Why You Should Give A Crap About Copyright Terms

Not my usual uke-centric post this. But it’s an issue that affects anyone who has learned a song from the net, made a ukulele video for YouTube, written up a chord chart for a ukulele group or just attempted to learn an instrument.

There’s a lot of debate over copyright when it comes to making videos and putting up chords and tabs. But very little of it focuses on what I think is the biggest issue: the increasing length of copyright.

I have a dog on both sides of this fight. I rely on public domain work for my ebooks (and the actual book I’m working on). But the books themselves are protected by copyright. As I’ve gone along I’ve been learning more and more about copyright and the public domain. And the more I’ve learned the more unfair it seems. So here are a few things I’ve learned along the way that I think are worth considering.

Disclaimer: I’m not a lawyer and I don’t even look like one when I put a suit on.

Copyright Law As It Stands (Sort of)

Like every area of the law, copyright is a bit of mess. Bits have been tacked on and patched up and there are some differences between countries (though they’re converging). But in general, when a person or company makes something (books, songs, music recordings, films) they have the sole rights to it for a certain period of time. After that, it moves into the public domain and anyone can use it however they like. So you can legally tab out a public domain tune and sell it, you can take a public domain video and put your own music to it, you can paint yourself into the Mona Lisa or you can rewrite a story and make a film of it.

The last bit of patch-up of the law in the US was the Copyright Term Extension Act (CTEA) in 1998. This extended the length of copyright from 75 years to 95 years (for corporate works such as Disney film) or 50 years after the death of the creator (making it similar to the laws in Europe).

The act was retrospective, so anything that was still under copyright had its copyright extended. That means nothing has entered the public domain in the US since 1998 and won’t until 2018. If the pre-1998 laws still applied ukulele classics like Five Foot Two and Ain’t She Sweet would be public domain.

Patents and Why They Expire

Coming up with a new invention can take years of research and cost piles. So when someone comes up with a new invention the government gives them the sole right to use it so they can make their money back and then some. If they weren’t allowed to cash in on it, there’d be a lot fewer inventions and we’d all be worse off.

But after 20 years (mostly) patents expire. They need to. Because new inventions always build on old ones and every creative person stands on the shoulders of giants.

Good Stuff That’s Happened Because of the Public Domain

We need copyright for the same reason we need patents: so people keep coming up with new stuff. But – like patents – books, songs, films are built upon to create new uses. The first three re-uses of public domain material that pop into my head:

– Bob Dylan took this and turned it into this.
– Disney films built on stories collected by the Brothers Grimm: Snow White, Sleeping Beauty, Cinderella and The Princess and the Frog.
– Eliza Doolittle took this and turned out this.

There are plenty more (and better) examples. But I think all three demonstrate how creativity isn’t just the person who comes up with the initial idea.

Also, like patents, people learn from the creative works that have gone before. Hands up anyone who has learnt to play the ukulele without once learning a song that’s under copyright.

It’s an interesting comparison between patents and copyright. If 20 years worth of protection is enough to encourage multinationals to pour millions into research, is it really the case that a shirtless indie-boy will be unwilling to write a song unless it’s going to carry on making money until his grandchildren’s generation?

The Evidence

Some very smart people have looked into this issue. When the CTEA was proposed in 1998 a group of economists (amongst them five nobel prize winners including Milton Friedman) investigated and wrote The Copyright Term Extension Act of 1998: An Economic Analysis. Not being ones to hide the lead, the first part of the report is:

It is highly unlikely that the economic benefits from copyright extension under the CTEA outweigh the costs

You can judge the overall thrust of the report from that. But if you want to delve into it, it’s a short, easy read considering it was written by economists.

Also well worth a read is Chapter 9 of James Boyle’s The Public Domain which covers the European Commission’s evaluation of database copyright (stuff like phonebooks where data is collected). The EC were worried that the US database industry (which has no copyright protection) was much more vibrant than Europe’s. So they gave European’s greater database protection. The report looked into whether that change helped – it didn’t.

