The Guardian (11/Sep/2008) - Copyright law is an ass

(c) The Guardian (11/Sep/2008)

Copyright law is an ass

Today's copyright laws would have killed off Shakespeare's work. It's time to reform them

Oh heinous deed! Steven Spielberg and his Dreamworks company are being sued for allegedly stealing the plot of last year's Disturbia from Alfred Hitchcock's classic Rear Window produced 54 years ago.

Are they serious? They are serious and, who knows, they may even be right given the ludicrous way US copyright law has been gradually extended to 95 years after the copyright was established, thanks to the Sonny Bono copyright extension act of 1998. This is supposed to protect artistic creativity. In fact it does exactly the opposite.

Of course singers, songwriters and authors should be protected for a period even though much of their work has often been inspired by other artists' ideas. But the idea that they, or more likely a corporation that has bought the rights, should somehow have the legal right to them for long after the death of the author is counter-productive.

Consider. If such laws had been in operation in the 16th and 17th centuries in the UK it would have led to the assassination of the greatest-ever period of theatrical creativity. And we might never have known about it because what would never have been written out of fear of copyright would never have been known about. So it would have been bye bye Shakespeare, the greatest plagiarist ever to strut the stage.

It wasn't just his regular sources such as Holinshed's Chronicles (the basis of the history plays) and Ovid. This man took entire plots and characters. Start reading King Leir, written a few years before King Lear and you will instantly recognise the plot and the characters but Shakespeare turned a run-of-the mill play into an enduring masterpiece. The Merchant of Venice was a response to Marlowe's Jew of Malta and The Winter's Tale was based on Pandosto, a very popular novel written by Robert Greene in 1588. And so on, and so on. The Elizabethans and Jacobeans thrived on competition - trying to outdo each other with similar plots.

Turn now to Scrabble, a game invented by Alfred M Butts who died 15 years ago aged 93 but never made any money out of it. Recently some enterprising Indian brothers produced Scrabulous, a much better online version of the game prompting the current owners of the copyright to issue a "cease and desist" order which has resulted in the game being withdrawn and both Scrabble and the brothers producing different, but by all accounts inferior, versions online. Why on earth, shouldn't a game involving the re-arrangement of words on a board invented over 60 years ago not be open to anyone to improve after an initial period, say 20 years, of protection?

The crux of the matter is what is the period of time for copyright that balances the rights of creators to make money from their ideas with the needs of an economy to maximise creative potential by allowing others to produce alternative versions. Until copyright was introduced in the 18th century for authors and later engravers (for a period of 14 years) it didn't exist. It was absolutely right that the rights of creators should have some protection, the question is how long. Such academic research as there is suggests that around 15 years is the period during which the maximum economic benefits could be reaped.

Maybe the role model should be patents which last for 20 years. Companies, particularly pharmaceutical ones, spend far more than the music and film industries on research. They have a huge incentive to get as much money as they can within 20 years when they know they will have to give their patents up (unlike the makers of Scrabble who just sat on an existing model with little incentive to improve it). At the same time the pharmaceutical companies know that the patents of their rivals will expire after 20 years so they can plan to market better versions of them for their own, and the consumers' satisfaction. Everyone gains.

If Steven Spielberg has broken a law it is a law that is only on the statute book because of the power that producer lobbies have in framing law. The consumer doesn't get a look in. Spielberg should fight to get it changed. The law is often called an ass, but when it becomes an ass-assinator of creativity, that is the time to call a halt.