REINING IN COPYRIGHT

The EU recently extended its copyright laws for audio recordings. Such recordings are now protected by copyright for 70 years, up from the previous 50-year term. Bizarrely, given the ephemeral nature of fashions in popular music, all recordings produced since 1941 are now in copyright. The campaign to extend copyright had been backed by the ageing singer, Cliff Richard, who stands to benefit financially from the change now that his 1959 number 1 hit Living Doll is back in copyright.

There has been a gradual creeping up of copyright terms, with a 120-year term in force in some cases in the US. It seems logical that there should be some copyright provision, but by the same token copyright laws seem out of kilter with any kind of reasonable approach. It seems amazing that in the case of printed works, copyright extends beyond the death of the author—and not just for a short while beyond his death, but for 70 years. The works of someone who died in 1942, some of which could have been written in the late nineteenth century, will still be covered by copyright. Of course this provides an income for his estate, but in no other walk of life is a profession expected to provide for relatives and heirs for 70 years after the person’s death. This provision is not currently extended to audio recording artists—although it is applied to composers and the writers of song lyrics—but an eventual extension of recording copyright to 70 years beyond the artist’s death has to be on the cards, given the general legislative drift in this area.

Copyright exerts a dead hand on culture. While writers need to make money and pharmaceutical companies need to be sure that expensive development of drugs will result in a profit, at some point writers’ works join the common heritage of culture, which belongs to us all, and drugs and industrial technology become part of the common pot of human innovation and invention that can rightly be drawn upon by all human beings. To argue for no copyright at all would seem to be misguided, but to argue for copyright of anything beyond 20 years restricts innovation, economic growth and the enjoyment and development of culture. This is because, in the first place, one person’s innovation forms the starting point for further innovation by others, and there must be a mechanism to move innovations into common use within a reasonable timeframe.

For famous cultural works, it is even clearer that they rapidly become part of society’s heritage and do not exclusively belong to the author/artist, but to all fans, readers and listeners, beyond a certain point. There is an irony in all this, of course, because the great works of Western European culture—works by Shakespeare, Dickens, Hardy, the Brontës, and compositions by Bach, Beethoven, Mozart, Brahms, Schubert, Schumann and Tchaikovsky—are generally out of copyright, although in the case of classical music, recordings are themselves subject to copyright provisions separate to those applying to the original compositions. Much of what passes for culture today—including Cliff Richard’s Living Doll—is meretricious pap for the masses. One could facetiously assert the rule that where anything was in copyright, it was by definition not worth reading or listening to. But regardless of whether the cultural production is itself of poor quality, the development of culture requires that works quickly exit copyright provision. Technological advancement also requires the sharing of inventions and scientific achievements.

In England, copyright dates back to the 1709 Act for the Encouragement of Learning that came into force in April 1710. That Act provided for a copyright term of 14 years for new works, and 21 years for books already in print. By 1731, when many works fell out of copyright, the issue came before the courts, resulting in decades of lawsuits, before the 1774 Donaldson v. Beckett case established that copyright was purely a creation of statute law; there was no common law right of copyright that publishers could fall back on. This is important for conservatives who see wisdom in our ancient common law: while modern economic realities require a development of the law, copyright law as currently in force has taken us a long way from the 14-year term originally enacted.

Copyright terms should be substantially reduced. As stated above, I would like to see a maximum 20-year term, and the immediate cessation of copyright with the death of the author/artist even where a 20-year term has not elapsed. Another issue of concern to me is the copyrighting of computer programmes. Many older computer programmes are no longer supported by developers, and computer programmes, unlike books and audio recordings, require support. It is still illegal to copy older versions of Microsoft programmes, and I would like to see 20-year maximum copyright term supplemented by an additional provision that computer programmes no longer supported by the developers fall automatically out of copyright.

