Mark Mayerson

Writer, Cartoonist, Sculptor

The Corruption of Copyright
(January 5, 2016)

What is copyright? It's a privilege granted by law. Like many things determined by people, as opposed to nature, there's a certain arbitrariness to it. Why is the speed limit 60? Why is the voting age 18? Why are certain days holidays? It's important to remember that at various times and places, the answer to the preceding questions were different than they are now. So it is with copyright.

Why was copyright created? Why was this privilege granted to people who create new works? It was invented to provide an incentive to create, balanced with a social need to enhance the culture. If someone wrote a novel, or a play, or painted a picture and anyone could make copies to sell, what would be the incentive to invest the time and effort to create? Why work hard so that others, who had nothing to do with the creation, could profit? Creators needed protection to make their investment of time and effort worthwhile, so they were given a temporary monopoly on their creations, allowing them to be the sole financial beneficiaries of their work.

The fact that this monopoly is temporary is the price creators pay for their exclusive rights. Yes, the law will protect a creator so that they can profit from their work, but only for a fixed period. Why? So that society as a whole can be enriched by that work after a time. When a copyright expires, anyone can republish the work or use it as the basis for something new. Today, anyone can use the work of Charles Dickens or Mark Twain and culture is richer for that. You can profit from the work of others but only after they have had the chance to profit from it themselves.

In principle, copyright works. However, just as a speed limit or the voting age can be changed, the length of the monopoly can be changed. Unfortunately, it has only been changed in a single direction. While the original copyright law in the United States was for 14 years, the current copyright law in the U.S. is for life plus 70 years for individuals and 95 years for corporations. Until 1976, not all that long ago, copyright lasted a maximum of 56 years. If that were still true, anything created in 1959 or earlier would be in the public domain. That includes a lot of Disney films and other Hollywood product. It includes most or all of Hemingway, F. Scott Fitzgerald, George Gershwin, Irving Berlin, Norman Rockwell, and works starring Superman, Batman, Captain America, Conan, Flash Gordon, Little Orphan Annie, etc.

The Trans Pacific Partnership, a 12 nation trade deal that has yet to be signed and ratified as of this writing, would extend copyright in countries such as Canada, to match the current U.S. standard. In Canada, the law is currently life plus 50 years. What would happen to the 20 years worth of material considered public domain in Canada if Canada ratifies the TPP? Would publishers be forced to negotiate licenses after the fact with the once and future copyright holders or withdraw the material? Would they be compensated for losses? Nobody knows.

Another arbitrary aspect of copyright law is enforcement. Technically, any fan fiction or fan art that is made publicly available, even if there is no money involved, is a copyright violation. Often, copyright holders don't enforce their rights, either because they don't think the violators are enough of a threat to bother with or they are unaware of the violation. At comics conventions, there are some characters that are understood to be off limits for fan art and others that are not. There are all sorts of films on YouTube that are a violation of copyright. Some have been there for years.

Where's the line between being beneath a copyright holder's notice and provoking legal action? The problem is that there is no line. Or rather, the line comes and goes on a case by case basis. For instance, Paramount and CBS have instituted legal action against a Star Trek fan film, financed on Kickstarter to the tune of $1 million. Apparently there have been earlier Star Trek fan films made without incident, but this one is a target. Where's the line? Was it the money involved? The high profile? Or did a lawyer wake up grumpy?

Even under the old copyright term of 56 years, the original Star Trek would still be protected. But Gene Roddenberry is dead. Many of the writers, directors and performers of the show are dead. The executives who put the series into production are no longer with Paramount even if they are alive. And Paramount is now owned by Viacom, which had nothing to do with Star Trek as it didn't exist until years after the series was cancelled. I am very much in favour of creator rights, but I find it hard to see a link between Gene Roddenberry and Viacom stockholders.

In the U.S., if some entity creates a cure for cancer, they get only a maximum of 20 years to benefit (and some of that time is often used up before the government approves a drug for sale). After that, other companies can create generic versions without the expenses associated with developing a drug. But Paramount gets to protect Star Trek for 95 years. What kind of society values the inventors of entertainment more than the inventors of life saving drugs? Probably the society you live in.

In the past, culture was something that emerged from a group of people sharing a time and space. No one owns styles of language, architecture, painting, fashion, design or cuisine. If you want to make crêpes Suzette, you don't need permission or have to pay a royalty to Suzette. But since the invention of mass media, culture is manufactured for a profit. The music, books, movies and TV shows that are discussed are owned and the owners restrict their use. Even the media we use to communicate our thoughts about culture, such as this blog, Facebook, Twitter, etc. are owned. Government owns the post office, but nobody needs permission to write a letter. Try saying no to a terms of use software agreement and see where it gets you.

Copyright has value. I would never dispute that. But when it is used to lock up culture, instead of enrich culture, it has gone too far. Yes, the makers of the Star Trek fan film do not have the law on their side. But no one should confuse that with whether the law is just or functional. Today, copyright is neither.