Category Archives: Copyright

Open Shakespeare Annotation Sprint

Cross-posted from Open Knowledge Foundation blog.

Tomorrow we’re holding the first Open Shakespeare Annotation ‘Sprint’. We’ll be getting together online and in-person to collaborate on critically annotating a complete Shakespeare play with all our work being open.

All of Shakespeare’s texts are, of course, in the public domain, and therefore already ‘open’. However, most editions of Shakespeare people actually use (and purchase) are ‘critical’ editions, that is texts together with notes and annotations that explain or analyze the text, and, for these critical editions no open version yet exists. This weekend we’re aiming to change that!

Using the annotator tool we now have a way to work collaboratively online to add and develop these ‘critical’ additions and the aim of the sprint is to fully annotate one complete play. Anyone can get involved, from lay-Shakespeare-lover to English professor, all you’ll need is a web-browser and an interest in Bard, and even if you can’t make it, you can vote right now on which play we should work on!

Using specially-designed annotation software we intend to print an edition of Shakespeare unlike any other, incorporating glosses, textual notes and other information written by anyone able to connect to the Open Shakespeare website.

Work begins with a full-day annotation sprint on Saturday 5th February, which will take online as well as at in-person meetups. Anyone can organize a meetup and we’re organizing one at University of Cambridge English Faculty (if you’d like to hold your own please just add it to the etherpad linked above).

Copyright is a Monopoly! (And isn’t like normal property)

The equation of ‘intellectual property’ (IP) such as copyright with (traditional “real”) property is frequently made, especially by those advocating its extension. However, this equation is fundamentally erroneous and results in very serious misapprehension of the nature and effect of IP. In particular, patents and copyright confer monopolies in a way that ownership of real property does not.

How is it different?

‘Real’ property like an apple, a car or an acre of land can only ever be used by one person/entity at one time — in economist’s terminlogy they are ‘rival’ goods. Giving someone exclusive rights over them therefore does no harm — only one person can have it and via trade we can ensure the person who values it most ends up with it 1. Here, creating property rights leads to an efficient outcome (at least in our simple case — in more complex setups we would need to think about complementarities, transaction costs etc).

By contrast, a copyright in, for example, a particular text confers not simply control over this or that particular book containing the text but over every instance of such a book. This is the very essence of a monopoly: being sole supplier of some good!

And it has all of the standard consequences of the monopoly: prices rise relative to what they would have been and access is reduced relative to its efficient level in which the price equals the cost of reproduction (i.e. we have a “deadweight” loss).

Furthermore, this cost of monopoly can be particularly serious when we have extensive “reuse” — i.e. new work builds upon old — as the monopoly inhibits not only access by users but the creation of new creative work.

The difference then between “normal” property and “intellectual property” is the difference between giving someone control of one apple (the apple they bought say) and control of all apples. The latter results in significant harm and inefficiency while the former does not.

Now, of course, the fact copyright is a monopoly does not mean it is per se bad. After all, we are deeply concerned with the incentives to create and the copyright monopoly helps provide such incentives.

We may therefore be willing to tolerate the ex-post costs of a monopoly because of the ex-ante benefits it provides in incentivizing and rewarding the creation of new work. But this is fundamentally a trade-off and one which gets worse as the monopoly is extended — a completely different situation from that with “real” property.

This point is made elegantly by Macaulay (opposing a copyright term extension in the 1840s):

“It is good that authors should be remunerated, and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is evil. For the sake of the good we must submit to the evil: but the evil ought not to last a day longer than is necessary for the purpose of securing the good.”

This is not something one would write about normal, ‘real’, property.

Substitutes (or, what exactly is a Monopoly)

Some people, particularly rights-holders, tend to argue that copyright isn’t a monopoly because of the existence of close substitutes (Helprin does this too where he tries to distinguish expression and ideas). In a strict sense this is simply false: a monopoly is the control over all (or most) of a market in a particular good (in this case the copies of a given cultural work). If entity X has monopoly in apples, the fact that I can buy oranges instead of apples does not change the fact that X has a monopoly.

