Monday, April 25, 2011

Lifetime Copyright Terms and Corporate Authorship

When the CTEA passed in 1998, and the Supreme Court defended it from challenge just two years later, the accepted term for copyright was once again extended. The council for the plaintiffs attempted several arguments to show that the CTEA unconstitutionally extended copyright terms, and that if such legislation was a sign of a trend in IP legislation, the sense of copyright as a limited monopoly would be eroded bit by bit until all copyrights were rendered perpetual. Unfortunately, the Court rejected those arguments. As of now, copyright protection is guaranteed for the life of the author plus 70 years for works of individual authorship. Works of corporate authorship are treated differently, protected for 120 years from date of creation, or 95 years from date of publication, whichever is earlier.

It would be convenient if the story ended there. However, the ruling in Citizens United v. Federal Election Commission extended broad rights of free speech to corporations, entities which are, we should remember, legal persons not natural persons. In that case, the Court ruled that corporations cannot be barred from using their assets to express their opinions, just as natural persons can according to the First Amendment. Now that basic Bill of Rights protections have been extended to legal persons, the line between a natural person and a legal person is much less clear. Legal scholars have begun to wonder exactly how blurred the line can be, and some of their predictions are quite chilling.

For now, let us consider a hypothetical situation which lies in some future intersection of these two trends, strengthening intellectual property rights and homogenizing corporate personhood and natural personhood. This thought experiment should show the problems inherent in ever-lengthening copyrights as well as failing to recognize important distinctions between legal persons and natural persons.

Imagine that media conglomerates argue that treating works of corporate authorship differently from works of individual authorship is discriminatory. The media conglomerates argue that corporate works should receive copyright for the life of the author plus 70 years, just as works of individual authorship do. Rather than the 95-120 year term, corporations would hold copyright over works for the lifetime of the corporation plus 70 years.

First of all, such a change would dramatically alter expectations about copyright term. Without directly extending the term limits, works of corporate authorship would be protected by copyright for the lifetime of the corporation. Since a corporation is not a natural person, its lifetime could be incredibly long. Consider news stories, typically protected by copyright held by the newspaper or the news agency (such as Associated Press). If copyright were guaranteed for the life of the corporation, stories appearing in news paper would be so protected as long as the newspaper remains the same corporate entity. In the case of a newspaper like the London Gazette (published continuously since 1665), the copyright might remain effective for far longer than a work of individual authorship.

In the case of newspaper stories, extremely long copyrights might have a devastating effect on historical research. News stories are often sources of information about how events were viewed as they happened, what the relevant perspectives might have been, and how those events impacted people as they happened. Even advertisements in newspapers, very likely candidates for corporate ownership, reveal common concerns, needs to be filled, and market trends. For long-lived newspapers like the London Gazette, researchers may find that their sources are essentially held hostage by the newspaper. Some materials may be accessible for a reasonable price, though any reasonable price is higher than the current cost, but the newspaper may also choose to withhold some issues or some stories for various reasons. It might be the case that a member of the board of directors wants to hide an old family scandal, or political contacts may pressure the newspaper into withholding stories which would weaken an argument about past trends. The image of a historian searching through a freshly redacted past issue belongs in a dystopian novel, not a supposedly free society.

Now, none of these situations might come to pass. It may be the case that corporations, or the board of directors at least, are capable of some level of social responsibility. It is possible that in such cases, the newspapers would allow open and even free access to its full archive of stories for the use of historians all over the world. After all, it is easy to imagine an individual exercising such a sense of social responsibility. Nevertheless, there are key differences between these seemingly identical outcomes.

A person's decisions are based on a wide variety of factors, ingrained moral sensibilities, reason, available evidence, duties, etc. It is difficult to predict what a person might do, just because there are so many different reasons and stories which one can tell, each story taking different influences as key and predicting a different outcome. Corporate decisions are no more predictable, but for different reasons. Corporate decisions are guided by potential material payoff. While corporate decisions are made by groups of individuals, these individuals are encouraged to shift their sense of social responsibility away from society at large and toward the shareholders. The socially responsible decision in a board of directors meeting is the decision which will maximize profit for the shareholders. If a board is faced with two choices, one socially responsible in a larger sense, and one socially irresponsible, the board members may prefer the socially responsible choice. Nevertheless, if there is a risk of another board making the socially irresponsible decision in the interest of maximizing shareholder profit, the moral consideration shifts. If the first board can decide to take the same socially irresponsible plunge to protect its shareholders' profits, the board may decide that it is prudent to do so, owing to their responsibility toward their shareholders.

In this way, corporate competition takes on the character of a Prisoner's Dilemma. The classical Prisoner's Dilemma is composed of two prisoners held under arrest. Both prisoners are offered the same deal. If A defects on B, A can go free and B will go to jail for 10 years. However, if B defects on A, A will go to jail for 10 years. If they both remain silent, they will both be held for 5 years. The only way to avoid jail is to defect and not be defected upon. Therefore, it is rational to defect in hopes that the other prisoner will stay silent. Since both prisoners reason in this way, they both defect and both go to jail for 10 years. If they had both remained silent, they could have received 5 years only, but the risk is too great. Defecting is the only viable option, and it leads to worst outcome. The situation with corporations is the same. Each corporation must defect on the others or else risk the worst outcome. However, all corporations defecting leads to the worst outcome for all.

In such a situation, we may not be able to predict whether a corporation will act responsibly, but
we can see that even if they do so, it will be for no more robust reason than maximizing profits. The same action in an individual would not be considered moral, and if corporations are to have the same legal status as natural persons, we should evaluate them on the same terms. Even worse than that, the Prisoner's Dilemma situation predicts at least a regular practice of opting for courses of action which are irresponsible with respect of the larger community just to avoid other corporations doing the same and dominating the market. Bestowing such entities the ability to maintain copyright on works which become culturally significant places the very culture in the service of the bottom line. The Disney Corporation has dominated children's media for two full generations; they shape children and media directed at children and have done so for a long time under the current regime. It is difficult to imagine Disney all of a sudden gaining a sufficiently great sense of moral responsibility to refrain from suing the pants off of the next animation studio to re-tell a classic fairy tale.