Should Artists Be Different From Inventors When It Comes to Intellectual Property?

United States Patent and Trademark Office

Back in 2012, the Republican Study Committee caused widespread debate over intellectual property law after publishing and then pulling a paper on copyright reform. Derek Khanna, the conservative staffer behind the paper, was fired by the committee shortly afterward.

He may have lost the platform afforded by the RSC, but Khanna is still pushing to have his views on copyright reform heard. His latest writings continue to cause quite a discussion on how copyright should be handled in the United States.

Now a volunteer fellow at the think tank R Street, Khanna has published a new paper titled, “Guarding against abuse: Restoring constitutional copyright.” In it, he argues that US copyright law has deviated from what the founders of our government originally intended for it to be, and questions why artists should be given preferential treatment over inventors when it comes to intellectual property.

“Historically, copyright terms have been quite short,” Khanna writes. The original US Statute gave creators a 14-year copyright term, and an extra 14-year extension if the author was still alive at the end of the first term. Thus, prior to 1976, the average copyright term was just 32.2 years.

Nowadays, copyrights last the life of the creator, plus 70 additional years.

Khanna points out that patent law hasn’t changed nearly as much over the same span of time. Although patents and copyrights started out looking similar to each other, patent terms have increased by 43% while copyright terms have exploded by 580%.

“Congress must justify why a 20-year term can provide sufficient incentive to inventors, but not to writers and artists,” Khanna writes.

So what will US copyright law look like in the future? In one camp are people like Khanna, who believe that copyright terms need to be drastically reduced. He proposes that all copyright protection should end after just 46 years.

During those 46 years, he suggests, the first 12 years would be free to the creator of the work. After that, the creator could elect to renew the copyright for another 12 years for the price of 1% of the revenue they earned during the first 12 years. There would then be another two 6-month renewals at 3% and 5%, respectively. The final 10-year renewal would cost 10% of all revenue minus the fees paid for previous renewals.

Thus, a 46-year maximum term, with only the first 12 years free to the creator.

On the other side of the debate, there are lawmakers who want the current copyright law set in stone, and others who want it extended to the life of the author plus 100 years (matching Mexico’s copyright law).

If the former side wins, photographers will one day be treated more like inventors. You’ll be able to have a monopoly over your work, but for a shorter amount of time. If the latter side wins, your photos may not show up in the public domain until several generations after you’re gone.

(via R Street via Boing Boing)

Image credit: Photograph by Jeremy Keith

  • Jack B. Siegel

    I can see why his views might not be viewed favorably by Republicans. Basically he is proposing a tax on successful authors. Like every other successful service provider, authors are already paying income tax on their royalties. Why should they be singled out for what is a surcharge. There is also an element of the “information-must-be-free” movement in this proposal.

    The reform that federal copyright needs the most involves fair use. There needs to be far more certainty whether a proposed use is a fair one. That either means very clear lines, which will be difficult to craft, or some sort of advanced ruling procedure from an administrative body. The current law is unworkable, or at least it subjects users claiming fair use to too much risk and uncertainty.

  • E-Nonymouse A

    I think the periods of protection are too long, It should be 25 years with the option of extension. Extensions being 10-15 years and only a limited number of extensions.
    If the IP holder fails to extend, it becomes creative commons.

  • cardmaverick

    The only reason why artist copyright is so long now: Disney.

    That aside, none of these laws have or will ever stop “infringements”. It’s called right click save as, and a zillion other ways to rip, duplicate, and redistribute.

    Years ago I realized that we have to move beyond IP based business models. In some ways, concepts like usage have actually HURT photographers. The classic example: microstock. The only factor used in pricing is the use. Yes, use has real value, but this business model doesn’t factor in artist talent much less actual production costs. In short, the usage business model has take a DUMP all over the value of a photographers labour – the only thing they really have to sell that they have full control over. I hope the copyright zealots out there sit down and think long and hard about that.

  • Rob Elliott

    Something like that would raise prices, as artists will charge extra for anything they want to keep their copyright on for longer then 12 years.

  • Zos Xavius

    With the way the photography industry is going, anything that raises prices would be welcome. Unfortunately, since everyone has an iphone, many people fail to see the value that experience and skill provides.

  • OtterMatt

    That’s one hell of a hefty price on success. How much freaking money would Apple owe if this had been approved years ago? And to whom? The government? No bloody thank you. As if we didn’t already have enough taxes as it stands. You already get taxed on everything you buy, sell, and stuff you haven’t even sold yet! And everything you buy has already been taxed 5-15 times before it even gets to you.

    I see no reason that a creator shouldn’t have exclusive rights over his idea as long as he’s around, and I haven’t heard a decent argument as to why copyright is so bad, aside from being vague and largely unenforceable.

  • Matt

    I got to agree on some points. I am an advocate for copyright, the more I think about it the more I like the idea of being able to have your offspring control the copyrights of your art. I also do not like the idea of the copyright ever stoping during the life of the author. If you have one great piece of art and it benifits people your whole life you should get reembursed for that as long as you live.
    But, patents should have the same footing. They are also creations. A different type, but still a creation.
    Unfortunately, patents are abused all the time. Companies just file any crap they want and others troll applications to look for any infringement on ones they own, even if they or the patent produce nothing. There needs to be better review of what attains patent status, and just like art something needs to be produced. If a patent just sits on a shelf, then it should loose its rights.