However, in a broader sense this point is correct: the “proximity” of substitutes will clearly affect the demand curve a monopolist faces and therefore the price they can charge (in the extreme case when substitutes are perfect the ‘monopoly’ of course disappears).2

This is the point lying behind the copyright/patent distinction — the argument being that copyrighted works have much closer substitutes than patents (whether this actually true is unclear to me: what substitutes were there for Harry Potter? Many patents have relatively close competitors etc).

Nevertheless the fact remains that a copyright still acts like a monopoly in permitting the owner of a copyright to raise price above what it would have been (if not there’d be no point in having it — at least the “economic” rights portion). Furthermore, one has to be cautious in one’s logic here: the existence of close substitutes may lessen the harm of a copyright monopoly but it also reduces the benefits (the revenue incentives).

To put it most bluntly:

If copyright isn’t acting like a monopoly then, while causing little harm, it’s also not doing much good.

Specifically, if substitutes are sufficiently close that the copyright holder can only raise prices (much) to a very small degree above reproduction cost (and hence we can say no monopoly exists), then the benefits of the copyright, in terms of increased revenues to the copyright holder, must be commensurably small.

Colophon

I wrote the original version of this post over 3 years ago but failed to hit publish for reasons unknown. It’s creation was motivated by being pointed at this article by a Mr Helprin (who later fleshed out his thesis into a book). Discussions over the intervening years, especially with those advocating the extension of copyright, have only made it clearer how important it is establish the basic point that ‘copyright is a monopoly and isn’t property’.


  1. To a crude first approximation. There are many reasons why this ‘efficient’ trade may not happen (see next sentence). 

  2. As recognized in antitrust law with the endless discussions of what constitutes the ‘market’ for a given product. 

The Public Domain in 2011

According to http://publicdomainworks.net/ (which I helped build) there were 661 people whose works entered the public domain in 2011:

http://publicdomainworks.net/stats/year/2011

Of course, I should immediately state that this is a fairly crude calculation based on a simple life+70 model and therefore not applicable to e.g. the US with its 1923 cut-off (for those interested in the details of computing public domain status there’s you can find lots more here: http://wiki.okfn.org/PublicDomainCalculators).

The figure is also a significant underestimate — to do these calculations you need lots of information about authors, their death dates and their works. This kind of bibliographic metadata has, until fairly recently, been very hard to come in an open data form and so we have been limited to doing calculations with only a relatively small subset of the actual all works (though, it should be said, we do have many of the most ‘important’ authors).

Thankfully this is now changing thanks to people like the British Library opening up their data so we should see a much extended list for 2011 some time in the next few months (if you’re interested in open bibliographic data, you should join the Open Knowledge Foundation’s Open Bibliographic Data Working Group).

Launch of the Public Domain Review

Lastly, I have an exciting announcement. Thanks to the work of my Open Knowledge Foundation colleague Jonathan Gray, we’re pleased to announce the Launch of the Public Domain Review to celebrate Public Domain Day 2011:

http://publicdomainreview.okfn.org/

As Jonathan explains in the blog post:

The 1st of January every year is Public Domain Day, when new works enter the public domain in many (though unfortunately not all) countries around the world.

To celebrate, the Open Knowledge Foundation is launching the Public Domain Review, a web-based review of works which have entered the public domain:

Each week an invited contributor will present an interesting or curious work with a brief accompanying text giving context, commentary and criticism. The first piece takes a look at works by Nathanael West, whose works enter the public domain today in many jurisdictions.

You can sign up to receive the review in your inbox via email. If you’re on Twitter, you can also follow @publicdomainrev. Happy Public Domain Day!

Papers on the Size and Value of EU Public Domain

I’ve just posted two new papers on the size of and ‘value’ the EU Public Domain. These papers are based on the research done as part of the Public Domain in Europe (EUPD) Research Project (which has now been submitted).

