Some Eldred Thoughts
19 January 2003
I'm not sure I can fully accept that extended copyrights are a fatal blow to innovation, as some have recently argued. Creativity will always express itself, regardless of limits. The example that comes to mind is all those birthday chants you hear in chain restaurants. Because the traditional "Happy Birthday To You" song is copyrighted and the estate of the original author enforces that copyright, restaurants had to either pay a license fee or come up with a new way to sing birthday wishes. So they chose the latter. Had "Happy Birthday To You" passed into the public domain decades ago, those other birthday songs might never have been created. It's a trivial example, perhaps, but it's symbolic of a larger process.
Despite this, I think it's totally unreasonable that copyrights are being extended. If Congress wants copyrights to last longer so their corporate sponsors can continue to benefit, they should just change the length of copyright terms. Or change the way in which copyrights are limited in term. The proposed copyright renewal fee is one approach. A review board would be another, although the performance of the patent office doesn't give me a lot of hope there.
Personally, I've thought for a while now that the copyright term was too long, even before it got extended. This happened because I hit a copyright problem three years ago, in fact, and so had to give the topic some consideration. While I was webmaster for Case Western Reserve University, we decided to have a little fun for year 2000. I made over the site's main page to look like a 1900-era flyer, actually added some year bugs to the page to make the joke work, and went to the univeristy archives to scan some pictures from the 1898-1900 time frame for use in our "Images of CWRU" feature.[1] There was some great stuff there, but much of it was unusable because nobody knew who the authors were, so the material wouldn't pass into the public domain until 2020 or so. At that time they'll be 120 years old, if not more. That's completely unreasonable, in my view.
As far as I'm concerned, a work ought to be under copyright until the death of the author(s) or twenty-five years after its publication, whichever comes later. I'd be willing to discuss that latter interval's length, but it seems about right to me. Before someone decides to condescendingly pigeonhole me, I didn't come to this belief from some leftover sense of Sixties-era socialist utopianism; I wasn't even born before the Sixties ended. Although I'm not entirely sure why concern for social welfare and health is a cause for sneering dismissal. Anyone who thinks themselves more important than the rest of a given society needs to work on getting over themselves.
No, I think copyrights ought to be limited because I'm a pretty thorough individualist. I don't see any fundamental reason why rights to a work should survive the individual who created it. The twenty-five-year limit I envision covers cases where the artist (author, singer, whatever) dies shortly after completing a work, to give his estate time to reap the benefits he would have had he lived. That's about it. After that, the work should pass into the public domain. If any of that is a problem for an artist, they always have the freedom not to publish their work, and so never surrender rights to it at all. The same freedom artists have now, in fact, if they think copyright terms are too short.
Of course, there's the objection that descendants of an artists would be unable to benefit from a work if the copyright expires upon his death. That's not true. First of all, if the work was that beneficial, then the artist should be able to leave his descendants some money anyway-- and if he spends it all and leaves them nothing, then that's certainly his right. Second, why should the descendants of an artist benefit from work they didn't do? Drawing benefit without doing anything to earn it-- that sounds suspiciously socialist to me.
I think it's great that these cases are drawing so much attention, and that people in information technology are (slowly) becoming more politically aware as a result. I think it's something we've needed for a while. Personally, I hope the result of this politicization is long-term change in areas like copyright and patent law. I also hope that the changes are made to enact a rational balance of personal and societal rights. I'm less confident about the latter, but one never knows.
[1] If you want to see the Y2K redesign, visit http://www.meyerweb.com/eric/portfolio/cwru2k/ ; the archive pictures we used are at http://www.meyerweb.com/eric/portfolio/cwru2k/pix/y2k/pixdex.html. The change was mistaken by the Washington Post and Wired as a real Y2K bug, which I thought was hilarious. We also got a bunch of mail, half basically saying "ROTFL!" and the other half making fun of us for having a Y2K problem, which was even more hilarious. But in all that was a letter from the widow of a former professor who remembered a lot of what we'd depicted, and wrote very movingly about how she appreciated having taken that trip into memory, even briefly, and thanking us for making it possible.
Had the pictures we did use not already been in the public domain, the joke would never have happened for lack of material, and that woman would have been denied a moment that meant a great deal to her-- far more than I would have ever believed our little prank could provide to anyone.