The Copyright Hunger Games

 In Being An Author, History, News
Hunger Games

Hopefully it will be me with my hand raised high wearing a stunning red dress in the interests of bringing liberty to the Districts…

On Monday I address the Australian Productivity Commission on Intellectual Property Agreements.

I feel a bit like Katniss from The Hunger Games leading a rebellion against the Capitol…

Anyway, my issue with the report is with Finding 4.2:

While hard to pinpoint an optimal copyright term, a more reasonable estimate would be closer to 15 to 25 years after creation; considerably less than 70 years after death.”

A lot of people have asked why this is such a big deal. After all, we’re protected by Free Trade Agreements and the Berne Convention aren’t we? On the surface it appears to make no sense.

Hanlon’s Razor states: Never attribute to malice that which is adequately explained by stupidity.

But one can never be too careful about such things, so I also subscribe to the aphorism credited to Wendell Phillips: Eternal vigilance is the price of liberty; power is ever stealing from the many to the few.

From my research, this seems to be part of a worldwide movement to limit copyright and other protections for authors, artists and other creators.

Let’s answer a few questions:

What evidence does the APC use to support its finding?

The recommendation that copyright protection should be severely curtailed comes from two academic reports which start from an erroneous premise, and lack understanding of the arts and entertainment industry.

Why are the two studies wrong?

Firstly arts and entertainment provide cultural touchstones.

A favourite song brings will bring back memories from your teen years. A favourite movie or TV show has a catch phrase that becomes mainstream. A book starts a cultural phenomenon that feeds TV and movies (Poldark, Outlander, The Hunger Games, Divergent, The Maze Runners – heck even the Marvel movies started as a form of literature).

Therefore arts and entertainment has longer value than just a piece of pop culture ephemera – that’s why it is used in TV commercials, to help create an emotional connection.

So why shouldn’t its creators receive recognition for their industry and innovation?

Yeah, but what about those studies the APC cites?

There’s a problem with both of them in that they either lack understanding of arts and entertainment or they’ve lumped in books with other things which can be copyrighted (academic studies, software, product manuals etc, etc).

So to use them to bolster the argument to reduce copyright duration is wrong headed.

Let’s take a quick look at the two studies:

Landes & Posner (2002)

The abstract actually disagrees with itself which makes everything else in the report suspect:

In this paper we raise questions concerning the widely accepted proposition that economic efficiency requires that copyright protection be limited in its duration (often shorter than the current term). We show that just as an absence of property rights in tangible property would lead to inefficiencies, so intangible works that fall into the public domain may be inefficiently used because of congestion externalities and impaired incentives to invest in maintaining and exploiting these works. Although a system of indefinite renewals could lead to perpetual copyrights or very long terms, this is unlikely. Our empirical analysis indicates that (1) fewer than 11 percent of the copyrights registered between 1883 and 1964 were renewed at the end of their 28-year term, even though the cost of renewal was small; (2) copyrights are subject to significant depreciation and have an expected or average life of only about 15 years; and (3) copyright registration and renewals are highly responsive to economic incentives for the shorter the expected life of a copyright and the higher the registration and renewal fees, the less likely are both registration and renewal. This in turn suggests that a system of modestly higher registration and renewal fees than at present, a relatively short initial term (20 years or so), and a right of indefinite renewal (possibly subject to an overall maximum term of protection of say 100 years) would cause a large number of copyrighted works to be returned to the public domain quite soon after they were created. A further benefit of indefinite renewal is that it would largely eliminate the rent-seeking problem that is created by the fact that owners (and users) of valuable copyrights that are soon to expire will expend real resources on trying to persuade (dissuade) Congress to extend the term.

Let me sum it up:

Copyright in the US requires it to be registered for it to apply. After 28 years a lot of people don’t pay the renewal. Therefore (according to the academics), the commercial life of what was protected is now extinguished and should go into the public domain.

Using that as an argument to impinge on the rights of Australian authors doesn’t hold water mainly because Australian copyright (as it is in most places in the world) is granted automatically when the work is “fixed” (i.e. completed and published).

I’ve highlighted another issue in bold:

would cause a large number of copyrighted works to be returned to the public domain quite soon after they were created.

Hello? Returned to the public domain? That assumes that the work was public domain to begin with and that is most certainly not the case.