  • Summary Slides Covering Size and Value of the Public Domain – Talk at COMMUNIA in Feb 2010
  • The Size of the EU Public Domain

    This paper reports results from a large recent study of the public domain in the European Union. Based on a combination of catalogue and survey data our figures for the number of items (and works) in the public domain extend across a variety of media and provide one of the first quantitative estimates of the ‘size’ of the public domain in any jurisdiction. We find that for books and recordings the public domain is around 10-20% of published extant output and would consist of millions and hundreds of thousands of items respectively. For films the figure is dramatically lower (almost zero). We also establish some interesting figures relevant to the orphan works debate such as the number of catalogue entries without any identified author (approximately 10%).

  • The Value of the EU Public Domain

    This paper reports results from a large recent study of the public domain in the European Union. Based on a combination of catalogue, commercial and survey data we present detailed figures both on the prices (and price differences) of in copyright and public domain material and on the usage of that material. Combined with the estimates for the size of the EU public domain presented in the companion paper our results allow us to provide the first quantitative estimate for the `value’ of the public domain (i.e. welfare gains from its existence) in any jurisdiction. We also find clear, and statistically significant, differences between the prices of in-copyright and public-domain in the two areas which we have significant data: books and sounds recordings in the UK. Patterns of usage indicate a significant demand for public domain material but limitations of the data make it difficult to draw conclusions on the impact of entry into the public domain on demand.

The results on price differences are particularly striking, as to my knowledge, these are by far the largest analysis done to date. More significantly, they clearly show that the claim in the Commission’s impact assessment that there was no price effect of copyright (compared to the public domain) was wrong. That claim was central to the impact assessment and to the proposal to extend copyright term in sound recordings (a claim that was based on a single study using a very small size, performed by PwC as part of a music-industry sponsored piece of consultancy for submission to the Gowers review).

The Size of the Public Domain (Without Term Extensions)

We’ve looked at the size of the public domain extensively in earlier posts.

The basic take away from the analysis was the finding that, based on library catalogue data, for books in the UK, approximately 15-20% of work was in the public domain — with public domain work being pretty old (70 years plus, due to the life+70 nature of copyright).

An interesting question to ask then is: how large would the public domain be if copyright had not been extended from its original length of 14 years with (possible) 14 year renewal (14+14) set out in Statute of Anne back in 1710? And how does this compare with how the situation, back when 14+14 was in “full swing”, say, 1795?

Furthermore, what about if copyright today was a simple 15 years — the point estimate for the optimal term of copyright found in paper on this subject? Well here’s the answer:

Today1795 (14+14)Today (14+14)Today (15y)
Total Items3.46m179k3.46m3.46m
No. Public Domain657k140k1.2m2.59m
%tage Public Domain19785275

Number and percentage of public domain works based on various scenarios based on Cambridge University Library catalogue data.

That’s right folks: based on the data available, if copyright had stayed at its Statute of Anne level, 52% of the books available today would in the public domain compared to an actual level of 19%. That’s around 600,000 additional items that would be in the public domain including works like Virginia Woolf’s (d. 1941) the Waves, Salinger’s Catcher in the Rye (pub. 1951) and Marquez’s Chronicle of a Death Foretold (pub. 1981).

For comparison, in 1795 78% of all extant works were in the public domain. A figure which we’d be close to having if copyright was a simple 15 years (in that case the public domain would be a substantial 75%).

To put this in visual terms, what the public domain is missing out as a result of copyright extension is the yellow region in the following figure: those are the set of works that would be public domain under 14+14 but aren’t under current copyright!

PD Stats

The Public Domain of books today (red), under 14+14 (yellow), and published output (black)

Update: I’ve posted the main summary statistics file including per-year counts. I’ve also started a CKAN data package: eupd-data for this EUPD-related data.

Argentina Extends Copyright Term in Recordings

Apparently, on the 11th of December 2009, Argentina extended copyright term in recordings from 50 to 70 years (see e.g. here, here and here).

Instead of the real reasons for extension — propping up the profits of a handful of multinational record labels and their shareholders (at the expense of everyone else) — the usual disingenuous justifications were once again being trotted out by music industry representatives.

