[A2k] Copyright Extension: A Way To Protect Hollywood From Having To Compete With The Past by Mike Masnick

Manon Ress manon.ress at keionline.org
Wed Jun 6 10:39:57 PDT 2012

Copyright Extension: A Way To Protect Hollywood From Having To Compete
With The Past
by Mike Masnick
Wed, Jun 6th 2012


There has been plenty of talk over the years about why we keep
extending copyright. Of course, we've discussed the infamous Mickey
Mouse Curve, showing how copyright extension always seems to happen
whenever Mickey Mouse is going to hit the public domain.

However, Julian Sanchez notes that this doesn't explain the whole
story. After all, if it was just about protecting the very, very small
number of works that still have commercial value after so many years,
then you would think we would have evolved away from the "copyright
absolutely everything for as long as possible" model, to one that
plenty of people have suggested: one where there are regular (and
perhaps escalating) recurring fees to keep renewing your copyright
registration. That way, works like Mickey Mouse could stay covered by
copyright, but all the other works which have been otherwise abandoned
can actually contribute back to culture and be used by anyone who
wants to make something with them.

As Sanchez notes, you would think that even the Disneys of the world
would like this model better. Even if it had to pay such recurring
fees, the overall cost will ultimately be tiny compared to the value
of the copyright. Plus, it would then open up a treasure trove of
public domain material that they could use in their own works -- and
Disney, in particular, has a well known history of making use of
public domain works.

So why do we still have a "copyright everything for as long as we
live, plus 70 years" (for now)? Sanchez posits a compelling theory.
That Disney and other big copyright holders like this, because it
keeps them from having to compete with their own back catalog:

    Insanely long copyright terms are how the culture industries avoid
competing with their own back catalogs. Imagine that we still had a
copyright term that maxed out at 28 years, the regime the first
Americans lived under. The shorter term wouldn’t in itself have much
effect on output or incentives to create. But it would mean that,
today, every book, song, image, and movie produced before 1984 was
freely available to anyone with an Internet connection. Under those
conditions, would we be anywhere near as willing to pay a premium for
the latest release? In some cases, no doubt. But when the baseline is
that we already have free, completely legal access to every great
album, film, or novel produced before the mid-80s—more than any human
being could realistically watch, read, or listen to in a lifetime—I
wouldn’t be surprised if our consumption patterns became a good deal
less neophilic, or at the very least, prices on new releases had to
drop substantially to remain competitive.

This story certainly fits with Disney -- who famously decides to
completely stop selling certain old classics and put them "in the
vault" for a while, pulling them off the market entirely. For Disney,
it's all about keeping out competition, which it wouldn't be able to
do if copyright didn't last so long.

This actually reminds me of the missing 20th century of books that we
discussed a few months back, highlighting how the amount of new works
from each decade drop off rapidly the further back you go, until you
hit 1923 -- the current cut-off for the public domain.

Sanchez does note that it's possible this actually drives more
investment into new works, since they don't have to compete with the
old. And, if you believe (which he doesn't) that new works
automatically have more value than old, then you could make a twisted
sort of argument that this kind of protectionism, and effective
locking-up of about a century's worth of creativity, does "promote the
progress" in that it moves the focus to newer works, rather than older
ones. But I don't buy that at all. It ignores the fact that the giant
gap doesn't just represent competitive works, but also raw material
and inspiration for all kinds of amazing new works -- which are
effectively killed off.

That gap represents lost culture. But, for the big legacy
entertainment players, it might also represent repressed competition.
That shouldn't really be surprising. After all, that is the whole
purpose of government-granted monopoly privileges.

Manon Anne Ress
Knowledge Ecology International
1621 Connecticut Ave, NW, Suite 500
Washington, DC 20009 USA
manon.ress at keionline.org

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