[GOAL] Re: FW: [The 1709 Blog] Is the term of protection of copyright too long?

Tue Nov 20 14:07:09 GMT 2012

One crucial misunderstanding invalidates much of he argument in this post: on March 1, 1989, the U.S. Berne Convention Implementation Act of 1988 was enacted, and the U.S. Senate ratified the treaty, making the United States a party to the Berne Convention. The requirement to register works for copyright in the US thus ended at that point. While US media lawyers continue to advise their bigger clients (the bestsellers, the Disneys) to register their works as it makes jurisprudence easier, the only advantage for anyone else to register is to be included in the Library of Congress catalogue.

Best,

Chris

Chris Zielinski
WHO Regional Office for Africa
Brazzaville, Republic of Congo
________________________________
From: goal-bounces at eprints.org [goal-bounces at eprints.org] on behalf of Bishop, Tom [TBishop at rcseng.ac.uk]
Sent: 20 November 2012 13:39
To: Global Open Access List (Successor of AmSci); open-access at lists.okfn.org
Subject: [GOAL] FW: [The 1709 Blog] Is the term of protection of copyright too long?

As just mentioned – includes details about the Republican Study Committee report and its subsequent retraction.

Tom.

From: 1709-copyright-blog at googlegroups.com [mailto:1709-copyright-blog at googlegroups.com] On Behalf Of Blogger
Sent: 19 November 2012 17:59
To: 1709-copyright-blog at googlegroups.com
Subject: [The 1709 Blog] Is the term of protection of copyright too long?

Last Friday the Republican Study Committee<http://rsc.jordan.house.gov/> published a policy brief entitled "Three Myths About Copyright Law and Where to Start to Fix It", which Techdirt <http://www.techdirt.com/articles/20121117/16492521084/hollywood-lobbyists-have-busy-saturday-convince-gop-to-retract-copyright-reform-brief.shtml> labelled as "surprisingly awesome".
The brief analysed the "possible reforms to copyright law that will lead to more economic development for the private sector and to a copyright law that is more firmly based upon constitutional principles". It argued that the current US copyright regime has retarded the creation of a robust DJ/Remix industry, hampers scientific inquiry, stifles the creation of a public library, discourages added-value industries and penalises legitimate journalism and oversight.
The brief suggested the following four potential policy solutions: statutory damages reform, expansion of fair use, punishing false copyright claims and heavily limiting the terms for copyright and creating disincentives for renewal.
However, the day after the brief was published the RSC issued a statement retracting it. The Executive Director of the RSC, Paul Teller, sent an email saying:
"We at the RSC take pride in providing informative analysis of major policy issues and pending legislation that accounts for the range of perspectives held by RSC Members and within the conservative community. Yesterday you received a Policy Brief on copyright law that was published without adequate review within the RSC and failed to meet that standard. Copyright reform would have far-reaching impacts, so it is incredibly important that it be approached with all facts and viewpoints in hand. As the RSC's Executive Director, I apologize and take full responsibility for this oversight. Enjoy the rest of your weekend and a meaningful Thanksgiving holiday...."
It is hard to find any information on the RSC's website, neither the brief nor the statement retracting it are there, however you can access a copy of the brief here<http://infojustice.org/archives/27807> thanks to InfoJustice.
The suggestion by the RSC brief  to reduce the term of protection is particularly interesting and has already been much discussed. Article 7 of the Berne Convention<http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P127_22000> provides for minimum copyright protection of 50 years plus life, and current US law grants copyright protection for 70 years after the date of the author's death.
[http://3.bp.blogspot.com/-dgooKH8lsSE/UKpw87XdYxI/AAAAAAAAAnw/duBGbroi_hw/s320/int2F7C.PNG]<http://3.bp.blogspot.com/-dgooKH8lsSE/UKpw87XdYxI/AAAAAAAAAnw/duBGbroi_hw/s1600/int2F7C.PNG>Both seem relatively long, in particular compared with the limited protection granted to inventions by patents. As you can see from the graphic to the right, copyright term in the US has increased steadily over the years. Before 1978 (which is when the US Copyright Act 1976 came into force), copyright was protected for an initial term of 28 years, renewable for a further 28 years, giving a maximum term of 56 years.
An interesting post by the Center for the Study of the Public Domain<http://web.law.duke.edu/cspd/publicdomainday/2012/pre-1976>, at Duke University, lists the works (published in 1955) that would have come into the public domain this year had the US Copyright Act of 1976 remained in force. These include:
- J.R.R. Tolkien's The Return of the King, the final installment in his Lord of Rings trilogy.
- Vladimir Nabokov's Lolita.
- Richard III, Laurence Olivier's film version of the Shakespeare play.
- Various scientific journal articles about the synthesis of DNA- and RNA-like molecules, the effect of placebos, the experimental confirmation of the existence of the antiproton, fibre optics, and the synthesis of mendelevium.

There is a certain irony that utility patents are currently protected for 20 years from application whereas articles containing know-how required to make the products of the patents can be protected for 70 years.
In the US there is a registration requirement for copyright, which makes it possible to see how many rightsholders still rely on copyright in works published in 1955, by looking at how many of them renewed their copyright registrations after the first 28 year term. The Center for the Study of the Public Domain has done the maths: 85% of authors did not renew their copyright (for books 93% did not renew). This means that if the pre-1978 law were still in force, 85% of the works created in 1983 might have come into the public domain this year.
The Open Government Dialogue<http://opengov.ideascale.com/a/dtd/Reduce-copyright-terms-to-the-minimum-required-by-the-Berne-Convention/5603-4049> suggests that: "Life of the author plus 50 years is enough to take care of the author and his family, and that is really what copyright protection is all about. The corporations are not people and do not need such protection to be successful." The above evidence indicates that a term of protection of 28 years is sufficient.
The RSC's policy said that:
"It is difficult to argue that the life of the author plus 70 years is an appropriate copyright term for this purpose – what possible new incentive was given to the content producer for content protection for a term of life plus 70 years vs. a term of life plus 50 years? Where we have reached a point of such diminishing returns we must be especially aware of the known and predictable impact upon the greater market that these policies have held, and we are left to wonder on the impact that we will never know until we restore a constitutional copyright system."

[http://3.bp.blogspot.com/-yziCPGoPOBQ/UKpxBDkdP8I/AAAAAAAAAn4/qZ3F26q-gN4/s320/int7228.PNG]<http://3.bp.blogspot.com/-yziCPGoPOBQ/UKpxBDkdP8I/AAAAAAAAAn4/qZ3F26q-gN4/s1600/int7228.PNG>The RSC's policy suggested that the term of copyright protection should be reduced to 12 years for all new works, with various renewal periods but with an upper limit of 46 years' copyright protection. This would contravene the Berne Convention however given the retraction of that policy we are unlikely to see any change in the US law any time soon.

I would be interested to hear what readers think: is the current US protection of 70 years plus life too long? Is the Berne Convention minimum of 50 years plus life too long? Given that copyright is more and more often used to protect technology, should the term of protection of copyright be aligned with that of of patents?

More legible versions of the above images can be accessed here:

Map showing copyright term worldwide<http://en.wikipedia.org/wiki/File:World_copyright_terms.svg>
© Balfour Smith, Canuckguy, Badseed
Expansion of copyright term in the US<http://upload.wikimedia.org/wikipedia/commons/2/2f/Copyright_term.svg>
© Vectorization: Clorox (diskussion), Original image: Tom Bell.

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Posted By Blogger to The 1709 Blog<http://the1709blog.blogspot.com/2012/11/is-term-of-protection-of-copyright-too.html> on 11/19/2012 05:58:00 PM
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