THE COPYRIGHT TERM AND EFFECT ON CREATIVITY
INTRODUCTION
Copyright is a legal concept that gives creators of intellectual property exclusive rights to the use, distribution, and sale of their work. The purpose of copyrights is to encourage creativity and to protect creators from the exploitation of their work by others. Although copyrights are necessary for protecting creators and the products of their creative labor, the length and scope of copyright terms can have an adverse effect on creativity. This essay explores the impact of copyright terms on creativity. It argues that while copyrights are important for protecting creators and their work, overly long or restrictive terms can have a stifling effect on creativity. Through highlighting the historical context of Copyright terms, it examines court decisions and scholars’ concepts on the impact of the Copyright Extension Term on the ability of creators to build upon existing works. It concludes by establishing a case for creating a balance on the enforcement of the Copyright Extension Term.
THE CONCEPT OF COPYRIGHT AND THE RIGHT OF THE COPYRIGHT OWNER
Copyright is a federal law, and the Copyright Act of 1976, as amended, governs copyright law in the United States. The Copyright Act provides for the exclusive rights of copyright owners, including the rights to reproduce the work, prepare derivative works based on the original work, distribute copies to the public, perform the work publicly, and display the work publicly. The purpose of copyright is to encourage the creation of new works of authorship by providing creators with exclusive rights to control the use and dissemination of their works. Leaffer (2010) believes that Copyright is a highly descriptive term that can also be a misnomer. He stated that today’s Copyright is all-encompassing in the protection of works against copying. For him, most of what Copyright Law protects including but not limited to display and performance, derivative works etc can be more closely related to the right to use a work than the right to copy the work.
The right of the copyright owner is the exclusive right to control the use and dissemination of copyrighted work. The Copyright Act of 1976 grants copyright owners a bundle of exclusive rights. The right to reproduce the work is the exclusive right of the copyright owner to create and reproduce copies of the copyrighted work in any form, including digital and analog copies. The right to prepare derivative works is the exclusive right of the copyright owner to create works based on the original work such as a translation, adaptation, or sequel. The right to distribute copies of the work to the public is the exclusive right of the copyright owner to distribute copies of the copyrighted work to the public. The distribution right includes the right to sell or rent copies of the work to the public. The right to perform the work publicly is the exclusive right to perform the copyrighted work publicly and includes the right to perform the work in any public place, such as a theater, concert hall, or club. Finally, the public display right is the exclusive right of the copyright owner to display the copyrighted work publicly. The right to display the work publicly includes the right to display the work in any public place, such as a museum or gallery The exclusive rights of a copyright owner are limited by the doctrine of fair use of the work. The doctrine of fair use is when a work is used for the purpose of criticism, comment, news reporting, education, scholarship, or research. These uses are non-infringing uses that do not require the authorization of the copyright owner.
UNDERSTANDING THE CONCEPT OF COPYRIGHT TERM
Various court cases and legislative changes, impacting the duration of copyright protection, have contributed to the rich and complex history of Copyright. Copyright term signifies the length of time that copyright protection is granted to the owner of an original work, and it has changed significantly over time. It is the period during which an author's exclusive rights to their creative work are protected by law. A variety of factors like changes in technology, economic considerations and social and cultural norms have significantly influenced the concept of copyright term.
The Statute of Anne, enacted in 1710 in Great Britain, is often considered the first copyright law (Patterson 1992). The drafted model of copyright term became the basis for many subsequent copyright laws in other countries. In the United States, the first federal copyright law was enacted in 1790, which also adopted the 14-year copyright term in the Statute of Anne with an option for renewal for another 14 years. Yu (2007) stated that apart from the clauses on maps and charts, the Copyright Act of 1790 is copied almost verbatim from the British Statute of Anne. In fact, Patterson (1992) claims that “copyright was received into the United States as the grant of a statutory monopoly, not as the natural law right of the author”. In the 1830s, the United States experienced the introduction of an influx of foreign works, which were not protected under American copyright law. To protect American authors and content creators, various sectors like the music and entertainment industries advocated for the extension of the Copyright Term (Ray 1968). The enactment of the Copyright Act of 1831 addressed this issue by extending the copyright term to 28 years and provided an option for renewal for another 14 years.
