Making Sense of Copyright

I recall cassette machines and tapes as a kid. My step-father was a techy and a music aficionado. He set up a multi-cassette recording station and used it to copy the preacher’s Sunday sermon. I guess the idea was that lots of folks would want to hear, or buy the sermon at another time (sardonically I recall this preacher having a personality slightly more tepid than mayonnaise, so demand was weak). I used the system to rip pirated copies of the Surf Punks cassettes.

Probably, if I had purchased the original cassettes, I could have justified making myself a single copy and holding the original as an archive only to be copied again when my first wore out. Nah, it was the point of punk music to steal it.

My recollection of 1976 in no way involves the copyright act. I recall bicentennial quarters and the televised July 4th celebrations, most of which occurred on the East Coast. Being born and bred in Southern California the places and events all seemed otherworldly and surreal. Perhaps the only point of resonance was the parade of “tall ships”  and that because of similar events in the San Diego harbor.

The point of this legislation was two-fold, first to get our laws in line with international laws, and second to extend the duration of copyright protection beyond the life of the author protecting their work even into the lives of their grandchildren. The History of Copyright website mentions opposition to this legislation. Unfortunately, either it was not very compelling opposition or the representation of it here is understated:

Opposition came from radio broadcasters, record manufactures, producers of “talking machines,” two patent attorneys and a publisher because life plus 50 years would make it hard to determine when a work goes into the public domain and who owns it until it does.  Opponents also argued that a longer term would not just benefit the author’s immediate heirs, but great grandchildren as well, and that by lengthening the term, it would prevent “cheap editions” of work from coming out for an additional 30 years.

Interestingly, support came from powerful professional organizations.

The Author’s League of America supported compliance with international standards because authors who produce at an early age might not be protected in their later years and because their return was small.  The Committee on Publications for the Mother Church supported it because it would extend protection for the works of Mary Baker Eddy.  The American Library Association supported life plus 30 years as it would be enough to take care of the author’s family.  Music and film industry interest also supported a longer term and international conformity.

Weirdly, this sounds like the same argument made for the original Statue of Anne legislation in 1710 and that law benefited printers/publishers.  Perhaps the subsequent turn here is that copyright owners (maybe not the author) have an extended monopoly. Weirdly, stimulating innovation, creativity, collaboration, is not a deciding factor.  ElectricLit runs some interesting numbers for us:

Here’s an example: Writer von Author writes My Big Literary Novel and Big Publishing House Press pays her $50,000 dollars as an advance. The cover price of the book is $20 dollars and her royalty rate is 10%. (In reality it would be more like a ~$25 hardcover at 10–15% followed by a ~$15 paperback at 7–10%, but I’m simplifying.) If the publisher sells 10,000 copies of the book, the total sales are $200,000 and the author has earned $20,000 from royalties… except that she was already paid $50,000 so she is actually at negative $30,000. She doesn’t have to pay anyone back either though, the publisher takes the loss. However, if the book sells 25,000 copies, then the author would earn back her advance and at copy twenty-five thousand and one, she would start earning $2 per book sold.

The Steve Laube Agency offers us the insight that the average book sells 10,000 copies. And that rather bluntly puts the lie to either earning back the advance or earning royalties. Accordingly, it seems that copyright only protects a tiny percentage of creative works and it is an open question whether the author retains that copyright and is benefited by 75 years of protection.

I graduated from college in 1988. And the Berne Implementation Act of 1988 which brought US legislation into alignment with twenty-four other countries predominately through standardizing, notice, filing and registration requirements, was passed unnoticed by myself, at least at the time. Instead, I was distracted by moving seven times,  three times across the country and once the length of the west coast. I took the GRE’s and applied to graduate schools. I worked as a roofer in Maine. I got tired of being teased about my education and to shut the crew up carried three bundles of shingles up a ladder to a third story roof — it worked.

However, I have to imagine that copyright owners made millions of dollars based on the fine tuning of US law to be in closer alignment with many other nations.

In 1992, I was between attempts at graduate school. I was married. I was working in the library at an elite liberal arts college in northern New England. However, I had, because of work, begun to be aware of copyright.  Librarians care intensely about the topic, and in higher education also about “fair use, ” and so this was a topic increasingly in my thoughts at least as a professional.

This act provided relief to copyright holders by automatically renewing a work produced between 1964 and 1977.

Congress acted to protect authors from losing their works “irretrievably into the public domain” based on an innocent failure to comply with the formalities of filing of renewal applications.  The Copyright Office, publishers, authors, academics and others “criticized the registration renewal provision for being burdensome and unfair to thousands of copyright holders and their heirs.”  Congress believed that the public domain “should not be enlarged because of an author’s error in recordkeeping, or any other innocent failure to comply with overly technical formalities in the copyright law,”  particularly when such works are “the sole source of income for authors and their families.”  Further, Congress understood that “the domestic laws of most developed countries contain very few formalities conditioning copyright protection” and that such formalities are “antithetical to the major international treaty on copyright relations, the Berne Convention.”

Again that oddly benevolent but inherently deceitful language about who the law(s) benefits. Here I am circling back to the economic realities of book sales and publisher/author business model.

My daughter was born in 1994. Accordingly, my life took a radical turn. I was working on, and nearly completed my Master’s degree. Later that year I changed jobs (awful choice). The Uruguay Round Agreements Act of 1994 was well covered in the news and so even at the time, I was aware of it. Though I was not aware of the impact, t had on foreign authors in US markets.

Section 514 of the URAA restored copyright protection for the works of foreign authors whose works had fallen into the public domain due to non-compliance of the formalities of US copyright law.

In 1998, much in my life had changed. I was again working in a library at the same elite liberal-arts college. My son, second born, was two-years-old, I had been to North Dakota and back in an attempt to start a Ph.D. program, alas, Grand Forks flooded, and then burned and turned out to be no place to relocate a young family. I was, a freshly minted homeowner, and, we had survived the Ice Storm of 1998.  I was writing HTML for the libraries website and we were aware of the exploding online environment of the internet.

The Copyright Term Extension Act was signed into law and provided even longer terms of protection.

The CTEA implemented the EC directive in the US and was signed into law by President Clinton on October 28, 1998.  It extended the terms of copyright protection by 20 years, so the pre-1978 term of 75 years from the date of publication became 95 years and the term after 1978 of life of the author plus 50 years became 70 years.

The constitutional challenge to the CTEA foreshadows our own struggle with copyright in the online environment.

The CTEA was later challenged as unconstitutional in a lawsuit filed by intellectual property lawyers supported by “rights” activist groups like the Electronic Freedom Foundation.  After seeing an article in the New York Times about Eric Eldred shutting down his online free books website “because the CTEA passed,”

Content creators online have changed the models of production and distribution so radically, and so quickly, that copyright law has been far outstripped. And yet, we see little will among legislators to take on that problem. In part, this inertia reflects that status quo stakeholders are still making plenty of money. And actually, so are content creators who are operating with new entrepreneurial models.  So for the moment there is no will to wrestle with the complexity of an update.