The Republican war on Disney has escalated to DEFCON 2. Senator Josh Hawley (R-MO) on Tuesday introduced the Copyright Clause Restoration Act and pitched it as a move to undo “special copyright protections” granted to “woke corporations like Disney.” The bill would reduce all copyright terms to two 28-year periods of exclusivity (taking us from today’s much longer terms back to the framework of the 1909 Copyright Act) and, more controversially, retroactively reduce the copyright terms for firms above a certain size.

Copyright, the regulatory subsidy that is a load-bearing feature of Disney’s business model, is in need of reform and term length should be part of those reforms. But not like this. Tying legislation to the most recent flashpoint in the culture war — even legislation that is on the right track — makes for poor drafting while forgoing the opportunity for better changes to a system sorely in need of them.

It also needlessly polarizes an issue that otherwise has almost unicorn-like bipartisan appeal. Intellectual property is one of the few areas where someone’s party affiliation will tell you nothing about their views on the issue. Now that copyright term reduction has been established as one of the ways to go after Disney for its opposition to a Florida education bill, that bipartisanship is at risk.

Copyright terms should be shorter — much shorter. Estimates on the optimal range of copyright terms vary depending on scholar and methodology. Economist Rufus Pollock found the optimal term to be 15 years. Even on the high end, an exhaustive analysis of copyright registrations by scholars Zvi Rosen and Richard Schwinn finds a limited benefit to terms beyond 75 years. By comparison, current terms run for the life of the author plus 70 years, with 95 years of exclusivity for corporately owned works. Prior to 1998 they were life plus 50 and 75, respectively, but that changed with the Sonny Bono Copyright Term Extension Act (often derided as the “Mickey Mouse Copyright Act,” even if the driving force behind the legislation was just as much independent artists and their heirs as it was large media companies).

Hawley’s 56-year total is in the middle of that range. What’s wrong with that? To begin, the portions of the bill that retroactively reduce copyright terms are almost certainly unconstitutional. The statutes passed by Congress must pass constitutional muster beyond the requirement that they be within Congress’s purview. For example, for copyright law to comply with the First Amendment, it needs “safeguards” like fair use.

Here, the issue is that the retroactive reduction in copyright terms would likely be an unconstitutional taking under the Fifth Amendment, especially if the law would put some works in the public domain instantly. To be sure, unlike real estate or personal property — which, unlike copyright, are not creatures of statute — the stakes of the taking in question here are lower. Copyright hawks often use the language of “property” as a rhetorical cudgel to claim an unearned moral high ground over debates on the ideal contours of a regulatory subsidy. Just as with trade secrets and other intangible assets, however, the owner of a copyright most certainly has a property interest that implicates the takings clause.

Efforts to reduce copyright terms far beyond the pre-Sonny Bono duration, even if made prospectively and phased in gradually instead of jolted back, will also run afoul of the United States’ treaty obligations under the Berne Convention, the United States-Mexico-Canada Agreement (USMCA), and other agreements. There should be no fondness for the term-extending provisions of the various treaties the U.S. is a party to. But if you’re going to violate them, then go all the way and propose exiting them. Hawley is no stranger to radically rethinking trade policy, so why he declined to include such measures is a mystery.

Leaving Berne and other such trade agreements would be a significant departure from the status quo, but not necessarily a radical one. The USMCA is a very young agreement. The Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement went into effect in 1995. And, while the Berne Convention is almost 140 years old, the U.S. didn’t join it until 1989. Any legal regime that gave us The Godfather, Blazing Saddles, and Star Wars is clearly enough to incentivize creative excellence.

What would the right way be to shorten copyright terms? If staying in compliance with Berne is the goal, the United States could simply tie our copyright terms to the floor established by Article VII of the convention, the provision that sets a general rule of life plus fifty years with different terms for certain kinds of works. If the legislator who introduced it wanted to be cheeky, they could call it the “Berne Convention Compliance Act.” Of course, this would interact with various other trade agreements that bind the United States’ to its current terms of life plus 70, so the cleanest way to do this would be to renegotiate those agreements or potentially exit them entirely. This is a heavy lift, but so is introducing legislation to return copyright terms to those in place before 1962.

If international agreements were no constraint, here’s how I would reduce copyright terms: First, set all terms to the pre-Sonny Bono levels (cutting terms by 20 years across the board) prospectively. Second, gradually phase in shorter and shorter terms over a period of time. Even if long terms are undesirable and we could do without them in the abstract, there is something to be said against whiplash-inducing changes to copyright law.

Term reform should absolutely be part of the copyright reform agenda, but it’s a mistake to focus on it exclusively: The problem with copyright is less how long it lasts than what copyright holders are able to do with it while it’s in effect and how it is used to benefit large media companies at the expense of both consumers and the actual authors of creative works.