The advancement of technology in the 20th century brought about major changes and challenges faced by Copyright Law. Copyrighted works developed economic prominence and became more valuable, leading copyright owners to continue their advocacy for copyright term extension. The basis of their argument lies on the opportunity longer term will provide in the recoupment of their investment and the need to earn a fair return on their creative output (Ray 1968). The invention of the radio, television, and film saw a robust drive from technological inventors who raised questions about how copyright protection should apply to these new forms of media. A positive response to the call of investors saw the enactment of the Copyright Act of 1909 which extended copyright protection to include "mechanical reproductions" of works, such as records and sheet music. However, the enactment of the Copyright Act of 1909 did not stop the ongoing outcry for the review of the Copyright Act to protect creative works even though the Copyright Act of 1909 increased the initial term to 28 years, with the option of renewal for an additional 28 years which meant that copyright protection could now last for a total of 56 years.
In 1976, Congress enactment of The Copyright Act, replaced the 1909 Act and further extended the copyright term to the life of the author plus 50 years. This change was made in part to bring US copyright law into conformity with the Berne Convention, an international agreement that sets minimum standards for copyright protection (Nimmer 2022). The Copyright Extension Term under this law, meant that if an author lived for 50 years after the date of publication, their work would be protected for a total of 100 years. For works made for hire, or those created by an employee within the scope of their employment, the term was extended to 75 years from the date of publication or 100 years from the date of creation, whichever came first (Nimmer 2022).
In 1998, the copyright term was extended yet again with the passage of the Sonny Bono Copyright Term Extension Act of 1998. This Act extended copyright protection for works created on or after January 1, 1978 to the life of the author plus 70 years. It also extended the term for works made for hire and anonymous works to 95 years from the date of publication or 120 years from the date of creation, whichever came first. The Sonny Bono Act was controversial at the time, with some arguing that it was a blatant attempt by the entertainment industry to extend copyright protection for their own financial gain. Supporters of the law argued that it was necessary to protect the rights of creators and encourage the creation of new works.
EFFECT OF COPYRIGHT TERM ON CREATIVITY
The ongoing addition of excessive long-term terms prompted extensive debate and discussions in the United States regarding its effect on creativity. While some scholars claimed that longer copyright terms may incentivize creators to produce new works and provide greater financial security, there were also concerns that long copyright term may restrict access to creative works and limit opportunities for innovation and creativity.
One of the primary arguments in favor of long copyright terms is that they promote investment in creative works. This is because longer terms provide creators with a greater level of financial security, allowing them to invest more time and resources into the development of their works (Khanna 2015). Nimmer (2020) explains that the “copyright status of an author’s work is by no means solely an academic issue, or one related simply to our trade balance with Europe. Rather, such a creative work is of legitimate proprietary interest to the families of the authors”. He stated that this proprietary interest has been provided by the Copyright Act in accordance with the provision of the constitution with the aim of providing incentives to creators to expand their knowledge and culture by allowing them to reap the economic benefit of their creations for “limited times” (Nimmer 2020). There have also been various debates on what term of protection would appropriately reflect the “limited time” as established by Article 1, Section 8 of the U.S Constitution. Congress goes with the general idea that a provision should be established for Copyright to protect the author and at least one generation of heirs. For Congress, the insufficiency of the 56yrs created by the 1909 Act brought about the life-plus-50 term in 1976 to ensure fair economic returns for American creators and their dependants (Nimmer 2020). Also, Congress believes this provision to be in concert with international standards like the Berne Convention and the EU Directive which have accepted the standard that copyright should protect the author and two succeeding generations (Nimmer 2020). However, this was clearly contested by Khanna (2015) who stated that Congress has expanded copyright far beyond what was originally intended. Notwithstanding, in concluding the report on the re-examination of the sufficiency of the life-plus 50-year term, the Permanent Committee of the Berne Union stated that most US inventors and creators anticipate that the protection of their work through their copyrights will serve as important sources of income for their children and through them into the succeeding generation. The Committee believes that “this general anticipation of familial benefit is consistent with both the role of copyrights in promoting creativity and the constitutionally based constraint that such rights be conferred for “limited times.” (Nimmer 2020). In Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), the Supreme Court reaffirmed the importance of the copyright owner's ability to profit from their work as a key policy consideration behind copyright law.
