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Copywrong: Part 1

March 24, 2010

One factor that most clearly defines the balance sought by IP laws is the term of protection. Longer protection increases value to the owner, but limits others’ ability to build off the creation and gives the creator less incentive to keep creating. Setting a reasonable term of protection for protected intellectual property is the first step in balancing innovator rights with promoting the public domain and stimulating further innovation.

In the case of copyright laws, the term of protection continues to be extended solely because of political pressure exerted on Congress by influential copyright holding companies. Rampant copyright term extension prevents works from periodically going off-copyright and passing into the public domain for use by others. Currently, the most recent copyright term extension ensured that from 1998 until 2019 no copyrighted work will pass into the public domain.

Preventing works from passing to the public domain stifles creativity and innovation because it limits the works that people can use as a basis for their own creativity. A large percentage of creative works are based on, or similar to, other works that have since passed into the public domain. Therefore it is vitally important for the creation of works of authorship that the public domain is large and is continually replenished with works that periodically go off copyright.

Instead of supporting creativity by allowing a steady flow of works passing to the public domain, Congress has done the complete opposite. Since 1978, copyrighted works have been protected from passing into the public domain (presuming the proper formalities were taken for works published before 1977). First, the Copyright Act of 1976 extended the copyright term, then in 1998, as the previous extension was coming to an end, the term was again extended by the Copyright Term Extension Act.

The 1976 Copyright Act extended the maximum copyright term from 56 years to the life of the author plus fifty years, or 75 years in the case of ownership by a corporation. The Copyright Term Extension Act of 1998 extended the copyright term again by 20 years, and was applied retroactively, meaning that anything on copyright in 1998 would have its term extended for another 20 years. This pattern of legislation has ensured that the public domain was effectively frozen with regard to copyrighted works as of 1978. Congress has ensured that the public domain has not been replenished with new material to stimulate creativity since long before I was born. Such a legislative approach truly flies in the face of sound IP policy.

My issue is not so much with the length of the current copyright term, but with the pattern of extending the term, preventing works from passing into the public domain. This type of legislation is a blatant genuflection to influential corporations, and prevents important works from passing to the public domain for continued innovation by others.

There is almost no doubt in my mind that in 2019, when the copyrights are poised to pass to the public domain, that there will be more legislation to further extend the term. Without a major change in the view of Congress, this is the direction we are headed.

For some more info on the issue, visit: http://www.law.duke.edu/cspd/publicdomainday.

Also useful is this chart

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