In the UK sound recordings, unlike most countries and most other forms of work, are only protect for 50 years (from the time of creation). A few musicians got up a campaign about this and Gordon Brown launched the Gowers Review of Intellectual Property (it’s got some good stuff in it, but I don’t recommend plowing through that one). They concluded that, while the current law should be more firmly enforced, the shorter protection doesn’t restrict creativity compared to countries with longer terms.

Why It Should Change

Copyright needs to strike a balance between the return an artist rightly deserves for their work and the right of society to its own culture. Of course, if you create something rad-tacular you absolutely deserve to your jacuzzi full of supermodels. But at the moment, the balance is way out of whack.

The continued extension of copyright has been justified by the increase in life expectancy. I think that’s entirely the wrong way of looking at it. What needs to be acknowledged is the increasing speed that ideas are being built on recycled and improved on. The speed of innovation now is so much quicker than it was when copyright first came into use. And the speed with which art is assimilated, remixed and re-imagined is similarly quick.

Because the law hasn’t kept up with this change of pace (and has gone in the opposite direction), people are starved of their culture. A copyright term of 95 years means the public domain is outside of living memory. And when there’s such a large gap between the time of creation and the ability to develop it, it stagnates. It doesn’t feel right that we don’t have any direct access to art created in our lifetime. And when people feel the law is unjust, they don’t follow it. Here’s what the Gowers Review said (3.26):

Copyright in the UK presently suffers from a marked lack of public legitimacy. It is perceived to be overly restrictive, with little guilt or sanction associated with infringement. While the law is complex, this is not principally a problem of coherence, but of a lack of flexibility to accommodate certain uses of protected material that a large proportion of the population regards as legitimate and which do not damage the interests of rights holders.

There needs to be more of a trade-off between respecting copyright and an extensive and fresh public domain. It’s a trade-off picked up in this article in The Economist. They recommend a 14 year term renewable once (the same terms as the first ever copyright law from 1710) in return for greater protection of those works that remain copyrighted.

I could live with that deal. In fact I’ll say right now, if I’m not writing about ukuleles 14 years hence I’ll make the ebooks public domain. If I am, the ebooks will get there after 28 years.

Actual Clever People

There’s loads more I wanted to say in this post – like orphan work, renewable extensions, how stupid retroactive changes are and It’s A Wonderful Life – but it’s on the long side as it is. If you want to find out more from people who are actually clever, check out:

Free Culture by Larry Lessig and his TED talk.
The Public Domain by James Boyle and this talk by Jennifer Jenkins who co-authored Theft! A History of Music with him.

View Comments

26 Comments

  1. byjimini November 3rd, 2010 6:35 pm

    Good stuff. Problem is, corporations are bloody powerful these days and lobby over everything (BP and the release of Mahgradi (sp.) in exchange for drilling rights in Libya springs to mind…) so any change that will inconvenience their profits will be dealt with a hammer blow.

    There’s plenty of ways they’ll go about it; outright bribe politicians (who love a bung) to vote against it; influence them by purchasing damning facts and material and threatening to go to the papers with it; change their address of headquarters, thus depriving tax revenue to the government.

    I just don’t think it’ll ever happen, especially if it’s logically a good choice. Hell, we’re letting convicted criminals vote now!

  2. Woodshed November 3rd, 2010 7:53 pm

    byjimini: I’m not quite so pessimistic. Good economic sense does tend to beat out vested interests eventually.

    And there are big corporations on the other side of the argument. Well, one at least: Google. With all the books they’ve been scanning I’m sure they’re dying for a bigger public domain. Not to mention the benefits of it for YouTube.

  3. Mike Dickison November 3rd, 2010 9:29 pm

    This is one of the best things you’ve written. Copyright law has an enormous effect on the music community, including chord sites and YouTube videos. If it were actually enforced, much of the amateur music scene would simply disappear. Every ukulele group I know uses copyrighted songs.

    I’d like to do the same thing with Kiwi Ukulele: make it public domain in 14/28 years. I doubt it’ll still be in print then, so I won’t be making any money off it, and it would be great to make it freely photocopiable. Or whatever we do to duplicate things in the Future.