First up was (all quotes from the billboard article):

The investment argument

“I would like to thank all those who supported this new law which will benefit the music community in Argentina,” tango master Leopoldo Federico, president of AADI, said in a statement. “It will improve incentives to invest in future recordings and also helps older performers who had faced losing their rights just when they need them the most.”

John Kennedy, chairman and chief executive of IFPI, also welcomed the legislation. “I am delighted that Argentina has strengthened the rights of performers and producers by extending the term of protection,” he said in a statement. “Argentina has a strong musical heritage and this reform means that producers will have a greater incentive to invest in the next generation of local talent.

But wait a moment: “producers” are already getting 50 years of monopoly protection. How much extra incentive are those 20 extra years going to provide?

Let’s do some simple calculations.

First off remember this is about incentives, which means it is about expected payoffs at the point of investment, i.e. when the recording is created. As such we should be dealing with “present value” figures, i.e. total revenue in “today’s terms”.

To work out the the effect of an extension then we need an idea for a) what future sales look like relative today (the cultural decay rate) and b) a way of putting future revenue in today’s term (the discount rate). The industry’s own analysis (commissioned for the Gowers review in the UK) used a nominal discount rate of 12.3% (pre-tax) and cultural decay rates of 3-20% (in nominal terms it appears). Let’s be generous and take the lowest possible cultural decay rate of 3%. Combined with the 12.3% discount rate this means that, on average, revenue is dropping at a substantial 14.3%!

Running this through a bit of basic maths (and I mean really basic — code inline below) we find that the 20 year extension will deliver a tiny 0.08% increase in revenues. Even halving the nominal discount rate to a very low figure like 6% only pushes up the revenue gain to just over 1% (1.1%). For those who like things visually here’s a picture:

revenue_impact

Aside: Of course there will be a lot of variation from the average — note that the relevant variation is not between hits and duds (as these may experience exactly the same decay!) but between records which go on selling at a reasonably steady rate and those which fade away fairly quickly. However, an “investor”, such as a record label, tends to “invest” in a whole “portfolio” of records precisely in order to reduce this “risky” variability (and in any case greater risk implies a higher discount rate assuming the investor is risk averse). As such the average revenue increase is precisely what an “investor” will use when making decisions such as how many recordings to fund.

Next up was:

The pension for performers argument

“I would like to thank all those who supported this new law which will benefit the music community in Argentina,” tango master Leopoldo Federico, president of AADI, said in a statement. “It will improve incentives to invest in future recordings and also helps older performers who had faced losing their rights just when they need them the most.

But life expectancy in Argentina is 75 years — and is probably shorter for most performers who are old today. So, unless a performer is especially prolific in their teens, 50 years of copyright monopoly is already enough to cover them in their old(er) age.

And anyway haven’t performers heard about pensions or saving for the future — everyone else has. I don’t expect the plumber I pay today to fix by sink to come back in 50 years asking for additional payment for a pension plan! Instead I expect the plumber to save some of the income received today to use in retirement.

Moreover, as the calculations above should make clear, copyright income 50+ years in the future from recordings today is likely (on average) to be tiny (0.08% of the revenue received during the first 50 years!). As such there is no way the average performer could rely on income from a 20 year term extension 50 years in the future to support them in their old age. Just like everyone else they will need to save some of the income during that first 50 years.

Aside: in fact it is is more like 10 years or even 5 years, as for most recordings, the vast majority of the revenue they will ever generate will come in the first 5 or 10 years after release.

Last up we had:

The cultural argument

Javier Delupí, CAPIF’s executive director, added: “This new law is good news for Argentine culture. It promotes the creation of new music and safeguards the rights of performers and producers both here and abroad.”

But:

  • The investment argument is completely invalid (see above) and hence there won’t be any “promoting the creation of new music”.
  • In fact, to the contrary, the extension will impede the creation of new works by reducing the public domain on which all creators can and do build.
  • Moreover, an extension transfers money to (older and already successful) performers away from younger and less well-known ones.
  • Depending on how comparison of terms is implemented an extension actually harms the balance of payments of the enacting country (e.g. the UK looses out from a term extension in recordings)

So, no, term extensions aren’t good for (Argentine) culture — though they may be good for CAPIF (Representando a la Industria Argentina de la Música).

