Ideas about Reforming Copyright
The new year is starting soon, and with it - every January 1st - more works will enter the public domain. In the United States, this includes all works from 1929, such as Hemingway’s A Farewell to Arms and Gershwin’s An American in Paris. Their copyright will soon expire.
They've been under copyright for a long time - too long.
I've heard some good cases that copyright is a bad thing in the modern world. Both sides of the debate have good points for and against copyright. Admittedly, what I've heard has mostly been focused on books and other written works, but I think a lot of the points can be extended at least to some extent. I'd like to go through what I see as the strongest form of each case.
In the end, I think it's best to keep copyright - but I do still feel somewhat conflicted.
I wrote earlier this year about the history of copyright. I meant to follow up with writing about the AI copyright lawsuits, but then I realized I wasn’t sure I understood them well enough to write about them. But there’re many other interesting ways copyright relates to storytelling.
As I wrote last spring, copyright isn't property. When books go into the public domain, we aren't stealing anything from the long-dead author, and we wouldn't be even if they were still alive. The author doesn't inherently own what they write; throughout most of history, they haven't. They get the rights "to promote the Progress of Science and useful Arts," as the US Constitution puts it.
Unfortunately, often, copyright as it's done today holds back "the progress of science and useful arts". That's a bad thing. Sometimes it's an unavoidable thing - but it's still bad.
A lot of scholars have argued that copyright now lasts for too long. Nowadays, it's for the author's life plus 70 years in the United States - up from a flat 28 years in the original Copyright Act of 1790 - or 95 years for corporations. I agree; this is too long and does very little to promote science, art, or anything else. Were authors or scriptwriters back in the 1920's really motivated by what would be happening decades after their death? People often care about it in a vague sense, but does it really motivate them more or less to write or edit more works?
In fact, if they do care about it in any economic sense, they're almost always wrong. Almost all works generate hardly any revenue after six years. There are a handful of exceptions (like Lord of the Rings), but hardly any works reach that evergreen popularity - and most of the ones that do reach it made a lot of money already in the first six years. So, even ignoring the time value of money, hardly any individual author would be worse off with shorter copyright terms.
But there're other problems too.
When copying books was hard, copyright wasn't much of a problem. The average person could barely infringe it even if they wanted to. In theory, you could write out a book by hand, sell it, and infringe the author's copyright - but in practice, you wouldn't want to do that! Instead, you'd go to someone who owned a printing press and buy copies from them. If you wanted to resell them, that'd be perfectly legal under the "doctrine of the First Sale" (which is why secondhand bookshops are legal today.) The only people who could violate copyright were the people who owned printing presses.
Nowadays, it's much easier. I didn't need a printing press or anything else to start this blog and distribute my posts to however many people want them. If I wanted to repost other authors' ebooks or post unauthorized derivative works of them or anything else, I could do that too. It'd break the copyright laws - but the point is that it's now possible for an average person to break them.
This means there's a new cost to copyright, or a new benefit that copyright's now blocking. It appears that, if we didn't have copyright, many more people could read and watch many more things much more easily! If everything was legal to copy and post online, things would be more accessible for free to more people. Before computers, when people needed bulky printing presses, copyright probably didn't impede this very much. But now, it's much more visible.
So, if we can lessen copyright, people would be enriched.
So, some people say, let's do away with copyright!
I don't agree, but the anti-copyright people do have a very good case.
On the one hand, they argue that copyright isn't necessary to motivate people to write. They point at the surfeit of free online nonfiction, fanfiction, and original fiction. This's admittedly more true of written works, but there're a number of online free films too (though usually short films). I've personally heard from many people who near-exclusively read free online things.
On the other hand, for authors who do want to be paid, they point to authors like Cory Doctorow, whoposts all his books free online and makes money off people who buy them because they want to support him, as well as other things like speaking fees. Or, they can point to musicians who post online videos as ads for their albums and live performances. Or, they can point to the many authors who get support from voluntary donations on places like Patreon. There can be a system to fund authors without copyright, they say.
And finally, they say, copyright just isn't working at present even for the authors who do try to use it. Author Jim C. Hines, who published twenty novels, posts annually about his writing income. At one point, he said he could almost quit his day job except for the health insurance - his writing income's gone down since then. It peaked in 2016 around $75,000, but then it plummeted to around $40,000 the next year, and continued generally decreasing to $27,000 in his latest post at the end of 2023.
But if an author wants to be a Cory Doctorow, they can! Today! Without repealing the copyright laws!
I've encountered (online) a lot of authors who have been trying to be like Cory Doctorow and get by without copyright even today. Usually they get a little money from Patreon; not much. Usually it's not even as much as the $27,000 Jim C. Hines made in 2023. But I'd hardly expect them to make more if we repeal copyright.
But then... most published authors who use copyright aren't getting that much money either. Authors would be giving up the small chance of a huge hit, but most of them wouldn't be much worse off, and some would be better (whether because they go viral on Patreon, get a lot of lucrative speaking tours like Cory Doctorow, or something else).