An additional quirk of copyright is that many works are in copyright, although the books concerned are no longer in print. This bizarre and irrational circumstance means that those works are no longer available, despite the fact that the publisher had judged that there is no money to be made in republishing those works. If the publisher of George Orwell’s 1984 decided to stop publishing the work, it would be unavailable until 2020—70 years after George Orwell’s death—despite the fact that this is an important work in English culture, and that the publisher’s decision to stop publication had the effect of deleting a work from the canon of English literature. Publishers, writers and artists who had allowed works to fall out of circulation for more than 5 years should be deemed to have surrendered copyright to them. In the era of micropublishing and electronic publishing, it is simple for an author to maintain his works in circulation for the 20-year term I am advocating.

Crown copyright is another interesting area of law. The British Crown apparently retains copyright over the Authorised Version (King James Version) of the Bible, The Book of Common Prayer, Acts of Parliament and other works. Amazingly, the Crown copyright over the Authorised Version of the Bible, produced in 1611, is perpetual, although this is not respected by Anglicans abroad, and so the full text of that version of the Bible is available online. Perpetual Crown copyright of anything seems a nonsense, and even more so for a work produced in 1611 that is a core part of English culture. It seems logical to make clear by Act of Parliament that the Queen’s Coronation Oath implies a duty to defend the Authorised Version and The Book of Common Prayer, but that that is not any form of copyright. Consequently, the claim by Cambridge University Press that it has sole right to reproduce the Authorised Version in the UK after taking over Eyre and Spottiswoode, the descendant of the original office of the Queen’s Printer, in 1990 ought to be rejected. Acts of Parliament are by their nature to be widely available in order that the provisions of statutes enacted become widely known. Once again, the claim that there is “copyright” in an Act of Parliament is a nonsense. Acts of Parliament are available on a government website—yet Her Majesty’s Stationery Office has stated that it does not accept material on such websites to be freely reproducible.

I would like it to be made clear legally that no Crown copyright subsists in anything produced using public funds. While few people would be seeking to reproduce Acts of Parliament, a more interesting question arises regarding BBC output. The BBC is a quango, paid for from public funds (as the TV licence is just a hypothecated tax). Yet the corporation runs a profitable commercial operation based on the “copyright” in its programming. Some BBC programmes are available online via the iPlayer service, but many are not, with a notice claiming that copyright laws prevent redistribution of some programmes via iPlayer. As far as I am concerned, no copyright subsists in any of the BBC’s output. I would like all sporting events televised by the BBC to become freely available too.

Copyright on the Internet is an interesting question. While I would not like someone to assemble my articles into a book and make money from them, the nature of electronic publishing is that it is easy for the texts to be copied and distributed. Online copying and redistribution of something that primarily exists online (thus excluding MP3 files of audio recordings that have a prior existence as physical CDs, which ought to be covered by 20-year copyright), where not for commercial gain, should be deemed by law to be the logical consequence of one’s decision to publish anything online. The forwarding of an email is also the logical consequence of one’s decision to send an email to someone, and should not breach any copyright terms.

Furthermore, the creative use of “copyright” to cover personal letters is absurd. We were told that when Princess Diana’s letters to Captain James Hewitt were about to be published that Captain Hewitt owned the paper and ink the letters were written on, but Princess Diana’s estate owned the text and the copyright thereto. This is a nonsense. The owner of the letter owns the copyright to the text in the letter—and one should be careful not to send risqué letters to indiscrete people. I see no reason why Captain Hewitt should not make money from the publication of Princess Diana’s letters. A private letter is different from a published work, in that the text is privately owned and copyright should exist as long as the owner keeps the letter private—it is, after all, difficult to copy a letter the owner will not make available—whereas most copyright law refers to copyright over previously published material.

Finally, our economy needs to be based on real production (of industrial and cultural works) and not just on revenue collection from old works. We need innovation, sales and profits, not just the purely parasitical function of copyright revenue. The older advanced economies are ill-advised to depend on their technological lead and rest on their laurels by creaming off the profits from the adoption of their “intellectual property” in the developing world. If we do not produce anything of value now we will be overtaken. A revision, and scaling back, of copyright laws would be opposed internationally, where there are international agreements in place on the issue, but we need to assert the primacy of our own laws and establish the UK as a global centre for new, creative innovation once again.

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