Another potential positive effect of long copyright terms is that they provide greater protection and preservation for works of historical and cultural significance. Longer terms ensure that creative works are preserved for use by future generations. Nimmer (2020) argues that, added to the strengthening of existing incentives to create new and derivative works, “the 20-year extension of copyright protection will provide the important collateral benefit of creating incentives to preserve existing works”. He referred to creative works like motion pictures and musical works in the 1920s and 1930’s which form part of the nation’s cultural heritage that artists desire to preserve. For him, these works would soon fall into the public domain and the exclusive right to reproduce these work would become unprotected. As such, he argued that the extension of the copyright act for terms not yet in the public domain will give copyright owners the assurance of 20yrs to recoup their investment. This for him will enable the American public to also benefit from having the cultural treasures available in an easily reproducible and indelible format.
The case of Eldred v. Ashcroft, supports Nimmer’s position on the extension of the Copyright term for historical and cultural works. In this case, the Supreme Court considered the constitutionality of the Sonny Bono Copyright Term Extension Act, which extended the term of copyright protection by 20 years. Even though the plaintiffs argued that this extension violated the "limited times" requirement in the Copyright Clause of the U.S. Constitution, the Court found that the extension served the government's interest in promoting the progress of science and the useful arts by preserving works of historical and cultural significance. Noga (2007) however, finds the Supreme court decision quite absurd and in her article argues that an excessive period of protection will lead to “monopolistic control over much of this nation's cultural resources and such control would…stifle and inhibit social, artistic, and intellectual development”. Even though she recognizes that the extension of the copyright term was to ensure that American society creates a platform to encourage the intangible product of the mind, provide an incentive for the production of creative works and put a stop to the undesirable copying of the work of copyright owners, she maintains that US constitution also provides that “control should be for a limited duration of time so that others can build upon the previously copyrighted material to produce new work”. She believes that the decision of the court had the “unfortunate and unintended effect of burying works that could otherwise be resuscitated” and dismisses the “familial benefit” justification proffered by Congress and the Court for the extension of Copyright Term. In line with Noga (2007), Justice Breyer's dissenting opinion did not support the familial benefit justification used by the Supreme Court for the extension of copyright term and that the “weaknesses in the rationales of the court decrease the legitimate or serious copyright-related justifications for the CTEA” . Justice Breyer argues that excessively long copyright terms can impede creativity by making it more difficult for creators to build upon existing works whilst noting that shorter copyright terms can benefit the public by increasing access to creative works.
Furthermore, long copyright terms can incentivize the development of new technologies and industries. This is because longer terms provide greater financial security to creators and investors, which in turn encourages investment in the development of new technologies and industries. In the 1998 case of Sony Corp. of America v. Universal City Studios, Inc., the US Supreme Court considered the legality of the Betamax video recorder. The Court found that the device was legal because it had substantial non-infringing uses, which included time-shifting and home recording. The Court noted that Betamax had the potential to create new markets and opportunities for the development of new technologies.
