I ended my last essay by presenting the general principles needed to answer the question, how long should copyright terms last?
For those of you who didn't read or don't remember what I said, here it is:
First, authors need to have enough protection to enable them to be able to make a living as full-time writers.
Second, that protection has to be long enough to provide them with a motivation to write for the public, and see doing so as a possible profession.
But that's it. Those are the only two legitimate concerns. Any term of copyright which exceeds that minimum necessary length, as Macaulay put it in the quote I cited in my last column, has no legitimate purpose. Once you cross that line, a necessary evil has simply become an evil—and the farther past that line you go, the more evil it gets.
Now let's get into the details.
The first thing I need to establish are some facts. I need to do that because I've found that many people, including many authors, have very unrealistic notions about how long copyright actually protects anything. What happens is that they look only at the law—ignoring all social and economic realities—and say to themselves, "Oh, wow, anything that gets written—including anything I write myself—will be protected by copyright for seventy years after I die."
Uh, no. In the real world—except for intellectual property owned by giant corporations—here is what really happens:
The longer copyright lasts, the less likely it is that 99.99% of anything ever written will ever get reissued. What excessively long copyright terms actually do is destroy writing. They don't protect writing, they ravage it.
Why?
Well, it's simple—if you look at writing as a professional craft, subject to economic imperatives like any other form of work, instead of a legal or philosophical abstraction.
Here is the cold, hard reality. I call it the ninety-nine percent rule:
99% of all writing falls out of print within ten years after it is published. In most cases, within five years. That's because the standard rule of thumb in the publishing industry is that 80% of all sales of a book take place in the first three months after publication. And the remaining 20% usually drops off steeply. Within a few years of a book being published—faster than that, in the case of most shorter pieces of work—it is simply not economically viable for a publisher (or a book distributor or retailer) to keep the book in print any longer.
90% of all writing that falls out of print will never be reissued, under any circumstances—even with good copyright laws. That goes up to 99% with bad laws like the ones we have today.
The reason, again, is economic. For all the paeans of praise showered on "immortal literature," the cold, cruel, hard fact is that the overwhelming majority of writing is pretty ephemeral as far as the public is concerned. This should come as no surprise to anyone, because the fact is that whatever else it may be, fiction writing is first and foremost entertainment—and entertainment, with a few exceptions, has always been subject to the dictate that the public wants novelty. They don't want to hear the same story over and over again; instead—with a few exceptions—they want to keep getting new ones.
For every piece of writing that stays before the public for centuries—such as Cervantes' Don Quixote—there are literally hundreds of thousands of pieces of writing that vanish with the wind. That's even true with books, much less short pieces of writing. Most books—"most," as in 99.999% of them—are not and will never fall into the same tiny category Don Quixote does. They are ephemeral. They will arrive, enjoy their day in the sun—such as it may be, which varies a lot—and then they will pass away. Most of them forever.
That's the reality—and that is the reality which determines the lives of professional authors, as professional authors.
And that's also the reality that should—and did, until fairly recently—determine the length of copyright terms.
So. What shouldbe the length of copyright terms? Let's approach the problem by bracketing it. Ranging shots, so to speak.
The original copyright terms set in the Statute of Anne of 1709 (fourteen years) and the modification placed in the original U.S. Copyright Act of 1790—which provided for a fourteen year extension after the first fourteen years had elapsed—has turned out to be too short.
Why? you might ask—given that I just got through pointing out myself that 99% of all books will fall out of print before fourteen years elapse, anyway.
Well, it's because averages are only that—averages. Remember that the purpose of copyright is first and foremost to provide a means whereby some authors can become professional authors. So what you now have to do is consider what percentage of writers can ever manage to do that?
And here we run into another ninety-nine percent rule. Or ninety percent rule, at least. The big majority of people who get something published will never be able to make a living as writers. Indeed, most of them won't ever generate a significant income at all from writing, even one that could substantially supplement their income from their principal means of livelihood.