And that's speaking financially. Speaking personally, one big reason I'm writing this blog without a paywall is because I like having more people read it. I don't want to discourage readers. I think a lot of authors are like me here - and that's why many have already put their writing online for free.
I totally agree, the publishing system needs reform. If we could reach a new system that worked for writers and readers and unlocked the potential of everyone being a publisher, I'd be very glad.
But the systems they suggest might not work.
Not every author wants to be a Cory Doctorow. He's essentially made himself a celebrity. Apparently he wants that, and he uses it to publicize his causes, but not every author wants to be a celebrity. Yes, many authors do go on book tours to drum up publicity - but many don't, and even if they do, a book tour is more focused on the book than Doctorow's speeches. Even online, a Patreon makes the relationship more about the author as a person or source of future works than the specific work.
And even if authors did want to try this - not everyone would be able to.
Some copyright opponents acknowledge this and suggest a government-run system to compensate authors, sort of like the mandatory royalty system for music on radio. But, that would be too impracticable; you'd need to somehow monitor view counts or readership counts (with some standard for who counts as a legitimate reader) everywhere.
Some other opponents just throw up their hands and suggest that everyone write for free. We'd definitely get a lot of written works; online fanfiction and blogs like mine prove that. But, there're lots of things that do take more time and effort than fanfiction or blogs to make to an acceptable level. I don't want to assume they would happen for free.
The current system isn't working for many authors. But their proposed copyright-free system wouldn't work either.
So, there're some large risks with repealing copyright.
Fortunately, we don't need to repeal copyright to test the new copyright-free systems. Again, there're lots of authors already posting their works online for free, today. They're testing out new systems (like Patreon) that could work in the post-copyright world. I fully support them in this.
Of course, there're many differences between this and a true post-copyright world, such as readers' expectations and social norms. But this's still a much better test than sitting and philosophizing about how things might work.
If their test does work - if there're many authors who write things just as good as many commercially-published books, post them online, and make as much money from it as many published authors - then we can go farther and consider repealing copyright. But I don't want to do that until some major new systems have shown themselves to work.
(At least, that's the case for books; I'm sure other works have their differences.)
So for now - despite copyright's disadvantages - we need to keep it.
But I'm happy for the upcoming Public Domain Day.
Sort of tells you where the Overton Window has moved since the Sonny Bono Copyright Extension Act that the bulk of this post is a defense of the very idea of preserving copyright in any form whatsoever.
You didn't ask for proposals, but I'm curious what you think of the policy I would pursue were I in Congress:
* Shorten copyright to life-of-the-author OR 20 years (whichever is longer) with loss of copyright if not manually renewed every 14 years. (I would happily go shorter, but this addresses the typical, "But authors need to be able to feed their families! Even if they die young!" argument.)
* Renewal should involve some non-trivial fee to cover the cost to the national welfare of keeping works out of the public domain. This would incentivize authors to release works into the public domain if they are no longer making money.
* I'd like corporate copyrights to last 20 years, too, but would be okay with 40 if they have to renew, at least if renewal costs are higher for corporate copyrights.
* End the ban on derivative works. IOW: legalize fan fiction (incl. professional fan fiction).
I'm ambivalent about copyright, and indeed perhaps multiply ambivalent.
As a preface, I don't buy the argument that copyright isn't a property right. There's a libertarian tendency to reduce all forms of ownership to ownership of chattels, and to derive other sorts of ownership from ownership of chattels. But I think that's oversimple. There is ownership of spectrum (I'm in favor of having it be true ownership, not use licensed by the state); there are easements, such as the right to walk on a path across my neighbor's land; there are presumably other sorts of things that are legally classed as property that are nothing like chattels.
I'm somewhat attracted by Murray Rothbard's argument that copyright ought to be perpetual: Other sorts of ownership don't terminate over time, so why should copyright. (Note that Rothbard argued that patents were not legitimate, because independent creation did not entitle you to your own patent if you got to the patent office second.)
On another hand, I can see some argument for abolishing copyright entirely. If I buy a book, why shouldn't I be able to copy it? I'm not interfering with the author's property; the book is my property, not his.
On another hand, I think that it's plausible that copyright should extend at least a few years past the death of the author. If it terminates with author death, then publishers have less reason to invest in acquiring a new book, because of the risk that it will lapse into the public domain.
Two things I particularly dislike about the current system, though:
I ought to be able to copy out a single work, such as a poem, and give it to another person. It's not comparable to setting type and running off a hundred or a million copies. (Admittedly this is less compelling now that everyone has Internet access; lots and lots of "single copies" could be distributed that way.)
I see a problem with copying and selling The Hobbit, even if you just change the names. But if someone other than Tolkien had written a sequel about what happened to Bilbo and the Shire after The Hobbit, using Tolkien's characters and setting to tell a new story, in the style of fanfic, would that have impaired Tolkien's rights? Maybe there should be a right to tell stories about fictional characters and places.
I have to say I don't have an analysis of these issues that strikes me as fully persuasive.