Last week I was at the ATRIP Conference to give an invited talk on “How Long Should Copyright Last?", based on my paper: Forever Minus a Day? Calculating the Optimal Term of Copyright.
Slide are here but you can also seem them inline below. You can also find the text of the accompanying introduction below (I plan to write up the full exposition as a short essay – but that is to come).
Most ATRIP participants were lawyers not economists, so this was an opportunity to do a more non-technical presentation (so no equations!). As with most economics, the fundamentals of calculating copyright term are simple: it is just a demand curve plus “welfare analysis” (a fancy name for adding up social benefits and costs), and shorn of “obfuscating” algebra these matters should be understandable by anyone.
Slides (full screen version)
How Long Should Copyright Last: Introduction
Before I begin it is important to note that in considering copyright and its term, we must leave to one side the questions of attribution and integrity – their existence and term can and should be considered quite separately from the ‘economic’ rights that form the core of copyright as it operates today.
This small caveat done, I beg your indulgence for a brief historical excursion. In particular, I ask you to cast your mind back a century and a half and more to the Houses of Parliament in the February of 1841.
As many of you will be aware Serjeant Talfourd had, by this point, been doggedly pursuing a new copyright act for four years – since 1837. Originally wide in scope the Bill had been narrowed and the attention of both supporters and critics alike had come to focus on a single feature of that Act: the proposed extension in the term of protection. Specifically Talfourd’s Act proposed changing the then rule of 28 years or life (whichever being the longer) to life plus sixty – remarkably close to the life plus 70 of today.
By February 1841 Talfourd’s Bill had failed no less than 4 times. On its fifth attempt it had reached a second reading and on the fifth of February it came before the House. After a brief introduction by Talfourd – mindful that this was not the first time the matter had been discussed – Thomas Babbington Macaulay rose to speak. In a masterly disquisition, both in content and rhetoric, Macauley set out his opposition to the Bill, and did so so tellingly that the motion was defeated. Talfourd, who lost his seat at the next election, and therefore only saw his Bill pass in the hands of another – and in much reduced form – remained forever embittered by Macaulay’s intervention – coming so late and so decisively in the process.
To read Macaulay’s speech, and, for that matter, the views expressed on all sides in that debate, is to be struck by how little has changed.
When Jack Valenti and Mary Bono are found in recent times calling for a term of ‘Forever Minus a Day’ one hears the echoes of Serjeant Talfourd all those years ago, just as one can hear echoes of those who oppose extensions today of the likes of Henry Warburton, a radical politician and vehement opponent of Talfourd, who claimed the extension was “a robbery upon the public” and that copyright ought to be fixed, “only on such a term of years as would prove a sufficient inducement for authors to write good books”.
And the analogy is telling in other ways. Though Talfourd’s Bill was beaten back by a swell of opposition year after year eventually it was passed – albeit in reduced form and by Lord Mahon – with this success attributable to a persistence made possible not, primarily, by the size, but by the concentration of the interests who sought its passage. Like Fabius Cunctator the proponents of extension, sustained by deep reservoirs of emotional and financial commitment, can afford to wait, able to return, as necessary, again and again, until an opportune moment presents itself for the attainment of their purposes – for the opposition to extension, though broad is ‘shallow’ and therefore more easily dissipated by distraction and division.
Even more striking are the similarity in the issues that occupy centre stage in this debate. First, the fundamental ‘philosophical’ question – which colours all of discussion – of whether we confer copyright because it is a natural right – which should therefore last forever – or for ‘utilitarian’ purposes, that is the public good – in which case it almost certainly should not. Second, descending from these lofty heights of principle, what is the actual effect is copyright? In particular, does it operate to raise price and restrict access – that is: is it a monopoly?; and what specifically are the benefits that accrue to the producers of copyrightable works, and what costs to the public and others who wish to use and reuse them.
I think it is clear that economists – or any group for that matter – have no great claim to authority on answering this first question of principle, for it seems, ultimately, one of opinion. That said, I would note two points which must raise grave doubts as to the existence of any fundamental natural right from which copyright might spring.
First, term limited in all jurisdictions. Second, the breadth of copyright’s application both in subject matter, quality and ownership. For can we truly convince ourselves that “eternal expressions of the human spirit”, worthy of exclusivity for all time, subsist in an advert for toothpaste; or convince ourselves of the special status of the creator when so much copyright today, perhaps even the majority, is immediately, and indeed often automatically, assigned from the ‘creator’ to a corporation.
However, it is not my intention to enter into this debate any further here. Rather, in the interests of ‘full disclosure’ I wish only to make clear my views – and those of economists generally – on the matter, namely that copyright is not a natural right but is created and maintained for the purpose of promoting and securing the public good, no more, no less. (These are views which can come as no surprise given the nature of this talk – an analysis of term only makes sense if its basis is a utilitarian one!)
Furthermore, let me also make clear, right at the outset, my view, and one again I think shared by almost all economists, that copyright is a monopoly. This is not to say that copyright is bad – far from it. But to deny that copyright is a monopoly is to obscure its basic nature and operation – an obscuration that has, furthermore and unfortunately, been most common and attractive to those pursuing copyright’s enlargement.
And what is the general tendency of monopoly – to echo Macaulay once again? It is indeed to raise prices and limit access. Now, of course, we may debate the precise extent of these effects, but there can be no denying that the very purpose of copyright’s existence is to confer on a single entity – the copyright holder – the power to control the dissemination, and hence the price, of all instances of a particular good – i.e. all copies of a given work.
This is the very definition of a monopoly and the fact that there may exist other goods, other works, which compete with that one makes no difference – a monopoly of apples is no less a monopoly because one does not control oranges. Of course, the existence and proximity of substitutes will alter the affect of the monopoly, but one must be cautious here: close substitutes may limit the negative effects of the copyright monopoly but they will, for the very same reasons, also limit the gains (those increased revenues for copyright-holder).
Returning then to Macaulay whose expression of the matter I cannot better:
“It is good that authors be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is evil. For the sake of the good we must submit to the evil, but the evil ought not to last a day longer than is necessary for securing the good.”
Our task then is to answer the implicit question: how long should copyright last (so as to not be a day longer than is needed)? More specifically what are the degrees of benefit and harm created by copyright’s monopoly and at what level should term be set to achieve the most advantageous balance of the two?
There follows an overview and explication of the analysis and conclusions on optimal copyright term found in: