http://www.smh.com.au/text/articles/2004/04/13/1081838720006.html
The FTA clause that stifles creativity
Sydney Morning Herald April 14 2004
An extra 20 years' copyright protection will keep much valuable art out of the public domain, writes Peter Martin.
If there was one episode in the ABC's weekday reruns of Doctor Who that was not to be missed, it was the one that should have been shown three weeks ago. In it the second Dr Who, Patrick Troughton, is put on trial by the Time Lords and banished forever to one point in space and time - Earth in the 20th century.
Although that episode sets up everything that follows, the ABC was unable to broadcast it. Its problem: copyright.
For just a few seconds as the doctor's life flashed before him the episode showed a glimpse of his most infamous enemies: the pepper pot-shaped Daleks.
Copyright to the Dalek design is shared between the BBC and the family of the late writer Terry Nation and the two have fallen out. London reports say that before he died Nation told his executors never to let the BBC use the Daleks again. As a result the BBC cancelled its plans to rescreen the series last year. (The ABC appears to have been allowed to show some of the earlier Dalek episodes by negotiating a separate deal directly with the Nation estate.)
The use of copyright to attempt to stifle cultural celebrations is more common than you might think.
Last year Samuel Beckett's nephew threatened to shut down a performance of Waiting for Godot at the Belvoir Street Theatre on the grounds that it had some music in it.
In June the James Joyce Centre in Dublin is to celebrate Bloomsday on the 100th anniversary of the date on which the novel Ulysses is set. But it may not be able to read the novel out loud. Joyce's grandson has banned public performances, saying he will sue for breach of copyright if anyone tries. Fortunately the organisers of Australia's Bloomsday celebrations are in the clear. In Australia Joyce's works entered the public domain in 1991, 50 years after his death.
But they might not remain in the public domain for much longer. Australia's draft so-called Free Trade Agreement with the United States includes a little publicised clause that would extend our term of copyright from death plus 50 years to death plus 70, the new US and European standard.
Works such as Ulysses and books by authors such as Joseph Conrad, Ernest Hemingway and D.H. Lawrence, as well as music such as Rhapsody in Blue, are at the moment on a par with Shakespeare in Australia. It is legal to print, adapt and perform them without permission. If the Free Trade Agreement becomes law as it stands they will return to private ownership.
Would this really matter? You might be surprised to discover that the economics profession believes it would. Economists, more than most people, support the idea of private property. And yet a couple of years ago 17 of the world's most respected economists (among them five Nobel Prize winners) petitioned the US Supreme Court in an attempt to stop the extension of the US copyright term.
They argued that extending the term by another 20 years would actually impose extra costs on authors while at the same time providing next to no extra incentive for them to write.
Here's how: it is true that increasing the copyright term from zero to 20 years would provide a good deal of extra incentive to write. But increasing the term from an entire lifetime plus 50 years to an entire lifetime plus 70 years would provide much less incentive at the time when the decision is being made to write. A lifetime plus half a century seems so far away, let alone additional decades.
The economists estimated the size of the extra incentive. They said the prospect of an extra 20 years of copyright protection would be worth about the same to a would-be author as an increase in income of one third of 1 per cent. As one of the Supreme Court judges noted: "What potential Shakespeare, Warton or Hemingway would be moved by such a sum?"
This is not to say that the sums involved are small in the years that they are paid. The extra 20 years of copyright payments now legislated in the US are set to cost Americans an extra $US300 million ($393 million). Most of the money will go to the owners of works already created. For them it will be a windfall, an unexpected top-up. But it will give them the right to lock up the use of their work for years to come.
Many, perhaps most, works of art are created by retelling, remixing and playing with older stories. Certainly several of the Disney Corporation's most popular copyrighted works were created that way.
But Disney and its ilk are not keen to allow the creators that follow them the same access.
Lawrence Lessig is the Stanford law professor who led the unsuccessful Supreme Court challenge. He chillingly notes in his new book, Free Culture, that while a million patents are set to pass into the US public domain in the next 20 years, no copyrights are now set to do so.
In Australia a government-appointed committee recommended against extending our copyright term as recently as four years ago. It also recommended that no extension be introduced in the future "without a prior thorough and independent review of the resulting costs and benefits". The Government accepted both recommendations.
But the Government has now agreed to extend our copyright term, and unless the Free Trade Agreement is blocked in either the Australian or the US legislature that extension is set to pass into law.
There is still time for some sort of review. The Senate committee inquiring into the FTA is accepting submissions until the end of this month.
It might take heart from Canada. That nation enjoys a free trade agreement with the US and retains Australian-style copyright laws. Last week it knocked back a bill that would have extended those laws.
Peter Martin is the economics correspondent for SBS television.