Conclusion

It’s time we start calling a spade a spade: this term extension is a simple, and highly inefficient, subsidy to the major record labels plus, perhaps, a few, already highly successful, performers, which is paid for by the general populace.

If it can command widespread assent in that form, then, fine, let it pass! But I sincerely doubt the likelihood of this occurrence. If this is so, then the passage of such bills, is nothing more or less than a straightforward “robbery upon the public” — in the 150 year-old words of Henry Warburton, radical opponent of the UK’s term extension of the 1840s.

Colophon

Here’s the python script used for the revenue calculations above, together with the code to generate the figure.

#!/usr/bin/env python
def extra_revenue(term, extension, decay, irate):
    dfactor = 1/(1+decay+irate)
    def geometric(df, NN):
        return (1-df**(NN+1))/(1-df)
    total = geometric(dfactor, term)
    textension = dfactor**term * geometric(dfactor, extension)
    increase = textension/total
    print('Term, Extension, decay, irate: %s %s %s %s' % (term, extension,
        decay, irate))
    print('Percentage increase: %s' % (100*increase))

extra_revenue(50, 20, 0.03, 0.123)
extra_revenue(50, 20, 0.05, 0.123)
extra_revenue(50, 20, 0.03, 0.06)
extra_revenue(50, 20, 0.04, 0.06)

import math
def visualize():
    import matplotlib.pyplot as pyplot
    # normalize main square to 10x10 = 100
    pyplot.bar(0, 10, width=10, fc='red', alpha=0.6)
    edge = math.sqrt(0.08)
    pyplot.bar(14, edge, width=edge, bottom=5, align='center', fc='blue', alpha=0.6)

    pyplot.bar(14, 1, width=1, bottom=1, align='center', fc='blue', alpha=0.6)

    pyplot.figtext(0.15, 0.7, 'Present Value of Revenue\nUnder Existing\n50y Term', multialignment='center', va='top')
    pyplot.figtext(0.65, 0.7, 'PV of Extra Revenue\nfrom 20y Extension',
            multialignment='center', va='top')
    pyplot.figtext(0.7, 0.4, '1% of Existing\n Revenue',
            multialignment='center', va='top')

    # hack to get rid of axes ...
    ax = pyplot.gca()
    ax.set_frame_on(False)
    pyplot.yticks([],[])
    pyplot.xticks([],[])

    fig = pyplot.figure(1)
    fig.set_size_inches(5, 3)
    pyplot.savefig('revenue_impact.png')

visualize()
print('Saved image to disk')

Size of the Public Domain III

Here we are going to apply the results on Public Domain “proportions” derived in our previous post and thereby obtain best estimates of the UK public domain.

The logic is simple, and similar to that in our first post in the series: we will take the Public Domain proportions from Table 3 of our last post and combine with our (conservative) estimates for output based on library catalogues. Here are the results:

Pub. DateItems% PDNo. PD
1400-1850304587100304587
1850-18604097010040970
1860-18704373410043734
1870-1880505649548035
1880-1890668579060171
1890-1900668838556850
1900-1910703606545734
1910-1920604894024195
1920-1930786702519667
1930-194090576109057
1940-19507269264361
1950-196011825100
1960-197026297400
1970-2009213050900
Total345811619657361

UK Public Domain Totals Based on Cambridge University Library Data. Note, as discussed in previous posts, figures from British Library are approximately 3x larger (both for Public Domain and total items).

culbooks_counts_annual_1600-2001

Total (Black) and Public Domain (Red) Items per year based on the CUL Catalogue.

Zooming in to the pre-1960 period to get more detail:

culbooks_counts_annual_1600-1960

Total (Black) and Public Domain (Red) Items per Year based on the CUL Catalogue for pre-1960 period.

