October 31, 2006  ·  Lessig

So as noted here before, Britain is considering extending its copyright term for recordings from 50 years to 95 years — including both existing recordings and recordings in the future. (Remember, we increased our copyright term to “harmonize” with the Europeans; now the Europeans are increasing their copyright terms to “harmonize” with the US. Will this cycle end? Of course not.)

The ippr just released a very smart report about IP issues generally. It identifies well the errors in this pattern of extension. (The report is not free for downloading (a problem it didn’t note), but an executive summary is here.) And a new activist group in Britain, the UK Open Rights Group will soon release a short policy paper.

But the real problem with this debate is that the proponents for term extension are (1) sexy media figures who (2) only discuss the issue in well choreographed events that allow no real opposition to their views to be heard, while (3) the press never adequately covers events where the issue is properly, and adequately, addressed.

Exhibit one in support of the above: This piece by a favorite of this page, Andy Orlowski (remember his really nasty piece about my representing Hardwicke in the boychoir case, ending with: “Lessig has shown an ability to clutch defeat from the jaws of victory before.” No followup by Andy after the verdict.) Orlowski usually gets media issues right. But this piece is full of the most obvious errors. (E.g., he refers to “the estimates of economic Armageddon that term extenders propose – which may be £143m over 10 years, according to PriceWaterhouseCooper,” never pausing to actually analyze what this “Armageddon” is: The argument is that Britain hurts because a £143m tax is not imposed on the British people in order to benefit the likes of Sir Cliff. Talk about trickle down economics.)

But reporters just to report what they see. So I take it Orlowski didn’t see the full story. No surprise, since as he mentioned, the “panel discussing the issue was loaded with advocates for extending copyright terms, and only one dissenter.” Ah yes, Soviet style public policy discussion, again itself not remarked in Orlowski’s article.

The sexy will never stoop to debate this issue in a fair and balanced context so long as they get away with “debating” it in the sort of contexts they do. And they get away with it only so long as the press and politicians permit them to. So let’s let this permitting stop: Britain should demand a debate about these issues in a context in which both sides get a real and balanced opportunity to present the views.

(Meanwhile, don’t miss Jonathan Zittrain’s presentation at the Open Rights Group “Release the Music” event on November 13. Details here and here.)

I’m eager that an alternative get pushed into this debate. As mentioned before, MP Don Foster has suggested terms should be extended only for those who ask. For works whose copyright owners don’t ask, the copyright would pass into the public domain. I made a similar proposal to the Gowers Commission. It would be fantastic if Britain took the lead in this obvious compromise to an obviously mistaken policy — term extension for existing works.

Meanwhile, as a demonstration of the value of the public domain, if you’re not in the US, you can get access to this fantastic collection of 1500 LPs of classical music, in the public domain in Europe, but not in the US, digitized and made available by the EuropeanArchive. Don’t count on access to this anytime soon, United States: Nothing published will enter the public domain in the US through the expiration of a copyright term until 2019.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    IP maximalists will ignore all unsympathetic speech, let alone propositions.

    So, speak in their language:
    - Accede to their terms for greater protections.
    - Grant them unlimited term.


    - Require the public’s liberation by default.
    - Require registration for protection and monopoly.
    - Require fees for each extension.

    I discuss this on my blog here: Good Copyright, Bad Copyright.

  • http://lucychili.blogspot.com lucychili

    I was asked to explain FOSS and DMCA in 30 seconds, because if I couldnt explain it quickly then I didnt have something to say.
    Its simpler to say something about FOSS because you can get some sort of concept to chew on in 30 seconds. For me its the right to participate.

    But DMCA/copyright can only give you starting positions in 30 seconds. imho. It gives you room for table tennis and not much more. It again boils down to the right to participate for me,
    but the response is the right to own and that gets us a pictue of the problem but no traction on negotiating change.

    Yes the terms are becoming longer, and the ranges of exemptions are chipped away with each iteration or step each nation takes.
    Peter Drahos describes it as a ratchet system.

    Meanwhile at the internet governance forum

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Don’t put punctuation after URLs…


    Unfortunately, they weren’t designed for use in plaintext.

  • anonymous

    Orlowski is an idiot. Why would you even link to the guy?

  • Anon

    Don Foster’s idea is great, but its not going to go anywhere. Opponents to his idea will simply pull out the Berne convention trump card which they’ll say forbids such formalities.

  • Barbara

    I’m sitting here in California and just downloaded Verdi from your link given above to http://www.europarchive.org/

  • http://lucychili.blogspot.com lucychili

    Thanks for the url fix cf.

