Copyright in various forms has again been high profile this year as
a significant factor for the future of media in the US, particularly
with reference to the Internet but also in general terms as the US
Supreme Court last month upheld the right of the US Congress to extend
copyright (through the 1998 "Bono" law, named after the
late California Republican Representative Sonny Bono).
The ruling was made by a 7-2 majority with the dissent coming from
Justices John Paul Stevens and Stephen Breyer, with the latter saying
he thought the court was "failing to protect the public interest
in free access to the products of inventive and artistic genius."
The actual ruling was on the rights of Congress to pass the laws and
related to a case brought by Eric Eldred who said the copyright extension
unfairly limited what he could make available on a public - and not
for profit - web library he runs.
Because he lost, thousand of books and music sheets that are out of
print have effectively been buried as have many audio and video recordings
of legitimate interest to scholars and the public with the main benefit
being to the financial interests of some very large US media corporations;
We go along with the comments of Breyer.
As a first step, it should be noted that US Copyright
originally ran only for a period of 14 years and the intent
was to strike a reasonable balance between the benefit to society
in general of the free flow of ideas and the reasonable interests
of authors; it has subsequently been repeatedly lengthened by
the US Congress so that it now stands at 95 years for Corporations,
or 70 years after the death of an author.
This extension has been made by Congress against a background
of ferocious lobbying by industries that stand to benefit, led
in particular by Recording Industries Association of America
(RIAA) and the Movie Producers' Association of America
(MPAA), and it would not be unreasonable to say that in other
terms and countries many of the people defending the extension
would describe similar actions as corrupt.
We agree; we think in this particular area the US legislature
has been corrupted although we can see why the Supreme Court
ruled that it had the right to pass such legislation.
Where we would like to go now
We fully accept that in the current US situation, going back on
the above decision is a pipe dream but note that decisions for Europe
and other parts of the world are still pending so hope that some
different views may yet prevail elsewhere.
That does not stop our having a reasonable pipe dream, both for
printed and audio and visual works. In particular we think the balance
needs to be changed so that Internet publishing of content, albeit
in low quality so as to allow research and assessment, is much less
restricted than at present, thus keeping work available to the public.
In particular, our view is that the Internet has significantly changed
the balance in terms of allowing distribution for low-quality browsing
- of value to scholars and the general public - without affecting
the commercial distribution of high quality commercial versions
of a work (Can the RIAA or MPAA seriously make a case that the ability
to assess a work in poor audio quality or on a small computer window
will really affect the sales of a CD or HDTV quality commercial
version of a work?)
We have tried to strike a balance, therefore, between what we think
should be freely available in the public domain and allowing reasonable
rewards for individual and group/corporate efforts in creating and
developing works of various kinds.
For the individual author, we have more sympathy than the corporation
in that he or she is often at the beck and call of the giants in
that they often cannot afford to publish works themselves; at the
same time, they do not benefit from their work being unavailable.
We would also note that in practical terms, the value of a work
is often negligible should a corporate copyright owner decide not
to republish or keep the work available whilst a suitable small-fee
system could potentially keep a work alive and provide a reward
An author's reasonable
We would suggest an author or the author's heirs
retain the benefits of copyright for a period of 50 years after
his or her death (as before the Bono extension); at the same
time, for the public benefit, should the work be out of publication
for a period of five years, all rights sold to any publisher
or Corporation should automatically die and any non-profit organization
should be able to a acquire the non-exclusive right to publish
the work at any period during the work's remaining copyright
at an advance fee for any year equal to the average annual payment
the author has received over the previous ten years (if the
work has been in publication that long) or for the number of
years it has been in publication prior to that five years.
This would be an incentive to continue to make works available
to the public and yet provide some benefit to the author for
less popular creations in which there is still a limited interest.
A Corporation's reasonable
In the case of a corporation, its interest in
a work is financial and we would adjudge that material that
it has not been profitable to make available to the public for
five years should be considered forfeit. To prevent price gouging
where the potential market is small but has a real need of the
work (as with some material of interest to academics), the maximum
price allowable should be twice that at which the material was
first offered for sale and any breach of this rule should automatically
lead to total loss of any copyright claim over the work or,
in the case of something like software, of any development from
As regards the maximum period, we take the view that the potential
benefit to the public of having access to material of historical
record on a non-commercial basis is such that the current period
is far too long.
We would therefore take the view that material where the content
rather than the technical quality is of such interest should
go out of copyright after 14 years - the original US copyright
period for non-commercial Internet distribution of what we would
term low-technical quality copies (i.e. audio visual material
could be published in a non-recordable format such as current
streaming video and audio and print material in plain text or
low-quality JPEG-type format).
To protect the interest of the copyright holder, we would see
it as quite reasonable to insist that such distribution should
be required to carry details of the publisher with links to
an appropriate site where a purchase of the high-quality copy
(be it of a video, audio recording or published print work)
could be made; we suspect this might well actually boost the
income of many media companies.
We would particularly see it of value that a copy of all material,
(as happens with books published in the UK, where a copy has
to go the British Library) should have to be made available
to a national public archive to ensure that a society can ensure
a proper historical record is available to later generations.
Thereafter copyright in any sense would be of a maximum 50 years
from the creation of the work, again with some caveats to prohibit
the extension of copyright through making minor modifications
backed up with the potential loss of all copyright in a work
should such an extension be challenged and found to be wanting.