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TPP's Copyright Trap

DEEPLINKS BLOG
July 22, 2015

Our Last Stand Against Undemocratic International Agreements That Ratchet up Term Lengths and Devastate the Public Domain

Few arguments around copyright are as self-evidently fact-free as the length of its term. Defying economic reasoning, the astonishingly long period of restrictions has only grown over the years, and frequently the newer, longer terms have been retroactively applied to earlier works. The argument against term extension, and retroactive term extension in particular, is so obvious that the Nobel Prize winning economist Milton Friedman reportedly agreed to sign a Supreme Court brief opposing the most recent extension only on the condition that it used the word “no-brainer.”

And yet, copyright term extensions seem to work as a one-way ratchet, increasing every few decades in one country or region, and then getting “harmonized” around the world to match the new maximum. In recent years, those extensions can even be tied to the copyright term of the earliest Mickey Mouse cartoons—a connection that appropriately highlights the role of major corporate lobbying.

But it's not just the Mickey Mouses of the world that get caught in the perpetual extension machine. Our ability to freely build on the most popular media of the generations before us is an important casualty, but it's not the worst one. In its thirst for ever-longer terms, the copyright lobby has jeopardized a century of culture, including a huge number of works that have been “orphaned”—their copyright status is unclear, or the rights holder is impossible to locate, so they cannot be freely archived, built on, or shared.

We've lost a few important battles on copyright term extension in the past—we describe some of these below. But the chance to prevent another round of global copyright term extensions has come around again, as the Trans-Pacific Partnership (TPP) negotiations round their final curve. That's why we're pulling out all the stops to ensure that this time around, the U.S. fails in its attempt to enshrine longer copyright terms around the Pacific rim. It's an ambitious plan, but if we're able to do it, it could spell the end for the copyright ratchet for good.

How Did This Happen?

It wasn't always like this. Two hundred and twenty-five years ago, when the very first U.S. copyright law was signed, it applied to published books, charts, and maps, and terms lasted for just 14 years. In the time since, that has been pushed outward on every axis.

The current term is too long. This point has driven home not just by groups like EFF, but from all sorts of experts. The list include both the current Register of Copyrights Maria Pallante in her proposal for a re-write of the Copyright Act, as well as the previous Register Mary-Beth Peters, who has called the current term length “a big mistake, but one that Congress can make.”

But to pin that mistake on Congress doesn't capture the full picture. It's true that the most recent extension was in part a congressional creation, but the policy laundering mentioned above comes not just from the legislative branch, but also from the executive—frequently in the name of vague trade goals. Supporters of the last major extension, the 1998 Sonny Bono Copyright Term Extension Act, cited a need to “harmonize” with the European Union, despite widespread protests that the global international standard term at the time, life of the author plus fifty years, were already excessive.

Seventeen years later, the TPP represents the continuing attempt to will that standard upwards to life-plus-seventy. Six of the twelve countries negotiating the TPP have life-plus-fifty copyright terms that would be out of compliance with the new de facto “standard” revealed in leaked drafts of the agreement's “Intellectual Property” chapter.

Congress made a mistake extending the U.S. copyright term in 1998—but even today, the U.S. threatens to export that mistake to other countries, without even the pretense of a democratic debate.

Supreme Court Battles

Unfortunately, we also know that term extensions once granted are extremely difficult to reverse. That's why it's called a “ratchet”—the length only goes up. In the U.S., the 1990s copyright extensions faced two major challenges that went up to the Supreme Court. A 2003 case, Eldred v. Ashcroft, challenged the very constitutionality of the change, arguing that it represented an overreach of congressional powers to grant copyright only for “limited times.”

A second case, Golan v. Holder, addressed an international harmonization that pulled works—including classic Hitchcock films, Metropolis, and The Third Manout of the U.S. public domain. The plaintiffs argued that their First Amendment rights to freely use public domain works were restricted once those works were subject to a new copyright status.

Both of these cases attracted massive support from experts, including some of the world's top economists and legal scholars. But each one resulted in a disappointing decision upholding the extensions.

The Facts on the Ground

There's a simple (but false) argument in favor of term extensions: that a longer term creates a greater incentive to produce new works. The problem with that line of reasoning is that, while it may be true for very short terms, it simply does not apply to the massively distended terms we currently face. People may choose to invest more time progressing art and science if they have a monopoly on their work for, say, five years instead of six months. But even if decades of exclusive rights after your own death provides any incentive, that value is too tiny to move the needle, and it comes at a great cost.

Both sides of this inequality—the value of longer copyright terms, and the cost to the public of the public domain held hostage—can be measured. If facts were allowed into the debate on copyright term, Congress would be interested to know that an empirical study calculating the optimal copyright term to incentivize the most works found that the maximum comes at about 14 years—remarkably close to the original U.S. copyright term.

A fact-based Congress would also look to the costs of keeping things out of the public domain: that copyright terms have resulted in a “missing 20th century” of books, with Amazon carrying over twice as many newly published books from (copyright-free) 1850 than from (copyright-bearing) 1950. That public domain images contribute some $250 million of value to Wikipedia each year, and (again, empirically) have been shown to produce articles that are more frequently edited, more commonly read, and of higher overall quality.

Disney can send lobbyists to Congress, and even to international venues, to promote longer terms. The public's representative in those exchanges is supposed to be the elected official. But over and over again, the result has been that the public's viewpoint doesn't get represented at all.

The Public Domain and the Copyright Trap

In the U.S., our public domain is a sorry shadow of what it could be. Since the 20-year retroactive extension went into effect, no published works have entered the public domain through copyright expiration. We can point to the abstract value of the public domain, but we cannot even imagine what might have come of some 17 years of experimentation in precisely the era where creation and publishing tools are more accessible than ever.

We lose the creativity that would take the form of building on top of works in the public domain. We lose access to works that have been orphaned, with no clear owner but a cloud of legal uncertainty that makes preservation too risky.

It doesn't have to be this way, and we certainly don't have to export this legislative disaster. The U.S. shouldn't be pushing for ever-longer terms in unaccountable deals, or force representatives to use their countries' public domains as bargaining chips in sprawling international agreements. Over the next several weeks, we'll be demonstrating the danger of this copyright trap—and we'll give people around the world a chance to speak up and fight back.

We're beginning this fight here at home. If you're an American, we ask that you take a stand today against the U.S. trade administration's plans by urging the U.S. Copyright Office to reaffirm its call for balanced policy to a U.S. Trade Rep that is pushing for an extension that would be anything but. You can make it clear: you don't want our country locked into these excessive terms, or to export them around the world.

On our TPP's Copyright Trap page we link to more articles about how the threat of copyright term extension under the TPP impacts users around the world.

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