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Rant #139
(published June 19, 2003)
Revenge of the Jedi: Starting to Think About Where Copyright is Getting Us (part 1 of 2)
by Fritz Swanson

Episode One: Where the Argument is So Far

So, I've been thinking about copyright law and about my students.

Recently, PBS and the NewsHour held an online forum in which questions about copyright were answered both by Lawrence Lessig Of Stanford University Law School and Matt Oppenheim, senior vice president of business and legal affairs for the Recording Industry Association of America. Lot's of angles were taken, but a basic divide can be found here:


At the core, the debate is over what the constitution means when it says in Article One, Section Eight:

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

What does it mean to promote the arts?

Mr. Lessig and Mr. Oppenheim disagree essentially in the forum over this. The basic argument is that a "limited time" copyright gives the author a chance to recoup the cost of the effort of their work of art so that they can focus on creating a new work of art. I write a poem, and if the copyright term were one year, I would have one year in which to sell and promote that poem as my own before someone else could sell and promote it without paying me. The copyright term would be beneficial in this simplified universe if I made enough money off that poem in one year to support myself to the next poem. Artists are then in a position to skip from work to work through their life, staying ahead of copyright law, creating new work just fast enough to keep ahead of old work passing into the public domain.

This is the theory. The debate, therefore, is over how long that term should be to provide the artist added incentive to keep creating new work.

The debate in this universe is purely over the length of the term. At what point does the term stop adding benefit to the artist, thus incentivizing no more? If the goal is the creating of new work, there should be an easy formula, and we would assume that it should last some term less then the life of the author so as to create a stepping stone effect as described above. Incentive, in this case, would be a little bit carrot (guarenteed monopoly for a limited term) and a little bit stick (loss of monopoly).

So why in the hell should the term ever be longer then the life of the author? How can it incentivize a dead author to create new works?

To quote Professor Lessig: "In 1998, Congress extended the terms of existing and future copyrights by 20 years. For corporate works, that means the term of copyright is now 95 years. For works by authors, the term is now the life of the author plus 70 years. That was the eleventh time that Congress extended the terms of existing copyrights in the last 40 years. And because of a change in the law in 1992, the effect of that change is to triple the average copyright term in just the last 30 years."

Prof. Lessig is totally bemused by the length of a term. How can new works come from a long dead author? Well, the RIAA and Disney and all of the corporations want to protect their incentive to distribute new work and to encourage new work. Basically, they want to have the right to continue repackaging Elvis long after his toxic encounter with a shag rug so as to build up a war chest of money that they can use to find, develop and produce a new Elvis. Elvis sales support the search for and discovery of Eminem or Beck. This isn't exactly how they argue it, but I think it is a more than fair explanation of what they want.

Effectively, the promotion of New Art has become a thing which copyright law incentivizes across culture, and not on an artist by artist basis. So now we are in a situation where corporations instead of individual artists are skipping from stone to stone, protecting their monopolies long enough to build new monopolies.

Essentially nothing has changed. Theoretically, because corporations can't die they could, and probably will, continue to demand extensions in copyright. This fact potentially makes them different from human artists, but let's ignore that problem right now. Besides this power over the law itself, a power that human artists theoretically could possess if they wanted to organize in such a way to send their will beyond the grave (through either estates (likely) or zombies (unlikely)), corporate copyright only changes the scale of the debate and not the nature of the debate.

We are left pondering the basic question: what term will incentivize new work, regardless of who receives the incentive directly (be it corporations or individuals).

I'm going to take a modestly controversial stand. It does not matter who we incentivize or for how long we extend that incentive. What matters is how we understand art, and what we think the meaning and value of "new" is.

So, like I said, I have been thinking about copyright law and about my students.

Next Week:

Part Two: The New, The Public Domain, and Why Plagiarism is Good

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Revenge of the Jedi: Starting to Think About Where Copyright is Getting Us (part 2 of 2)
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