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Why Shouldn't Copyright Be Infinite?

DEEPLINKS BLOG
September 1, 2015

The following is a guest post from Eric Crampton, Head of Research at the New Zealand Initiative, who previously served as Lecturer and Senior Lecturer in Economics at the Department of Economics & Finance at the University of Canterbury.

Australia National University’s Dr. George Barker suggested that New Zealand could do well by strengthening its copyright legislation. He warned against the fair dealing exceptions that have crept into the law and asked, “Why not have copyright law like property law—i.e. it lasts forever?” 

That is a good question. And it is an important one as New Zealand and other countries consider extending the term of copyright under the Trans-Pacific Partnership agreement. Current New Zealand law maintains copyright in written and artistic works for 50 years after the death of the writer. Copyright in film and sound recordings is shorter, lasting 50 years from the works being first made available. While the text of the TPP is not yet public, it appears that the agreement would extend copyright’s duration to 70 years from the death of the creator.

So why shouldn’t copyright be infinite?

Five years ago, Larrikin Music, who bought the rights to an old Australian folk song, sued Men At Work for including an 11-note flute sequence from it in their 80s-hit, “Down Under”. Where Men At Work had intended homage in its celebration of all things Australian, Larrikin, and the law, saw copyright infringement. 

But does that really go far enough? If an 11-note sequence counts as infringement, how much do modern artists owe Pachelbel’s descendants? The four-chord sequence making up the core of his Canon in D has been repeated in dozens, if not hundreds, of subsequent songs. Should evidence produced by Australia’s Axis of Awesome be used in copyright lawsuits by anyone who can document that, ten generations back, Johann Pachelbel was a great-great-grandfather? It seems absurd.

Even from the perspective of a profit-seeking artist, copyright is a double-edged sword. Stronger copyright both increases the rewards from having produced a piece of work and increases the cost of creating new works.

Too weak of copyright can mean that too few works are created, although artists have gotten far better at working out alternative ways of earning a living when, regardless of the letter of copyright law, enforcement has become difficult. Further, at standard time discounting rates, a 20-year extension to copyright’s term might provide only about a two percent increase in the value of any earned royalties. It is not particularly plausible that many new works would come into existence because of that slight increase.

On the other side, too strong of copyright can surely kill new creation. Artistic works feed off each other. New works build on older traditions, reinterpreting old folk tales and old folk tunes for new generations. The Brothers Grimm collected and published older folk tales like Cinderella and Sleeping Beauty in the 1800s. In the 1900s, Walt Disney brought those stories to life in a new form. In the 2000s, well, it is hard for new innovation to occur because copyright law, at least in the United States, has frozen the usage of most important works produced since 1923. An extension of copyright’s duration does far more to reward those who own the rights to existing works than it does to encourage new creation.

But, ultimately, why should copyright be limited? Because current creators draw on a global commons in their artistic creations, and future generations of artists deserve a commons too.

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If you're Kiwi, ask your trade negotiator to stand firm and oppose the U.S. copyright term extension proposal in the TPP:

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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