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Dumb by the numbers: ‘Optimal copyright term’ of 14 years? Time to kill all the economists?
July 13, 2007 | 9:51 am
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By David Rothman
Allow me to steal from Shakespeare and try a little hyperbole here. Kill all the economists.
Old TeleBloggers may recall Sick on the Great Plains: The perils of ‘efficient’ information policies. Now, as if to back up my earlier distrust of economists on information and copyright matters, I’ve run across foolishness in the opposite direction—an economist’s crime committed on behalf of copyright doves. Gang, you’re welcome to disagree without my thinking you’re dumb. It’s the crime I’m attacking.
Just what is the offense? Well, a new paper on optimal copyright terms concludes with an “estimate” of 14 years—”far below the length copyright in almost all jurisdictions. This implies that there is a significant role for policymakers to improve social welfare by reducing copyright term as well as implying that existing terms should not be extended. Such a result is particularly importance [sic] given the degree of recent debate on this precise topic.”
Author of the paper is Rufus Pollock, Faculty of Economics, Cambridge University.
Math backed or not, Cambridge man involved or not, this “estimate” strikes me as just as bizarre as the foolishness of perpetual copyright.
Large, well-established publishers depend on income from successful backlist titles to help subsidize new works, and 14-year terms would be killers. Small presses, however, would also suffer—the ones aiming for long-term success by building up nice inventories of literary works. Who knows what books will keep on selling? But publishing is a dicey enough industry. Oh, and don’t get me started on how Pollock’s recommendation, er, “estimate,” would reduce incentives for literary-minded writers. Fourteen years is a blink of the eye in the world of high lit. Yes, here in the U.S., such terms would threaten “progress of the arts and sciences” (just as the Sonny Bono Copyright Term Extension Act does in the opposite way—by grotesquely prolonging copyright and reducing opportunities for new works to build on old).
So I won’t even bother to try to parse Pollock’s math and his talk of digital efficiencies and related matters; just how well does he understand the real world of writers, artists, publishers, studios, and the rest? His formula and “estimate” deserve to go into File 13 along with the opposite extreme of eternal copyright.
Related: Ars Technica, Boing Boing, the Wired Campus blog of the Chronicle of Higher Education, and Slashdot.
Pollock’s abstract: “The optimal level for copyright has been a matter for extensive debate over the last decade. This paper contributes several new results on this issue divided into two parts. In the first, a parsimonious theoretical model is used to prove several novel propositions about the optimal level of protection. Specifically, we demonstrate that (a) optimal copyright falls as the costs of production go down (for example as a result of digitization) and that (b) the optimal level of copyright will, in general, fall over time. The second part of the paper focuses on the specific case of copyright term. Using a simple model we characterise optimal term as a function of a few key parameters. We estimate this function using a combination of new and existing data on recordings and books and find an optimal term of around fourteen years. This is substantially shorter than any current copyright term and implies that existing copyright terms are too long.”
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Comments:
David, you seem to be assuming that “large well-established publishers” are in some way a public good. Seems a dubious proposition (to me).
Wouldn’t the overall effect of such a reduction in copyright term be a proliferation of many more small e-publishing houses, each of which would have an incredibly strong and diverse backlist, now that individual titles couldn’t be locked up for life individual publishers? Wouldn’t publishers have to compete for business on the basis of improved service, both the writers and to customers? Doesn’t sound completely horrible…
Bill, when it comes to paying writers dependably and well, the large publishers on the whole have a better track record. More importantly, small publishers lack the resources to pay writers for the time needed to develop certain major projects. And I would rather NOT have foundations, Google or the government as my only choices, either, thanks. We need a variety of biz models, and that means balance in copyright, as opposed to one extreme or another. It’s the best way to promote “progress” in the arts and sciences. That said, I do think large publishers have a lot of fat to trim in noneditorial areas. Thanks for your thoughts. – David
You beat me to it, Bill …. copyright is intended for the benefit of creators, not publishers. If all works become public domain after 14 years, then they’re in everyone’s backlist.
