Would the Bard Have Survived U.S. Copyright Law?

A New York Times op-ed today (2/15/11) by Scott Turow, Paul Aiken and James Shapiro (“Would the Bard Have Survived the Web?”) uses William Shakespeare as exhibit A in their case for copyright, noting that theater flourished in 16th century England because playwrights were able to make money by charging people to enter their theaters.

This they translate into a sweeping argument against attempts to reform copyright law, disparaging

a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It’s a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work.

It’s actually not counterintuitive at all–and, in fact, Shakespeare is exhibit A here. Many of Shakespeare’s most famous and beloved plays, written in the late 1500s and early 1600s, borrowed heavily from other works that, under current U.S. (or British) copyright law, would have been off-limits to him. (In turn, many of those works were themselves based on other sources in a long derivative chain of what today would be called massive copyright infringement.)

Shakespeare’s classics Romeo and Juliet, Othello, As You Like It and Measure for Measure, among others, were based on works of fiction published in the decades before Shakespeare’s career. They thus would have been illegal under current U.S. copyright law, which keeps works out of the public domain for 70 years after the death of the author, or a total of 95 years for works for hire. Copyright protection for decades after Shakespeare’s death would have had no impact on his ability to produce work and limited impact on his incentive to do so–while the inability to retell contemporary stories would have directly restricted his creativity.

Turow, Aiken and Shapiro warn, “We tamper with those [copyright] rules at our peril.” Too bad lawmakers hadn’t gotten that warning earlier; they’ve extended copyright from 28 years to a maximum of 95 years over the course of U.S. history, and have lengthened it by 39 years just since 1976 (Extra!, 8/10). It’s impossible to say how many literary masterpieces have not been written as a result.

About Julie Hollar

Managing Editor of Extra! Magazine
Julie Hollar is the managing editor of FAIR's magazine, Extra!. Her work received an award from Project Censored in 2005, and she has been interviewed by such media outlets as the Los Angeles Times, Agence France-Presse and the San Francisco Chronicle. A graduate of Rice University, she has written for the Texas Observer and coordinated communications and activism at the Lesbian/Gay Rights Lobby of Texas. Hollar also co-directed the 2006 documentary Boy I Am and was previously active in the Paper Tiger Television collective.