A CASE FOR CREATING A BALANCE ON THE ENFORCEMENT OF COPYRIGHT TERM
The enactment of the Copyright Act has two foci. The key focus lies on the knowledge that the public gets from the labors of creative artists and authors while the ancillary focus lies in the incentive that is provided to authors as a reward to produce their creative accomplishments. As such, copyright law should create a delicate balance of public and private interests. In order to achieve this balance, at some point, private control of copyrights must come to an end to allow for the uninhibited public use of creative works.
Though court decisions and scholars’ opinions have favored the extension of copyright terms for the promotion, maintenance, and preservation of copyrighted works, there exists an abundance of proof to the contrary. In Eldred v Ashcroft , the Society of American Archivist explained in their brief that while few popular works remain in circulation throughout the copyright term, few original creations remain in circulation after 95years, and this has the tendency of burying works that could otherwise have been resuscitated. They mentioned that "thousands of old movies sit on shelves deteriorating because the companies that hold the copyrights make no efforts to restore them or make them available, while their copyright status prevents others from preserving such works” . The Society of American Archivist also cited Frank Capra's 1946 film “It's a Wonderful Life” which gained prominence when the film was abandoned and its copyright lapse inadvertently. This movie “lay gathering dust in a movie studio until the 1970’s” when its copyright expired. Immediately it goes into the public domain “several public broadcasting stations aired the film during the Christmas season” (Noga 2007). The advancement of digital technology restored its prominence to the classic tradition.
A similar case is the silent film "Metropolis" directed by Fritz Lang, which was released in 1927. Although the film was a critical and commercial success at the time of its release, it struggled to maintain an audience in subsequent years due to poor distribution, editing, and incomplete restorations. Over time, much of the original film was lost or destroyed, leading to various versions of the film being distributed, some of which were heavily edited and re-scored. It was not until the 1980s, more than 50 years after its original release, that a restored and near-complete version of the film was discovered and re-released. This is a reflection that the intent of Copyright law to promote innovation and creativity is being undermined by excessively long copyright terms. When creative works are kept out of the public domain for too long, they can stifle creativity by making it harder for new works to be created by building on existing works.
A balance in the enforcement of copyright term can promote innovation by ensuring that works enter the public domain in a timely manner, allowing others to build on them. Khanna (2015) cited examples of the inability of new artists, directors, and writers to create derivative works without paying high fees as clarity of evidence that rather than serving as an incentive to create, excessively long copyright term has hindered creativity. Khanna (2015) blames excessively long copyright terms on the inaccessibility of the entire speech of Martin Luther King's: “I Have a Dream”. He cited the suit on Columbia Broadcasting System (CBS) in 1999 for using portions of the speech in a documentary. He explains that if the USA was operating on shorter copyright terms, the clips would have been available publicly to serve as inspiration or motivation to students since learning flourishes “when historical clips are in the public domain”. He noted that the speech was given for political reasons and for historical value and it was disappointing that King’s intent remains unrealized, as, in the name of copyright protection, generations of schoolchildren are denied the ability to watch this speech which serves as a clear abuse of the intent for copyright to promote "the progress of science and the useful arts."
The music of blues musician, Robert Johnson, who recorded only 29 songs in his lifetime, which was cut short by his death at the age of 27 in 1938 demonstrates how the long copyright term can limit access to cultural works and stifle the creative development of existing works. Despite the limited number of recordings, Johnson's music had a significant influence on later musicians and genres such as rock and roll. However, due to the limited distribution and marketing of his recordings at the time, many of his songs were forgotten and lost to time. It was not until the 1960s, more than 20 years after his death, that a resurgence of interest in Johnson's music led to his recordings being reissued and rediscovered by a wider audience.