  4. JCMcGee November 3rd, 2010 9:48 pm

    Intresting…after reading this I have come to the conclusion that: I wanna shag Eliza Doolittle.

  5. Alison November 4th, 2010 12:34 am

    Very well said. As a librarian, copyright is a common topic of discussion in my professional life, and I think you’re right on target here.

  6. Ken Middleton November 4th, 2010 6:51 am

    An excellent article, Al. Well-judged and fair.

  7. snojimbo November 4th, 2010 8:58 am

    Learning the ukulele would be far less fun if there wasn’t the abundance of simple chords and tabs easily available on not-for-profit websites. Would I part with cash to the record company so I could play the riff from ‘Come As You Are’? Probably not. I am playing for fun, which is presumably why songs were written in the first place.
    Quick thank you to Mike Dickison – very much enjoying your Kiwi Ukulele book, cheers! And your website too, Woodshed.

  8. ritchie November 4th, 2010 9:28 am

    Good article Al …. send lawyers guns and money, before the shit hit’s the fan ….. here’s a link to some good reading about a favourite songwriter of mine …http://mudcat.org/thread.cfm?threadid=61052.

  9. QAsRevenge November 4th, 2010 11:52 am

    Well done Shed. Personally, I’ve always wondered why nobody got up cover band’s butts.

  10. Rob NY November 4th, 2010 12:33 pm

    Interesting,informative,and explained well. Thank you.

  11. Tuscadero November 4th, 2010 1:22 pm

    Just curious, what did Dylan turn Lord Randal into? the link has been removed from YouTube.

  12. Lindy Danny November 4th, 2010 1:28 pm

    The difficulty with changing the law I believe lies less with the power of corporations and lobbying and more with the daft ability of politicians to sway public attention. For instance, if you as the average person which is more important (and therefore what would be the deciding factor in voting for a candidate) a strong opinion on health care or a strong opinion on copyright law, most are going to say health care.

    The simple fact is that most people are not creative in the sense that copyright law can affect them day to day. The closest to affecting them it comes would be getting sued by the record industry for downloading Metalica in college from Napster. Only a small percentage of the population actually engages in risky behavior in this spectrum. But, everyone cares if their health care benefits (whether bought themselves or government provided) get f’ed with.

    Add to all of that the more controversial issues lining our political world right now, and average people (even those who play music or write books) don’t care enough about copyright law to make it a deciding factor in their voting. Case in point: How many people who voted Tuesday voted based on a candidates position on copyright laws?

    I rest my case.

    ~DB

  13. Bam November 4th, 2010 2:43 pm

    They say that every day is a school day. Like the article. Interesting and extremely informative for someone as in the dark as I am.

    Bam

  14. Bam November 4th, 2010 2:44 pm

    That was meant to read ‘I like the article’. The article is not like a school day. School days were boring and rubbish.

  15. CharlesHugh November 4th, 2010 3:36 pm

    @Tuscadero A hard rain’s gonna fall, there doesn’t seem to be any good versions of it on youtube.

  16. Ken Middleton November 4th, 2010 4:04 pm

    Charles:

    I think Sony had most versions of this song deleted from YouTube. My version certainly was. Then they threatened to close me down completely if I didn’t delete everything of theirs. I don’t know whether you would class my video as a “good version”, but you will at least be able to hear the song. You will find it on my FaceBook channel.

    http://www.facebook.com/home.php?#!/video/video.php?v=1475426367227

  17. Richard November 4th, 2010 6:38 pm

    For those wishing to teach, provide non profit websites for ukulele groups and the like, you may want to look at the laws that cover Coypyright and Fair Use of copyrighted material(section 107) The laws are a bit more forgiving for non profit organizations. The use of copyrighted materials for instructional purposes, parodies of works and satire, as well as criticism of works by others is not usually a concidered a copyright violation. It usually comes down to are you trying to make money off another persons work.

  18. Howlin' Hobbit November 4th, 2010 6:40 pm

    good one, Al.

    I’m slowly moving all of my stuff to a Creative Commons license. it won’t help the situation with the copyright laws, nor with the various uke clubs, YouTubers, etc. affected by them, but I can always hope I’m a small part of the change to something more sensible for the future.