I can't give you exact percentages, because I don't have them. So far as I know, nobody has ever done a systematic survey and study of the issue. What I can do is give you some rough guidelines, based on my own experience as a professional writer and what I've learned from talking to many professional writers, editors and publishers.
As I said in my last essay, writing is very much like acting. It's a profession that has no entry bars of any kind. You do not, as a doctor or lawyer does, need to take any schooling to practice the trade, nor do you need to pass any formal examinations or get any official certificates entitling you to engage in the profession. Furthermore, although certainly not to the same degree as acting, writing is a relatively glamorous profession.
So, lots of people take a crack at it. Lot and lots and lots of people. Of those people who take a stab at it, about 90% never have any success at all.
But some do. Perhaps 10%, sooner or later, will get something published—or, if they're actors (or singers) get a small gig somewhere. But they never manage to do it with any regularity or frequency at all. Eventually, most of them stop trying altogether and move on in their lives to something else.
Of that large number of—"extras," I will call them—perhaps 10% manage to get established as regular practitioners in the trade. Not regularly enough or prominently enough to ever make a living at it, except as a sideline, or even derive a significant amount of money from it. But they do get enough work for writing to become a significant part of their lives.
Of that ever-diminishing number, perhaps 10% will manage to enter the ranks of what you can call genuinely professional writers and actors. They may still—probably won't, in fact—make enough money to do it as a full-time, exclusive occupation. But they make enough money to practice it continually and get published (or hired as an actor) with great regularity. In writing, we call this being a "midlist" author. In acting, it's (usually) called being a "character actor."
Finally, of that—now very small—number of people, perhaps 10% are able to make enough money at it to engage in writing or acting or singing as a full-time, exclusive occupation.
For the social purposes for which copyright exists—or, at least, should exist—it is those last two categories of writers who are the key. As Macaulay explained in the passage I cited in my last essay, it is these two categories of writers who will produce most of what society considers valuable and wants to protect. Not protect the works, mind you—but protect the ability of those two classes of writers to devote that much time and effort to creating them.
That's the core of it. When it comes to establishing the proper lengths of copyright terms, there are no other considerations beyond whatever is necessary to provide those two classes of people with adequate protection. None.
Copyright terms longer than fourteen years are simply not necessary for writers who fall into the broader categories. Or "lower" categories, if you prefer, but I'm trying to avoid any terms that might imply that I'm sneering at anyone. The fact that someone who tries to write but only manages to get one or two things published in a lifetime—if that—has no bearing whatever on their worth as human beings. I know plenty of people I think very highly of, including my mother and my wife and most of my close friends, who have never published anything at all. And, on the flip side, I know some very successful professional authors whom I would cross the street to avoid because I detest them.
Yes, certainly, it's possible that a short story written by someone who only wrote a handful in a lifetime might get reissued more than fourteen years after it was written, and thus have fallen into the public domain under the original copyright laws.
So what? That person obviously doesn't in any way depend on such completely unpredictable, infrequent and erratic income. Once a short period has elapsed in which it has earned any predictable income—and fourteen years is more than enough for that—it doesn't need to be protected any more than someone who wins a decent jackpot in a slot machine in Las Vegas in the year 1970 needs to be guaranteed that they will win a similar jackpot fifteen years later, and then fifteen years after that, and fifteen years after that.
A lot of people—especially writers—have a very hard time understanding this. That because they confuse "copyright"—which is a utilitarian, social concept—with one or another form of what's called "natural property." (Briefly, and a bit crudely, "natural property" is the notion that something is "property" by virtue of its innate essence.)
"I wrote it, damnation! Therefore it is my property and I should get paid for it!"
That's the attitude, in nutshell. The mistake involved is that they are confusing their property with the legal mechanisms that would be necessary to make that property actually worth something in monetary terms. To put it another way, they think that simply because something is their property that they should be guaranteed that it would be worth something in monetary terms, should it be put up for sale.
