Undercover Economist

Copyrights and wrongs

‘Why don’t we see a more sensible system of copyright? Two words: Mickey Mouse’

“Happy Birthday to You” has long been a focal point for anger about copyright. The publisher Warner/Chappell Music has been making serious money by charging fees to use the song commercially on the stage, in films or on birthday cards. Legal scholar Robert Brauneis estimates those fees at $2m a year. And why not, if it owns the rights?

The trouble is that a US federal judge recently ruled that Warner/Chappell does not own the lyrics to “Happy Birthday to You” — nor the melody, which was penned in 1893 and has been in the public domain for decades.

Activists are delighted at the ruling. A simple song sung by and for children, “Happy Birthday” always seemed a jarring candidate for profiteering. Joel Bakan’s documentary The Corporation (2003) rails against corporate power by showing a child’s birthday party in silence, as though Warner/Chappell was putting the squeeze not only on documentary producers but on the children themselves.

But while the schadenfreude is real, the decision itself changes nothing important. This case was simply a dispute about whether Warner/Chappell owned the copyright at all. It was a murky question for the simple reason that copyright terms are so absurdly long that the relevant facts are poorly documented and many decades old.

The more important question is whether there’s a rational case for any prewar creative work to still be under copyright. The answer is no.

It’s worth remembering the purpose of copyright. Copyright is justifiable because it is very hard to write The Lord of the Rings but easy to copy it once Tolkien has written it. Copyright gives authors and other creators some ability to stop copycats, and thus it gives them an incentive to do the creative work in the first place. The longer intellectual property rights last, the greater that incentive is.

But there is a sharp trade-off here. In a world without copyright, creative works could be widely shared. New ideas could be adapted, remixed and improved. All this ensures a rapid spread of good ideas. The longer copyright lasts, the longer that spread will be delayed.

Because copyright terms are so long, few creative works are in the public domain. Some are — from the works of Shakespeare, Chaucer and Milton, to Victorian pornography or the earlier adventures of Sherlock Holmes. Even work with little commercial value in its original form can have a valuable afterlife as illustration, inspiration, cut-up, mash-up and sample. For example: Alan Moore’s League of Extraordinary Gentlemen pitched Dr Jekyll and Captain Nemo against Moriarty and Fu Manchu. Such remixed creativity is vastly easier when the original material is no longer under copyright.

A recent study commissioned by the UK’s Intellectual Property Office examined the value of the public domain, looking at the popularity of Wikipedia entries or Kickstarter projects that drew on art and writing in the public domain. That value is large and if more recent work entered the public domain, it would be far larger.

So, bearing in mind that this is a pragmatic question, how long should copyright last? The current answer is 70 years after the death of the author — typically about a century. That is absurd.

Most books, films and albums enjoy a brief window of sales. Both author and publisher will have reckoned on making whatever money is to be made within a few years. Some works, of course, are blockbusters that continue to be valuable for decades. In such cases a century of copyright is valuable — yet redundant for the purpose of encouraging innovators. (The cases where works lie undiscovered for decades before finally finding a vast audience are too rare to shape any rational rules on copyright.)

The truth is that 10 years of copyright protection is probably sufficient to justify the time and trouble of producing most creative work — newspapers, films, comic books and music. Thirty years would be more than enough. But we’re moving in the opposite direction, with copyright periodically and retroactively extended — as though Antoine de Saint-Exupéry or James Joyce could ever have been motivated by the anticipation that, long after their deaths, copyright terms would be pushed to yet more ludicrous lengths.

Why don’t we see a more sensible system of copyright? Two words: Mickey Mouse. That is an oversimplification, of course. But the truth is that a very small number of corporations and literary estates have a lot to gain from inordinately long copyright — and since it matters a lot more to them than to the rest of us, they will focus their lobbying efforts and get their way. Mickey Mouse will enter the public domain in 2024 — unless copyright terms are extended yet again. Watch this space.

So, a modest proposal: copyright should last a more-than-generous 30 years, and no longer. The Lord of the Rings would have been in the public domain in 1986, 13 years after Tolkien’s death. He would have been fine and his great trilogy would still have been written. Mickey Mouse would have been in the public domain in 1959. The Undercover Economist, my own first book, which continues to sell nicely enough, would enter the public domain in 2036. (I’d cope.)

A tiny minority of wealthy creators would be somewhat poorer under such a scheme. But our culture would be vastly richer.

Written for and first published at ft.com.