July 17, 2006
Everything is, in some way, defined by its negative. Most people think of copyright only in terms of when people aren't allowed to copy a work, but a defining aspect of copyright is its limitations—and this aspect has its roots in the notion of the public good.

The idea is that while creators deserve to be compensated for their work, at some point it becomes beneficial for everyone to be able to do what they want with it. In this regard, the initial implementation of American copyright law was an improvement over its English predecessor; U.S. law halved the term of ownership to fourteen years, with an extension of another fourteen only if it was requested by the copyright holder. ("Oh, you're still using it? Okay, we can wait.") After those 14 to 28 years, a work would enter the public domain—meaning that anyone could copy, modify, distribute or resell the work if they wanted.

This is important, because it acknowledges that creation is rarely from whole cloth. Most of the "timeless" stories we can think of were adapted from other sources. The obvious examples are Shakespeare's plays and most Disney animated features, but it also applies to the Grimm fairy tales, the Bible, and Greek and Roman mythology, among many other things.

Earlier I wrote about how consumers violate the letter of copyright law, but many—however imperfectly—adhere to one-half of the spirit of the law by trying to support the creator. These days, certain corporations are adhering to the letter of the law and violating the other half of the spirit by keeping work out of the public domain.

What's happened is that over the years, copyright terms have gradually extended. This phenomenon has occurred around the world, but as far as I know the U.S. has the longest protection: up to 70 years after the death of the creator (for individuals) or 95 years from the date of creation (for companies). This maximizes works' value for their creators, but doesn't do the public domain much good. And since money can be wrung out of copyrighted works that much longer, there's less incentive to create new work.

But wait—it gets more problematic than that. There's also the concept of fair use, a later addition to U.S. copyright law. (Canada and most if not all other Commonwealth countries have fair dealing, which in principle is more restrictive.) Fair use allows you to reproduce copyrighted works for personal use, or portions of such works for the purpose of commentary or nonprofit educational use. Fair use is what lets you tape TV shows off the air. Fair use is what lets you make your own t-shirt from a scanned image out of your Dragon Ball art book. In short, fair use is what enables private citizens to engage with culture on their own terms, and provides for broader discussion and examination of cultural artifacts.

The big corporations, however, see fair use as lost revenue—and they've argued this for decades. They lobbied against audio cassettes, on the principle that if people taped songs off the radio, they wouldn't buy records. They lobbied against home taping, fearing that it would undercut movie revenue. And they've been using digital technologies to further chip away at fair use outside of the courts, by using encryption and digital rights management on DVDs and downloadable music, movies and books. Recent attempts to close the "analog hole" that would allow home taping of high-definition TV and bar recording from satellite radio make it clear where the industries are coming from.

The bow that wraps all this up is the movie studios' abysmal track record when it comes to releasing cartoons on video. While we bask in the DVD glory that are the Looney Tunes Golden Collections, let's not forget how long it took for these cartoons to get any sort of release, and how many Warner cartoons still sit on shelves somewhere. How long did it take for King Features to announce that the Popeye shorts were coming out? And what about all the lesser-known productions that remain unreleased? Once upon a time, limited copyright terms would have ensured that these works would have been available to the public. Instead, what we're getting is a proportionally shrinking pool of public domain material, leaving us all the poorer.

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