the Irish for rights

How long should the copyright term be?

'Scales of Justice', a public domain IP image, via wikipediaAt present, at Irish law, the basic copyright term is the life of the author plus seventy years (see section 24 of the Copyright and Related Rights Act, 2000 (see also here)).

We have come a long way from the eighteenth century’s 14 year term (renewable once). Or have we? Peter Black points to the following story in Ars Technica in which an economist is now arguing that 14 years is the optimal level for copyright protection [with additional links]:

Researcher: Optimal copyright term is 14 years

By Nate Anderson | Published: July 12, 2007 – 01:36PM CT

It’s easy enough to find out how long copyrights last, but much harder to decide how long they should last—but that didn’t stop Cambridge University [link] PhD candidate [link] Rufus Pollock [link] from using economics formulas to answer the question. In a newly-released paper, Pollock pegs the “optimal level for copyright” at only 14 years.

Pollock’s work is based on the promise that the optimal level of copyright drops as the costs of producing creative work go down. As it has grown simpler to print books, record music, and edit films using new digital tools, the production and reproduction costs for creative work in have dropped substantially, but actual copyright law has only increased.

According to Pollock’s calculations (and his paper [PDF] is full of calculations), this is exactly the opposite result that one would expect from a rational copyright system. Of course, there’s no guarantee that copyright law has anything to do with rationality; as Pollock puts it, “the level of protection is not usually determined by a benevolent and rational policy-maker but rather by lobbying.” The predictable result has been a steady increase in the period of copyright protection during the twentieth century.

Because Pollock’s “optimal level for copyright” falls over time (as production and reproduction costs fall), policy makers need to be especially careful when contemplating increased copyright terms. It’s difficult to scale back rights that have once been granted, so “it is prudent for policy-makers to err on the low side rather than the high side when setting the strength of copyright.”

Neither the US [link; update further link] nor the UK [link] are in any danger of rethinking copyright law from scratch, but if they were looking for guidance in how to set up their systems, Pollock has it. He develops a set of equations focused specifically on the length of copyright and uses as much empirical data as possible to crunch the numbers. The result? An optimal copyright term of 14 years, which is designed to encourage the best balance of incentive to create new work and social welfare that comes from having work enter the public domain (where it often inspires new creative acts).

Pollock has been an advocate for restricted copyright terms and stronger public domain for years; we earlier spotlighted a brief essay of his on the “Value of the Public Domain” [link (pdf)] that is well worth a read. His new work is getting some publicity too: it has already been highlighted by Boing Boing and will be presented [link to conference paper (pdf)] at a conference [link] in Berlin this week [that paper is blogged here].

In his own words, this is the abstract:

The optimal level for copyright has been a matter for extensive debate over the last decade. This paper contributes several new results on this issue divided into two parts. In the first, a parsimonious theoretical model is used to prove several novel propositions about the optimal level of protection. Specifically, we demonstrate that (a) optimal copyright falls as the costs of production go down (for example as a result of digitization) and that (b) the optimal level of copyright will, in general, fall over time. The second part of the paper focuses on the specific case of copyright term. Using a simple model we characterise optimal term as a function of a few key parameters. We estimate this function using a combination of new and existing data on recordings and books and find an optimal term of around fourteen years find an optimal term of around fourteen years. This is substantially shorter than any current copyright term and implies that existing copyright terms are too long.

William Patry has an excellent post about Pollock’s paper [with additional links]:

Statute of Anne Too Generous by Half

The 1710 UK Statute of Anne established a term of protection of 14 years for an original period of protection, followed by a 14 year renewal term. This is the same durational structure adopted in the U.S. in the 1790 Act. The length of copyright has been on an upward arc ever sense, with the current regime in the U.S. at the obscene level of life of the author plus 70 years, a term utterly divorced from the reasonable need for incentives to create.

During the briefing leading up to the U.S. Supreme Court’s oral argument in the Eldred case, 537 U.S. 186 (2003) [link], which upheld as constitutional the 1998 term extension, a fine brief by economists such as Ronald Coase [link] and Milton Friedman [link] was submitted (here is a link to legal documents in the case, inclusing the brief). The brief concluded that the additional twenty years provided was a windfall that would lead at most to a statistically trivial incentive to create, little if any different from a perpetual term. At the same time, the economists asserted that there were significant negative social costs associated with term extension, principally in the form of increased costs for existing works whose term was extended, thus leading to an overall reduced level of innovation (e.g. prohibiting the creation of derviative works building on existing works).

