A Humane Approach to Copyright Term

As the increasingly frantic public domain regurgitation business trawls through 1942 deaths of authors and composers (sadly we shall have to wait another 4 years for a copyright free revival of Chu Chin Chow unless someone wants to set the lyrics to new tunes), it seemed the right time of year to offer a different approach to the question of an optimal length for copyright.

If you buy the arguments of either extenders or shrinkers, copyright term has the ability to change things for better or worse, for creators and for the public, and for investors as well. Of the shrinkers, the favourite argument was advanced with some almost robust reasoning by Rufus Pollock. Here’s the formula:

a single simple equation which defines optimal copyright term as a function of exogenous variables potentially estimable from available data: the discount rate, the rate of ‘cultural decay’, the supply function for creative work and the associated welfare (and deadweight-loss) associated with new works.

Without going into a lengthy discussion, what Pollock leaves out is as important as what he includes. His answer seems to me to be more an artefact of our current complex of interrelated interests and terms than a ‘start from elsewhere’ route to optitopia.

Lengtheners either cite a fundamentalist belief in property – in which case any diminuendo from infinity is a blow against natural justice – or appeal to ‘fairness’, sometimes on behalf of people they neither represent nor intend to benefit. Lobbyists managed to halt the slide into the public domain for sound recordings in Europe at 1963 – that’s Love Me Do for us ordinary folk who had to make do with another remastered special edition. Citibank must have breathed a sigh of relief.

It would seem absurd to cite a crisis of supply, when the available catalogue is rapidly climbing through the 20s of millions; or indeed a crisis of quality as the production cost of music is often now dwarfed by the marketing cost, and there are many efficiencies yet to be realised in the processes that bring new music to market. So for those reasons there is little to justify any change at all. If incumbent catalogue owners are behaving badly with exclusive rights perhaps some incentives need a shuffle, but that is no reason to weaken the position of the creators. They are as much at a disadvantage as the rest of us if the global music groups decide to hold businesses and consumers to ransom over how we may buy and listen to music.

No. In the age of nutraceuticals, the only justification for fiddling with term of copyright has to be a humanitarian one. Here’s a suggestion.

Artists and other creators famously die young and often lead troubled and wretched lives. It is often a young person’s career, involving the stress of fame and overwork, and the prospect of abandonment by the industry when the hits dry up. Here’s a heart wrenching story from 2000 about Steve Strange, style icon and Visage singer. Thankfully he seems to be a music industry survivor.

So, what about linking copyright term to the national average life expectancy (NALE) and bundling it with a compulsory life insurance scheme to deal with the genuinely unexpected? In the UK, an average 20 year old would need a 60 year term to see them out. So lets make it life for the creators and artists, and bribe record companies and other exclusive assignees with an additional two years for each year that the artist lasts above NALE minus 10.

In case you think I have really lost the plot, here’s a bit of research that shows how much ground needs to be made up.

South Korea has given us a fantastic global hit recently, but spare a thought for the already mature pop star Park Jae-sang, 35 years old, who according to Professor Kim Jong-In (in Korean here) is likely to live only 65 years. That’s right, entertainers have about a 15 year handicap over other professions. Even politicians live for 79 years in South Korea. How unfair is that?

So an entertainer or artist who failed to live the requisite length would be doing their label out of valuable years of protection, at no benefit to themselves, as well as depriving the beneficiaries of their life insurance of whatever the extra premiums might buy. Would this not give creators the right kind of incentive to lead long, healthy and productive lives, and assignees the motivation to help them? And Government too would have a much easier route to helping the ‘creative industries’, via policies that benefit all of us.

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