Earlier this year, a filmmaker was producing a documentary about something we all can appreciate—the “Happy Birthday” song. To her great surprise, a music publisher claimed to have the rights to the song, and informed her that she would have to pay $1,500 to include the song in the film. This publisher asserted a copyright claim that runs through the year 2030 (ninety‐five years from registration in 1935). Her surprise was no doubt widely shared by most other people, who assumed that Happy Birthday was (1) very old and, therefore, (2) in the public domain. What most people do not realize, though, is that copyright terms have become quite long. And through U.S. trade policy, they are getting longer all around the world.
The Happy Birthday copyright claim may be particularly egregious, based on the specific facts of the case, but a ninety‐five year term is actually not out of the ordinary. In fact, it is shorter than some current terms (which vary a bit depending on particular factors). Life of the author plus seventy years is now the standard for individual authors. These very long terms are due to frequent extensions to copyright passed by Congress over the years, which have pushed copyright terms far beyond their original length. The longer terms are now being globalized, pursuant to U.S. demands that its trading partners also extend their copyright terms.
Copyright became part of international trade agreements in the early 1990s, with the WTO and the NAFTA. In subsequent trade negotiations, the United States has continued to push for even stronger copyright protections. As part of the Trans Pacific Partnership (TPP) talks, the United States is pushing its trading partners to adopt its approach to copyright. As noted, in the United States, the term for individual authors is life of the author plus seventy years. In contrast, some of our trading partners have shorter terms: New Zealand has a term for literary works equal to the author’s life plus fifty years; Malaysia has a term of life plus fifty years for “literary, musical or artistic work”; and Canada has a term of just fifty years for fixed sound recordings. Pursuant to a TPP draft text, all of these countries would be required to extend their terms to the longer U.S. term.
It may seem odd that copyright is an issue for trade talks at all. In recent years, though, the trade debate has moved beyond traditional “protectionism” issues such as tariffs or “Buy America” preferences, and instead focuses heavily on the amorphous concept of “trade barriers.” A wide range of policies are subject to accusations that they are a barrier to trade, resulting in calls for trade agreements to remove the barriers. Intellectual property in general, and copyright in particular, offer a good example of this. Many U.S. companies allege that the lack of intellectual property protection in foreign countries hinders U.S. sales abroad, and thus acts as a trade barrier.
Unfortunately, as it is being used, the term “trade barrier” really only tells us that a measure affects trade in some way. It is true that the U.S. copyright term is longer than the terms of some of its trading partners, and their shorter terms may reduce sales of U.S. products abroad. But while copyright terms may affect trade in this way, the U.S. demands obscure the real question: what is the appropriate copyright term?
In reality, either a shorter or a longer term can have an impact on trade, depending on how much intellectual property a country has. Countries with lots of intellectual property may fear that weaker protections in their trading partners will reduce their foreign sales. At the same time, though, those with less intellectual property can assert that longer terms constitute trade barriers. Perhaps they could increase their own exports if more copyrightable materials were in the public domain and available for republishing and derivative works; and they would have access to cheaper imports if more materials were out of copyright. Thus, a simple comparison of term lengths tells us little, and accusations of “trade barriers” are unhelpful here. Instead, the focus needs to be on determining the proper term.
Coming up with a “correct” figure for the term of copyright is challenging. The exercise feels like instinct more than science. It is worth noting that in the United States, the copyright term has evolved over time. Terms for individual authors went from fourteen years (with the possibility of a fourteen‐year renewal) as set by the first Congress, to twenty‐eight years (with a twenty‐eight‐year renewal) in 1909, to life of the author plus fifty years in 1976, to life of the author plus seventy years today. Based on the history of copyright, even the shorter terms used by our trading partners today seem a bit excessive.
Moreover, the reality is that, when the United States pushes for these longer terms, it is doing so not to support free trade, but in order to give its companies an edge. It feels more like economic nationalism than free trade. In a sense, the long periods in the U.S. law are a hidden subsidy to U.S. producers.
Intellectual‐property protection is an important policy area and its scope needs to be examined in a robust, public debate. The earliest time periods for copyright—twenty-eight years total or fifty‐six years total, taking into account renewal—seem reasonable. Even life of the author may be appropriate. But the continued extensions are pushing the bounds of rationality.
The appropriate focus of copyright policy right now should not be on using international trade agreements to extend copyright terms abroad. Rather, there needs to be a debate that focuses on how long copyright terms should be. Including provisions on copyright terms in trade agreements without first having that debate, and with ever longer terms, is pushing intellectual‐property policy in the wrong direction, and at the same time undermining the goal of free trade by bringing in unnecessary controversies.