The brief did not attempt, though, to set out an optimal term of protection. Last week, Rufus Pollock,who is pursuing a Ph.D in Innovation and IP at Cambridge University has made available (here, at his website) a copy of the paper doing just that. The paper is called “”Forever Minus a Day: Some Theory and Empirics of Optimal Copyright.” The reference to “forever minus a day,” is to a remark attributed to the late Jack Valenti [link] (may his Rock keep and save him). Mr. Pollock concludes that the optimal term of protection to be around 14 years, half of that possible under the two early acts mentioned above. One interesting point about his analysis is that it is based on the dramatic (and he believes permanent) fall in the costs of production as a result of the savings from digital means of production.

He does of course also discuss the difference between low costs of production and the other side of the equation, the low costs of reproduction, and this is precisely what I find interesting: in the policy debates about digital technology, going back in my experience in Congress to 1992, digital technology was regarded as a one-sided monolithic monster poised to forever destroy copyright unless some powerful weapons (read DMCA [link]) were put in place. Mr. Pollock’s paper is unique for its thoughtful look at the larger picture, i.e., that is production costs and how those costs impact on the extent of incentives required. (I am aware of some earlier efforts in this respect, but at least in one case I don’t think it has the rigor of Mr. Pollock’s). The paper is chock-full of statistics which is likely to turn many away, but there are other papers on his site (link provided above) that may prove easier going.

Reacting to Patry’s claim that Pollock’s work “is unique for looking at the larger picture,”, Against Monopoly referred to the work of Michele Boldrin and David K. Levine, especially their book Against Intellectual Monopoly (here and here).

Penultimately, this has been all over the blogosphere for the past fortnight; sorry I’m coming to it late. Here is a selection of blogs with interesting comments and/or links: b2fxxx | Ben’s Bits | boingboing | brinkish | Chickens Don’t Have Armpits (Matthew Buckley) | Copyrightings | Drawn | e-Clippings | Julie VW | Kenny Pearce | Luc Latulippe | mediavidea | Not a Blog | Scruffy Dan | Stilgherrian | The Amateur Economist & Curmudgeon Blog | VatulNet.

Finally, a few additional comments. OUT-LAW reports that strict copyright laws do not always benefit authors, but it’s unlikely that New Zealand will take the opportunity presented by their current review to reduce their term to 14 years; though at least the UK is unlikely to extend its 50 year term of protection for sound recordings (Filewrapper | IP Kat | Patry). As for Pollock’s perspective on the public domain, IP Kat informs me that Charlotte Waelde and Hector MacQueen have just edited Intellectual Property: the Many Faces of the Public Domain (Elgar, 2007).

3 Responses to “How long should the copyright term be?”

  1. James says:

    My outline is for a copyright law that has a 20-10-10-10, which is: Initial 20 years of protection, with the second and third time the author signs a 10 year extension to use the work at least once significantly in order to qualify the right to extend.

    Many people though that 95 or life plus 70 years are far too long. Intellectual property rights are far different than physical property rights. If I own a copyrighted work, let say, I create Samisonial, the Black haired Dwarf with white skin with a blue hat who lives in an enchanted forest with Mobly the hairy dude searching for the five magical rocks.

    Now that I have produced that work, it’s now copyrighted for 95 years. See, it took me, less than a few minutes to come up with that idea, and now my work is locked up. take a look at it, I would be profiting from that work.

    But when you take a work and provide an extensively long amounts of time, think of how much damage I am doing to the freedom of the public and the future of the artists, who want to use a piece of my work 50 years from now, when I am just plain lazy and greedy and want more money. Think about it. The longer the term is, the LESS work artists will create, and the less channels of entertainment the public will get.

    So, under a 20 year term act, I retire Samisonial, the dwarf, and decided to create Runnitoid, the golden living gnome, with 35 other gnomes (A sort ove ficitional creature I created), which lives on a cloud that has a fiend, Grucella, an evil knight that loves to eat golden creatures. In the end, this is very popular, and I get lots of money.

    You see, as a result of more creativity (as a result of the shorter copyright term), artists are more skilled and that potentially, better works come out, resulting not only in more works released, but ultimately, more works in the public domain, and ultimately, upholding the freedom of speech. Furthermore, I can just re-create the old work that has been fallen into the public domain and call that copyrighted work, yet the older work remains in the public domain.

    I truely think that the extensive copyright terms are a result of greedy media giants who don’t even create the works, but bought them out of artists, leaving the artists only a cent royalty and the media getting the money.

  2. […] by krisnelsonin copyright law 26 Aug 2007 To get back in the spirit of posting, I’d like to note the following story, via Irish law blog cearta.ie: How long should the copyright term be? […]

  3. […] The fact that the original author is dead doesn’t mean the work is out of copyright. The copyright term is the life of the author plus seventy years. […]

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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