But that's nonsense. Like everyone else, I own lots of things—my property, you betchum—that I couldn't sell for a dime. To give an example, I own a fifty-year-old grammar school report card that somehow managed to remain in my possession all these decades. It contains some charming notes from my fourth-grade school-teacher. Charming to me, anyway. Perhaps someone else wouldn't take the same pleasure in seeing an obviously exasperated teacher having checked every single one of the boxes that says "Performs below his capacity!"
Well, I think it's a hoot. One of my most favored mementos. But how would people react if I tried to get a law passed guaranteeing that any half-century old report card put up for sale on eBay should get money?
Obviously, in that sense, anyone's writing is their property—regardless of how much time has elapsed. That's why, if a publisher reissues the story, the publisher will put the author's name on the byline—even if they don't pay the author a dime for the right to do so, since it's in the public domain.
By the way, as an aside, most commercial publishers would pay the author something, anyway. Laws are laws, economic realities are economic realities, and public relations are public relations. The cost of buying the rights for a long out-of-print story by an obscure writer is so low that most publishers will gladly do it just to avoid, if nothing else, the hassle of trying to determine whether the work is in the public domain and/or the potential backlash they'd get from public opinion if they didn't. I've reissued over twenty volumes of stories by old authors, either as the sole editor or working with other editors, and I can tell you that in no instance did we try to determine if something was in the public domain or not, if the author was still alive.
To give an example, when I began my reissue of Christopher Anvil's writings for Baen Books, we bought the right to publish anything Anvil had written of a science fiction or fantasy nature up to the time of the contract. (He's since written new stories which we bought separately—one of which, as it happens, appears in this volume of Universe.) In the course of my negotiations with Anvil, he expressed the concern that he thought some of his works might have fallen into the public domain because he wasn't sure if he'd renewed the rights to a few stories. His concern was that he didn't want to be misrepresenting anything in the contract, since we were paying for all the stories. I told him I simply didn't care, and neither did Jim Baen. Neither one of us was going to go chasing after stories that might have fallen into the public domain, when we are reissuing the work of a living author. Leaving aside any ethical issues, it simply wouldn't be worth it in purely cold-blooded commercial terms. It takes time and labor—often, lots of it—todetermine if something is in the public domain. Why bother, when it's so much cheaper and easier to just pay the author—and thereby also avoid any risk of triggering public antagonism?
Perhaps the best way to make this clear, is to put it in the bluntest, harshest way I can. Why in the hell do some authors think they are entitled to an elite privilege that no one else in society gets?
Let's take a waitress, who works her whole life as one. She is entitled to her pay, and her tips. And, when she dies, she can leave to her children whatever—usually little—there is in the way of material possessions that her life's trade enabled her to accumulate.
What she can't do, however, is demand that even after she retires, she is entitled to a percentage of the tips from "her" table. Even though the income from those "tip royalties" would undoubtedly be more substantial to her—a lot more substantial—than whatever money a writer who produced a handful of stories would ever get for a story being reissued more than fourteen years after it was written. (Much less twenty-eight years, if they renewed it.)
Now let's look at the other end of the question. Bracket the problem, as it were, with another ranging shot.
Why would someone like—to give a current example—Stephen King or J.K. Rowling need more than fourteen years of copyright protection?
For the tiny handful of writers in that superstar category, fourteen years is plenty. Long before those fourteen years have elapsed, a writer like King or Rowling has made so much money that—assuming they don't have the brains of a pigeon—they will have invested it in a multitude of projects which guarantee them an income (and assets for their heirs) that are completely unaffected by copyright at all. Whether it's real estate, stocks, bonds, whatever.
True, some very successful writers are very improvident. So what? That is their problem, not society's. Why should society be burdened by excessive terms of copyright just to make sure that Megastar Author So-and-so doesn't have to face the same (paltry) risks that any very wealthy person who invests badly does?
Dammit, as close as I think we're getting these days, we still don't have a Multi-Millionaires and Billionaires Guaranteed Income Law. Not for oil tycoons, not for any tycoons—except superstar authors, and (more to the point) giant media corporations with intellectual properties like Walt Disney Corporation.