Ross: Actually copyright is intended for the public. But that means enough incentive for creators, and 14-year-terms won’t do the trick. Remember, public domain means $0 money for the writers, at least from the works per se. As for “everyone’s backlist,” what about rewards for the publishers making the original investments? Shouldn’t they be rewarded for the gambles? Otherwise they’ll reduce their commitments to writers. While authors don’t write for money alone, it isn’t a minor consideration. Most books die early, but writers like to think their own will be exceptions, and so, yes, unlike the Bono situation, this is Incentive Land. Thanks. David
Call me cynical, but I *work* for a living. Should I demand of my employer that he pay me in perpetuity for the work I did yesterday? Why should a creator get different treatment?
Copyright exists to promote the advancement of science and useful arts–in other words, to beneft the *public* by giving the *creator* exclusive but *limited* rights.
14 years of those exclusive rights is plenty. The vast majority of work has sunk into obscurity long before that time has expired. And once a work devolves to the public domain, a creator can continue to draw income from it by producing revisions, extensions, commentaries, special editions; each of which is entitled to a 14-year exclusive reproduction right. Don’t you think a “Harry Potter collection annotated by J.K. Rowling” would sell extraordinarily well in two decades’ time?
The “successful backlist” of any publisher is *vanishingly small* compared to the total number of works published. Huge percentages of every print run end up in remainder bins selling at discounts that don’t even pay for the materials. Even when that successful backlist enters the public domain, the original publisher *still* makes money off it–they just have to compete with other publishers to produce attractive editions. So why should we distort the entire market just for the benefit of a incredibly tiny percentage of that market?
Recall that publishers that have experimented with a “loss-leader” model–like Baen, for instance–have noted increased sales of same author *current* works.
“Call me cynical, but I *work* for a living. Should I demand of my employer that he pay me in perpetuity for the work I did yesterday? Why should a creator get different treatment?”
Because no employer is paying him/her (except “work for hire” situations), and because writers get screwed enough as is. The odds are slim that works will be in demand past 14 years. But hope of being the exception is what keeps many writers going—thus kicking in the “incentive” factor. Writerthink is different from programmerthink.
Revisions? Nice to have income from ‘em, but remember, the writer also needs to be rewarded for the original gamble.
As for backlist, I don’t have stats, but in the case of big houses like Random House, I suspect they’re a higher percentage of revenue than you think.
I’d hate to see a world without small publishers, but I want to see the big boys survive, too, given their higher and more reliable pay for writers.
As for Baen, I’m all in favor of loss-leaders, etc., when it comes sense for creators, but this biz model should not be imposed on the unwilling via shrunken copyright terms.
> Even when that successful backlist enters the public domain, the original publisher *still* makes money off it–they just have to compete with other publishers to produce attractive editions.
But, hey, isn’t that that a big “just”? And what happens to the writer?
Great discussion regardless of disagreements! Further thoughts welcome from all.
Thanks,
David
If we set copyright terms to be a fixed length duration, we will always have the tension between the benefits of short versus long-terms, and benefitting the public versus benefitting the publishers/authors.
But, if we set up a system where copyright may be renewed for a fee (amount to be determined), then we should be able to meet the needs of everyone.
If a work continues to have economic (or some other) value to the holder of the copyright, then they may enjoy continued copyright protection by inserting coin into the meter. But if the work no longer has any benefit worth renewing the copyright, then the work will revert to the Public Domain.
My view is that free copyright protection should last 14 years, with a first renewal fee of $100 (to be adjusted for inflation). Subsequent renewals would be every 7 years, and the fee will rise by a factor 2 for each subsequent renewal. (At the 98th year, the fee for renewal would be $425,600.) The fees collected would be used to help defray the taxpayer expense of maintaining the copyright system.
Another benefit of this system is that it will keep a better “paper trail” of who is the current copyright owner of a particular work.
Btw, this is not a new idea, but has been advocated in some form by others, notably Larry Lessig.
Jon, what a great idea! (Of course, it’s not something we can implement right now). I think content creators recognize that ownership rights don’t mean a lot except in certain cases.
David: I’m not going to dispute your point directly, but don’t forget that the (heretofore unproven)
“tipjar” model would benefit authors/artists even after a work’s copyright expires.
