Alexandra Sims: Relax law and let artists go crazy

Prince guarded copyright to his work fiercely but drew on others' music to fuel his creativity. Photo / AP

Economic and cultural harms of extending copyright period in TPP amendments outweigh benefits.

Waking up to the news of Prince's death last week was a shock. Prince's '80s albums, especially Purple Rain, were the soundtrack of my youth.

Prince had plenty of provocative things to say, and some of them were about copyright law. Prince made a lot of money from his music, and no one would begrudge the musical genius his monetary rewards. For him, copyright law worked as it should. But only because he fought hard for it.

Prince took a zero-tolerance stance to YouTube. One infamous example was his objection to a video a mother had uploaded of her toddler dancing to Let's Go Crazy. A decade on, the court case is still running.

Yet in a 2014 story about a day with Prince at Paisley Park, the journalist recounts how Prince in his recording studio dipped into YouTube to listen to videos from James Brown to FKA Twigs, "to get his musical heart thrumming". Everyone knows artists draw on others that go before them. Musicians, in particular, do not work in a vacuum. When copyright law prevents artists and other authors from building on their cultural heritage, creativity will be curbed rather than increased.

The United States, as the largest exporter of cultural material, has a broad fair-use exception that allows artists and others to transform material without infringing copyright. New Zealand doesn't. We would do well to introduce fair use into the Copyright Act when it is amended to implement the Trans-Pacific Partnership agreement (TPP).

Prince had a very public battle with his recording company, Warner Bros. So heated was the dispute that Prince replaced his name with an unpronounceable symbol, and for many years was known as "the artist formerly known as Prince".

Ultimately he regained the ownership of copyright in his works, but this was remarkable: most recording artists are not so fortunate.

For him, copyright law worked as it should. But only because he fought hard for it.

For centuries, the owner of the copyright, not the artist (or author) has gained the lion's share of copyright benefits. The first copyright law, England's Statute of Anne 1709, was the result of lobbying by book publishers, not authors. Fast-forward nearly 300 years and the law that lengthened copyright protection in the United States by 20 years was nicknamed the Mickey Mouse Act. The Walt Disney Company was one of the main lobbyists behind it; the copyright in its earliest Mickey Mouse movies was about to expire.

The TPP would further strengthen copyright by increasing copyright protection from the already generous life of the author plus 50 years to life plus 70 years. Despite what proponents say, this would overwhelmingly benefit copyright owners, not the actual creators of the material. Even for those authors and artists that do retain copyright over their works, economists in the United States have shown that the future value to copyright owners is so low that the extra 20 years is negligible.

The economic and cultural disadvantages of a longer period of protection outweigh the economic benefits to copyright owners. A report commissioned by the Ministry of Economic Development in 2009 showed that because New Zealand imports more copyright-protected works than it exports, the cost to New Zealand from a 20-year increase would average $55 million per year.

Prince wouldn't have taken this lying down.

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Alexandra Sims is an associate professor of commercial law at the University of Auckland business school.