For the first time in 21 years, on January 1st works entered the public domain as their copyrights expired. This is both a major victory and a crushing defeat for IP freedom, depending on your expectations. Copyright terms have been continually expanded for decades, and so many people expected 2018 to see a battle as Congress tried to extend copyright terms yet again.
This failed to materialize. Timothy B. Lee at Ars Technica says that the mere threat of internet activism made this a battle the entertainment industry could not win:
“There’s now a well-organized, grassroots lobby against copyright expansion,” Grimmelmann tells Ars. “There are large business interests now on the anti-expansion side. Also a wide popular movement that they can tie it into.”
The rise of the Internet and its remix culture means that a lot of people now benefit from a growing public domain in ways that weren’t true in 1998. That includes big companies like Google, but it also includes grassroots communities like Wikipedia editors and Reddit users. This emerging copyright reform coalition flexed its lobbying muscles in 2012 when it overwhelmingly defeated an Internet filtering bill called the Stop Online Piracy Act.
So that’s pretty awesome. However, we should note that the current copyright length of 95 years is still a horrific travesty. I’ve written about this before, so I will quickly summarize some points and add a couple additional ones. First, copyright is not like other forms of property; it’s an agreement between artists and the state to provide monopoly control over a work of art for a specific period of time in order to provide an incentive for creative works. The law should find an optimum between allowing people to build upon works creatively and rewarding artists for their creations, but because the benefits of copyrights and concentrated and the costs of long copyright terms are diffuse and hidden, we now have very long copyright lengths.
It’s excellent that we won’t be getting longer copyright terms this year, but they should be much shorter. The fact remains that works that will expire between now and 2038 should never have had their copyrights extended. In fact, there is no argument that currently copyrighted works should ever be extended! They are already invented, meaning the copyright law has done its job. Copyright extensions should only work prospectively, encouraging new works that wouldn’t be created otherwise. Does current copyright length optimize for both creating works and allowing new works to build off of old ones? It’s unlikely.
One reason the copyright trade-off seems far too protective is that artists are simply not planning 95 years in the future. I don’t have hard evidence on this, but that may be because psychologists have never bothered to check whether humans plan 100 years in the future because it’s such a ridiculous proposition that no one would take their experiment seriously. There are for example, plenty of articles wondering why humans don’t do things that would obviously benefit them, like evacuating from a flood zone when a hurricane is coming. Moreover, even if you “took humans out of the equation” and had a systematic, long term time horizon corporation investing in creative works with a discount rate of 5%, cutting the length of copyright from 95 years to 50 years keeps over 92% of the net present value. In other words, even if you had a long term planning vehicle that avoided human psychological pitfalls, the vast majority of works would still be created today.
Finally, because the length of copyrights is so long, we are creating orphaned works (see the Center for the Public Domain). It would be nice in theory that artists’ estates are collecting royalties for 95 years. But in reality, only artists who were quite successful during their lifetime could afford to set up an estate who could license out their works. Many works are just so old that we have no idea who owns the copyright, and it’s literally impossible to license them if we wanted to. This problem will only get worse as more and more copyrighted works come from after 1976 when all creative works automatically received a copyright without any registration. One result of this policy is that some works will be lost forever; the physical media upon which the works were originally recorded like paper and film are literally disintegrating. People today have no incentive to digitize works as copyright claims could appear making their work unprofitable. Our current policy helps a few highly successful copyright holders while making it too expensive to bother preserving or remaking the work of all others, not to mention the hidden cost of lost derivative works.
So absolutely, let’s celebrate that we finally have a Public Domain Day for the first time in 20 years, but let’s not overlook the problems that still exist.