Well, I would rather see shorter terms of monopoly protection than longer ones, on the theory that producers (publishers or creators) who are paid not to produce, will produce fewer works than producers who are paid to produce and not to have produced.
But this economist’s basic proposition in his abstract is: ‘copyright terms should be related to the costs of producing the works.’
It seems to me that in spite of ‘going digital,’ books cost more to produce today than they did 50 years ago. Paper, transportation, cost more. Computers for writers (replaced every 3 or 4 years) cost more than manual typewriters (my portable is still good from about 50 years ago, though I guess I’d need a new ribbon…and an oiling).
But let’s extend the guy’s argument. Music surely costs more to produce now than it did 70 years ago, so music protection ought to be longer than it was then. Movies cost a LOT more…they should get longer protection. The 300-million-dollar Spider-Man 3 gets a protection period, oh, about 100 times as long as Gone With the Wind, eh?
In fact, movies cost more to produce than books, so I guess we need a medium-specific copyright law? Or should the law just grant a sliding scale of protection: show them your costs and they give you a monopoly protection according to what you had to pay.
I agree, David, this seems foolish on its basic notion.
And then of course media companies could show lobbying costs as part of the price of producing their art, too!
David, “paying writers dependably and well” also doesn’t seem to me to be obviously a public good. And in the balance between no copyright and the current copyright situation, 14 years of monopoly exploitation of one’s work seems pretty “balanced”. Remember that we now live in Internet time, and that 1 year in real time is 7 years in Internet time
.
Boo-hoo for writers, publishers et. al.
If publishers are so good to writers, they’d be free to donate them money for public domain works they published if this became the model. Surely they’d do that? 
Isn’t this what McAuley wrote back when they were working this out (around 1840), that this was around the right term, and if you keep making it longer more people will ignore it?
Do any of us normal people care what happens to publishing houses or writers, compared to people doing any other job) No, no more than what happens to any other company or person, in general.
Writerthink maybe is different from programmerthink, in that they are ridiculously optimistic and think they are more valuable, and are not inclined to scientific rigour.
Publishers and authors clearly don’t approach their industry with any degree of scientific analysis remotely close to being compared to what most other industries do Your comment is a good example. Someone has done a detailed study, and you suggest ‘oh, that is silly’.
The general case is what is important in the long run, not what happens to the freaks.
Most books, logically speaking, should go away quickly, because statistically most of them aren’t any good. If they became public domain more quickly they would be easier to get.
Protection of ‘literary’ stuff? I sincerely doubt many people are reading lots of 70s or even 80s ‘literary’ books, in general, if longer protection for them makes sense, compared to any other book.
Copyright is only a public good in a ‘balance’ sense, as the lesser of a number of evils. It is obviously a financial drain on the public as a whole.
Copyright exists to benefit the public domain not the publishers or the writers. The only reason that the constitution gives for copyright is for the enrichment of the public domain.
14 years is actually much to long in some cases. For example technical books such as computer books are long long out of date in 14 years hence basically useless to the public.
I would be willing to compromise 14 years for the first copyright of a fictional work with an expensive extension not $100 something closer to $10,000. 3 years with the same paid extension for technical non-fiction works such as books on programming languages. In exchange for the copyright the publisher should have to provide an electronic version of the work to the library of congress to be made public at the end of the copyright.
Jon, Robert, Pond, Bill, Blue, and Steve…
J: Depends on the size of the fees and increments used. I’m with you on the orphan problem but want things done in a way that wouldn’t penalize individual writers and small presses unfairly.
R: The tip jar concept is laughable as a major source of income for most writers. Ain’t gonna happen.
P: LOL. Yep, let’s factor in the lobbying fees. As for the fewer words point, I could make some bad jokes about paying certain writes to improve the world by not writing. Seriously, though, remember the gamble a writer takes. Copyright is his or her reward. Look at the financial stats on book-writing; the pay-off is bad enough even now.
BJ: Beyond Johnson’s “blockhead” quote about writers and money, keep in mind that not everyone is on tenure or works for a think tank. And, yes, I want publishers to keep their word. That’s what I mean by reliable. There are some wonderful small publishers out there, but the big houses seem to be better on the pay front. As for Internet time, that’s not relevant. It’s creative time that counts. Some books take years to get right.
