This work is licensed under a Creative Commons License Redistribution is permitted for non-commercial purposes provided that proper attribution is included.
Content © 2004 Laurence Garfield, Nathan C. Hampton, and Jeromy Stark.
The first copyright law passed under the U.S. Constitution (1790) provided a fourteen year term of copyright with the option to renew for an additional fourteen years. In 1831, the initial term of copyright protection doubled, and the length of the renewal term was doubled in 1909, bringing the total to 56 years. In 1976, a major overhaul of copyright legislation extended the copyright term to the life of the author plus 50 years. Anonymous works and works-for-hire were granted a term of 75 years from publication or 100 years from creation. These terms were extended an additional twenty years in 1998. [5]
However, the current length of copyright protection exceeds the amount of time needed to adequately "promote the progress of science and useful arts." In fact, the length of current copyright terms is directly contrary to the achievement of the public benefit intended by the Constitutional provision for copyright protection.
As we have previously seen, the purpose of copyright is to encourage the creation of new works. The longer a copyright is in effect, the more time the creator will have to gain the associated economic benefits, which would result in the creator deriving the maximum benefit from his or her work, thus maximizing the incentive to create. Why, then, should we not extend copyright terms as long as possible to ensure maximum incentive? We should not only support the current term, but consider extending it further!
This argument is both logical and internally consistent. However, there is one problem. As the old axiom goes, "dead men tell no tales." No known incentive (of any type) can motivate a deceased person to create new work because, to the best of our knowledge, no deceased person can create new work. As a result, any term of copyright protection that exceeds the lifetime of a work's creator cannot, by definition, serve the fundamental purpose of copyright: encouraging the creation of new work. Because this purpose cannot be met, any copyright protection which exceeds the lifetime of the creator is inherently unreasonable, and will not serve the Constitutionally defined purpose of copyright.
Furthermore, the argument cited above fails to recognize the underlying reason for copyright. Again, it has been previously noted that works covered by copyright are valuable for their benefit to society. As a result, copyright protection is defined as limited, both Constitutionally and logically. If copyright protection is for an excessive term, the public benefit derived from that work will be reduced, causing the copyright system to work against the benefit of society, rather than for society's benefit, as it has always been its intent. [6]
Not only to the lengths of copyright terms fail the tests stated, the economic argument for longer terms falls under close scrutiny. If a work no longer has economic value to its creator, it cannot reasonably be argued that maintaining copyright protection for that work provides any sort of incentive to its creator. To ensure maximum public benefit, a work should enter the public domain as soon as possible, while providing maximum incentive indicates that this should occur only after its economic value is lost. The immediate answer seems to be that an individual work would enter the public domain on that occasion, but the administrative requirements of (a) determining when the work no longer has economic value and (b) determining if the work in which you are interested has entered the public domain make this rule impractical. Rather, we should determine the approximate length for which copyrighted works of a certain class retain their value, and base the length of copyright on that information.
Unfortunately, the data on this matter is scarce. However, a 1998 report from the Congressional Research Service "indicates that only about 2% of copyrights between 55 and 75 years old retain commercial value -- i.e., still generate royalties after that time." [6] Given this research, and in the absence of further data, a non-renewable term of no more than 50 years, which shall not extend beyond the natural life of the creator, is a reasonable balance between public interest and private incentive for most types of copyrightable works. However, this number should be reconsidered if further studies demonstrate a shorter commercial life span for some types of copyrighted works.
One example of this principle is computer software. According to the U.S. Copyright Office, computer programs can be copyrighted. [4] However, a fifty year term is clearly unreasonable because the high rate of advances in computing technology make most programs obsolete within ten years of publication, with many becoming obsolete within five years. Keeping in mind that derivative works can be copyrighted separately from the works from which they are derived, we propose that computer software should be granted a five year term of protection, which may be renewed by the copyright holder for an additional five years unless the work in question falls under the terms of the dead work exception.
Given the concerns presented above, we believe that these proposed terms for copyright protection are reasonable and consistent with both the underlying principles of copyright and the legal framework of the U.S. Constitution.
Content © 2004 Laurence Garfield, Nathan C. Hampton, and Jeromy Stark.