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Should “The Interview” Remain in Copyright Until 2110?

· January 23, 2015

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

As of January 20, The Interview grossed $40 million from online rentals and sales, on top of $6 million in box office sales. Sony Pictures decided to distribute the film online just days after it cancelled the film’s national theatrical release in response to terrorist threats from North Korea. The enormous online success of the film, months before it otherwise would have been distributed in that manner, significantly undermines one of the primary justifications for the long copyright term that keeps works out of the public domain, today’s Copyright Week theme.

The most obvious purpose for copyright protection is to provide authors with an economic incentive to create works. However, under the U.S. Copyright Act, the term of protection is life of the author plus 70 years (or 95 years from publication for a work with corporate authorship). An author obviously doesn’t benefit from a revenue stream after her death, and it is unlikely that the author’s knowledge that her great-grandchildren may receive royalties provides her with additional incentive to create.

Moreover, the various extensions to copyright term adopted by Congress have always applied retroactively. Clearly, there is no need to incentivize the creation of a work already in existence, particularly after the author’s death.

Thus, some have argued that the justification for copyright term stretching decades after the author’s death rests not on promoting creation, but on incentivizing distribution. Historically, the costs of keeping a copyrighted work publicly available were significant. For example, a book had to be printed, bound, and shipped to a bookstore. The publisher, printer, binder, shipper, and bookseller all had to be compensated, even if the book was being printed and sold decades after the book had been written. The publisher’s knowledge that it would not have to compete with other publishers of the same book made the publisher more willing to invest in the distribution of the book.

Similarly, a theatrical quality print of a motion picture could cost $100,000. According to this theory, a studio would invest in making new prints of an older film only if it knew it would not need to compete with other distributers of the film.

The Internet, however, has dramatically lowered the cost of distributing copyrighted works. We’ve previously discussed how the low cost of Internet distribution is changing the textbook industry by allowing the emergence open educational resources disseminated for free over the Internet. The low cost of online distribution of music and e–books means lower prices for consumers and potentially more revenue for authors and artists, particularly if they reduce the role of traditional intermediaries such as record labels and publishing houses.

These lower distribution costs also reduce the importance of the copyright incentive for dissemination of works. If the marginal cost of distributing an e-book is only a few pennies, why is it necessary for my book published in 2011 to still be in copyright at least until 2085, 70 years from now?

The Interview’s $40 million in online revenues underscores what Netflix and Amazon Prime have already demonstrated: the viability of the market for the online distribution of films. The technology works, the costs are low, and for this reason consumers have embraced it. Just as there is no reason for my book to still be in copyright in 2085, there is no reason for The Interview to be in copyright in 2085, let alone 2110, when its term actually expires. Sony Pictures reportedly has already recouped all its production costs, and likely will show a healthy profit on the film by the end of this year. The marginal cost of viewing the film in 2085 will be virtually nothing. A rational copyright system would place The Interview in the public domain, where it would be freely accessible for purposes of both education and entertainment, much sooner.

Intellectual Property

The Internet enables the free exchange of ideas and content that, in turn, promote creativity, commerce, and innovation. However, a balanced approach to copyright, trademarks, and patents is critical to this creative and entrepreneurial spirit the Internet has fostered. Consequently, it is our belief that the intellectual property system should encourage innovation, while not impeding new business models and open-source developments.