Public Domain Calculators Workshop

I’m one of the co-organizers of a workshop on Public Domain Calculators workshop taking place next week, on the 10th and 11th of November, at Emmanuel College, University of Cambridge.

Hosted by the Open Knowledge Foundation in association with the Centre for Intellectual Property and Information Law at the University of Cambridge, it’s a meeting of European experts on copyright and the digital public domain taking place as part of the Communia project.

The purpose of the workshop is to produce materials such as legal flow charts and public domain “algorithms” which will help with the representation of different national copyright laws and the determination of public domain status.

Details of the meeting are as follows:

Background

There is often a tendency to talk of ‘the public domain’ and of works falling out of copyright and ‘into the public domain’ – as though there is a single set of works which are out of copyright all over the world. In fact, of course, there are different national laws about the nature and duration of copyright in different types of works – and hence what is in the public domain is different in different countries.

Efforts are currently underway to build a series of public domain calculators – which will help to determine whether or not a given work is in copyright in a given jurisdiction. At the time of writing groups and individuals in more than 17 jurisdictions are assisting in this effort.

How Long Should Copyright Last? Talk at Oxford IP Seminar

Last week I was in Oxford to give a talk at the IP Seminar on “How Long Should Copyright Last?”. I have now posted the slides from the talk online.

In addition to covering the basic outline of the optimal term calculation, I was also able to give some results from the recent research on the public domain (see slide 58 onwards).

Talk at ATRIP Conference: How Long Should Copyright Last?

Last week I was at the ATRIP Conference to give an invited talk on “How Long Should Copyright Last?”, based on my paper: Forever Minus a Day? Calculating the Optimal Term of Copyright.

Slide are here but you can also seem them inline below. You can also find the text of the accompanying introduction below (I plan to write up the full exposition as a short essay — but that is to come).

Most ATRIP participants were lawyers not economists, so this was an opportunity to do a more non-technical presentation (so no equations!). As with most economics, the fundamentals of calculating copyright term are simple: it is just a demand curve plus “welfare analysis” (a fancy name for adding up social benefits and costs), and shorn of “obfuscating” algebra these matters should be understandable by anyone.

Slides (full screen version)

How Long Should Copyright Last: Introduction

Before I begin it is important to note that in considering copyright and its term, we must leave to one side the questions of attribution and integrity — their existence and term can and should be considered quite separately from the ‘economic’ rights that form the core of copyright as it operates today.

This small caveat done, I beg your indulgence for a brief historical excursion. In particular, I ask you to cast your mind back a century and a half and more to the Houses of Parliament in the February of 1841.

Serjeant Talfourd

As many of you will be aware Serjeant Talfourd had, by this point, been doggedly pursuing a new copyright act for four years — since 1837. Originally wide in scope the Bill had been narrowed and the attention of both supporters and critics alike had come to focus on a single feature of that Act: the proposed extension in the term of protection. Specifically Talfourd’s Act proposed changing the then rule of 28 years or life (whichever being the longer) to life plus sixty — remarkably close to the life plus 70 of today.

TB Macaulay

By February 1841 Talfourd’s Bill had failed no less than 4 times. On its fifth attempt it had reached a second reading and on the fifth of February it came before the House. After a brief introduction by Talfourd — mindful that this was not the first time the matter had been discussed — Thomas Babbington Macaulay rose to speak. In a masterly disquisition, both in content and rhetoric, Macauley set out his opposition to the Bill, and did so so tellingly that the motion was defeated. Talfourd, who lost his seat at the next election, and therefore only saw his Bill pass in the hands of another — and in much reduced form — remained forever embittered by Macaulay’s intervention — coming so late and so decisively in the process.

To read Macaulay’s speech, and, for that matter, the views expressed on all sides in that debate, is to be struck by how little has changed.

Jack Valenti

When Jack Valenti and Mary Bono are found in recent times calling for a term of ‘Forever Minus a Day’ one hears the echoes of Serjeant Talfourd all those years ago, just as one can hear echoes of those who oppose extensions today of the likes of Henry Warburton, a radical politician and vehement opponent of Talfourd, who claimed the extension was “a robbery upon the public” and that copyright ought to be fixed, “only on such a term of years as would prove a sufficient inducement for authors to write good books”.

