Copyright lasts too long, and Stephen Carlisle’s article “refuting” that statement is embarrassingly wrong

Copyright terms today are FAR too long. Stephen Carlisle, copyright officer for Nova Southeastern University says otherwise in his article “Copyrights Last Too Long! (Say the Pirates): They Don’t; And Why It’s Not Changing Anytime Soon.”

Stephen Carlisle is absurdly and embarrassingly wrong. While some of his points are certainly correct from a purely legal perspective–indeed, one cannot factually argue that a law or a court decision simply does not exist–his titular assertion is not supported by his own article.

The most blatant omission from his writing is that of the value of works in the public domain. There are only two mentions of public domain in the entire article: one saying Winnie the Pooh was saved from falling into the public domain by the Sonny Bono Copyright Term Extension Act and the other being in the title of a footnote, a citation which he drops after sneering that it is an exhibition of “…the cynical nature of anti-copyright activists to paint long copyright terms as a sell out to Hollywood.” For a “copyright officer,” Stephen Carlisle seems to have a lacking understanding of the balancing act that the entire concept of copyright was crafted to serve.

If you want to read 30 pages about why the public domain is important and skip my short overview, read this.

Let’s briefly fill in the cracks that Stephen Carlisle neatly avoids. Copyright exists to balance two things: the need for the creators of works to make a living from their work versus the need for those works to become freely available as they become an integral part of the cultural zeitgeist and a part of our history.

A prime example is the “Happy Birthday” song. Every time someone makes another trip around the sun, we sing this simple four-line song to them in celebration. As kids, none of us realized that this song was copyrighted. Most of us thought it was strange that restaurants didn’t sing this song, opting instead to sing some other original song that wasn’t the one we were all familiar with. What we didn’t realize is that the “Happy Birthday” song was copyrighted and that “public performance” of the song required explicit permission from the rightsholders and payment of a license fee to them for each performance. Notably, the copyright on “Happy Birthday” was recently struck down as having expired quite some time ago and the ex-rightsholders now have to pay back several million dollars in license fees, but the simple fact that restaurants were de facto banned from singing “Happy Birthday” to you on your birthday because of copyright concerns seems ludicrous to anyone that learns of the situation. The song is a firmly cemented piece of American culture, and as such it should not be blocked from use by copyrights any longer. (Update: the claimed owner lost in court and the Happy Birthday song is now in the public domain.)

This is in fact what long copyright terms result in: the piecemeal monopolization of American culture. The last full year of works that are guaranteed to have fallen into the public domain is 1922 which is 95 years ago as of the time of this writing. To give you a true taste of what that means, here’s a jazz standard from 1920; if you listen to it, that’s where America was when the public domain began to die.

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