John Lanchester's long article on copyright for this Saturday's Guardian Review was based on a commendably clear and simple principle: that the purpose of the copyright system is to ensure John Lanchester a living. To that end, besides a slinky version of the usual attack on Disney and some personal remarks about the difficulties created by the need for clearance on obscure works, he has two suggestions:
One is that the period of copyright control does not need to be the same as the period during which an artist can earn royalties. I worked for a short while at Penguin in the early 1990s, during which Joyce and Woolf both briefly came out of copyright (on January 1 1992) and sales in their work zoomed upwards, as publishers came out with competing editions - in the case of the one book for which Penguin already had a licence, Ulysses, sales went up (and there were five other editions on the market). As a result of having seen that at first hand, I think that, 50 years after an author's death, anyone should be able to publish a book or record a piece of music or put on a play, as long as they pay a royalty. This would increase general levels of cultural creativity and still allow revenue, but not control, to artists' descendants. We could even have some fun with Mickey Mouse...
The other suggestion is that artists should be guaranteed, by law, a percentage of the revenue from the sale of their work. At the moment, the big retailers squeeze the publishers, who in turn squeeze the talent, so that it is common for as little as 5% of the purchase price of a book, say - though it's not just books - to reach the writer. That's 95% of the money going to someone other than the creator: does that seem right? My experience of asking people about this suggests, very unscientifically, that most people aren't aware that three-for-twos and dramatically reduced prices mean that the writer is earning a smaller royalty per copy.
The suggestions cut against the prevailing legal tendency to make intellectual property behave more like other sorts of property - cutting against that is fine by me - but they also cut against each other. What percentage of the royalties from Family Romance would go, by law, to the author of the anonymous poem that can be quoted only in its English edition?
The risk of reproducing potentially copyright material, as I (poorly) understand it, isn't just that the author's grandchild can decide to have your book pulped; it's that they can present you with a bill of unpredictable and possibly profit-destroying size. To make the first suggestion work in a way that made use of orphan works easier, you'd have to set some kind of standard rate, and then set up an agency to distribute the cash, adjudicate on claims, and - if you believe that the owners of un-orphaned works should be able to demand more than agency rate - decide who's an orphan and who isn't.
Then once someone's successfully claimed the cash for an orphan work, it has presumably ceased to be an orphan. Can they negotiate a higher fee for the next edition? Or stop it coming out at all?
I'd like these kinds of tweaks to work - at the least the first one, if it worked, might have a relatively high chance of happening. But copyright is almost certainly more broken than that.