A few days ago, John Quiggin noted and commented on the copyright cloud hanging over the centennial anniversary of Bloomsday, "the day" of James Joyce's Ulysses, in Dublin this June. It seems that Joyce's grandson Stephen (the copyright owner) is, shall we say, a bit churlish. He will not allow a public reading of Ulysses at the celebration.
Quiggin's fine missive prompted me to investigate further. Copyright protection has been increased several times in the past century (here is a useful summary of the U.S. history). The most recent legislation is the Sonny Bono Copyright Term Extension Act (CTEA) of 1998, which increased the term from 50 to 70 years beyond death of the creator, putting the U.S. on par with Europe.
Could the CTEA possibly be in the public interest? Economics suggests that copyright stimulates effort from artists motivated by monetary returns, but could years 51 through 70 matter? An artist might be motivated by the knowledge that her children's children will benefit from royalty income when raising their children, and this should receive due consideration. But Nobel Prize winning economists George Akerlof, Kenneth Arrow, James Buchanan, Ronald Coase, and Milton Friedman - as politically diverse a group of economists imaginable - have done that, so I will defer to them. In an amicus curiae brief filed in Eldred vs. Ashcroft (2003), the Nobels concluded that economic reasoning finds the extension harmful:
… a lengthened copyright term under the CTEA keeps additional materials out of new creators' hands. Would-be new creators face increased transaction costs: the necessity to engage in costly locating (especially for very old works, the very ones that would be in the public domain but for the CTEA) and bargaining with multiple parties. These higher costs give new creators less incentive to produce. As a result, the CTEA imposes two kinds of burden on society, fewer new works produced, and higher transaction costs in the creation of some works.
The Nobels discussed other factors which weigh against the CTEA, but this seemed the most telling to me. Nevertheless, their brief failed to carry the day. In a 7-2 decision, the Supreme Court ruled that the CTEA was not unlawful under the Constitution's copyright clause.
The Joyce flap echoes other recent clashes between long standing social norms and the new economics of copyright. The Girl Scouts were recently reminded that when they sing copyrighted songs around the campfire, they do it at ASCAP's pleasure. As relayed by Harvard law professor Jonathan Zittrain in an engrossing survey of the problem:
"They buy paper, twine and glue for their crafts—they can pay for the music too," John Lo Frumento, ASCAP's chief operating officer, told The Wall Street Journal.
We are in the midst of a cultural war over copyright, in which the salvos show the complete disconnect between the colliding copyright regimes of statute and practicality, law and life.
Sounds right to me. The CTEA is another victory doled out by Congress to special interests. I'm late to the party in commenting on this, but surely, there is much more to come.