Finally, the rapid advancement of technology could make it impossible for the use of some copyrighted works, due to the disintegration of physical technology at the expiration of the excessive copyright. A typical example will be the creation of games with daily improvement on the versions of these games. Khanna (2015) gave a typical example of a working Nintendo. He explains that “100 plus years from now, an average person would be unlikely to be able to procure a working Nintendo 64 and play Nintendo 64 games legally” and that due to the excessive length of the copyright term, the physical technology to play those games will be nonexistent. It is highly unlikely that most of these games can survive in working conditions after the expiration of the copyright term even if well taken care of. In this case, Khana (2015) considers the dream of Congress to be unachievable when the need to promote the progress of sciences and useful art through a temporary monopoly for a “limited time” is so long that the medium is no longer accessible after the expiration of the monopoly.
HOW CAN WE CREATE A BALANCE ON THE ENFORCEMENT OF COPYRIGHT TERM
Creating a balance in the enforcement of copyright terms can be challenging as it involves reconciling the rights of copyright holders with the interests of the public in accessing creative works. In Harper & Row v Nation Enterprises , the Supreme Court noted that the challenge of copyright is to strike the “difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand.” Though critics question the possibility of creating a balance since the author’s interests are distinct from the public, other scholars believe in the possibility since through Copyright, authors are given the means to pursue their self-interest whilst the public benefits as a result of the pursuit.
To achieve this, there has to be the maintenance of a marketable property right that balances the primary goals of copyright which are rewarding the intellectual labor of authors and encouraging the dissemination of expressive works to the public (Snyder 2015).. The intention of authors and distributors is to gain access to a wider audience to market their products and derive substantial economic value from them. For there to be a stable and sustainable market for creative works, such as books, music, films, and software, the creators or distributors of those works must be able to earn enough revenue to recoup the investment they made in producing and distributing those works. Copyright does not have monopolistic properties, even though individual works may be unique. If a copyright owner tries to charge an excessively high price for their work, consumers can choose to purchase a similar work from another author or distributor at a lower price, which prevents the copyright owner from having a monopoly on the market (Snyder 2015). The eighteenth-century economist, Adam Smith, in his book “The Wealth of Nations” articulated that rational self-interest in a free-market economy leads to economic well-being” . He noted in his “Wealth of Nations” that, “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” By maintaining marketable property right, consumers benefit from a wider variety of high-quality works being available in the market, while creators benefit from the ability to continue producing and distributing their works and earning a living from their labor.
Implementing Creative Commons License (CC) is an international measure that can be adopted by the United States to create a balance in the enforcement of copyright terms. CC licenses allow creators to share their works with the public while retaining some rights. This licensing scheme promotes the use of copyrighted materials while ensuring that copyright holders' rights are protected. West (2009) stated in her research that the benefits of using CC licenses for individuals are numerous, including the ability to customize the rights they would like to grant to others and maintain control over their work. With CC licenses, creators can choose to allow others to use their work for any purpose, if they are credited, or they can limit the scope of the license to only allow non-commercial use, for example. The United States could encourage the use of CC licenses by offering incentives such as tax breaks to creators who adopt this licensing scheme (West 2009).
Finally, the United States Congress should start thinking of reducing its copyright term and promote international agreements that seek to create a balance in the enforcement of copyright terms. The World Intellectual Property Organization (WIPO) is one such organization that seeks to harmonize copyright laws among member states. By promoting international agreements, the United States can ensure that copyright laws are enforced uniformly across different jurisdictions, thereby promoting creativity and innovation. Shortening the copyright term would promote the availability of works in the public domain, allowing for more creativity and innovation.
CONCLUSION
In conclusion, the Copyright Extension Term has a significant impact on creativity, innovation, and public access to culture. While copyright law is intended to protect the rights of creators, excessively long copyright terms can stifle creativity, limit access to cultural works, and result in windfall profits for copyright holders. Therefore, there is a need for a balance in the enforcement of copyright terms that consider the interests of both creators and the public. By maintaining marketable property right, implementing Creative Common License, reducing the Copyright Extension Term, and Promoting International Treaties and Agreements amongst others, the United States can strike a balance that benefits everyone. Ultimately, it is important to consider the broader societal implications of copyright law, rather than simply focusing on the interests of individual creators or copyright holders.
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