BT: “Do any of us normal people care what happens to publishing houses or writers, compared to people doing any other job). No, no more than what happens to any other company or person, in general.” OK, so now you know why the big entertainment companies spend so much money on lobbying. They overreach, Bono is an outrage, it’s Hollywood greed at its worst, but, no, there’s nothing wrong with creative incentives as envisioned by the Founding Fathers, just so they’re of a nature that serves the public interest. Screwing writers does not serve the public. As for the comment on scientific rigor, I’d say the burden is on the author of the study. I can say, rather confidently, that he knows squat about publishing. See Pond’s comments on the man’s silly attempt to associate copyright terms with the cost of producing something. That is science? Just because something has numbers in it doesn’t mean it’s rational; what’s next—an effort to link copyright terms with phrenological characteristics of creators?
S: Thanks for speaking up, but no thanks to the terms you propose.
Thanks,
David
Agree that the tip jar is a polite lie. I’m sure some people tip, but remember, one reason you tip that musician at the coffee shop is because she’s looking at you.
I think the numbers on 14 years are interesting, reflecting the fact that people put a fairly high discount on future earnings. Isn’t this also the period for patents? Certainly one could argue that the two forms of intellectual property should somehow be connected.
Still, I think 14 years is too short. I have works that are close to 14 years old and that are still earning a trickle of income. As an eBook writer (and publisher), my survival depends on combining these trickles of income rather than than on the surge of income from new books only.
While it’s true I could publish other people’s books (how long before Harry Potter #1 hits 14?) why would I bother? I’d advise my friends to download from Gutenberg or ManyBooks. Why would I try to create a business fooling my customers into buying stuff from me they could download for free from these outlets?
Rob Preece
Publisher, http://www.BooksForABuck.com
P.S. In an earlier life (before I got into high tech) I was an economist. Can’t support the ‘kill them all’ theory. In fact, while I disagree with this one, I do think it’s a useful offset for the copyright forever groups. If we could find a compromise (I’m okay with 75 years or life plus 50), I think that would be ideal.
Rob, as a fan of your comments, whether or not I always agree with ‘em, I promise I’ll spare you from the carnage. We’ll consider “earlier life” to be the operative phrase. Furthermore, I propose that we be humane toward current economists, even the Cambridge man’s RIAA equivalents. The guillotine blades should be nice and sharp. Gassing and electrocution should be available as options.
Other matters:
–As for offsetting the copyright-forever faction, I’d prefer that we not respond to foolishness with more of the same. The Cambridge man actually hurt our case against Bono.
–Pre-Bono terms were fine by me. Technology races on and on, but I’d like to think that the very best books would have a longer shelf life than, say, improved WiFi boxes.
Thanks,
David
I’m glad that you took the time to disregard my comment. If you accept that one of the goals of copyright is to enrich the public domain then arguing for longer copyrights works against that goal. Sure writers should be paid but they should also be encouraged to create more works. That can best be done by making them work to get paid.
Other artists, painters, craftsmen, and engineers get paid only once per creative work. When a painter creates a painting he doesn’t get paid per viewing. True he can license prints but he is not automatically entitled to payment for each person who enjoys his art.
Copyright should be viewed as a gift to encourage creative works not an entitlement. The only thing the Author should be “entitled” to is credit for the work not perpetual payment.
In the above example about Harry Potter do you think the author is more likely to create a new work if she is still getting paid after 14 years for the original or if the copyright on the original has expired.
I’m not against copyright, I’m against theft from the public domain by authors who feel like they should get paid for life for an effort they did at one point in time.
I’m aware that my last paragraph about theft from the public domain will be viewed as radical and harsh, but in truth authors do not create in a vacuum they are in debt to the people who crafted stories before them. They borrow liberally from the public domain and other works as payment the work they create should be available to the public in a reasonable time frame.
For example Harry Potter borrowed from greek mythology, Tolkien, and others. The storyline might be original but the mythology around it is taken from western culture.
Steve: “…they are in debt to the people who crafted stories before them…”
Exactly. The benefits go in both directions. The public domain wouldn’t exist without writers, just as many good books wouldn’t exist without inspiration from PD works.
