We want to shorten the protection time to something that is reasonable from both society’s and an investor’s point of view, and propose 20 years from publication.
And we want to have the same protection term for all kinds of works.
Wouldn’t it make sense to have different protection times for different kinds of works?
20 years protection for a computer programs probably has different implications than 20 years for a piece of music or a film. Wouldn’t it be better to adapt the protection times according to what is reasonable for different categories of works?
This is actually what I (Christian Engström) thought myself, until I discussed it with a friend who agreed completely. When we started talking, we both agreed that it would be reasonable to have different protection times, since the markets work so differently.
I, who have a background as a programmer, thought it was quite reasonable to have a longer protection time for computer programs, since they quite often continue to be useful long after they were written. Code that I wrote in 1984-86 still runs in production today, and continues to generate income for that company. This is something different than a pop song, which at best is popular for a year or so, before it is forgotten to leave room for new songs. This is what I felt.
But my friend, who has a background as a musician (but is now a copyright lawyer, since that is an easier way to make a living), had the completely opposite opinion. He saw computer programs as something that you upgrade at least every second or third year. Programs older than that would have no commercial value, so it ought to be enough with a quite short protection time for computer programs. Music, on the other hand, could very often live forever, so the protection time for music ought to be much longer. This is what he felt.
And this is how it normally is, my friend, who had had similar discussions with other people, told me. For the kind of works that is closest to your own heart, you would normally find it reasonable to have a longer protection time, but shorter for everything else. This is how most people feel, it appears.
For this reason, we would probably not be able to agree about which kinds of works should have shorter or longer protection times. In this kind of discussions, where you are trying to agree on a time limit of x years, it is in the nature of things that all suggestions for values for x tend to be somewhat arbitrary and picked out of thin air. Having to come up with different semi-arbitrary values for each different category of works just makes it more complicated, and reduces the chances of finding a solution that you can defend with objective arguments.
But if you look at the issue from an investor’s point of view, things become different. The music industry may be very different from the computer software sector, but they have one thing in common. Money is money, regardless of what sector you choose to invest it in.
When an investor makes the decision to invest in a project in any industry – it may be music, film, computer programs for the mass market, or anything else – he will calculate his business case with a certain time to get a return on his investment. If the project goes according to plan it is supposed to cover its cost and make a profit within x years. If not, it is a failure.
x is always a very small number in this kind of calculations. That somebody would seriously make a business case for a cultural project where the time to payback is more than three years, probably never happens. People who build bridges and nuclear reactors and the like will of course use longer investment horizons, but outside those industries, business cases that are longer than three years are very uncommon in business in general.
This is of course even more so in the cultural sector. Who can predict what will be cool and hip two or three years from now, in such a fast moving landscape as culture. Most cultural projects are expected to pay for themselves and make a profit within a year.
By looking at the protection times from an investor’s point of view, we can justify having the same protection time for all works, even though they are different. The purpose of the economic exclusivity part of copyright is to attract investors to the cultural sector. And investors think in the same way regardless of what they are investing in.
The project should pay for itself and make a profit within one or a few years, otherwise it is a failure. The small theoretical chance that the work that you financed turns out to be a timeless classic that continues to generate revenues for decades is a nice bonus chance for the investor, but nothing that has a place in a serious business case.
So why 20 years, and not 5 or 3?
Our suggestion for a protection time of 20 years is a pragmatic compromise. Even if there are sound arguments for why 5 years or even shorter might be enough from society’s point of view, many people still instinctively feel that 5 years would be to short, at least in some cases.
And rather than getting bogged down in an unproductive quarrel over what will always remain at least partly arbitrary numbers, we choose to say 20 years.
The important thing is to get away from today’s protection times of a human lifetime or more. These long protection times are clearly harmful to society, since they effectively keep most of our common cultural heritage locked away even long after the majority of the works have lost all their commercial value to the rights holder. This is a deadweight loss in economic terms, and an outrage in cultural ones.
If protection times were reduced to 20 years, this would solve most of the problem of “the black hole of the 20th century”, and allow librarians and archivists to start the urgent task of preserving the 20th century works that are rotting away in archives by digitizing them. 5 or 10 years would be better from their point of view, but 20 would be okay.
At the same time, 20 years is still enough to support the pleasant (but very unlikely) dream of creating a major hit that becomes an evergreen that generates revenues for decades. If your next project strikes gold and suddenly propels you into the same kind of longlasting fame that Paul McCartney or ABBA have enjoyed, 20 years will be more than enough for you to become very rich indeed, and never have to worry about money ever again.
Registration After 5 Years
An orphan work is a work that is still in copyright, but where the rights holder is not known or cannot be found. It can be a book, a song, a film, or a photo, or any other kind of work that falls under the copyright legislation.
Orphan works present a big problem for anybody who would want to use them. If you just go ahead without getting a permission, you run the risk that the rights holder suddenly turns up and sues you for a large amount. As we all know, courts can be quite prepared to set the damages for even minor copyright infringements to pretty astronomical figures. In many cases, this is simply not an acceptable risk.
But since there is no known rights holder that you can ask for a license, there is nothing you can do about it. No matter how valuable you think it would be to share that work with the world, there is no way to do it without breaking the law and exposing yourself to a great financial risk. The orphan works are effectively locked away by the copyright system.
This is not a small or marginal problem. A large part of our common cultural heritage from the 20th century falls into this category. About 75% of the books that Google want to digitize as part of their Google Books initiative are out of print, but still under copyright.
Even if it is theoretically possible to find the rights holders for many of these books by making a thorough investigation in each individual case, it simply becomes unfeasible when you want to do mass digitization.