Meera Nair

this day in history

In Posts on October 27, 2013 at 11:13 am

Writing for The Washington Post, Timothy Lee reminds us that 27 October 2013 marks the 15th anniversary of presidential signature to the Copyright Term Extension Act (CTEA, 1998) of the United States. That act added twenty years to the American term of copyright for all future, and existing, copyrighted works.

Placed against the United States’ constitutional mandate for copyright — “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” — the absence of logic was striking. No length of added time can promote further progress in science or arts from already deceased creators. But prominent copyright holders, notably the Disney Corporation, stood to gain by longer terms for existing works and Congress obliged. Conveniently, entertainment lobbyists could point to developments in the European Union as reason for the American changes; the Europeans had recently implemented a copyright term of life-plus-seventy years.

The clamour to follow international standards for copyright is a relatively recent move on the part of the United States. In its days of nation building the United States took a lax view of international copyright protection; helping itself to authentic English literature effectively fostered both the book industry as well as education of its people.

A new addition to the canon of history of American intellectual property policy is Without Copyright—Piracy, Publishing and the Public Domain, by Robert Spoo; see here for an account by Greg Barnhisel for the Los Angeles Review of Books. Spoo is no apologist for piracy; instead, he brings attention to the way that the word piracy has been constructed, its “typical and uncritical use [is] detached from the legal conditions that permitted and even encouraged it, [giving] a false aura of illegality to a practice…” Spoo focuses on the development of the American publishing sector and its practices of trade courtesies, but his words bring to mind the invective from some contemporary copyright holders concerning lawful exceptions like fair use and fair dealing. Delightful reading as Spoo’s work is, it is disturbing as well; he charts the decline of the American public domain, and a world-wide decline along with it.

Returning to today’s anniversary; as American entertainment products became highly sought after in international markets, the United States saw merit in international cooperation towards intellectual property protection. After a hundred-year delay in joining the Berne Convention (created in 1886, the United States became party to the convention in 1989) the United States sought to instill broader protection of copyright through the Agreement on Trade Related Aspects of Intellectual Property (1994) and later pushed an even more aggressive agenda with respect to the World Intellectual Property Organization (WIPO) Internet Treaties (the text was declared by WIPO in 1996, American ratification occurred in 1999).

The domestic arguments for stronger copyright touted the preservation of American dominance in world markets. In the late twentieth century and early into the new millennium, copyright proponents could rely on little opposition to their claims. This is no longer the case. Earlier this year Jonathan Band and Jonathan Gerafi unambiguously contradicted the claim. In a paper titled Foreign Ownership of Firms in IP-Intensive Industries, posted to InfoJustice.org on 5 March 2013, they give detailed analyses of ownership in the sectors of book publishing, music, motion pictures, pharmaceuticals and more. A few key findings are:

– Four of the “Big Six” publishers, the largest English language trade publishers, are foreign-owned. More than 80 percent of the global revenue of the Big Six is generated by these foreign-owned companies. These foreign-owned companies publish more than two thirds of the trade books in the U.S.
– Four of the five largest STM (science, technical and medical)/Professional publishers are foreign-owned. More than 90 percent of the revenue of the five largest STM/Professional publishers was generated by  foreign-owned firms.
– Only seven of the world’s 50 largest publishers of all categories are U.S.-owned.
– The book publishing industry in Europe has approximately twice as many employees as in the United States.
– Of the top ten best-selling fiction authors in any language whose work is still in copyright, five are foreign. A British author wrote three of the top five best-selling books in the U.S. in 2012.
– Two of the three major record labels are foreign-owned. These two labels have a market share of 59 percent.
– Thirteen of the twenty best-selling recording artists are foreign.
– Of the 50 most popular motion pictures in the United States in 2012, 50 percent were filmed partly or entirely outside of the United States.

If American growth in cultural exports was the reason for expansion of American copyright, a decline in dominance would suggest that it is in American interests to relax their copyright protection and work towards reclaiming their creative zeal. Curiously, a day before Band and Gerafi released their findings, Maria Pallante (Registrar of Copyrights) spoke openly about returning American copyright term to life-plus-fifty-years. Mike Masnick writing for TechDirt covered Pallente’s initial remarks as well as her later formal testimony to United States’ SubCommittee on Courts, Intellectual Property and the Internet. Masnick goes into detailed discussion of her proposals: in agreement that there is need for change but with concern over the approach advocated by Pallente.

Looking back at Lee’s article, he gives a cogent history of the events surrounding CTEA and since. He draws attention to some of those people who sounded the alarm early, those people who spoke up before others were truly aware how deleterious to public interests the give-away of portions of the public domain was. One such advocate was law professor Dennis Karjala, a commentary he wrote in 1996 (rejected by major newspapers) still bears reading today:

The proposed copyright term extensions are a travesty that, if adopted into law, will become a tragedy. They are not based on the public interest but rather on private greed. Only the technical complexity of the issue and the diffuse nature of the public harm allows such proposals to move through the Congress essentially without public debate. They can be stopped, but not by a silent majority, or even a silent supermajority. Opponents of the extensions must be heard by Congress, with voices as loud as those seeking to prolong their parade of royalty welfare checks.

Lee also points out that only five years remain before Mickey Mouse stands again at the threshold of the American public domain, and muses as to whether Disney et al. will try for term extension. Such an egregious move is not out of the realm of possibility, given the financial benefits that will accrue to corporations. But as Lee writes: “One advantage opponents will have this time around is better arguments and evidence.” Indeed, copyright as a subject has a much wider audience than it did in the late 20th century, with the public more aware of its role as a stakeholder in negotiations. When the copyright amendment process begins in the United States, it can no longer be business-as-usual for content industries.

Related – 29 October 2013 Noah Berlatsky writing for the Atlantic, “Why Are Reading Textbooks So Out Of Date? Blame America’s Copyright Laws.”

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