Copyright term extension. Is it only a debate about time?

Por: Luisa Fernanda Herrera - Docente Investigadora

The 1st of November, the Department for Business, Innovation and Skills of the United Kingdom made public the implementation of a new regime that extends the term of copyright for sound recordings and performers rights from 50 to 70 years. The UK Minister for Intellectual Property, Lord Younger, has maintained: “the new rules bring lasting benefits for our world class recording artists”. This short review is intended to analyse the advantages and disadvantages of intellectual property right´s extensions.

The 1st of November, the Department for Business, Innovation and Skills of the United Kingdom made public the implementation of a new regime that extends the term of copyright for sound recordings and performers rights from 50 to 70 years. The UK Minister for Intellectual Property, Lord Younger, has maintained: “the new rules bring lasting benefits for our world class recording artists”. This short review is intended to analyse the advantages and disadvantages of intellectual property right´s extensions .

Gowers (2006 cited in Monseau, 2009), has explained that the main purpose of intellectual property law is “to incentivise knowledge (and hence wealth) creation; to accumulate knowledge in a culture; and to protect a distinctive identity”. Thus, policies and legislation should be addressed to reach all these goals and to grant a minimum of equilibrium among all the interests involved. In fact, as the same author explains, both elements must be considered; the importance of the public access to new creations and the economic revenues that creators must receive as a result of their personal effort.

In order to achieve a balance, protection of intellectual property rights is limited by time. Authors can deny free access to their creation for a period of time but after its expiration, everyone can use it without any restriction. Accordingly, when copyrights expire, potential opportunities to create increase because public domain can be used as an inspiration source for new works (Posner, 2005).

However, due to digitalization of all creations, great changes in technology and because of the increasing copyright infringement, there have been profound debates about the extension of the copyright protection term (Posner 2005, 58–62) and significant claims for perpetual rights have been raised from various creative sectors (Helprin, 2007).

Nevertheless, term extension is a delicate debate that could create perpetual rights, such as physical property. Under these circumstances, the basis and essential characteristics of copyrights could be distorted. Furthermore, some experts, such as Posner (2005, 58-62), have explained that term extension is unjustified because of the impracticality and inefficiency of the measure that does not resolve real problems such as piracy or some deficiencies in contracts regulation.

The pressure on legislature to extend the term of copyright protection has been evident. Considering copyrights nature and the balance needed among all the conflicting interests, this pressure should be resisted because excessive extensions are not justified. Firstly, in this short review it is explained how the music industry and other economic and politic sectors have justified the pressure to obtain the extension of the copyright term. Secondly, it is shown that this extension might be unjustified.

As a result of all the debates generated by new technologies and the pressure created by the music industry, in September 2011, the European Union extended the term of copyright protection for sound recordings and performers from 50 to 70 years plus the author´s life. It was also established that UK had to adopt that rule by the 1 of November 2013 (Directive 2011/77/EU).

Those debates did not begin in September 2011, composers already were covered by this term since 1993 (Rory Cellan-Jones, 2011). Indeed, the European Union adopted in that year the Council Directive 93/98 that harmonized rules regarding the term of protection all over Europe, where each country had its own regulation. The extension of the term was based on the importance of having a unique term for all Europe to ensure respect of copyright, and on the increasing of life expectancy that did not allow authors to guarantee an economic stability after their right´s expiration (Monseau, 2009).

Despite this extension, the music industry has demanded more (Rory Cellan-Jones, 2011). Such a pressure has been difficult to resist; actually, even though Gowers Review recommended to the UK Government that the term of protection should not be extended, the Government published the House of Commons Culture Media and Sports Committee Report where it was decided to extend the term of protection (Monseau, 2009).

The term extension has been justified for several reasons that are explained by Monseau (2009). Experts have claimed the importance of the harmonization of rules in all Europe. Moreover, some studies such as Impact Assessment (IA) have analysed the economic and social situation of performers and record producers in the European Union, stating that the majority of singers start their careers at 20 years old and when their rights have expired they do not have enough capacity to work. Finally, the music industry has asserted that all the problems caused by technology and the new ways created to download or reproduce music easily are resolved with the term extension. On the contrary, several academics, such as Lawrence (2004 cited in Monseau, 2009), show that term extension is not a viable solution because the current legal system should be replaced by a new legal framework that fits to the digital age and its challenges. Therefore, this situation demands a deeper analysis of both sides of the discussion.

On one hand, economists have explained that exaggerations in intellectual property protection are economically inefficient. Since knowledge is a public good, its nature does not allow any restriction to consume or use it, and its consumption is not rival because everyone can consume it simultaneously (Stiglitz, 1999). Consequently, copyright is just artificial property created to ensure economic benefits for authors. Thus, if its scope of protection is extended without any limitation, it will cause a fall in consumption rates (Posner, 2005).

On the other hand, according to the economic analysis done by Posner (2005, 58 – 62) and Landes (2003 cited in Karjala 2006), the extension of the copyright term protection allows the conservation of the protected creation. Actually, if everyone can use, copy or access freely one creation, congestion would reduce its market value. Correspondingly, Posner and Landes suggest that incentives would disappear if none has an exclusive right over the work protected, and the creation would become easily copyable.
However, Karjala (2006) realises that Posner and Landes do not prove a loss in value of creations when its protection expires. Karjala finds that the examples given by these authors, such as the Mona Lisa, the opening of Beethoven´s Fifth Symphony, and Van Gogh´s most famous paintings, did not seem to loss value when they entered into the public domain. Although those works have been “debased” because of their exaggerated use by society, they have not lost value. In other words, despite their debasement, if those cultural icons were still protected, most people would pay for them. Furthermore, work´s value depends on the effort done by its creator. Lemley (2004, cited in Karjala 2006) rightly concludes that if the public pays for a work, such as Mickey Mouse, is because the effort done by Disney is strong enough to maintain Michey´s value on the market. And even if there are numerous competitors, Disney conserves its monopoly. What is more, Heald (2008) has demonstrated through some surveys that musical compositions become more famous when they enter into the public domain because of their high exploitation by the film industry.

Above all, it is usually the case that “overexposure” causes better uses of the protected works. Karjala (2006) mentions Santa Claus and Superman which overexploitation has resulted in several variations of these characters. Each variation has developed our culture in different ways, without detracting value of the protected works. In addition, when copyrights expire, others authors can take advantage and get inspiration from the public domain. As Frye (1957 cited in Posner 2005) asserts, poetry came from poetry, and novels from novels. As a result, if the term of copyright protection is exaggeratedly extended, society may pay a high cost. In fact, Karjala (2006) insists that even if the economic value of those characters decreases, a term extension would not be justified.

Finally, the metaphoric value, the communicative function and the intellectual heritage of knowledge do not disappear when copyrights expire. Moreover, these features of intellectual creations become stronger when works enter into the public domain (Karjala, 2006). For instance, Santa Claus has become a family symbol and despite its debasement, it is related to family unity, Christmas, joy, special sounds and songs. The entrance into the public domain supplies society of essential values and knowledge that could be transmitted among cultures and generations.

This analysis implies that society may be affected by an excessive term extension. From a philosophical perspective, is possible to argue that property must play an important role in “social life” and “democratic culture” Drahos (1996, cited in Tansey Geoff & Baumüller Heike, 2008). In other words, even though private property has to be defended because of its importance to develop the economy, according to the idea of distributive justice, unlimited rights and the eternal monopoly over essential goods are dangerous. For that reason, the evaluation of a possible extension of copyright protection should be addressed under an instrumental vision rather than an individual one. Therefore, under an instrumental analysis, it can be concluded that term extension is not a suitable tool to maintain economic and metaphoric value of creation; what is more, extensions cause many risks for cultural development.

With regard to copyright´s holders, Bently et al. (2008) have explained that the extension of the term ends up being a syllogism because it is established to provide more incentives but the motivation needed to create has an important role before creation and not when legislature decides to extend copyright protection. Economists have agreed on that: “once a work is created, additional compensation to the producer is simply a windfall.” Furthermore, economic surveys have proved that the demand of information has increased because of society evolution, which suggests that term extension of copyrights is not a suitable response (Yuan, 2005). Although intellectual property is essential to incentivize innovation, protection beyond reasonable justifications does not assure more innovative creations because authors seem to be repeating and reproducing their previous works (Hugenholz, 2006).

What is more, in contrast to a general thought, several academics have concluded that some specific term extension would not benefit copyright´s holders. This analysis is based on the dynamic given by contractual relationships where the earnings are defined. In other words, artists would be more benefited if contracts were more regulated in favour of artist´s rights because the extension of the term is not a grant, most of the rights are transferred by several agreements, such as the edition contract of a book, in which content, the right of reproduction has been transferred (Bently, 2008).

Finally, it has been argued that term extension allows authors to ensure their heirs welfare. However, welfare of heirs does not seem to be a direct consequence of term extension. The rigorous work done by authors must lead to important incomes, and hence, to a higher inheritance. In other words, if artists were not successful during their lives and did not leave quality work after their death, despite term extensions, heirs will not receive enough money to survive (Centre for Intellectual Property and Information Law, 2012). On the contrary, if they were successful, an extension would not be necessary (Bently et al. 2008).

To conclude, extension does not seem to achieve all the goals promised by its defendants and is not a solution for all the problems created by technology. Nature of intellectual property does not admit eternal and perpetual rights. Knowledge has been defined by economists as a public good. Copyright is an artificial right created to promote and create incentives to creators but over a certain period of time, that public good should be accessible to everyone, to ensure its access and development. Consequently, time is necessary but its extension may affect society and cultural access and would not resolve piracy problems. Time is important to ensure incentives for artists but an excessive extension not only would affect negatively the cultural development of each society but it is also unjustified because it does not guarantee higher incomes for artists and does not resolve problems related to new technology.

There are alternative measures that would help without assuring a perpetual monopoly: “(i) the regulation of copyright contracts, and (ii) social security and insurance schemes; (iv) equitable remuneration rights only available to living performers, and (v) the regulation of collecting societies and licence tariffs, such as the nature and distribution of income from any copyright levy scheme” (Bently et al. 2008).

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