Copyright should last 30 years
Holders of creative rights get too many happy returns, writes Tim Harford
THE song Happy Birthday to You has been a focal point for anger about copyright. Publisher Warner/Chappell Music has made serious cash charging fees to use the song commercially on stage, in films or on birthday cards. Legal scholar Robert Brauneis puts those fees at $2m a year. And why not, if it owns the rights?
The trouble is that a US federal judge ruled recently that Warner/Chappell does not own the lyrics to Happy Birthday to You — nor the melody, which was penned in 1893 and has been in the public domain for decades.
A simple song sung by and for children, Happy Birthday always seemed a jarring candidate for profiteering. Activists are delighted at the ruling, although the decision changes nothing important.
This case was simply a dispute about whether Warner/Chappell owned the copyright at all. This was a murky question because copyright terms are so absurdly long that the relevant facts are often poorly documented and many decades old.
More important is whether there’s a rational case for any prewar creative work to still be under copyright. The answer is no.
Copyright has a justifiable purpose because it was very hard to write The Lord of the Rings but easy to copy it once JRR Tolkien had written it. Copyright gives creators some ability to stop copycats, and thus an incentive to do the creative work. The longer intellectual property rights last, the greater the incentive.
But without copyright, creative works could be widely shared. Ideas could be adapted, remixed and improved. The longer copyright lasts, the longer that spread of ideas is delayed.
Copyright terms are so long that few creative works sit in the public domain. Even work with little commercial value in its original form can have a valuable afterlife as inspiration, mash-up and sample: Alan Moore’s League of Extraordinary Gentlemen pitched Dr Jekyll and Captain Nemo against Fu Manchu and Moriarty. Such remixed creativity is far easier when the original is no longer under copyright.
A recent study for the UK’s Intellectual Property Office examined the value of the public domain, looking at the popularity of Wikipedia entries or Kickstarter projects that drew on art and writing in the public domain. That value is large and, if more recent work entered the public domain, it would be far larger.
So how long should copyright terms last?
The current answer is 70 years after the death of the author — typically about a century. That is an absurdly long time.
Most books, films and albums enjoy a brief window of sales. Both author and publisher will have reckoned on making their money within a few years. Some works are blockbusters, for which a century of copyright is valuable — yet redundant for the purpose of encouraging innovators.
Ten years of protection is probably sufficient to justify the effort of producing most creative work — newspapers, films, comic books and music. Thirty years would be more than enough. But we’re moving in the other direction, with copyright periodically and retroactively extended.
Why don’t we see a more sensible system? Two words: Mickey Mouse. An oversimplification, sure, but a tiny number of corporations and literary estates do have a lot to gain. And since it matters far more to them than to the rest of us, they will focus their lobbying and get their way. Mickey Mouse will enter the public domain in 2024 — unless copyright terms are extended again. Watch this space.
So, a modest proposal: copyright should last 30 years at most. The Lord of the Rings would have been in the public domain in 1986, 13 years after Tolkien’s death. He would have been fine and his great trilogy would still have been written. Mickey Mouse would have been in the public domain in 1959. The Undercover Economist, my first book, which still sells nicely enough, would enter the public domain in 2036. (I’d cope.)
My scheme might make a minority of wealthy creators a little poorer, but our culture would be vastly richer. © Financial Times 2015
Why don’t we see a more sensible system of copyright? Two words: Mickey Mouse