There has been plenty of talk over the years about why we keep extending copyright. Of course, we've discussed
the infamous Mickey Mouse Curve, showing how copyright extension always seems to happen whenever Mickey Mouse is going to hit the public domain.
However, Julian Sanchez notes that this doesn't explain the whole story
. After all, if it was just about protecting the very, very small number of works that still have commercial value after so many years, then you would think we would have evolved away from the "copyright absolutely everything for as long as possible" model, to one that plenty of people have suggested: one where there are regular (and perhaps escalating) recurring fees to keep renewing your copyright registration. That way, works like Mickey Mouse could stay covered by copyright, but all the other works which have been otherwise abandoned can actually contribute back to culture and be used by anyone who wants to make something with them.
As Sanchez notes, you would think that even the Disneys of the world would like this model better. Even if it had to pay such recurring fees, the overall cost will ultimately be tiny compared to the value of the copyright. Plus, it would then open up a treasure trove of public domain material that they could use in their own works -- and Disney, in particular, has a well known history of making use of public domain works.
So why do we still have a "copyright everything for as long as we live, plus 70 years" (for now)? Sanchez posits a compelling theory. That Disney and other big copyright holders like this, because it keeps them from having to compete with their own back catalog:
Insanely long copyright terms are how the culture industries avoid competing with their own back catalogs. Imagine that we still had a copyright term that maxed out at 28 years, the regime the first Americans lived under. The shorter term wouldn’t in itself have much effect on output or incentives to create. But it would mean that, today, every book, song, image, and movie produced before 1984 was freely available to anyone with an Internet connection. Under those conditions, would we be anywhere near as willing to pay a premium for the latest release? In some cases, no doubt. But when the baseline is that we already have free, completely legal access to every great album, film, or novel produced before the mid-80s—more than any human being could realistically watch, read, or listen to in a lifetime—I wouldn’t be surprised if our consumption patterns became a good deal less neophilic, or at the very least, prices on new releases had to drop substantially to remain competitive.
This story certainly fits with Disney -- who famously decides to completely stop selling certain old classics and put them "in the vault" for a while, pulling them off the market entirely. For Disney, it's all about keeping out competition, which it wouldn't be able to do if copyright didn't last so long.
This actually reminds me of the missing 20th century
of books that we discussed a few months back, highlighting how the amount of new works from each decade drop off rapidly the further back you go, until you hit 1923 -- the current cut-off for the public domain.
Sanchez does note that it's possible
this actually drives more investment into new works, since they don't have to compete with the old. And, if you believe (which he doesn't) that new works automatically have more value than old, then you could make a twisted sort of argument that this kind of protectionism, and effective locking-up of about a century's worth of creativity, does "promote the progress" in that it moves the focus to newer works, rather than older ones. But I don't buy that at all. It ignores the fact that the giant gap doesn't just represent competitive works, but also raw material and inspiration for all kinds of amazing new works -- which are effectively killed off.
That gap represents lost culture. But, for the big legacy entertainment players, it might also represent repressed competition. That shouldn't really be surprising. After all, that is the whole purpose of government-granted monopoly privileges.