Property rights are often conceptualized as a bundle of sticks, but for copyright a leaky bucket is preferable. The volume of the bucket represents the sum total of all the exclusive rights granted to copyright holders — including their duration and numerous exceptions — and the water itself represents the value of the copyright. Sometimes the water leaks out in the form infringement due to the improper use of certain protected elements, outright piracy, or any other impermissible copying. If the goal is to reduce the amount of water a disfavored party has, then there are many alternatives that go beyond simply shrinking the bucket.

For a start, sometimes it’s enough to ensure that other parties get more water. For example, the “termination rights” in the Copyright Act are a provision that allows authors (or their heirs) to reclaim ownership of works they have sold the rights to. This is a provision of the law that, while not without defects, is intended to balance the scales in favor of those who produce creative works against those who finance, distribute, and collect the royalties from them. A well-designed termination right would be an easy-to-use trump card against media conglomerates like Disney. Alas, the Copyright Clause Restoration Act would likely make the right irrelevant, as termination rights can only be exercised 35 years after the initial grant of copyright.

Another way to prevent monopolization of content would be to rethink the legal treatment of the content we access. In the pre-streaming era, when you purchased a copy of a work, there wasn’t a thing the rights holder could do about it. Now that everything is streamed we have entered what law professors Aaron Perzanowski and Jason Schultz have called “the end of ownership,” where everything exists on license and is subject to removal even if “purchased.” Creating a legal regime that makes “first-sale” possible for digital works would protect consumers from losing access to their content either due to a rightsholder dispute, the provider going out of business, or a work being removed from a platform after being culturally  “canceled.”

For those who still enjoy the flexibility of subscription streaming, a supercharged system of compulsory licensing like the one we have for music could be applied to movies and TV, too. Access to the Disney Vault may not be enough to save Netflix, but it would be a great deal for consumers who don’t want to pay (or remember the passwords) for a multitude of streaming services.

Another way to limit the damage that can be done by copyright would be to develop a more forgiving regime for works that were published but are no longer on the market. Mark Lemley has argued that the use of orphan works should be fair use, and while I’m skeptical of that argument based on the state of fair use law today, it’s a solid basis for a legislative fix. The best approach would be to modify factor two of the fair use analysis (“the nature of the copyrighted work”) by adding “including whether or not it is presently being commercialized”.  

Finally, and perhaps most controversially, it may be wise to ignore some of the leaks in the bucket. The lawsuits brought by thr Recording Industry Association of America’s against individual downloaders during the Napster era were widely criticized and lampooned, but laws and regulations designed to police online piracy appear with frightening regularity. Ten years ago it was SOPA/PIPA, today it is the Digital Copyright Act and the SMART Copyright Act. It’s harder to politically capitalize on opposing legislation that’s been introduced than it is to introduce new bills, but there’s nothing stopping an opponent of big content from saber-rattling against new measures.

Opposition to stronger anti-piracy measures simply as a way to hurt the bottom line of media corporations is inappropriate, but these measures aren’t costless. False positives in policing for copyright infringement can and do occur. ContentID is bemoaned as insufficient by rights holders, but it’s a regulatory burden with a chilling effect for smaller content creators who compete with legacy media. Requiring some semblance of due process when dealing with automated content filters to qualify for safe harbor protection under the Digital Millennium Copyright Act (DMCA) not only give these upstarts help, but it would have the added benefit of serving as a regulation on Big Tech, too. The devil is in the details, but it would help balance the scales.

For those interested in a law-and-order approach, a policy of benign neglect toward all but the most egregious forms of copyright infringement may be too much to ask. But that doesn’t mean there shouldn’t be access to justice for those wrongly jammed up by a bad DMCA takedown notice. The law to prevent over-enforcement online, Section 512(f) of the Copyright Act, makes those who send a “bad-faith” DMCA takedown notice liable for damages. Alas, it has been weakened by making the standard a “subjective belief” that the content was not fair use, even though the damage done by such takedowns is anything but subjective. Raising the bar so the standard is objective, and perhaps even including the abuse of non-DMCA automated copyright filters like ContentID, would be beneficial to protect online speech and rights holders’ competitors. Donald Trump himself, when he was on Twitter, would have benefited from a more robust system of checks against those who would weaponize copyright to suppress speech. 

Copyright term reduction is the preferred approach for those who know a thing or two about copyright. And by that I mean it is the preferred reform by people who know, by count, one or two things about U.S. copyright law. There is a whole universe of ways copyright law can be fixed to better promote free speech, expression, and the production of creative works. Those fixes are hard to explain and even harder to put into law as a technical (let alone political) matter. But it’s the work that anyone sincerely interested in copyright reform would be willing to undertake. Catering to the populist, anti-corporate energy of the age is good politics. That doesn’t mean it can’t also lead to good policy if it’s channeled toward productive solutions rather than just grabbing popcorn headlines.

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