Copyright law has a duty to creativity


We are often told that the best way to protect artistic innovation and creativity is to extend copyright. But it is not usually the budding novelist or musician that pushes the argument.

It is 1927, and Virginia Stephen is talking to her husband, Leonard Woolf, over the cornflakes in their elegant Bloomsbury home. VIRGINIA: Darling, I am thinking of writing a novel called To the Lighthouse about my family childhood, set on the Isle of Skye. It will be a masterpiece of 20th-century fiction. LEONARD: What a good idea, darling. With the Great Depression about to start, the royalties will come in handy. We will not only be able to afford the groceries, but enrich the children and grandchildren of our nephew.

The following morning: VIRGINIA: Leonard, my agent tells me that under British law, copyright will expire 50 years after my tragic suicide in 1941. Wordsworth Editions will then be free to produce copies of To the Lighthouse and will sell them for as little as ý1. Students will be able to buy annotated editions to help them with their exams. (Both aesthetes grima ce in horror at the prospect.) LEONARD: What a blow to our finances! But what can we expect in a country governed by men such as Ramsay Macdonald and Stanley Baldwin, with no understanding of the economic needs of creative people?

A week later: VIRGINIA: Leonard, my agent has just learned that a European directive approved in 1995 will extend copyright in my work for 20 years. And – what joy – Congress will pass a law in 1998 giving a similar extension to my US rights. I am to be spared the degradation of my books appearing in Wal-Mart until the next millennium! LEONARD: Wonderful news, Virginia. And fortunate that our friend Maynard Keynes is coming for dinner. He is a director of the Midland Bank and I am sure he can arrange a loan on the security of the royalties you will earn between 1998 and 2001. I will go and buy you pen and ink right away.

And so novelists and composers who died more than 50, but less than 70, years ago were able to leave their footprints in the sands of time. We could so easily have lost not just To the Lighthouse, but Sons and Lovers and Animal Farm. This may seem as unlikely to you as it does to me. But the US government, along with some powerful industry groups, has been arguing before the Supreme Court that this extension of copyright is necessary to protect artistic innovation and creativity.

Few works have literary or commercial value 70 years after their creation. Is it really plausible that potential authors of enduring classics will be deterred by the knowledge that the stream of royalties will dry up 50 years after their death? Companies last for ever: but have you ever seen a company whose discounted cash-flow calculations incorporated returns more than 75 years from now? The retrospective nature of the change in the law shows that the object is not to stimulate new creative activities but to protect owners of the rights to old ones. The Disney Corporation, the principal lobbyist for the change, is terrified of losing control of the repertoire of Disney characters.

Now there is something in the argument that a single powerful company is the best means of securing investment in and development of products and activities. The Standard Oil Trust was defended with this argument, and Electricitý de France uses it today in resisting liberalisation of the European electricity market. But the experience of modern market economies is that innovation and consumer interests are better served by competition than monopoly.

Creative industries differ only in that diversity and experiment are even more important in art and literature than oil and electricity. Shakespeare’s legacy might be better protected and developed if his works and characters could only be used under licence from the Royal Shakespeare Corporation. Such an agency could prohibit bad productions and ensure that annotated texts properly reflect the consensus of the corporation’s approved scholars. But the history of totalitarian art gives little grounds for optimism that this would stimulate creativity.

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