In defense of ample copyright

James Wimberly thinks that copyright terms are too long:

The catchy "bare necessities" song that Disney gave Baloo is solidly copyrighted. But we can quote it under the fair use doctrine, and it nicely makes the essential point: the 21-year limit of Queen Anne's Act (footnote) provided adequate incentives for authors; the 95 years or life-plus-75 years of contemporary IP law is a giveaway to a clever lobby of wealthy engrossers of the commons. If you don't believe me, check out Justice Breyer's dissent in Eldred v. Ashcroft and the amici brief in the case of 17 eminent economists. The SCOTUS majority didn't pretend that the Mickey Mouse extension law was defensible policy, it just held that Congress was constitutionally entitled to its mistake.

BTW, this particular piece of bad policy was imported from Europe. The European model for IP extravagance was the French Revolutionary legislation making "moral rights" in a work eternal and heritable : the scriveners had become the new nobility. So Shakespeare's heirs could sue Tom Stoppard, or Kipling's Disney, for traducing the sacred essence of the author's work. In practice this doesn't happen rarely happens even in France, but the principle created a sentimental fog over IP in progressive minds which has played into the hands of the lobby.

Technically Queen Anne gave a skimpy 14 years for new works and 21 only to old ones. I'll generously let Disney keep 21 - a year more than Intel gets for its patents. When I last looked Intel was doing all right.

I think this is too strong. My understanding is that the French took a stronger line on IP precisely because the abolishment of copyright around the time of the French Revolution had bankrupted much of the publishing industry and resulted in a race to the bottom that destroyed the market for new works; commission a book, and if it failed you'd take the loss, whereas if it succeeded, your rivals would copy it within weeks.

I also think it's a mistake to bring up Queen Anne's Law for a couple of reasons. Few writers managed to actually make a living at their writing during that time; they had patrons, government jobs, or some other form of income. That suppressed and/or altered their output, not for the better.

Also, at a time when the average life expectancy is 40, a copyright term of 21 years provides more than adquate incentive. In the modern day, we're trying to persuade young writers and artists to essentially make a large capital investment in their art by irrevocably committing to a career in their art. If at 45 or 50 their most successful works no longer produce revenue, the writer who produced his or her best work at 25 has a big problem. Hedging their bets by keeping a second career going does not make them or us better off.

It seems to me that the strictest advocates of very short copyright terms tend to be tenured professors--people who already have their retirement taken care of.

Nor do patents or software make a good comparison. Intel is hardly going to keep producing the same design for 20 years--it will be obsolete long before the patent expires. Moreover, society reaps much greater rewards from technology copying than from the reproduction of art. We are better off with more Mark Twain works than with 50 lesser writers quoting him liberally.

It is obvious to me that current copyright terms are too long. 21 years may not be enough to get writers to invest their all in their craft, but 95 years seems excessive; I don't think we will get more work out of 35 year old authors by promising to someday pay royalties to their as-yet-unborn grandchildren. And clearly, retroactivity is a gift to corporate interests that is actively contrary to the public good. But there is a lot of middle ground between those two extremes.