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Solving the Mickey Mouse Copyright Problem

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For some time there has been a raging debate between those who argue for and against lengthening the term of copyright. On the one side are creators and owners of original content who shudder at the thought of their copyrighted works falling into the public domain and becoming free for all to use. They argue that strong copyright laws encourage the creation of new works. On the other side are a different group of content users and creators, who are stymied that they cannot adapt or use older content in telling new stories or creating new works. Their view is that long copyright terms obstruct the creation of valuable derivative works and that old works should be like folklore: free for anyone to use.

In 1998, the United States extended the term of copyright ownership from the life of the author plus 50 years to life plus 70 years. For works of corporate authorship the term was extended from 75 to 95 years from first publication. Due to the Disney Corporation’s involvement in lobbying for the law and the original Mickey Mouse films being rescued from falling into the public domain, the law has derisively been called the Mickey Mouse Protection Act. Copyright extensions remain one of the main frustrations to proponents of the Free Culture movement, whose most eloquent advocate is Professor Lawrence Lessig. Those interested in the Free Culture argument should read Lessig’s book, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity.

It strikes me that this debate falls into the trap of “boundary-thinking”, a form of either/or thinking that lawyers so naturally gravitate towards by virtue of their training. What if there is a middle of the road solution that gives content owners sufficient protection without substantially impeding the ability of further authors to create follow-on works?

Copyright is a bundle of four main rights reserved to the copyright owner: the right to control reproduction, distribution, public performance and adaptation of the copyright work. The first three of these deal with the copyright work in its original form. If Disney owns the copyright to the original Mickey Mouse films, it can prevent any form of exploitation of those films, whether through copying (reproduction), selling (distribution) or performing them in public.

But what about the right to control adaptation of the work? In my view, this is where the real heart of the debate lies. What Professor Lessig is arguing for is not the right for any person to publicly perform or sell copies of the original Mickey Mouse films, but the right to re-tell the stories using themes or portions from those films; in other words to adapt the old works.

My proposed solution to the Mickey Mouse problem is therefore to adopt a hybrid copyright term approach. After an initial term, say life of the author plus 20 years, the right of the copyright owner to control adaptation of the work would fall away. Only after a much longer term would the copyright owner lose the rights to control reproduction, distribution and public performance of the work.

Of course, this type of change would come with challenges but none of these should prevent the idea itself from being workable. For example, a potential pitfall is in clearly distinguishing between what permissible adaptation and impermissible reproduction of a work would be after the initial term expires. But this should be no harder than interpreting existing rules and standards in copyright infringement. My suggestion would be to define permissible adaptation as a transformation of the original work in such a way that a substantially new work is recognisable.

I believe this approach could go a long way towards bridging the chasm between Disney and Lessig.

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By Ralph van Niekerk, Patent Attorney, Von Seidels

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