  • Lessig

    Re the Berne Convention: They might argue that, but they would be wrong. See, e.g., US copyright law which places all sorts of formalities on US copyright holders. So too could the British proposal be limited.

  • Evan

    This is slightly off-topic (US law, not UK), and probably a stupid question, but could someone please explain to me why copyright term extensions aren’t considered to be in violation of the ex post facto clause of the US Constitution? I’ve been wondering for years, but don’t recall anyone even mentioning the idea.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Constitution said ‘limited’, did not specify limit.

    * * *

    If copyright was a contract then it should apply at the time of publication.

    For retrospective term extension (as opposed to just on new publications) there should be a quid pro quo. In exchange for extending the monopoly, what precisely is the public receiving in exchange? It was expecting unfettered access to the works upon the completion of their delivery into the public domain. If the works are valuable, then perhaps the publisher should be paying the public for denying them enjoyment of this value?

    Ask the publishers how much the extension is worth to them in revenue terms. Then ask them how much of that is from export. The extension is logically worth a payment to the public purse of all but export revenue and say 50% of the export tax.

    Somehow, I think the publishers are expecting a free handout. You can tax their continued revenue, you can’t tax the value of the public domain.

    If the government is demonstrating that it is not acting in the people’s interest, it can only be up to the people to rectify this.

    I will not accept the enslavement of my fellow man, nor any imposition upon his liberty, as reward for the publication of my art.

  • Evan

    Crosbie Fitch, assuming that was directed at me…

    I’m not talking about the copyright clause (“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;”), I’m talking about the clause in article 1, section 9 which states that “No bill of attainder or ex post facto Law shall be passed.”

    To me (and IANAL), it seems like retroactively extending copyright terms would be an ex post facto law, regardless of whether or not there is some sort of quid pro quo.

  • Khalid Yaqub

    The full IPPR report can be downloaded for free from this BBC page.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Sorry Evan, I thought you meant constitutional revisionism rather than the copyright term.

    Extending the copyright term could be considered not to apply to people, but to publishers and their works – and to extend a privilege to be positive by definition.

    I don’t think many would listen to an argument (I’d be happy to have) that an infringer of a 51 year old publication had their liberty strained ex post facto.

    I did once suggest creating a PledgeBank proposition that signatories would promise to fileshare copies of John Lennon’s Imagine when its copyright term is due to expire in 2021… OR immediately as a protest should the copyright term be extended.

    It had been published in 1971, incentivised by the fact it wouldn’t truly become the people’s intellectual property until 2021.

    To renege on the deal is a grievous theft from the people.

    It’s also a temporal aberration to propose that in 1971 Lennon included his expectation of term extension in his incentivised decision to publish and hence we must play our part in living up to his expectations.

    Au contraire. I think you’ll find his expectations are quite at odds with this notion given his lyrics:

    Imagine there’s no Heaven
    It’s easy if you try
    No hell below us
    Above us only sky
    Imagine all the people
    Living for today

    Imagine there’s no countries
    It isn’t hard to do
    Nothing to kill or die for
    And no religion too
    Imagine all the people
    Living life in peace

    You may say that I’m a dreamer
    But I’m not the only one
    I hope someday you’ll join us
    And the world will be as one

    Imagine no possessions
    I wonder if you can
    No need for greed or hunger
    A brotherhood of man
    Imagine all the people
    Sharing all the world

    You may say that I’m a dreamer
    But I’m not the only one
    I hope someday you’ll join us
    And the world will live as one

  • http://www.wordimperfect.blogspot.com Sharon Holt

    Hi again
    I commented over a week ago asking a question about who owns the copyright to comments on my blog – me or the commenter – in regard to a book I might write collating the comments (my blog is a word game). You replied that I should email you. Perhaps I’m a bit too blonde but I still can’t figure out any way of emailing you. I tried via the Law School but haven’t had a reply so I’m not sure if you received that and have just been busy or whether it didn’t get to you. So, I wonder if you can give me an idea how to email you. Sorry if it’s obvious to others! Thanks again.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    1) Click on the ‘contact’ option at the top of this site.
    2) (In some browsers) the e-mail is obtained by clicking on the highlighted text ‘Lawrence Lessig’.
    3) The e-mail is lessig@pobox.com

    NB e-mail addresses are spam-protected on this site.

  • Evan

    Yes, that’s the kind of argument that I’m talking about. As for the possibility that copyright law “could be considered not to apply to people, but to publishers and their works,” how could that change anything? Is there something in the definition of “ex post facto” that somehow limits it to when rights are taken away? If someone commits a crime, then the law they violated is rescinded (ie, the privilege is granted to them), they can still be charged, can’t they? What about people who are in jail after being sentenced under stricter laws–do they get their sentence commuted?

