In his USA Today column, the great Prof. Glenn Reynolds (a/k/a Instapundit) suggests six laws* that the Republican Congress should pass. He argues for lowering the drinking age, decriminalizing marijuana, repealing the DMCA and instituting a copyright term of 56 years, making birth control available over the counter, ending public sector unions, and heavily taxing those who leave government jobs for lucrative private-sector employment. An ambitious agenda!
I have no real issue with most of these, but I would like to dive a bit deeper into his copyright suggestion. (It's not as provocative as pot and booze and sex pills, I know, but bear with me.) Here's Instapundit:
3 Repeal the Digital Millennium Copyright Act. This awful law passed in the Clinton era is a giveaway to the entertainment industry. It places major burdens on Internet and computer users and electronic innovators. In fact, we should reform copyright law in general: A 28-year term was good enough when America was new; double that would be fair enough now as opposed to the nearly perpetual duration copyrights enjoy today. Shorter copyrights would encourage Hollywood and the music industry to produce new material, instead of endlessly recycling old stuff.
The first part of this, about the burden placed on innovators and Internetters by the DMCA, is undoubtedly true. As I've argued elsewhere, the doctrine of "fair use" is due for a strengthening. We've ceded far too much power to the entertainment industry when it comes to judging what should fall under the exemption this concept creates. A reduction in copyright length also seems like a reasonable move, though I'd be inclined to argue for a term like "the life of the author or 20 years after the creation of a work, whichever is longer." It's a writerly prejudice, perhaps, but one I hold dear: If a man creates a piece of intellectual property, he should be allowed to do with that property what he likes for as long as he lives.**
It's the last bit I find curious. Reducing copyright lengths—that is to say, increasing the scope of the public domain—might encourage movie studios to increase the number of original productions. It's certainly possible. But I'm not entirely convinced. There's a reason we see so many adaptations of old standbys—two Hercules movies*** in a single year; Shakespeare and Austen; biblical epics such as Noah and Exodus, etc.—by Hollywood studios. For starters, there are fewer worries about rights, so it's easy to get started. No one's worried about sharing profit points with Homer. Secondly, there's a built-in audience awareness. Much of the cost of moviemaking now has to do with publicity and advertising. Studios are constantly recycling old ideas not because they're out of concepts, but because they want properties with "preawareness." You tell people you've got a movie about Moses or Hercules and they know what you're talking about; if they know what you're talking about, maybe you can spend a bit less on ads.
So if we create a world in which the entirety of Hollywood's back catalog is opened up for every idiot with a camera to play with, are we likely to get a bunch of hugely creative new productions? Or are we more likely to get endless rehashes of the classics that come with boffo preawareness: a new Casablanca and a new Gone with the Wind and (in a few years) a new Godfather and a new Star Wars? Countless iterations of Superman and Batman and Spider-Man from every studio with a few hundred million to spare?
Then again, maybe that wouldn't be the worst thing in the world. Indeed, perhaps we need that sort of glut at the beginning of a brave new world of shortened copyright terms, a world in which audiences, confronted by endless rehashes and remakes and reimaginings, finally tired of the same old stuff and the market responded with a demand for new, original, never-before-seen stories.
Then again, no one ever went broke underestimating the taste of the average consumer.
So, sure, it's possible that a massive increase in the public domain will spur Hollywood to buck its addiction to preawareness. But consider me skeptical. And also consider that things will almost certainly get worse before they get better.
*Noticeably absent: a call for smooth motion prohibition. C'mon, Instapundit! If you get on this train it can't be stopped.
**This works better with books and, to a lesser extent, music than it does with, say, movies or TV. Who is truly the "author" of a film? Auteur theory notwithstanding, it's a sticky wicket. In the case of filmed media, I'd be content to keep copyright with whoever ponied up the most money for its creation. Only seems fair.
***One of those Hercules movies and Aronofsky's Noah were technically adaptations of a graphic novel. But those are graphic novels based on the oldest of public domain properties and Aronofsky actually wrote the graphic novel he then adapted—it was basically a script with storyboards sold to the public—so I'm not terribly impressed by claims of "originality" there.