In a somewhat related vein, let me emphasize again (1) the amount of work that goes into the good books and (2) the pathetic rewards that book writers receive today. I don’t see an easy solution to the problem, but shrinking terms to 14 years isn’t going to help.
Yes, I’ve noticed your willingness to “compromise 14 years for the first copyright of a fictional work with an expensive extension not $100 something closer to $10,000.” Just what cash-strapped writers need. (LOUD sarcasm alert.)
Considering that most e-books probably sell fewer than 1,000 copies, this would not the way to grow the industry. Nor would your scenario be nirvana for P books.
Thanks,
David
David,
I’m not saying that authors should not be rewarded more then they are. I am saying that authors should not expect to be rewarded perpetually.
Most p-books that are not best sellers are out of print in less then 14 years but do not go into the public domain. How about this as a compromise after 7 years no matter who owns the copyright, it reverts back to the original author. So a publishing company could own the rights to a book for up to 7 years but at the end of that period the copyright would revert to the author who would have the copyright for a period of 7 years. The author could resell the copyright for an additional 7 years or market the work. At the end of the 14 years the author would have the option of extending the copyright but at a cost that would make it viable for only a truly profitable, still relevant, work.
You are arguing from the point of view of an author who would of course want as long a copyright as possible preferably for life. I’m arguing from the point of view of the public. We want more works not authors that have no incentive to be creative because they can live off of past works.
Unlike life, liberty, and the pursuit of happiness extended copyright is not an inalienable right. Copyright and intellectual property in general is a relatively new concept to human civilization. I just want to see works make it into the public domain in time to still be relevant. Political commentaries, technical works, and scientific works will be outdated in a few years is it fair that most of the value of these books and works is lost to the public because of an unfairly long copyright.
“The author could resell the copyright for an additional 7 years or market the work. At the end of the 14 years the author would have the option of extending the copyright but at a cost that would make it viable for only a truly profitable, still relevant, work.”
But, Steve, most writers want to focus on being writers and not worry about distribution hassles and expenses. So I’m not sure if early reselling would be that meaningful since the pickings are so small. Better to leave the works in the hands of the original publishers in most cases.
As for the lengths of terms, circumstances have changed somewhat since time on the Founding Fathers. We’re more urbanized and I don’t know of that many writers who are gentleman farmers. Disturbingly, too, they live longer than in the 18th century. Bonoesque terms are crazy, but let’s not err in the other direction. Your proposal, as I’ve noted, would be especially hard on serious fiction. Again, keep in mind that when it comes to incentives, perception is more important than reality. Everyone thinks he can defy the odds, and you’re reducing the grand rewards.
> “Copyright and intellectual property in general is a relatively new concept to human civilization.”
As are tech and other paradigm-changers.
Thanks,
David
It really amazes me to see the degree to which business people now assume that the desires and needs of big business trump all other public goods.
The author of this opinion piece does not simply argue against the idea of 14 year copyright. He mocks and jeers at the supposed idiocy of anybody who might believe such a notion. He puts a dunce cap on the fool who wants 14 year copyright. He jokes about killing all the economists.
But then we turn to the comment section and we find that virtually everybody who is not a member of the publishing profession thinks that a 14 year copyright is a great idea. There is an incredible disconnect here.
Copyrights are not just becoming longer they are also now coming with much harsher penalties and restrictions. The current Dept of Justice wants to criminalize casual copyright violations by individuals and actually put people in jail for making copies for personal use only. Digital rights management software and hardware are locking us out of long established rights.
So is it any wonder that the public is becoming hostile to long and burdensome copyrights?
Tip jars may not be the best way to maximize profit in the short term, but it may prove to be a more rewarding strategy (comparatively speaking) in the long term. Ultimately, it is an empirical question, (not an ideological one) and depends on social norms. Tipjars haven’t been tried in a systematic way (except for jamendo, and in that case the results are mixed though not all negative).
Would financial success from a tipjar be a better gauge of content quality than traditional commercial yardsticks we have today? Also does free signal “worthless” in people’s minds?
I know my view is out of the mainstream, but write me 20 years from now, and then we’ll have a better debate.