All right, before we dive in here: I’m not a lawyer. This is not legal advice. Don’t take it that way. Don’t take anything I say here as gospel, because law is one of those things that thrives on “gray area” and interpretation. (I mean, why do you think lawyers can argue totally different things?)
That said, I’ve worked in rights licensing for a few publishers. I have a bit of background in understanding copyright law for that reason. I needed to understand how it worked in order to license things to put in books.
And the thing is … copyright exists to protect creators. At its core, that is what it’s meant to do. How? Let’s take a look at it.
Copyright Gives You Exclusive Right to Profit from What You Make
The idea here is that if you spend your time making an artwork, you should be the one to profit from it. This is important for anyone who wants to make a living as an artist or a writer or a musician or what have you. You create a piece, you own the rights to it.
That means you are the only one who can sell the work and profit from it. So, with a book, you license the rights to a publisher, granting them the right to publish the book. They pay you for the privilege of publishing your work, essentially.
If someone else tries to publish your work without your permission, you get to sue them and, likely, stop them. If someone tries to copy your work and make money off it, you can maybe sue them and get them to stop too.
So, how does this protect creators?
Creating anything takes time and effort. Since we live in a capitalist hellscape, I need to use my time and effort to procure money to cover my basic needs. If I dump all my time into writing a book, and then someone else publishes it without my permission, I’m not going to get paid.
I’m going to stop creating, or I’m going to starve to death, one of the two.
Since we do want people to create, we … kind of have to make sure they maybe get a little bit of money to keep creating. You know, as a treat.
And we can look at this and say, well, lots of authors and musicians find it super hard to make a living anyway.
The Arts Aren’t That Lucrative, Actually
People don’t want to pay tons and tons of money for a book, even though writing and producing it took hundreds, if not thousands, of hours. If I told you a book was worth $7,000 — a dollar for each hour of my time writing it — you’d laugh! You’d tell me I was an idiot, nobody will ever pay that.
So, okay, books are like $7 and I get pennies from my royalty clause every time I sell one copy. A lot of books don’t sell super well, so I never make tons and tons of money.
But without copyright law … The very paltry amount of money I’m getting becomes even less. Probably zero.
How Long Should Copyright Terms Be?
There’s a lot of discussion about the idea that copyright terms are “too long.” And I’d agree with that. Big corporations like Disney have systematically challenged the laws in the court system and won, repeatedly extending copyright terms.
So, today, in the US, copyright law is 95 years from first publication or 120 years from creation. Internationally, under the Berne Convention, it’s life of the author plus 50 years. In other countries, it’s life of the author plus 70 years. Here in Canada, it’s life of the author plus 50 years.
That means that copyright does not expire until long after I die.
Long Copyright Terms Defeat the Public Domain
Is 95 years after first publication too long? What about 50 years after someone kicks the bucket? Probably! The idea of works entering the public domain is to free them up. By the time copyright terms have expired, these works have often—but not always—lapsed into obscurity. They are rarely culturally relevant.
An exception would be F. Scott Fitzgerald’s The Great Gatsby, which hit the public domain earlier this year. Gatsby is one of those novels that has stuck around, for whatever reason, and it’s a cultural touchstone. Even if we hated the novel, we probably read it. Maybe in high school. (I read it in university, but I remember others reading it in high school for our English lit. class.)
So, when Gatsby hit the public domain earlier this year, there was a bit of excitement. Now we can do remixes and retellings and whatever we want with it. And this is a work that will, for a time, likely get some attention, because it has remained largely at the forefront of Western academic reading lists. Everybody knows it.
Check out the list of works that entered the public domain this year, though. Tell me how many other works you recognize. There might be a couple you know, a couple you think you’ve heard of. The rest of them have become pretty obscure.
Long Copyright Terms Protect Corporations, Not Authors
So, life of the author plus half a century or longer is probably a bit too long. This, again, has been championed by businesses like Disney, which have a vested interest in keeping characters like Mickey Mouse under copyright as long as possible.
And Mickey Mouse is still culturally relevant, right? To a degree. We all know him to see him. Most of us probably have experience with media that features Mickey Mouse, even if we don’t love the character.
What happens when Mickey enters the public domain? Anyone and everyone can create works featuring Mickey Mouse, and they can profit off them. Disney can’t do a damn thing. It’s easy to see why Disney doesn’t want that; it dilutes their ability to make money off this character.
