The EU made big news today by extending music recording copyright to 70 years. The BBC makes the argument that this will allow people who made a splash in their teens and early 20s to be able to support themselves well into their old age with money from their early hits.  “Performers generally start their careers young and the current term of protection of 50 years often does not protect their performances for their entire lifetime. Therefore, some performers face an income gap at the end of their lifetimes.”  I say, if you haven’t had another hit in 50 years, get a job.  But, I’m not here to quarrel with that particular decision.
I want to talk about the destructive nature of current copyright law from the point of view of a struggling artist. (Today, I would not be considered a struggling artist, except in the sense that I struggle with my art, but at various times through my life the epithet would have fit.) Art is never created in a vacuum. The best of us “borrow” from our idols, those of us who are honest steal outright. That is the nature of art, from music, to painting, to theater, to literature. The true measure of artistic talent in the modern world is not originality, but the ability to mask your intellectual theft. 
The original intention of copyright law was to allow writers and artists to profit from their work for a finite period of time, after which the work would fall into the Public Domain to be widely dispersed and re-interpreted by other artists. In the US, the original term was for 14 years.  Eventually it was extended to 28 years, with the option to renew. Today, copyright is effectively forever, as in, nothing written today will ever be in the Public Domain.  I am not anti-copyright, just anti-eternal-copyright. In the best case, the status quo ultimately leads to a dull, uninteresting art scene, in the worst case, it leads to the criminalization of art itself. The idea that these laws protect artists is a joke. These laws primarily protect large corporations with a few intellectual properties that still make them a whole lot of money. 
I’m not an anarchist. I’m not a socialist. I’m not looking to bring down the Walt Disney Corporation. Let them have their money makers.  But instead of making all copyrights indefinite, go back to the 28 year term and allow for unlimited renewals. As long as you or your heirs keep renewing the copyright to your work, then you or they have sole copyright. As long as those copyrights are making money, then you will have plenty of incentive to keep up with a simple filing every 28 years. If however, your work is a lost masterpiece after 28 or 56 years, let it go. Have it revert to the Public Domain. What’s the worst that could happen? Someone picks it up and reinterprets it and makes you famous a half century later?  For every Mickey Mouse cartoon, or Steven King novel, or Jimi Hendrix recording, there are millions of lost works languishing in libraries waiting to be rediscovered and reinterpreted by new artists. These works are consigned to the purgatory of draconian copyright. They will never again have a life because it’s too much trouble to try to track down the copyright owner of an obscure work. And as an artist, it’s not worth taking the risk that no one will come forward, because if your new recording, or derivative work has any success, you can guarantee that the owner will come out of the woodwork and demand your profits. 
Larry Lessig has written extensively about the importance of the Public Domain in his book Free Culture and other places. He is a much smarter man than I and he’s a lawyer, for those of you more likely to listen to one of those. I encourage you to read his various writings on copyright. In the meantime, if you are an artist or author, I urge you to distribute your work with a Creative Commons license. A CC license doesn’t replace copyright, but allows others to reuse and reinterpret your work as long as they meet criteria you define, like attributing the original work to you, and not using their derivative work for commercial purposes. Creative Commons is a good start. I suspect it may protect the culture of the 21st century from being completely lost to history. It’s hard to imagine now, because 20th century culture is virtually all we know, but unless we do something to return a lot of those lost works to the Public Domain, the 20th century may eventually be seen as a cultural black hole on par with the Dark Ages.
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Photo of Ryan McClead Ryan McClead

Ryan is Principal at Sente Advisors, a legal technology consultancy specializing in cross-platform solutions and support.  He has been an evangelist, advocate, consultant, and creative thinker in Legal Technology for more than 15 years. In 2015, he was named a FastCase 50 recipient, and in 2018, he was elected a Fellow in the College of Law Practice Management. In past lives, he was an Innovation Architect, Knowledge Manager, a Systems Analyst, a Fashion Merchandiser, and Theater Composer, among other things.

  • The thing that bugs me the most about this is that the EU is attempting to make this out to be a "we're only trying to protect the poor artists who will starve to death because we're taking away their retirement income" crap. Now, I could be wrong here, but the timing of this seems to be strategically structure to make sure that all of the music from the 1960's (Think British Invasion) gets protected for a few more years. It smells a lot like what happened when ol' Steamboat Willie was about to fall into the public domain in the late 90's and all of the political maneuvering that went on to protect it, as well as the "Talkie Invasion" that happened in movies in the 1920-1940's.

    They may dress this up as a victory for the little guy, but it still smells of corporations writing the language to squeeze a bit more profit out of any intellectual property they still own… no matter how old.

  • I have to agree that copyright terms are just way too long. But I'm not unsympathetic to artists who didn't get the benefit of works that turned out to be hits.

    Does the EU include termination rights so that artists can get their rights back?

  • Matt,
    I am always sympathetic to artists. The examples in the BBC article are Cliff Richards, Mick Jagger, and the guys from ABBA. Are we really worried about their well being in old age? Are there artists who created a work 50 years ago who have not been equitably compensated who will suddenly see their work reused once it enters the Public Domain? Yes. Will extending copyright ensure those people are compensated when that happens? No, because without entering the PD, no one will touch their work. Extending copyright ensures that Cliff, Mick, and ABBA will continue to make outrageous amounts of money and that all of the little known artists continue to be little known.

  • Ryan,

    What about artists like Bruce Springsteen or Billy Joel who don't own their catalogs from the 70s? This is why I asked about termination rights. If an artist can't get back the extra term, then I agree it's just a windfall to the companies that own the copyrights.

    Thinking about this gave me an idea. What if we had two phases of copyright term: a first, exclusive term, where copyright is fully enforceable and you can block/license other uses, and a second, non-exclusive term, where the authors receive some sort of royalty based on a compulsory license? That is, we limit the time the work can be completely out of the public domain, but still provide some income to authors later. The first term might be 14 or 28 years, and the second could be significantly longer. (Would never happen, I know…)

  • I was hoping that Matt was going to cap off his comment with:

    You may say I’m a dreamer, but I’m not the only one. I hope some day you’ll join us, and the world will live as one.

    Now, do I owe Yoko a few ¢ for using that??

  • Greg,

    I toyed with the idea, but I can't afford the license. 🙂

  • Matt,
    As long as we're dreaming, I would prefer to see copyright become non-transferable. I created it. It's mine forever. You want to lease my copyright in exchange for funding my tour? OK, but at the end of whatever term I agree to, the copyright reverts back to me. If you fail to renew the copyright when the 28 year term is up, the the copyright reverts to me. If I, the original creator, fail, or choose not, to renew the copyright, then the work enters the public domain.

    Now, that gets really complicated when you've got multiple original creators, but hey that's a whole new area of practice for IP attorneys. See – Win/Win!