Unlike the cave painting above (which is no longer under copyright), you are reading an article whose copyright will expire in over a century.  Given the life expectancy of an American born less than 30 years ago, I’m likely to just miss the next Cubs World Series win in 2070.  But 70 years after I’m dead, my copyrights will expire, meaning you will be free to incorporate this article into a movie or perhaps a 3D hologram, sometime around 2140.  Of course, that assumes copyright law won’t change in the intervening 130 years.  History seems to indicate otherwise, as 130 years ago, my copyright would have only lasted 56 years, which suggests this article’s copyright might not expire until 2170, or maybe even 2200!

This may not seem very relevant to you. After all, what use could this article really have in future creative endeavors?  But what happens if it isn’t just an article on a website?  What if every single creative piece produced today, every cave painting, every computer program, every movie script and song, what if they were all locked up for 130+ years?   Prior to the Copyright Act of 1976, most copyrights had to be actively registered by the author, but since then, all works automatically produce a copyright upon their publication.  So while in 1880, copyrights could only last 56 years, in reality, most works had no copyright on them at all.   But today, for every person alive, every creative work made during their lifetime will not be constructed upon, reworked or engineered, reimagined or reincorporated into a different concept during their entire lifetime, unless explicit permission from the original author is obtained (Note: due to my interest in this subject, this post, along with every post I write is licensed under a Creative Commons Attribution-NonCommercial license so you are free to copy, adapt, and share these posts, but not sell them).

But when we discuss copyright in this manner, the different sides of the debate tend to talk past each other.  Yes, copyright lasts a longer today, but then again, the media landscape has changed drastically in the last 50 years.  Moreover, copyright protection proponents, such as the MPAA and RIAA among other media companies, tend to see copyrights as assets similar to other types of property, which do not have any time limits at all.  We’ve all seen their (moronic) commercial comparing music piracy to car theft.

Is this the right way to think of copyright?  Intellectual property is not like other forms of property: taking some of it would not exclude others from using it. Accordingly, it is governed differently in law, with explicit wording in the Constitution, noting that Congress can secure patents and copyrights of limited duration for authors in exchange for promoting the progress of arts and science.  This is an interesting concept; while other rights in the constitution are based on natural and absolute property or political rights, intellectual property is based on a utilitarian exchange.  The ultimate goal is the progress of society through creativity, and copyright’s real purpose is to make sure that goal is best accomplished.  Copyright is explicitly not meant to protect the authors of works, unless this secondary priority helps promote the artistic environment more generally.

When viewed in this context, the reason why copyright’s term protection and encroachment is so horrifying becomes quickly apparent.  In 1998, for example, Congress extended the term of copyright from the author’s life plus fifty years to the author’s life plus seventy.   It is self-evident that this extension did nothing to promote science and useful arts: would an author who was interested in publishing a work suddenly change their mind once they heard their estate would be getting benefits for 50 years after their death instead of 70?  It is unreasonable to believe any author would act on such a long term economic horizon, and moreover, it is very difficult to know whether an author’s work would even retain commercial interest 50 years after their death.  But the cost to society is quite clear: science and useful arts would be harmed by having to wait another 20 years before the work could be built upon for free.

Let’s make the problem even more obvious: why did the copyright length extend even 50 years after the author’s death anyway?  Suppose the length of copyright was only thirty years after publication, just like copyright law was originally in the United States.  Today, you’d be able to build on or create new movies or books based on amazing original screenplays from the 80s like E.T., WarGames, or Back to the Future.   But instead, you’ll be waiting for another 65 years or so, at least under current law.

This may not seem like a big deal, but the amount of lost content and creativity is vast and invisible.  We may never know what amazing stories could have been told, since by law they are never given a chance.  Nevertheless, with the advent of the internet and the incredible ease with which we can cheaply create and distribute content, we have started to see the potential of ideas that could be constructed on top of copyrighted material.  Unfortunately, that has revealed a new copyright problem running rampant in the digital age: the economic drag on enforcing copyright violations.  With billions of views every day, YouTube is the perfect platform to create content quickly that is visible to the entire world. But due to copyright interests, Google has been forced to create software that can digitally identify copyrighted material, allowing companies to issue takedown requests, regardless as to whether the use of the material is an unauthorized derivative work (illegal) or a fair use of the copyrighted song or movie (legal).  Thus, due to the incredibly restrictive copyright regime we have created, not only is excellent derivative content banned, but even original work can be caught up in the dragnet.  We have taken a tool originally meant to promote creativity and have turned it into a gargantuan obstacle.

Today’s creative world is not just different in terms of copyright length; the law has fundamentally transformed the way creativity is governed, taking radical steps never before seen.  The full implications of our choices today are not yet realized.  As Duke Law Professor James Boyle writes, “We are the first generation that has managed to deny our own culture to ourselves”.

For more, I highly recommend CGP Grey’s video on the subject.

Picture Credit: Cave of Altamira, near Santander, Spain. Public Domain image.

Article originally published on postlibertarian.com.