Last week, a suit over a Marvin Gaye song put copyright into the headlines; but last year, the top copyright stories involved classical music. I wrote about one of those stories in a previous post, and now want to tell you about an even more memorable one. It's an ingenious study of Italian opera before 1900, and it has important things to tell us about our own future legislative battles.
The authors, Stanford economists Petra Moser and Michela Giorcelli, noticed that Italy offered them a neatly designed "natural experiment" on the effects of copyright. The peninsula didn’t unify into a country until 1870; before then, its many provinces had a motley variety of copyright terms. Moser and Giorcelli realized that they could compare the varying degrees of copyright protection to the output of operas. They compiled a database of no fewer than 2,598 Italian operas written between 1770 and 1900, and - in a virtuoso masterstroke - came up with ways to put numbers on how good the operas were. Subjective evaluations would be tricky to quantify, so instead they kept track of objective things, namely how many years an opera held the stage and how many recordings of it were available in 2014 on Amazon.
The results were far from mezzo-mezzo: copyright decisively led composers to write more and better operas. How decisively? A Vox explainer summarizes: "States with copyrights ended up producing 2.68 additional operas per year, a 121 percent increase over states without copyrights. Historically popular operas (as measured by the Annals of Opera) grew by 47 percent, and durable operas [those available on Amazon in 2014] grew by 80 percent.”
The www.vox.com post is excellent and worth reading in full. But I'd emphasize a different upshot of the study. Vox's "What It Means" section notes that Moser and Giorcelli give “a great example of how intellectual property protections are good for the economy — when you make sure a person can benefit off their work via patents, copyrights, and trademarks, it makes sense that it would encourage people to create more, high-quality works, whether it's operas or software or books or rock songs.” I can see why Vox wanted to focus on that point, since it has not made sense to everyone. Most prominently, economists Michele Boldrin and David Levine argued in detail in 2010 that there was "no evidence that intellectual monopoly achieves the desired purpose of increasing innovation and creation" (you can read their Cambridge University Press book for free here, and listen to a Planet Money story about them here). Now there is some impressive evidence.
But, as I said, I'm struck by a different implication of the Moser and Giorcelli study. The issue facing American lawmakers today is not whether we should abolish copyright - it ain’t going away - but how long we should let it persist before a work passes into the public domain. Originally, American copyright lasted just 14 years, renewable for 14 more. (See my Handy Timeline of Copyright Duration, at the link or below.) The terms lengthened over the centuries, but only in 1976 did Congress follow Europe's lead and extend copyright past the author's death (50 years past it, to be exact). In 1998, Congress extended it to the then-new European standard of the author’s lifetime plus an additional 70 years. Economists lambasted that extension (here’s an amicus brief by a group of 17 economists from across the political spectrum, including five Nobel Laureates, who considered it nonsensical); legal scholars decried it (here are two important theorists of intellectual property, William Fisher and Justin Hughes, debating copyright reform but agreeing that 70 years is "too long").
But few members of Congress opposed it.
In 2019, that 20-year extension will expire unless Congress re-authorizes it - and this time there will almost certainly be quite a fight. Let's hope that it will focus on the best available evidence. So I'd emphasize that Giorcelli and Moser also looked at Italian laws extending copyright past the composer's death, and found that posthumous rights had very "limited" effect. Composers did not write more or better operas when they knew that after they died their heirs could continue to receive royalties.
One study is, of course, not definitive, but the burden of proof right now is on those who claim that life-plus-70 years does increase incentives. As intellectual-property expert Christopher Sprigman said recently, "There's no evidence suggesting that a longer term is going to produce any more art [and] literature." That's why what jumped out at me in the new study is the incentive effect it did not find.
Why this emphasis on incentives? Because from the start, American law has justified copyright on the "utilitarian" grounds that it gives authors an incentive to create more. (By contrast, European law has justified copyright in Romantic terms: it thinks of authors as having inherent, natural rights to their works, and it also worries about the inheritances of authors’ grandchildren.) The new study confirms the Constitution's original justification for granting copyright, but, if I'm reading it right, it calls into question our latest extension of the terms.
However you read it, research of this quality deserves a grateful bravissima - and our hope that the authors are working on some encores.
A HANDY TIMELINE OF COPYRIGHT DURATION (because I couldn't find one on the Web):
- 1710: Great Britain's Statute of Anne is the first law to treat copyright as something "regulated by the government and courts, rather than by private parties," to treat copyright as of limited duration rather than permanent and to create a public domain into which works pass once their copyright expires. It also is the first law to define the purpose of copyright as the public good - the encouraging of the "learned" to "compose and write useful books."
- 1774: Great Britain's House of Lords, in the Donnelson vs. Beckett case, confirms that copyright is of limited duration and not perpetual.
- 1790: Article 1 of the US Constitution gives Congress authority "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.” Like Great Britain, the congress set that limited time at 14 years, renewable for 14. (Thomas Jefferson calculated, based on actuarial data, that it should be 19 years so that it would be “proportionate to average lifespans.”)
- 1793: France - The revolutionary government establishes a copyright term of life plus 10 posthumous years if the author has heirs.
- 1810: France - Napoleon establishes copyright for the life of the author and of the surviving spouse (if there is one), plus 20 years if there are children.
- 1826: France - The Bourbon restoration proposes life plus 50 years
- 1831: The US extends copyright to 28 years from publication, still renewable for only 14 years.
- 1836: France - The July Monarchy proposes life plus 50 years.
- 1837: Prussia adopts copyright term of author's life plus 30 posthumous years.
- 1845: The German Federation adopts term of author’s life plus 30 posthumous years.
- 1854: France adopts life plus 30 years.
- 1863: In France, a commission suggests life plus 50 years.
- 1856: Germany adds ten years for certain classic authors.
- 1866: France adopts life plus 50 years
- 1879: Spain adopts life plus 80 years
- 1891: The US recognizes international copyright.
- 1909: US extends copyright to 28 years now renewable for 28 more.
- 1923: Romanian law recognizes the author’s “moral rights” (which go beyond economic or "personal" rights and were first mooted in 19th-century Europe).
- 1925: Mussolini’s Italian copyright law protects "moral rights"
- 1926: Poland's moral-rights law prohibits excess criticism of a work
- 1926: Czech law adds moral right to author to have access to the original.
- 1927: Portugal grants perpetual (eternal) copyright including moral rights. (They reduced it to a limited duration only in 1985.)
- 1927: Finnish copyright law gives moral rights
- 1928: Europe's Berne Convention supports life plus 50 years, but leaves terms up to individual countries.
- 1934: Germany's Nazi government adopts life plus 50 years.
- 1948: Life plus 50 years is made obligatory for Berne Convention members
- 1957: France passes a copyright act that keeps "material" rights at life plus 50 years, but makes "immaterial" rights (including "moral" ones) perpetual/ eternal.
- 1965: West Germany adopts life plus 70 years
- 1976: The US grant posthumous rights for the first time, extending copyright to the author’s life plus 50 years.
- 1985: France extends copyright to life plus 70 years.
- 1987: Spain reduces copyright to life plus 60 years (it had been 80)
- 1988 (effective March 1989): the US joins the Berne Convention
- 1993: The European Union standardizes copyright at life plus 70 years. (It had done this for databases in 1971.)
- 1998: The US extends copyright to life plus 70 years (and up to 125 years for works of corporate authorship). This 20-year extension is up for renewal in 2019.