Whatever your feelings about free trade, modern trade agreements do much more than remove tariffs. They regulate across all areas of an economy, under the argument that “leveling the playing field” requires more substantive intervention than tax reform.
While many aspects of what we believe to be in the Transpacific Partnership Agreement (or “TPP”) are controversial (here are some environmentalists’ complaints), trade agreement interventions have had an unfortunate tendency to be misguided and contrary to public policy when it comes to issues in intellectual property. For instance, I hope you’ve heard about how the TPP might affect access to medicine, a failing with a profound human cost anyone other than perhaps Martin Shkreli would understand.
In copyright the controversies can be more esoteric, but that doesn’t mean that the stakes aren’t high. Copyright is how we choose to regulate creative and knowledge economies—getting it wrong can compromise our ability to learn, teach, and create. With regard to copyright, the largest change on the table is copyright term extension, an issue that doesn’t stand to affect us here in the United States because we already extended our terms. Back in 1998, we retroactively added 20 years to our copyright terms, protecting works for the life of the author plus an additional 70 years. You’ve heard of the “Mickey Mouse” bill, the one that seemed suspiciously timed to avert the expiration of the rights to Mickey’s earliest copyrighted appearances? This is that one.
The international standard copyright term—the life of the author plus fifty years—is already long, but it was inserted into an earlier, near-global trade agreement and now is widely considered almost unalterable. There’s a lesson there.
There is wide consensus that this kind of copyright term extension is just out-and-out bad policy. Here in the United States, we don’t do a lot of patting ourselves on the back for extending terms. It hasn’t been a win for anyone outside of the handful of entities that control the rights to the few works that continue to prove widely marketable a century after their creation. Even die-hard believers in strong and enduring copyright like those at the Authors Guild concede that these terms last “essentially forever.” That analysis has the support of a prominent group of economists who looked at U.S. term extension and found grants of this length to have a present value nearly equivalent to a perpetual grant.
So why should residents of TPP signatories be wary of joining the United States in their long terms? A few reasons come to mind:
We know that very few works remain marketable through the term of copyright. It remains a relatively rare feat for entertainment, culture, or scholarship to live out an entire copyright term as a commercial work. One of the best studies done on the subject, conducted by the U.S. Copyright Office back when we still required rightsholders to register and renew their copyrights, found that of those few authors who could be bother to register their copyrights, only a very small fraction found it worth renewing after 28 years. Recent empirical work by Professor Paul J. Heald demonstrates this effect by showing how in-copyright books appear to rapidly go out of print.
Long terms are a disservice to those works that don’t remain commercially viable. Our copyright systems don’t exist only to benefit the tiny fraction of works that live out their terms as commercial successes. Every original work of authorship enjoys copyright, from cocktail napkin scribbles to the blog post I’m writing now. Authors of works that never made money, or long since stopped making money, have little to gain from longer terms, and a great deal to lose. Most saliently, long terms mean information regarding ownership will get lost, orphaning works and preventing their further use. Term extensions would be much more palatable if they only targeted commercially available works for which rightsholders are actually motivated to retain ownership.
Retroactive term extension is particularly silly. Many countries see copyright as a bargain: authors receive exclusive rights to their work to incentivize creative endeavors. Copyright owners who seek to enlarge terms after agreeing to the original bargain aren’t retroactively incentivized to create—they’re receiving additional rewards for work they’ve already done. And even if you’re all for rewarding authors (sounds reasonable, right?), remember that term extension is a tool that rewards those who need it least, affecting only those very few rightsholders behind works enjoying enduring commercial success.
Term extension robs the public domain. When copyright terms end, protected works enter the public domain, free for all to use. The public domain is of tremendous importance. It facilitates education and the spread of knowledge by allowing free and low-cost access to classics. It facilitates creativity by providing new authors with raw materials to use however they wish, enabling everything from scholarship to creative reimaginings. It’s even good business: Disney built an empire using film adaptations of public domain stories, Penguin continues to do well by printing classics, and presses like Melville House have creatively and importantly made a business out of the publication of modern public domain texts like government reports. Sadly, however, in the United States, we haven’t been able to celebrate Public Domain Day since 1998.
Extending copyright terms isn’t a condition for doing trade, and it’s not good policy. It’s a giveaway to the minority voices with outsized representation in the secret processes behind the agreement. It’s worth standing up against this kind of copyright term extension and, going forward, against the kinds of closed-door negotiations that have enabled it to creep into the TPP.