No, the real problem comes with authors "in the middle"—authors who fall into those two categories I talked about. I'll call them, for lack of a better term, midlist authors and lead authors who are successful but not Literary Superstars.
For those two critical classes of authors, the ones who provide society with the backbone of its literary output, fourteen years of copyright protection simply isn't enough. That's because, for many if not most of those authors—and this varies from one decade to the next, given the ups and downs of publishing practices—the income from a large backlist is in fact very important to their ability to keep practicing their trade.
There's another old saying among science fiction writers—again, I can't remember offhand who said it—that "you know you're a real pro author when the income from your royalties exceeds the annual income from your advances."
True enough, most books will fall out of print before fourteen years are up. More precisely, most editions will fall out of print before fourteen years are up. But many authors in these two categories—not all, but a very high percentage and probably a majority—will see many of those works reissued in a second or third or fourth edition. Editions which, in many cases, will come long after the works were originally written.
So, for them—and they are the two critical classes of authors, when discussing the issue of copyright—fourteen years simply isn't long enough.
Twenty-eight years, which was the first extension given by Congress in 1790, was . . .
Close. Not quite right, but close. Close enough, that I would personally far rather go back to that 28-year period than live with our modern "life plus 70 years," which is insane.
The problem with a twenty-eight year term, even leaving aside the issue of having to get an extension (which I'm opposed to, because it makes determining copyright so complex that it's a massive nuisance for everybody), is that it keeps skirting the edge of being too short. Speaking as a full-time author, I could certainly live with it, but I suspect the problems it would generate would be continuous enough and frequent enough that it would leave the whole issue a running sore with authors and—the real danger—keep reopening the issue so that the minions of "natural property right" could once again wedge their foot in the door.
Of course, right now, they've wedged their big flat bloated elephantine bodies through the door and they've taken over the whole damn joint. But my purpose here is to establish what ought to be the proper length for copyright—and one of the considerations there has to be doing whatever is necessary to keep the natural right leviathans from surfacing again at some point in the future.
Macaulay came to the same conclusion, a century and a half ago, and I think he was right. He proposed a straight, simple forty-two-year period of copyright protection. I'd simplify that to forty years, because Macaulay's forty-two was just an archaeological remnant from the fact that current law in his time was 28 plus 14 with an extension. But whether it's forty or forty-two is a minor issue. Either one would work fine.
Macaulay also included a proviso that if the author was still alive when that forty-two year period had elapsed, copyright would automatically continue until his or her death, which I also support. The purpose of that proviso, from my viewpoint, is mainly to keep the behemoths under control—because they will seize those few instances were a living author is being deprived of income because one of his or her works has fallen into the public domain as their fig leaf for demanding a return to "natural right" concepts of copyright.
Here's how Macaulay put it:
Sir, there is no controversy between my honourable and learned friend and myself as to the principles on which this question is to be argued. For the existing law gives an author copyright during his natural life; nor do I propose to invade that privilege, which I should, on the contrary, be prepared to defend strenuously against any assailant. The only point in issue between us is, how long after an author's death the State shall recognise a copyright in his representatives and assigns; and it can, I think, hardly be disputed by any rational man that this is a point which the legislature is free to determine in the way which may appear to be most conducive to the general good.
For a professional writer, especially if you include that "or life" provision, forty or forty-two years of protection is plenty—and, while it poses a certain burden on society, the burden is not really that great.
The reason it isn't that great is due to something that I think few people understand properly, except those who—like me—have done a lot of work trying to get old stories reissued.
The real economic obstacle to getting old stories reissued, contrary to what most people think, is not money. Publishers routinely, as a matter of course, shell out money—lots of it—in order to obtain the rights to publish a story. And the monetary value of old stories is so low that it's a pittance compared to what publishers routinely pay to get the rights for new stories.
If you want to know how low it is, Baen Books paid the same money—$6500—to obtain the right to James H. Schmitz's entire estate as it paid me for the rights to my first novel, Mother of Demons.
