Extension of the copyright term has been a point of contention in recent years, with some arguing that it will have a negative impact on future creativity and innovation. This is particularly evident in the case of Mickey Mouse, whose copyright term has been repeatedly extended, giving Disney a permanent monopoly and restricting the ability of subsequent creators to build on or use the character. As Disney’s copyright term for Mickey Mouse (or at least the 1928 Steamboat Willie version of Mickey Mouse) will expire at the end of 2023 in the United States, this article sheds light on the reasons behind long-term copyright protection and whether they are in the public’s interest, examines arguments for and against the present term of copyright protection, and recommends shortening the term of copyright protection.
Copyright Protection and Territoriality
Copyright protection provides legal rights to creators for using and distributing their original work for a limited period. Since 1709, from the day when copyright law emerged, the term of copyright protection has gone through different vicissitudes. Over time, the term of copyright protection has been lengthened significantly; it now extends to the lifetime of an author plus 50 or 70 years, which is far longer than the term of other intellectual property rights.
The extent to which changes to the copyright term in one jurisdiction may influence the copyright term in other jurisdictions will depend on the laws and treaties in existence. It is important to understand that copyright laws are territorial, meaning they apply only within the boundaries of the jurisdiction that enacted them. Therefore, the copyright term does not immediately change if the copyright term in one jurisdiction changes. Many countries, however, have signed international copyright treaties that establish minimum copyright protection requirements that member states must meet. These agreements mandate that member states protect the copyrighted works of other member states in reciprocity.
Arguments for and Against Long-Term Copyright Protection
Some creators and authors believe that rewards and remunerations for their original works can only be provided by long-term protection of their works through copyright. They justify that an author will only receive incentives for the original work for a long time if the work is worthy enough to be bought by people up to 70 years after the author passes away. In addition, creators believe that they should be rewarded financially, primarily as a means of making a living and secondly as an incentive to create. In this regard, these creators and authors believe that the long term of copyright protection will empower and drive their creativity and help them financially so that they can put more effort into developing new works.
Conversely, the critics of long-term copyright protection argue that the long term of copyright is actually filling the pockets of others rather than the original creators of the work. These critics believe that very few authors or creators get incentives for their work as major portions of the incentives or royalties are being engulfed by other parties, such as publishers and distributors of the work.
Critics also contend that the practice of long-term copyright protection is impairing innovation and creativity. An author or creator of a blockbuster work may have less motivation to come up with new works as the royalties coming from their blockbuster work would be enough for their life and for their heirs until 70 years after their death. And while the abundant source of the public domain is considered to be the fuel for novel creations and innovations, the extended term of copyright is restricting creators from using works and developing new creations. Upcoming creators are stepping back and getting discouraged due to long-term copyright protection.
Mike Konrad is an author and critic of copyright term extension. He has written extensively on the subject, suggesting that the public domain, innovation, and creativity all are impacted by copyright term extension (see Mike Konrad, Copyright Strangulation, Am. Thinker (Sept. 14, 2013)). According to Konrad, copyright term extensions primarily serve to benefit large media corporations and keep works from falling into the public domain. He contends that the public domain is crucial to creativity and innovation because it permits authors to expand on preexisting works without fearing legal proceedings for infringement. Konrad argues that by prolonging the copyright term, the legislation effectively grants the copyright holder a lifelong monopoly, preventing others from expanding on or using the work in any way.
Advantages of Shortening the Term
There have been many examples of copyrighted works that were relatively unknown during the period of copyright protection but have become well-known after getting into the public domain. The famous film It’s a Wonderful Life had lost profits and popularity due to the copyright term restriction, but once the copyright protection was exhausted, the film became very popular. This example teaches us that the period of copyright protection plays a crucial role in a work becoming well-known and profitable.
Most authors and creators believe that creations and works cannot be shaped in a vacuum. Creative thoughts are developed incrementally as creativity, ingenuity, and inventiveness are built on observing the work of others, but the long copyright durations make the works unattainable. A shorter term of copyright protection could bring life to authors and creators as more works would enter the public domain within a shorter period. Moreover, a shorter term of copyright protection could bring the prices of copyrighted works down, which would eventually help in getting out the works to many people, ultimately bringing notoriety to the authors and creators.
Further lengthening the term of copyright protection could negatively impact economic development. Authors and creators might be demotivated to step into work for new creations, leading to a sluggish pace of creative works and eventually impairing the economy and nations’ development. Alternatively, shortening the term of copyright protection could encourage authors and creators to implant their creativity in new works, leading to an abundance of innovations and good economic development.
As Mickey Mouse prepares to enter the public domain, reassessing the duration of copyright protection and figuring out ways to strike a balance between copyright owners’ interests and those of the public and future creators may be required to foster future innovation and creativity. This could entail expanding copyright exclusions and restrictions, promoting the creation of works that are intended to enter the public domain, and coming up with other strategies to encourage the development of new works that do not rely entirely on copyright protection.
ABA SECTION OF INTELLECTUAL PROPERTY LAW
This article is an abridged and edited version of one that originally appeared on page 26 of Landslide®, June/July 2023 (15:4).
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