  • Matt

    Ya, the fees are crap.

  • JM

    I’ll be happy to settle for a shorter copyright term if Congress drops the registration requirement and allows low dollar amount claims to be handled through small claims court. Right now, Copyright law is really not written to protect small creators. It’s to protect the big fish like Disney. The chances of that changing anytime soon are not good.

  • Derek Khanna

    First, I don’t actually call for a 46 year term in the R Street paper, I cite the RSC paper calling for that which were potential suggestions, not saying that’s the “pie in the sky solution.” But in that proposal by the RSC, it was 14 years free then after you had to register and opt-in for renewall and pay an increasing fee. So if you failed to extend it did become in public domain.

  • Cinekpol

    We should really move back to the original 32.2 years maximum for copyrights.

  • Rob S

    Remember, Republicans are not against taxes, they are just against taxes on THEM. They (wrongly) assume that there are no Republican “artists” and even if there are some it is unlikely they follow the 3Gs – guns, god and gays – so they are just RINOs (Republicans in name only). As such, tax them without mercy. Now do some hand gun art and that will need to be protected forever…….

  • Mojo

    Wow. So cynical. But I agree, Rebuplicans are against taxes in the same way Democrats are. That’s why conservatives (tea partiers in particular) are for a flat tax for everyone. Everyone pays, say 10%! The rich pay more, the poor pay less, everyone pays the same percentage. As a photographer myself, I’d want my kids, grandkids, et cetera to be able to make money off of my work if they so desired after I’m gone. And if THEY want to put my work in the public domain, they can do so.

  • Jack B. Siegel

    There is a solution to the big fish problem. Photographers should join trade associations that represent their interests. A good place to start would be ASMP. Only through collective action can small operators get their voice heard.

  • Bolkey

    Innovations are built upon innovations. Too long patent protection would hamper new innovations.
    Products of art are not normally built upon earlier products of art, at least not in the sense that it would create copyright infringements. Therefore the need to limit the duration of the copyright does not exist.

    Why should businessmen profit from the work I did, even if it was twenty years ago? Can I claim the fruits of *their* work they produced equally long ago – for free, of course?

  • junyo


    I find it hilarious that Sonny Bono (D – Disney) pushed through an act of corporate welfare, that stifles actual acts of creation by small artists that can’t hire platoons of lawyers, and those artists have by and large embraced getting punched in the face.

  • Jack B. Siegel

    As I have given this proposal more thought, I realize what a disaster it could be for creative people in the United States. What might happen is large corporations that employ creative people to create copyrightable works would form offshore entities and hire foreign talent to create work. That way the copyright could be registered in another country. Instead of tax havens we would have copyright havens. Countries that wanted a competitive advantage would enact laws to support that result.

    Legislatures need to recognize a simple fact of life that has come with globalization: Multi-national corporations are loyal to no country. The regulated and taxed classes are no longer geographically captive subjects of one sovereign.

    Just imagine how the Chinese could exploit this sort of law. Why hire foreign students after they graduate from a U.S. college to create in Silicon Valley? Better to have them return home and create in China.

  • BuckCash

    I have a one-word answer for Khanna’s question, “justify why a 20-year term can provide sufficient incentive to inventors, but not to writers and artists”.


  • RonT

    As I recall, the huge extension of copyright period occurred not that many years ago and was largely due to Disney’s desire to keep financial control on the Mouse, The Duck and other characters. At that time Disney’s period of copyright for them was approaching it’s end and they feared manufacturers using the characters for free

  • Jack B. Siegel

    In the end it is policy balancing issue. Line drawing is always difficult. But try this. Many technologies have a short shelf life. In this day and age, 20 years is a long time, so the right flattens quickly if you are measuring revenue. On the other hand, artistic creations are not nearly as replaceable. We read the classics, we watch old movies, and we listen to early Elvis. I am not suggesting this is the right explanation, but common experience may explain why a legislative body is willing to draw distinctions between patents and copyrights.

  • BuckCash

    Great point.

  • hdc77494

    The problem with long copyright or patent protection is that it slows innovation for everyone. After all, every one of us is building on the innovation and creativity of others. Why should a drug maker, who invests five hundred million developing a new cancer drug get a dozen years or less to recoup their money while a songwriter, author or filmmaker gets their lifetime plus seventy years to disallow anyone from building on their ideas? How many stories are out there like Wicked, which expands on the Wizard of Oz, but can’t afford the rights to the original name or characters?

  • hdc77494

    You don’t think all those Star Trek or Star Wars fans wouldn’t love to be able to release a new story without having to get permission from Disney? This isn’t protecting big copyright holders from foreign companies, it’s inflating the value of their franchises because fans are forbidden from building on an original story for a hundred and fifty years.

  • Bolkey

    I think they would but also they shouldn’t. Someone thought up the story and it’s his or hers. Now in a case like this, both copyright and intellectual property are likely to have been traded over and over, but imagine you’d written Harry Potter vol. I. Would it have been right if everyone could take it off you and write their second volumes? Methinks not.