New Paper Says It's Time To Reasonably Decrease Copyright Term And Rethink Putting Copyright In Treaties

from the good-stuff dept

A couple years ago, a Congressional staffer named Derek Khanna wrote a fantastic policy brief on copyright, arguing for a variety of sensible reforms, including bringing copyright term downward to a much more reasonable level. You know what happened next. Hollywood went ballistic and called on its favorite politicians who attacked the report and Khanna, leading to the report being yanked -- despite having gone through a full review process -- and Khanna not being retained in his job.

Since then, Khanna has been working on a number of policy and advocacy campaigns, and working as an R Street Associate Fellow, he's put together a fantastic paper that delves much deeper into the copyright term issue, and argues convincingly for greatly reducing copyright term length and also revisiting whether or not copyright should even be included in international treaties. The full paper is well worth reading, detailing just how distorted copyright has become from its original purpose.

The paper does a great job talking about how a return to more original copyright principles makes sense. Furthermore, it notes that there is no credible economic evidence that longer copyright terms are good for the economy or the public, and in fact, nearly all of the actual evidence says quite the opposite. It discusses the increasing clout and power of the Hollywood lobbying industry which has made copyright term extension a regular feature, based on FUD and fears about how terrible the world would be if there were a thriving public domain. And, of course, on the flip side, he details the many, many problems created by copyright that is way too expansive, including orphan works, culture disappearing and basic censorship.

The disparity between the founders’ copyright of 14 years and modern copyright terms that last longer than anyone could ever be alive, is particularly glaring to modern audiences. This is because there has been more research on the cost of these ridiculously long terms, but also because today everyone is a content creator in a way that average people were not in the early 20th century. Justifying why our personal e-mails, Facebook posts and tweets should be protected under copyright for our lifetimes plus 70 years doesn’t seem to meaningfully fulfill the constitutional mandate of promoting the progress of the sciences.

Further, social norms on those forms of creation differ extremely far from what the law is. Of course, this does not justify large-scale piracy, but social norms are such today that forwarding an e-mail from a friend is not perceived as a potential legal problem. However, under many readings of the copyright statutes, your e-mails are copyrighted and forwarding an e-mail without permission, especially if the e-mail says not to forward it, could be copyright infringement, making one liable for a $150,000 fine.

The paper also takes on the current negotiations on the Trans Pacific Partnership (TPP) agreement, in which some have looked to extend copyright even further, while others (including the US) appear to want to lock-in the current life+70 as a minimum, even as many (including the head of the Copyright Office) have suggested that we may want to think about cutting back copyright term length. The report shows how things like the TPP can interfere with legitimate copyright reform:

If the White House signs a treaty that makes such reforms impossible, that would have significant deleterious effects on the reform effort. By removing any prospect of reform from the table, it would be a nearly unprecedented policy coup for the content lobby in their attempt to effectively repeal the Constitution’s Copyright Clause.

The TPP, as leaked, is a clear illustration of policy laundering. Special interests can’t defend life+70 copyright terms in the United States, so instead they use an international treaty-making process to tie Congress’s hand. The content lobby has done this effectively with numerous other treaties; this has been their modus operandi for decades. But unlike other treaties involving copyright and patents, this treaty process has been subject to unprecedented secrecy: even members of Congress initially were unable to access the treaty

Of course, this doesn't even get into the fact that part of the reason copyright terms are so long is an international agreement from over 100 years ago: the Berne Convention Treaty, which is a massive impediment to necessary copyright reform. And yet, rather than fix that, it appears that the US government is seeking to extend it even further through other agreements.

Either way, the paper is a great read and well worth your time.