Pollock (2007)

Rufus Pollock is an economist with an agenda. He describes himself as an entrepreneur and an activist.

He runs Open Knowledge Foundation with the laudable goal of: using advocacy, technology and training to unlock information.

His two studies, Optimal Copyright Over Time: Technological Change And The Stock Of Works and Forever Minus A Day? Calculating Optimal Copyright Term, are all very nice as far as they go but let’s keep in mind that Mr Pollock has an agenda to push.

He is an activist after all.

Further, keep in mind that this is all very theoretical and a “parismonious theoretical model” at that. In other words, it’s glorified guesswork.

And the kicker? While the IP Statement on the web site allows reproduction of content under a Creative Commons license, Open Knowledge Foundation name itself is trademarked and therefore protected, potentially into perpetuity…

Well, can’t you trademark your name to protect your work, if copyright protection is limited to 20 years?

It costs about $1500 which is a huge impost on authors who may not even earn that in their first year (and some may never earn that amount in five years). Worse, there is no guarantee that you will be successful in being granted a trade mark even on your own name.

Yeah, but Australia is signatory to the Berne Convention and various Free Trade Agreements. You’re worrying about nothing.

Yes, Australia is a signatory to the Berne Convention, but let’s take a look at the small print:

Although the Berne Convention states that the copyright law of the country where copyright is claimed shall be applied, Article 7(8) states that “unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work”, i.e., an author is normally not entitled a longer copyright abroad than at home, even if the laws abroad give a longer term. This is commonly known as “the rule of the shorter term”.

So if Australia’s copyright term limit was 20 years, it would apply in every territory of the world.

Look, agreements are subject to change all the time. To suggest that this is (or any other human right) locked in stone, never to change, is to lack understanding of history.

Recall the great social changes over the past century, once they were considered unthinkable. Now they are reality.

Consider this – Mr Pollock’s “parsimonious theoretical model” attracted the attention of a political party which made it part of their platform to reduce copyright to 14 years after creation based on his study.

Just last year The UK Greens Party were operating under the deluded opinion that if you punish creators by limiting their earning potential then you’ll force them to produce more books, songs and movies.

A bit harsh?

Let’s hand it over to Richard Mollett, CEO of The Book Seller:

There is a similar absence of rigour or sense when it comes to the specific point of reducing copyright term to 14 years. There is apparently a line of reasoning – alas, again left to the imagination – which says that if an author can only exclusively earn royalties for 14 years there will be more cultural output. Perhaps the idea is that writers will have to write a lot more so that they always have a work in copyright. No more lazily retiring on the proceeds of one big hit! The thought must also presumably be that publishers, instead of being able to subsidise the investment in new writers through royalties on the back lists of others, will invest even more in their live and emerging writers.

But the real kicker is that the Greens sincerely believe that cultural productivity will be expanded if peer to peer copying is legalised, meaning that the ability of any creator to earn money will be severely curtailed. In a Green world that’s seen as fine (money being the source of most evil of course), but it may seem less fine to the person who has to make a choice between writing for a living and doing something else.

While the UK Greens quickly backpedaled on reducing copyright duration – bless ’em, creatives have copyright protection for 14 years after their deaths, instead – they still support piracy of creative works – just as long as you don’t make a profit from the theft, don’t you know…

What is lunatic policy from a minor but influential political group today (remember, the Greens in the UK preference Labour, the Greens in Australia preference Labor), could become mainstream political policy (and law) tomorrow.

That is why it is important to take the strongest possible stance today to bury this proposal so deep that it never sees the light of day again.


Yes, seriously.

Copyright protection and duration matters for a very important reason: the preservation of natural rights.

To quote 17th century jurist John Locke: “every Man has a Property in his own Person. This, no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his”.

Locke did not come to this conclusion in a vacuum. The inviolability of property rights is one of the enduring principles in the 800 year old Magna Carter on which our common law is derived.

Any abridging of intellectual property rights with respect to copyright protection sets a dangerous precedent. It dictates how long you may own your own property.

If protection of intellectual property is eroded today, then ownership of physical property is at risk tomorrow.

And all because an erroneous premise based on demonstrably incorrect academic research has decided what you may own and for how long you may own it.

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