that an American browsing for a new book to read would be more inclined to pick up a cheap novel by a British author rather than shelling out more for a pricier American novel. Couldn't America see that granting copyright protection to foreign authors would benefit everyone?

It couldn't. So the following year, England took matters into its own hands and began the process of protecting foreign authors by passing the International Copyright Acts. These acts only worked in a reciprocal fashion, however, so while other countries were happily playing along with England, America was still giving it the cold shoulder. It was also keeping its copyright laws basically the same as they had been since their inception.

During these times, authors who were particularly clever were attempting to simultaneously publish their works in both America and England, though this could prove to be tricky because the authors needed to be able to travel from England to America, or vice versa, and reside there at the time that the book was published. Not a particularly easy or effective means of securing international copyright, especially when one considers that in those days travel was, to put it quite frankly, a bitch.

In 1878 a group of authors, artists, academics, and publishers formed the Association Litteraire et Artistique Internationale, an organization that drafted what would would later (1886) become the Berne Union for the Protection of Literary and Artistic Works. This was an international copyright treaty where participating countries would follow the golden rule: treating others (foreign authors) as they (domestic authors) would like to be treated. England signed on. Many countries in Europe signed on. Other countries signed on. The United States did not. Oh, they sent someone along to the proceedings to scope out the scene, but then Congress decided that they had to first think about how America would protect foreign works (if at all). Way to play nice with others, U.S.

The story of international copyright doesn't end there, and I'll pick up on what happened after 1891 in the next entry. But I just have to pause and briefly reflect on things up to this point. The fact that many countries came together and unanimously decided that they should protect the work of authors regardless of their country of origin gives me a warm, fuzzy-ish feeling. The fact that the United States decided to peace out of the Berne Union initially gives me a headache. Why wouldn't this young country willingly join in this mutually beneficial agreement with other countries? Was it trying to prove itself as being independent? Was it unsure of itself? Was it just an example of Congress being its usual ridiculous self? Or was the American publishing industry just to happy raking in the profits? This is something I'd like to explore further, but it certainly bears thinking about.