If that strikes you as absurd, well . . . it strikes me that way, too. But that's honestly how it works. It's just a fact that with a very small number of exceptions—Robert Heinlein's estate, for instance—the monetary value of a writer's work drops like a stone the minute he or she either dies or it simply becomes widely known that he or she is no longer actively writing.
Why? It's not because of publisher machinations. It's because—remember what I said above?—the public almost always wants novelty. It's just a fact that, with a few exceptions, reissues don't sell very well. So, they're not expensive to get. From the standpoint of a commercial publisher, it's practically pocket change.
Of course, new authors—with a very few exceptions—don't sell well, either. But the difference with a new author is that they might sell well, with a future book, whereas an author who's dead or permanently inactive is not going to do so.
Jim Baen put it to me this way, some years ago, when I commented to him that I thought it was a bit grotesque that he paid me the same money for my first novel that he paid for the rights to the entire estate of James Schmitz. (Mind you, I wasn't offering to give him any money back! I was just making a philosophical observation.)
I don't recall his exact words, but Jim's response was essentially this:
"Eric, almost no first novel is worth a thin dime, in cold-blooded money terms. Most first novels lose money for a publisher. But publishers—smart ones, anyway—aren't really buying 'first novels.' What they're really doing, when they pay an advance for a first novel, is taking a gamble that the author will someday be writing books that bring in a lot of money. It's an investment in an author's future earning prospects, not the purchase of a book—and you simply can't invest in the future writings of an author who's dead or isn't writing any more. There are a few exceptions, like RAH, but not many."
The real problem with reissuing old stories is not the money involved. It's that copyright terms that are too long—and the modern laws are grotesque, in this respect—make the labor and cost of determining who owns the rights so laborious and time-consuming that it simply isn't worth it for most publishers, most of the time. A long out-of-print story won't be worth more than perhaps a couple of hundred dollars in advances, and usually less than that. So how many publishers and editors are going to be willing to spend hours of their labor—which means money, indirectly—in order to track down who owns the rights after many decades have passed? Keeping in mind that in many cases nothing remains of the author's whereabouts or who his heirs might be.
"Last known address, somewhere in Iowa. That was thirty years ago. And his last name is . . . oh, swell. Johnson. Tell you what. Let's call Eleanor Wood on the phone and see if we can get the rights to reissue another Robert Heinlein story. That'll take five minutes."
That's how it works, in the real world. That's why I said, at the beginning of this essay, that excessively long copyright terms do not protect the work of authors—they destroy it.
All right. I'll end my discussion of copyright terms here, at least for the moment. I'll probably return to the issue again—and again—in later columns. But I've covered enough of the issue to provide us with the proper basis from which we can move on and discuss the issues involved with so-called Digital Rights Management.
What you will discover—which is precisely why I approached the problem by starting with copyright in general—is that the very same issues will keep re-emerging.
DRM, among other things, is a reversion to the "natural rights" position that Macaulay—and the founders of the American republic—rejected long ago. Instead of trying to deal with the challenges and opportunities of the "digital era" by applying the sturdy and long-tested utilitarian principles regarding copyright, DRM tries to deal with them by imposing ever-more-burdensome restrictions on society's ability to use and enjoy the creative output of its authors and artists.
I will close by—once again—urging everyone to read Macaulay speeches. (It ain't hard to find them, folks. Just click here: that article
For those of you who are still skeptical concerning my claim that Macaulay said everything important there is to say on the issue of "digital publication" a century and a half before anyone ever heard of it, I invite you to consider the fact that—way back in 1841—he was able to predict what would happen in any society that made copyright protection too burdensome for the society as a whole.
Those who forget history are condemned to repeat it. A century and a half ago, Macaulay predicted—with perfect accuracy—exactly what would happen if the music recording industry in the late 20th century reacted to new technological developments by getting their stooges in Congress to pass ever-more-burdensome laws forcing—or trying to force—their customers to accept their Royal Monopoly.
Read it and weep:
I will only say this, that if the measure before us should pass, and should produce one-tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind. Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers. At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot . . .
Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living.