Balancing the Copyright Term: Increasing Public Welfare without Destroying Artistic Incentive to Produce

Abstract

Copyright protection currently provides the author, artist, or creator of the Copyrighted work with protection for their life plus 70 years or the shorter of 95 years from publication or 120 years from creation in the cases of works for hire. This creates a term, that while good for owners of copyrighted works, harms the public by decreasing access to works from which to build. Further, the extended term does not serve the U.S. Constitutional justification for copyright, that is, furthering the progress of the arts and sciences. Rather, the copyright term has been extended so long that the economic result may be that less works are actually being produced. The copyright term needs to be balanced to maximize both new works produced and public welfare from access to a rich public domain. US 7th Circuit Judge Richard Posner has written on the topic suggesting that copyright terms be short, but indefinitely renewable so that only economically valuable copyrights will remain protected while others will fall into the public domain. Other researchers have also suggested a wide variety of economically appropriate and balanced terms. However, while simply shortening the term may be a economically correct decision, it ignores the US's role as a major exporter of Intellectual Property, particularly copyrighted entertainment.This paper concentrates on copyright in the music industry and suggests splitting copyright protection into two protected uses with different terms: private uses made by individuals for their own enjoyment and creative process and public or commercial uses made for financial gain. While the term and mechanics for public or commercial uses of copyrighted works in the music industry would remain untouched, the term would be drastically shortened for private users without commercial motivation. This paper recommends changing both US Copyright law and International treaties to effect this change.