Josh Hawley is wrong about ‘woke’ Disney — but he has a point about US copyright law

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The current conversation about reeling in the duration of copyright is long overdue. Today’s copyright law has become a sprawling, many-tentacled monster that — like the tax code — has a face only a lobbyist could love.

Copyright is a government-granted entitlement for “works of authorship,” a legal category that includes not only books and essays but photographs, illustrations, movies, songs, software and other creative works. What many people don’t appreciate is that a copyright doesn’t actually entitle its owner to affirmatively do anything. It just empowers the copyright owner to sue others over what they do — for reproducing a portion of the work, for instance, or for creating a new work that is too close to the copyrighted work.

That’s why Sen. Josh Hawley, in proposing to shorten the duration of copyrights, is correct that doing so could “open up a new era of creativity and innovation.” The reality is that today’s copyright is a government program that works against creativity and innovation by handing big corporations leverage to squelch competition through legal threats and lawsuits.

It’s surprising and baffling that this reasonable proposal came out of Hawley’s targeting of Disney and other “woke” corporations that have pushed back against discriminatory legislation, such as that in Florida, home of Walt Disney World. Indeed, if the ultra-long duration of copyright could, say, help transgender kids feel more welcome and included in school, that would be a huge point in its favor. But in reality, out-of-control copyright entitlements just work to reward corporations for inactivity. And if you take special-interest and revenge politics out of the equation, dialing back copyright is something those on the political left and right should favor.

A modest, narrowly tailored copyright law can be a good thing for creativity. Under America’s original 1790 copyright law, a copyright lasted up to 28 years. With that, an author and publisher could invest the time and money into putting out a new book with the assurance they could stop someone from simply copying the book and undercutting all their profits.

Today, however, copyright lasts for 95 years for new corporate works. That’s silly. No business cares about potential income so far in the future. The reason is what economists call “discounting,” which is compound interest in reverse. Using some pretty standard assumptions, $1 million in royalties to be received in 94th year of a copyright has a present value of just 39 cents.

That’s not worth lobbying for. It’s not even worth the cab fare to Capitol Hill.

The only reason big media companies such as Disney asked for such absurdly long copyright terms for new works was that doing so was the first step in asking for the retroactive extension of existing copyrights for very old works. And thanks to the retroactive extensions they got, media companies now reap a windfall from content created in the distant past.

Propping up a business model where companies collect money for work done by people long, long ago doesn’t spur creativity and innovation. Quite the opposite. It encourages sloth.

For Disney, if copyright terms were rolled back, it wouldn’t be the end of days. The company would, for instance, keep using trademark law to prevent competitors from putting Disney’s symbols on products. So it wouldn’t be open season for aspiring manufacturers of off-brand Mickey Mouse lunchboxes.

But rolled back copyright terms could liberate Disney’s oldest movies — think 1942’s “Bambi” or 1950’s “Cinderella” — to be available on all streaming services. And Pinocchio could really mean it when he sings, “I’ve got no strings to hold me down.”

If we want intellectual property laws in the United States that open up opportunities for entrepreneurs and push old businesses to do new things, then trimming down copyright’s wild overreach makes sense, no matter your political values.

Eric E. Johnson is the Earl Sneed Centennial Professor of Law at the University of Oklahoma College of Law where he teaches and researches in the area of intellectual property law.