The Scholarly Kitchen has an interesting essay by Robert Harington of the American Mathematical Association under the title The Value of Copyright: A Publisher’s Perspective. This provides a sober overview of where we stand today. Harington reminds us that different authors have different “copyright” motivations.

Are there not now three types of copyright? If I’m right, that’s surely a problem, and they ought probably to be covered by three different legal arrangements.

  1. Copyright protects big, expensive projects, like movies, where a financial return is fundamental to the whole undertaking. Recouping the investment might take years. It represents part of the company’s capital base.
  2. Copyright also covers books, (and other works such as photos, drawings etc.) where a modest financial return is more often than not all that is needed. Because of lower investment costs this will probably be delivered more quickly.
  3. Copyright also covers on-line materials. These materials may often be the same ones as covered under 1. and 2., but are more easily shared, and are often published on-line with the intention that they should be more easily shared.

Copyright in things like software, typeface designs, industrial design in general, even maybe electronic games might form a fourth category, but might perhaps flip over to the Patent system.

Part of the reason, I think, that copyright has become overstretched is our habit of using the term “intellectual property”. Copyright wan’t designed to protect intellectual property, it was designed to encourage innovation by allowing protection to the physical expression of “intellectual property”, so that people would be encouraged to make more of it. Talking about just intellectual property allows the protectionists to expand the discussion without having to make any arguments (c.f. death taxes).

What strikes me is that the things you wouldn’t want people doing to your intellectual property are rather different in each of these three cases. In the third category, you don’t want someone citing, quoting from or reproducing your work without giving credit, or without indicating if they make any changes to what you wrote. And that’s it. This seems perfectly acceptable to almost everyone, and might, without damage, be made a perpetual requirement, having no direct reference to the rest of copyright law. It’s analogous to the Creative Commons license. One could see a system which imported along with the image, or link the appropriate notices. Something like RefME could possibly be tweaked to achieve this. We might call this kind of copyright Access Right.

If you are a corporation and invest millions of dollars in creating a movie series you want/need to recoup your investment, and then to continue making profits off the product. That is after all why you are in business. Because a corporation can live for ever, such a right might justifiably also live for ever. Let’s call this Investment Protection Right. We might reasonably charge a good-sized fee for granting this protection.

Then that would leave Copyright to cover the rest: in my world, books. Nobody has a problem with protecting the author from the theft of his/her work; it’s the number of years of that protection that we often find problematic. I think there’s a consensus out there that “life of the author plus 70 years” is just too long (based as it is on the “life” of Mickey Mouse). Allied to the automatic vesting of copyright in a work immediately it is recorded in tangible form, this lengthy term has created a huge category of orphan works — works protected by copyright, but by a copyright held by a person who has vanished, thus preventing anyone getting permission to use the work in protected ways. Reducing the term to a number of years without regard to the author’s survival would surely be sufficient. Maybe 25 years would be OK?  Is it really essential to keep copyright protection going on John Grisham’s The Pelican Brief, published in 1992? A film was made of it in 1993, so Mr Grisham needn’t worry about Hollywood ripping him off. Warner Bros. no doubt have an interest in protecting the movie under my Investment Protection Right, but surely copyright in the book isn’t hugely valuable any more. Mr Grisham may still be happily receiving royalties but his publishing contract could allow for Random House to pay royalties whatever the copyright situation.

It might be right to point out that I selected Mr Grisham not as any kind of copyright protectionist — I have no idea what he thinks about all this. I chose the book as an example of a literary copyright which would have been very valuable in 1992 and for a few years thereafter, which still earns, yet which doesn’t on the face of it carry any inherent need to be sedulously protected for another 70+ years. In other words, a trade book.

See also Term of copyright.