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Compulsory License

If Congress continues to push for essentially perpetual copyright, something has to give to allow for new works built on the old.

I recently read a really disturbing short story. It was "Melancholy Elephants" by Spider Robinson. In the story Robinson describes a conversation between the wife of a dead songwriter and a powerful congressman over a proposed perpetual extension of copyright. The congressman had already decided to back the bill, and the woman tries to convince him otherwise.

She brings up some interesting points. In the world of the story, every story, song and picture under copyright has been scanned into a vast public database, and new works are compared against it to determine if they are sufficiently dissimilar to all existing works to qualify for a copyright of their own. This sounds like the stuff of science fiction, but it's closer than many think. Computing research into things like fractal pattern matching makes this little more than an "engineering problem." We'll have the computing horsepower to do this soon enough.

The problem in the story is that more and more submitted works are rejected as being too similar to something already under copyright. There are only so many story ideas, combinations of musical notes and patterns of color out there, and they will eventually be used up if we insist on remembering all of them and enforcing the "intellectual property rights" of their creators.

Consider "West Side Story." Would this classic of stage and film have existed if "Romeo and Juliet" weren't in public domain? Or the brilliant "O Brother, Where Art Thou?", which never would have seen the light of day if Homer's estate was still calling the shots. Virtually nothing published in the 20th century can be "built on" in the 21st, because we're too intent on preserving intellectual property rights.

(And yes, I see the irony of my argument, given that both Warner Brothers and Disney are airing TV shows this fall that bear a striking resemblance to my story "Do Over!". It just shows that I'm serious about the idea that ideas belong to society, not individuals.)

There's been some talk recently about instituting a compulsory license to allow file trading networks to traffic in all the music they want, as long as the copyright holders get paid. I'd like to suggest the same idea for publishing.

Compulsory license isn't a new idea. It's been at work in radio for decades. A radio station doesn't have to get permission from the copyright holders to play a song. All they have to do is keep track of what songs they play, and how often, and then pay the copyright holders accordingly once in a while.

Essentially, it's a question not of compensation, but control. I've mentioned before The Wind Done Gone,  Alice Randall's retelling of Gone With the Wind from the point of view of a slave. Margaret Mitchell's estate initially sued Randall's publisher to prevent publication, claiming that it was a "derivative work" and in violation of their copyright. The court eventually ruled that Randall's work was satire, and thus immune to that clause in the copyright code, but it never should have gone that far.

The history of human storytelling is built on repetition and refinement. Ideas are borrowed, cross-pollinate, and create something new. Or, to quote Ecclesiastes, "there is nothing new under the sun." The stories that touch us best do so because on some level, we already know them. The plots, themes, even the characters are already a part of us, deep down in places we don't recognize consciously. In the last century, we've suddenly been cut off from that rich heritage of storytelling, because the last people to tell the stories now have them locked up under copyright. New storytellers, rather than building on the old and reinterpreting it for modern audiences, are forced to try to find stories so far out there that no one's ever heard anything like them before. The result is stories that don't connect with the readers, soulless intellectual exercises that mean nothing to the human spirit.

So here's what I propose. A 20% compulsory license on the new author's net after 25 years. Anything older than a quarter century can be freely borrowed, rewritten, reinterpreted (and republished with no changes) without the original author's or publisher's consent, as long as the copyright holders get a 20% cut of what the new author or publisher makes.

Let me give you an example. Let's say someone wants to rewrite Mario Puzo's The Godfather set in a SF setting. As "West Side Story" or even the recent DeCaprio/Daines version of "Romeo and Juliet" shows, a story can bring new meaning to a new generation simply by changing the setting and not much else. Currently, this would be unpublishable because of copyright law. Puzo's permission would have to be granted, and the new author would have to pay whatever Puzo wanted as a licensing fee.

With compulsory license, the situation changes. If a publisher releases the SF retelling as a $10 trade paperback, the author would get about $1.25 per copy after everyone else in the publishing chain takes their cut. Of that $1.25, the author would turn over 25¢ to Puzo, or $3,750 for an average 15,000 copy print run. Not a bad chunk of change for Mario Puzo, considering it's pure profit off work he did almost 30 years ago, and the SF community gets a great story retold for a new audience.

Compulsory license would also make it easy to make movies from older books, and make file trading legal for works over 25 years old as long as no money changes hands. It would create a vast new source of material for new writers, as well as making commenting on or reinterpreting older works encouraged (no more worrying if your book report is a copyright violation!). And isn't that increase in new ideas (even if they're new ideas about old ideas) what copyright law was supposed to foster in the first place?