    @QAsRevenge — cover bands mostly play at clubs who’ve paid the live performance vigorish to ASCAP, BMI, etc.

    if they (the cover band) decide to do a recording, they pay the mechanicals fee.

  19. CharlesHugh November 4th, 2010 10:05 pm

    Ken:
    Thanks for that, shame you had to delete it.
    And also thanks for letting me play along with you and your friends at Wukulele, I don’t know if you remember but I was the lad with brown curly hair and glasses on the Sunday. Really enjoyed it.

  20. Woodshed November 6th, 2010 4:35 pm

    Mike: Thanks very much.

    Jimmy: She looks about 13.

    Alison: Libraries are another thing I thought merited a mention but didn’t have space for. I’m surprised they don’t get more leeway in these matters.

    Ken: I tried to be fair. The debate on this tends to be very polarised and I don’t think it’s helpful.

    ritchie: Thanks for the link.

    QAsRevenge: Most places they play will have a license (which I think would be one way to go with tab sites and with YouTube-type sites).

    Rob: Glad you liked it.

    Tuscadero: Dang, that link got burned quick. Yes, it’s A Hard Rain…

    Lindy: I think you’re wrong on a few points. Politicians make changes every day that aren’t top priority voting matters. I like to think politicians sometimes do things just because they’ll make things better.

    I don’t agree that it’s only a minority that are creative. I think pretty much everyone is creative to some extent. And more people write blogs, make videos or any number of things (cook, build stuff, paint) than have ever done before.

    And the influence of the public domain/copyright issue isn’t restricted to creative people. It’s restricts the information available on any topic. It regulates what TV and films you can see and books you can read. It influences the books, TV, films, radio etc. that are made.

    Richard: The trouble with fair use is that it’s so vague. If a big corp comes after you and fair use is your only defence, you better have plenty of money for lawyers fees.

    Hobbit: It’s great to see musicians giving their music CC licenses and I hope it takes off. I’m never quite sure what that means for the songs rather than just the recordings (whether I could legally tab them up).

  21. Howlin' Hobbit November 6th, 2010 5:26 pm

    @Woodshed — the particular license I use (BY-NC-SA) means that you’re free to do all sorts of things with the tune (including YouTube vids, using my recording on your podcast, derivative stuff like mash-ups, tabs, etc., or you just want to perform the tune) as long as you:

    * acknowledge the source (the “BY” part)
    * release your work under the same conditions (“SA” the “share alike” part)
    * aren’t going to sell your work (“NC” the non-commercial part)

    frankly if you (or anyone else) wanted to tab up my tune “Simple Rag” I wouldn’t be mad, I’d be ever so grateful. I’ve been trying to for some time. turns out I suck at the whole tabbing thing.

    and, unlike a whole list of (mostly) “major” labels and acts, if someone made a vid of one of my tunes it would–as my friend Georgia used to say–just shickle the tit outta me.

  22. Patrick September 3rd, 2011 10:13 pm

    Interesting article, really nice food for thought, but I agree with byjimini about how international corps. are so powerful that they can make the laws so that they can maximize profits. A mess really, but what can we do?

  23. Woodshed September 4th, 2011 11:40 am

    Patrick: I think step one is making people aware that it’s an issue that impacts them.

  24. herman Vandecauter September 12th, 2013 10:01 am

    You will have to wait an other 75/95 years before they would change those laws! So create your own songs or stay with public domain music. For protecting your own creations there are some alternatives without becoming a member of those Bantitos!

  25. Fi from NZ September 12th, 2013 9:43 pm

    Interesting article. I wonder if the original composers of songs such as ‘Five Foot Two’ would have been able to imagine the mediums available today to play their songs e.g. YouTube – which help to keep their songs alive. I’d bet they would be delighted to think they would even be remembered 75+ years later.

  26. Woodshed September 13th, 2013 10:53 am

    Herman: I still have a tiny bit of optimism that things will change in my lifetime.

    Fi: That’s a good point.

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