A congressional committee report on the epochal Copyright Act of 1909 contained the Yoda-like pronouncement that “not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given.” It was an inelegant expression of the basic theory of copyright, that giving authors exclusive use of their writings for some limited time, with all the financial benefits that may entail, will redound to the benefit of us all by spurring creativity. It is a matter of lively dispute whether the “limited time” now granted under U.S. copyright law, specifically the Sony Bono Copyright Term Extension Act of 1998—the life of the author plus 70 years—goes far beyond what is necessary or desirable to achieving this end. In dissenting from the 2003 Supreme Court ruling which upheld the Bono act, Justice Stephen Breyer wrote:
“No potential author can reasonably believe that he has more than a tiny chance of writing a classic that will survive commercially long enough for the copyright extension to matter. . . . . . A 1% likelihood of earning $100 annually for 20 years, starting 75 years in the future, is worth less than seven cents today. What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?”
Just last year, the Supreme Court upheld an act of Congress that restored copyright protection to certain old foreign works that, for one reason or another, had previously fallen into the public domain in the United States. Justice Breyer again dissented, questioning whether Congress had the authority to extend copyright protections “without providing any additional incentive for the production of new material?” Although the majority agreed that this particular law could not incentivize the creation of anything new, it could be justified by the prospect that it might lead to the dissemination of existing material that would otherwise be ignored.
Though I sympathize generally with Justice Breyer’s view of these matters, there are those exceptional cases that support the other side. Today the New York Times reports that in Europe an impending change in law will, effective 2014, extend copyright protection on sound recordings from 50 years to 70 years from creation. The catch is that to be eligible, the recording must be published within the original 50 year term. To take advantage of the extension, Sony has released a very limited edition, quasi-bootleg recording of some of Bob Dylan’s earliest studio outtakes and live performances from 1962-63 (puckishly titled “The Copyright Extension Collection, Volume I”), and Motown has released from its vaults some rare recordings of the same vintage, just ahead of the expiration of the their original 50 year copyright term. No one could seriously argue that the prospect of this 20 year extension could have spurred the creation of any of these recordings, yet now, as a result of the extension, they can be heard for the first time.