    Even if it is true that ex post facto laws are only considered to be those that take away rights, the wording of the copyright clause seems, at least to me, to imply that there is some sort of trade-off with longer copyright terms, or at least the people who wrote the Constitution thought so.

  • Sharpsight

    (sense 2) (pejorative) a useless person who always relies on other people’s work and gives nothing back.

    1. Protection of an artist’s or author’s rights, including the right to receiving income derived from their work(s), for their lifetime.

    2. Should the creator of a work have no immediate family who are dependents on his or her income (e.g. young children or an elderly spouse), then copyright should expire upon their death, with the work becoming public domain.

    3. Should the creator of a work die and leave behind immediate family who are *entirely or almost entirely dependent* on the creator’s income, and not capable of beginning to generate their own income (i.e. get a job), then copyright should be extended beyond the creator’s death for a fair and reasonable period (e.g. until any dependent children turn 21, or in the case of say, an author’s elderly widow, or mentally retarded child for the remainder of her/his life).

    4. If the creators of works see fit to sell or otherwise transfer their rights to all or part of the income deriving from their work to another party (e.g. to a publishing house, other person or company), the exclusive right of the other party (or their legal successors) to receive income deriving from the work should continue until either (a) the creator of the work dies, leaving no dependents (as in point 2); or (b) the creator’s dependent children come of age, or any elderly or incapacitated dependent dies (as in point 3).

    Greedy, parasitic, culturally sterile companies should no longer be allowed to feast exclusively on the creativity of the long-dead, and stifle derivative works. Assuming we haven’t destroyed the planet, in 300 years’ time will there be huge corporations which produce nothing new, simply living off copyrights preserved from the 20th Century? The way things are going in the USA & elsewhere this may not be as silly as it sounds.

    I took children to a theme park recently, and found that I knew all the cartoon characters (which were old even when I was a child). Sylvester, Bugs Bunny, etc. Many of these characters are more than half a century old: where was the new stuff, I wondered? I was expecting a generation gap and found none: it has been filled with a congealed mass of legal and creative constipation.

    “Consume our plastic product”
    Bugs Bunny seemed to say
    “Have a happy jolly time,
    just like yesterday.”

    And yesterday it was the same
    and same tomorrow too.
    Don’t check out that indie stuff
    as *we’re* not selling it to you.

    Our marketing is simple,
    our marketing is clean,
    not confused by creativity:
    just buy from our Machine.

    Hmm.. sound a bit like the fast food, pharmaceutical, & other industries too…?

  • Janet Hawtin

    You will also recognise a lot of the characters in theme parks and movies from traditional stories, Brothers Grimm etc. Defended as IP by their current squatters.

  • lessig

    Re ex post facto: That clause was interpreted early on to apply to criminal laws only.

    And Sharon: yes, that’s the way to email me.

  • Evan

    Ah. Thank you, Professor Lessig. That had been bugging me for a while–it’s great to have an answer.

  • Kloot

    Professor, your feud with Andrew is beginning to look like a persecution complex.

    I read the news article you refer to. Unlike you, Professor, I read to the end. He very clearly laments the absence of economic evidence for the public domain, and public domain benefits of shorter terms, such as sampling.

    You owe him an apology – if your ego allows it.

  • lessig

    kloot, I don’t get your point. Andy noted the anti-extenders didn’t introduce evidence of the economic value of the public domain, nor the value of sampling. So what? I don’t doubt that’s true. I also don’t doubt the reporting of what the other people said. That has nothing to do with the howler about the £143m. No doubt, these errors are not his — in the sense that he asserted them; they are just errors he’s reporting. But my point was about the balance in the presentation. Imbalance (regardless of how good either side is) produces exactly these sort of errors. AndyO was reporting them.

  • http://www.ippr.typepad.com/ip/ kay withers

    The ippr report mentioned above and all papers relating to the year long research project are available to download for free at http://www.ippr.typepad.com/ip/.

    This includes a great paper by Rufus Pollock on the economic value of the public domain, something we also attempt to tackle in chapter 2 of the final report.

    Please read it and let us know your comments if you have the opportunity.

  • Jim Carlile

    This might be a naive question, but why are ALL the European recordings blocked on the archive site? Does U.S. copyright law– and the retroactive extensions– apply to works that weren’t even registered or published here in the first place years ago?

    I’m sure that many of them never were, or were never re-registered way back when, especially before 1964.

    And here’s another thing. Why is my sitting here in California and accessing a web site in Europe any different than me flying there and accessing it locally? I’m not ‘buying’ the material from here. Why is one source of acquisition infringement, and the other not?