The New York Times had a lengthy piece on a legal battle between musical artists and the recording industry. Here’s the lede:
When copyright law was revised in the mid-1970s, musicians, like creators of other works of art, were granted “termination rights,” which allow them to regain control of their work after 35 years, so long as they apply at least two years in advance. Recordings from 1978 are the first to fall under the purview of the law, but in a matter of months, hits from 1979, like “The Long Run” by the Eagles and “Bad Girls” by Donna Summer, will be in the same situation — and then, as the calendar advances, every other master recording once it reaches the 35-year mark.
The record companies object, and there seems to be a legal battle shaping up. But nowhere in the article is there any mention of the fact that no one should own these recordings after 35 years!
My brother, a law student, pointed out to me that mine is a normative claim, whereas the article centers around a legal battle. True. But it’s more than that. By the criteria the Constitution sets out for intellectual property, today’s excessive terms clearly fail. The purpose, laid out in the copyright clause, is:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
I can’t say it any simpler than this: no one seriously thinks today’s copyright terms are maximizing the creation of art and culture. It’s blatantly obvious that terms could be significantly shorter without any loss in terms of creation. So by the the criteria set out in the constitution, the battle NYT describes is a sideshow; the real story is that copyright terms are out of control.
All I’m asking for is a brief mention. The artists’ “side” is represented, as is the record companies’. What’s missing? The public’s side. This is the tragedy of what political scientists refer to as concentrated benefits/distributed costs. Artists and record companies each gain dramatically from excessive copyright protection. The public loses out, but each individual loses only a little bit, so it’s hard to organize politically to institute more sane policies. That explains the politics of copyright, but one would hope the NYT would go out of its way to give voice to public interest arguments.