(Note that this does not mean every piece of media featuring Mickey automatically enters the public domain. It’s just Disney can’t stop anyone from using the character. You could publish that Mickey erotica fanfic you’ve always dreamed of writing and make money off it!)
The Copyleft Movement
Given the abuse of the copyright system by these big corporations, along with the more communal nature of the internet, there’s been a growing “copyleft” movement. You can see this in Creative Commons licensing and other efforts to free up works and make them available for others to use.
This is a tricky balance, though, because creators still want to be able to profit from their work. So, for example, we have CC licenses that let you open up your work to non-commercial “remixing.” That means someone can reuse your work so long as their work is not a commercial product.
Some licenses say the new work has to be issued under a “share alike” license, which makes it available for reuse as well. Others specifically ban commercial use of the work, meaning you can’t take a photo and put it in a car commercial, or you can’t put my essay here in your book of collected essays and turn a profit on it.
And there’s good reason for trying to look out for creators’ interests this way. As I said, we exist in a capitalist hellscape, so we do need to make money if we want to keep eating. I mean, I’d love to spend all my time writing books, but because I don’t earn a heck of a lot of money from them (yet), I have to have a day job. I spend 40+ hours of my time doing something other than writing books.
Why Copyright Can’t Expire During the Artist’s Lifetime
What if I could just … spend those 40 hours writing books? I’d write more books! You’d get more content! We’d all be pretty happy, I think. (I mean, unless you hate my writing, then you might be upset.) But because I need to eat and pay bills to keep the lights on and have access to the internet and a roof over my head and stuff, I have to spend my time and effort doing something else.
As I said, the current landscape already makes it hard enough to earn a living as an author. An example: I got paid maybe $100 in royalties last month, and that was a good month.
My monthly expenses, just for running my house? For living? Closer to $4,000 a month.
So, yeah, writing isn’t paying the bills here, which means I can’t devote all my time to it. And if someone can just come along and steal my work, share it around for free …
Then I’m not getting paid from writing at all. I already have like $3,900 to make up from non-writing activities. If you take that paltry $100 away from me too? I can’t put any time or effort into writing.
And that would be the same for a lot of authors. In turn, publishing companies wouldn’t have books to publish, so they’d go belly up too. As much as we like to think of the arts as some kind of lefty, socialist paradise, the truth is—it’s commodified. It’s a business. And if there’s no money to be made, nobody’s going to be there. Not because they don’t love books or whatever, but because they can’t afford to be there.
So, as long as we exist under capitalism, we need some sort of legal framework to protect those money-making interests.
And that’s why copyright shouldn’t expire during the lifetime of the author.
But Books Don’t Sell Decades Later!
As a publishing professional, I have one thing to say to this: LOL. This is one of the most ridiculous arguments I’ve heard in a while. Let me tell you a story.
Everyone knows George R.R. Martin, right? Game of Thrones became a cultural touchstone from the time the TV series started airing on HBO in 2011 to its catastrophically bad ending in 2019. The books were popular before that, but the TV series is what made GoT into a household name and got plenty of people naming their babies shit like Arya.
So, Martin’s book success here wasn’t overnight. The first GoT book was published in 1996. It took the book 15-ish years to hit critical cultural mass.
And Martin? He was publishing long before that. Dude’s been publishing since the 1970s. Count that. That’s 40 years from the time he started publishing to the time he hits critical cultural mass in 2011.
And do you know what happened when GoT became popular, gained a cult following, and then became even more popular?
Yes, the GoT books started selling. But so did the rest of Martin’s backlist. People had never heard of this guy, and they loved GoT, so they were curious to see what else he’d written.
Backlist Is Your Bread and Butter
Publishers count on this. This is known as “backlist sales.” Publishers thrive on their backlist. Yes, you push the shit out of the new books you’re producing every season, but a publisher’s bread and butter is their backlist.
And so is an author’s. Because, like Martin, we don’t know when we’re going to hit critical mass. Maybe this book isn’t the hit, but maybe the next one is. Maybe it’s the one 10 years from now or 30 years from now—like what happened to Martin.
If copyright expires any time within the lifetime of the author, they’re going to get royally fucked on this.
Sure, some people never achieve that “critical mass” like Martin. But authors still thrive on backlist sales. Why? Because some new reader happens across my new book that I put out this year. They love it. They dive into my backlist and read everything I’ve ever written.