And the analogy is telling in other ways. Though Talfourd’s Bill was beaten back by a swell of opposition year after year eventually it was passed — albeit in reduced form and by Lord Mahon — with this success attributable to a persistence made possible not, primarily, by the size, but by the concentration of the interests who sought its passage. Like Fabius Cunctator the proponents of extension, sustained by deep reservoirs of emotional and financial commitment, can afford to wait, able to return, as necessary, again and again, until an opportune moment presents itself for the attainment of their purposes — for the opposition to extension, though broad is ‘shallow’ and therefore more easily dissipated by distraction and division.

Philosophical Differences

Even more striking are the similarity in the issues that occupy centre stage in this debate. First, the fundamental ‘philosophical’ question — which colours all of discussion — of whether we confer copyright because it is a natural right — which should therefore last forever — or for ‘utilitarian’ purposes, that is the public good — in which case it almost certainly should not. Second, descending from these lofty heights of principle, what is the actual effect is copyright? In particular, does it operate to raise price and restrict access — that is: is it a monopoly?; and what specifically are the benefits that accrue to the producers of copyrightable works, and what costs to the public and others who wish to use and reuse them.

I think it is clear that economists — or any group for that matter — have no great claim to authority on answering this first question of principle, for it seems, ultimately, one of opinion. That said, I would note two points which must raise grave doubts as to the existence of any fundamental natural right from which copyright might spring.

First, term limited in all jurisdictions. Second, the breadth of copyright’s application both in subject matter, quality and ownership. For can we truly convince ourselves that “eternal expressions of the human spirit”, worthy of exclusivity for all time, subsist in an advert for toothpaste; or convince ourselves of the special status of the creator when so much copyright today, perhaps even the majority, is immediately, and indeed often automatically, assigned from the ‘creator’ to a corporation.

However, it is not my intention to enter into this debate any further here. Rather, in the interests of ‘full disclosure’ I wish only to make clear my views — and those of economists generally — on the matter, namely that copyright is not a natural right but is created and maintained for the purpose of promoting and securing the public good, no more, no less. (These are views which can come as no surprise given the nature of this talk — an analysis of term only makes sense if its basis is a utilitarian one!)

My Views

Furthermore, let me also make clear, right at the outset, my view, and one again I think shared by almost all economists, that copyright is a monopoly. This is not to say that copyright is bad — far from it. But to deny that copyright is a monopoly is to obscure its basic nature and operation — an obscuration that has, furthermore and unfortunately, been most common and attractive to those pursuing copyright’s enlargement.

And what is the general tendency of monopoly — to echo Macaulay once again? It is indeed to raise prices and limit access. Now, of course, we may debate the precise extent of these effects, but there can be no denying that the very purpose of copyright’s existence is to confer on a single entity — the copyright holder — the power to control the dissemination, and hence the price, of all instances of a particular good — i.e. all copies of a given work.

This is the very definition of a monopoly and the fact that there may exist other goods, other works, which compete with that one makes no difference — a monopoly of apples is no less a monopoly because one does not control oranges. Of course, the existence and proximity of substitutes will alter the affect of the monopoly, but one must be cautious here: close substitutes may limit the negative effects of the copyright monopoly but they will, for the very same reasons, also limit the gains (those increased revenues for copyright-holder).

Summary

Returning then to Macaulay whose expression of the matter I cannot better:

“It is good that authors be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is evil. For the sake of the good we must submit to the evil, but the evil ought not to last a day longer than is necessary for securing the good.”

Our task then is to answer the implicit question: how long should copyright last (so as to not be a day longer than is needed)? More specifically what are the degrees of benefit and harm created by copyright’s monopoly and at what level should term be set to achieve the most advantageous balance of the two?

Analysis

There follows an overview and explication of the analysis and conclusions on optimal copyright term found in:

http://rufuspollock.org/economics/papers/optimal_copyright_term.pdf