Copyright: It’s Corroding Musical Creativity In America…

Throughout American history, the duration of copyright has gotten longer and longer. The Copyright Act of 1790, which was a copy of the UK’s Statute of Anne, granted fourteen years of protection. Fast-forward to 1998, and the Sonny Bono Copyright Term Extension Act extended the length of copyright to the life of the composer/artist plus 70 years (or, if the work is of corporate authorship, 120 years after creation or 95 years after publication, whichever comes first).  In determining that decision, it was noted that the extension would “provide significant trade benefits by substantially harmonizing US copyright law to that of the European Union while ensuring fair compensation for American creators.”

In this article, I propose that today’s copyright law is overbearing yet ineffectual, and in dire need of revision.

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Graph of U.S. Copyright Term History (credit: Thomas W. Bell, licensed under Creative Commons)

The US Constitution states that the core purpose of copyright law is “to promote the Progress of Science and useful Arts” (Article I, Section 8).  Yet paradoxically, empirical analysis has discredited the notion that increased copyright protection correlates with increased creativity.  Research published in the Vanderbilt Law Review, titled Does Copyright Law Promote Creativity: An Empirical Analysis, determined,

“There is little empirical or theoretical support that increasing copyright protection will increase the number of new works created… Lawmakers are more likely to find a relationship between an increase in the number of new works and those laws that reduce or otherwise limit copyright protection, and even then the relationship is far from guaranteed.”

This last point really speaks to today’s digital age, where sampling others’ works forms such a crucial part of pop music creation. Yet today’s system is based on strict prohibition of using copyrighted works, even for creative or interpretive purposes.  There should be a balance between letting artists create and giving credit where it is due.

Besides creating hurdles for today’s artists, US copyright law also makes it exceedingly difficult for organizations to build archives to preserve America’s musical heritage.  Tim Brooks conducted a study on the availability of historical recordings on behalf of the Library of Congress.  In his report, Copyright and Historical Sound Recordings: Recent Efforts to Change U.S. Law, he points out:

“Most historical recordings ever made in the United States are controlled today, primarily by the major recording conglomerates…Even more strikingly, only 14 percent of those historic recordings were made available by the copyright holders.”  (Copyright & Historical Sound Recordings, pg 466).  Predictably, that 14 percent is heavily skewed towards the recent past.  Thus, a huge archive of historical works from the late 19th and early 20th centuries, including seminal folk songs, spirituals, and other records are trapped and may never become available.

“Accessing the audio heritage of the U.S., ironically, often requires breaking the law.”

Imagine if the same were true for books.  There would be public outcry.  In Britain and much of Europe, sound copyrights go into public domain after just 50 years, allowing countries to preserve their musical heritage.  While there have been talks about addressing this issue, they have so far been fruitless.

Thus, the only remaining support for such protective copyright is financial, or as the court phrased it, to provide the US with “significant trade benefits.”  Yet one must question even this most basic of motives.  More often than not, it isn’t artists and their heirs who reap the benefits of the ‘Life+70’ standard.  Major labels retain ownership of most records, and will hold on to that ownership as long as possible.

With piracy as rampant as ever, do the provisions of copyright justify the barriers it creates for both artists and the general public?  Moreso, the public still can’t freely access seminal recordings that could inspire them to create their own original art.

Lawmakers should reexamine music copyright law in light of these issues.  Instead of simply lengthening copyright’s term, they should consider other methods for fostering creativity, such as providing funding for the arts or requiring songs that do use samples to be made public.  Maybe then American musical creativity can truly progress, and properly be conserved in history.

– Niko Malek.