Now flash-forward 30 years. I’ve been publishing three books a year for 30 years. That’s 90 books. Is a new reader going to go through every single one? Eh, maybe not. The truly dedicated will! But even a new reader, if they really loved this new book, might take a gamble on some of my older works.
And that means they’re still earning money for me, decades later.
Is It Right for Authors to Earn Money from a Decades-Old Work?
Uh, yes? You know that Kirk Hammett gets paid every time a radio station plays “Enter Sandman,” right? And people pay to go see Metallica play that song in concert, even thought it’s decades old.
Studios still get paid for decades-old movies, when TV networks license them. When you pay for a digital download of them. When you buy a hard copy of them. Or when they’re re-released in a theatre for an “anniversary” run and you pay to go see it.
So, why can’t I earn money on my books, even if they’re decades old?
And remember how I told you a book takes hundreds, if not thousands of hours to produce?
The Arts Are Not Just Labors of Love
Many, many authors put that work in without any financial compensation. Even those of us who have publishers may not get much in the way of financial compensation upfront. Yes, advances exist, but relatively few authors are getting million-dollar advances. Heck, very few get $100,000 or $50,000. Publishers I worked with? Handed out a couple thousand bucks in advances and that was if you were lucky.
Now, we can argue not having an advance or a large advance is a good thing—it means the book earns out faster. The author who gets $1 million in an advance has to “earn out” their advance before they’ll get paid any royalties. So they have to earn $1 million in royalties before they’ll see another cent from their publisher.
But for the greater majority of us, we’re putting in thousands of hours of labor upfront. We don’t get paid for that. Often, you have to write the book, polish it, query it, spend years waiting for someone to sign you to a contract, and then maybe you get paid.
So, all the work is done upfront and unpaid. If I never got an advance? Then royalties are all I’m ever earning for all this work I did.
Why the fuck shouldn’t I get paid? I did the work! And yeah, sure, I did the work “ages” ago, but I wasn’t paid for it!
Copyright Expiring Doesn’t Make Works Free
As a final nail in the coffin here, some people think that if copyright expires sooner, it means works will be “free.” And, it does mean that to a degree.
But, by and large, all it does is empower large corporations to screw me, the individual author, out of a paycheck while they continue profiting.
Don’t believe me? I used to go through lists of “excerpts” and “readings” to put in university history textbooks. We’d often deliberately pick older works that were in the public domain so we didn’t need to pay licensing fees.
We put these public domain excerpts into the book, and we still sold it for like $100 a pop.
Remember, kids: publishing is a capitalist business! You want to keep your production costs down and your profit margins high.
And this doesn’t happen only in textbook publishing.
PenguinRandomHouse runs a whole line called Penguin Classics, which is nothing but public domain works. They don’t need to pay any royalties, and they often don’t even edit these things. Just typeset and slap a cover on it, print it and away you go.
And because these are “classic” titles, they sell. You can trust them to keep selling year after year, because some teacher assigned The Great Gatsby or Wuthering Heights or Frankenstein or what have you for their class.
So there’s a whole cottage industry within publishing dedicated to publishing public domain works.
So don’t get fooled here. If copyright expired within my own lifetime, publishers just wouldn’t pay me. They’d sit on their hands for the requisite 30 years or whatever, let the work enter the public domain, and then swoop in and start turning coin on my hard work, never paying me a dime.
Meanwhile, I, the writer, have to abandon writing because I can’t get paid. So then I have to go back to doing whatever else. And you, the reader, loses out too, because I can’t afford to make new works.
Moral Rights Matter Too
A final addendum here is that we must also consider the “moral rights” of the author. If a work enters the public domain, then “moral rights” are often lost as well. That means Disney can’t argue that you can’t publish Mickey Mouse fetish erotica over the “moral” issue of putting Mickey in bondage gear and how that might be harmful to the character and what he stands for.
If copyright expires while I, the author, am still drawing breath, that means someone can take my characters and make them all Nazis and I can’t do any about it, even if I hate it with every fiber of my being.
We can argue all we want about the morality of paying authors, but I do think there’s a very good argument for not allowing authors to have to see people desecrate their works. Even if we think those works should be desecrated. You know, at least wait until I’m six feet underground to do that shit.
So there you have it: copyright is, at the heart of it all, meant to give authors some paltry protecting in the capitalist landscape. Until we can get to some kind of Marxist utopia (and I’m not holding my breath here), we need some legal framework to protect those interests, so we can keep on creating. Without it, we can no longer afford to create—and everyone is poorer for that.