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The case against copyright creep

Sonny Bono: A warning from history

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Zittrain:

I think we lost because it was hard for the justices to appreciate the value and power of the public domain. They thought that works might be better cared for by big firms who exclusively own them than by members of an undefined public who might be volunteering to retype them digitally and then post them on servers. Also, I think the courts were worried about the impact of invalidating the Sonny Bono Act - would it also require invalidating all prior retroactive extensions?

Ah, we see. So it wasn't about royalties for the families of 1920s singers anymore than the argument over here has been about keeping Cliff Richard in tennis rackets and vineyards.

Zittrain:

The extension was essentially a rational cash-and-carry transaction: firms that stood to benefit from keeping works under copyright simply lobbied Congress for the extension. In 1998, there were some who pressed the interests of the public domain - and the importance of keeping copyright's bargain rather than eroding it, a fear that goes back to Jefferson - but they weren't in a position to lobby using all the traditional tools.

So it wasn't a fair fight in the States. Unlike here, the debate wasn't just about sound recordings, it covered all creative works; books, movies, cartoons, the lot. The power wielded by Disney was key; ironically a company built on adaptations of public domain works like Snow White. It was no coincidence Steamboat Willie was released 18 November, 1928; Mickey "escaped" the public domain by just three weeks thanks to the Sonny Bono extension.

Zittrain:

At the time they acquired those works from the authors they knew how many years they had to exploit them; they just wanted to get more. You can't blame them for trying - it's the rational thing for them to do - but Congress should know better than to simply write them a cheque at the expense of the public domain. This is especially true in the Internet era, when it's so much easier to archive, distribute, and make new works out of existing ones.

So what will happen in Europe if we continue to only give performers and publishers 50 years to exploit recordings?

Zittrain:

Keeping the recording rights at the level at which they were originally promised creates a terrific experiment; we'll see just how much uptake there is of this narrow category of works [sound recordings older than 50 years] now that people are free to sample them, copy them, and make new works out of them.

So if Gowers' recommendation on copyright extension is heeded, we may indeed be looking at a thriving Cliff Richard mash-up scene. We'll know more about his logic when the full report hits the streets next Wednesday, but our guess is he does place value on the public domain.

The record industry is now spinning Gowers as merely an independent review, which should not necessarily form the basis of policy. It's accurate of them to say UK copyright law is governed from Brussels rather than London, but whether European federalisation will help them achieve their aim of bunkering their golden era of 1960s and 1970s record sales is another matter. The EU is not known for legal fleet footedness.

It seems we may just have escaped a recurring battle over extension, but the precedent is well and truly set Stateside for copyright creep.

Zittrain:

The battle will no doubt begin anew in about fifteen years: the publishers will return for another retroactive extension (even though they promised they don't want anymore) and the landscape may be different enough then that another suit can prevail.

So, who might be changing the legal landscape on copyright enough that opposition might find a sympathetic judicial ear come 2023, when Disney will again try to maintain an iron grip on its Willie? Well, it begins with a "G" and has tested laws plenty of times already over copyright. Shouldn't take a Nobel Prize winner to work that one out. ®

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