The Shaky Rationale For TPP’s Copyright Term

The Trans-Pacific Partnership (TPP) is supposed to be a free trade agreement among 12 Pacific Rim nations. But the TPP also includes some contentious intellectual property provisions, including a requirement that all member states have a minimum copyright term of life plus 70 years – thus forcing six nations to increase their copyright terms by 20 years. This copyright term extension is strongly criticised by some experts, who claim it is antithetical to the goals of copyright law. Moreover, this copyright term extension runs counter to the stance of the US Copyright Office, which has been trying to weaken the current US copyright term of life-plus-70. [Note: Part 2 of 2 articles]

Supporters of the TPP assert that lengthening the term of copyright brings important public policy benefits. They argue, for instance, that a longer term promotes the creation of new works.

If this is the rationale for extension, the TPP goes too far – because it increases the copyright term for both newly created works and existing works.

“You cannot incentivize the creation of a work that already exists. And thus copyright term extensions for existing works only give a windfall to existing proprietors, with no correlative benefit to the public at large,” according to a 2012 law review article by four law school professors. Many other experts share this view.

Supporters of the extension argue that extending the copyright term for existing works does provide a public benefit, by encouraging copyright owners to invest in the preservation and restoration of existing works.

“Companies won’t do this work unless the original is protected by copyright. I can’t think of any case where a company did this without copyright,” said Anissa Brennan, vice president of international affairs and trade policy for the Motion Picture Association of America (MPAA), an industry lobbying group.

Traditionally, copyright has been justified as a way of encouraging people to spend time and money creating original works of art. Encouraging the preservation and restoration of works is a new and uncertain rationale for copyright. No study has provided empirical evidence that copyright is needed to encourage preservation and restoration. And there is significant evidence to the contrary. Many works have been preserved and restored after they fell into the public domain. Libraries, museums and other non-profit groups have long invested much time and money to preserve and restore such public domain works.

New Works, New Global Standard

Supporters of the copyright term extension also argue that life-plus-70 is needed to encourage the creation of new works. In theory, this longer copyright term provides an additional incentive that will tip some authors into working on projects they would otherwise not bother with. However, there is no evidence this occurs in reality. No empirical study has shown that life-plus-50 years of monopoly monetization provides insufficient motivation for artists, or that life-plus-70 results in a significant number of additional works.

The copyright term provided by the Berne Convention for the Protection of Literary and Artistic Works is already so long – lasting until an author has been dead for half a century – that increasing the term by 20 years adds no real incentive to authors, according to many experts.

“No one can credibly argue that someone would refuse to create a work if it is only protected by copyright for life-plus-50 years, but would create the work if it was protected for life-plus-70,” said Prof. Michael Geist, who teaches law at the University of Ottawa.

Finally, supporters of the TPP provision argue that it will provide trade benefits for all concerned by harmonising these nations’ laws with the new global standard for copyright protection.

“Life-plus-70 is the standard in the world. Over 90 countries already have it,” said Brennan. She added, “Anyone who is interested in facilitating global trade and commerce should be interested in harmonising rules, including this one.”

Other experts dispute this. “The ‘global standard’ for copyright term length is life of the author plus 50 years … if we take global multilateral agreements as the indicator,” said Prof. Margot E. Kaminski of Ohio State University’s College of Law. “This standard was established in Article 7(1) of the Berne Convention and incorporated into Article 9 of the TRIPS Agreement.” TRIPS is an acronym for the 1994 World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights.

Many countries have adopted a life-plus-70 copyright term, but that is not the result of international consensus. It “is a reflection of active international bullying by the United States … through [bilateral free trade] agreements targeted at less powerful countries,” said Kaminski.

If more countries adopt the life-plus-70 standard, this will increase the profits of large entertainment firms in the US, but it will not boost overall international trade, according to critics.

“Harmonization to life-plus-70 does not ‘promote trade’; it extends the length of a government-created monopoly beneficial to only a subset of US interest groups arguably beyond the point of usefulness in inspiring new works, and into a point where it becomes truly obstructive for everybody else,” Kaminski stated.

Orphans and the US Copyright Office

Time is often a problem for those seeking to use a copyrighted work. As decades pass, copyright ownership records get lost, memories fade, and creators die. It can become impossible or financially impractical to determine the works’ current copyright owners. As a result, no one can obtain the rights to use these so-called “orphan works,” which then languish unseen for years.

Extending the term of copyright exacerbates this orphan works problem, turning more works into orphans and increasing the period in which no one can use these works. As the head of the US Copyright Office, Maria A. Pallante, explained in a 2013 Congressional hearing [pdf], “in a life-plus-70 scenario … what ends up happening is that copyright owners go missing, and the objectives of the copyright system get a little bit weaker, or they are a little out of focus.”

That’s why the US Copyright Office has called for the US to modify its life-plus-70 copyright term. Pallante has suggested that Congress replace the fixed life-plus-70 term with a life-plus-50 term and an option to renew for twenty years. If copyright owners don’t come forward and renew their copyrights, their works fall into the public domain after life-plus-50 years.

Thus, instead of insisting that the TPP require all members to provide a fixed life-plus-70 term, perhaps the US should heed the suggestions of its own Copyright Office. Life-plus-70 might not be good public policy, after all.

[Note: this article is the second in a series. The first article appeared last month in this column and is available here.]