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Rethinking Copyright Terms

Posted by Stephen M. Nipper at September 8, 2005 11:08 PM

I realize that I am just a lowly patent attorney, but I have a copyright question I don't know the answer to. It's a doozie. It is such a doozie that I'm already cringing from the backlash and grief this post is going to cause me.

Patents are clearly a bargain. You tell the world "how" you did it (so we can learn from your great knowledge and invent our own improvements) and we'll give you a limited (in time) monopoly. Without this "trade," you'd keep it as a trade secret and society would never benefit from the knowledge. THAT I get. It makes perfectly good sense to me.

Copyrights...I don't get. Where's the bargain? Why again do we have copyright terms? I'm serious...I can't figure it out. I'm all for rewarding "authors" for their creations. I don't have a problem with copyrights themselves...what I am saying is (this is the doozie part), why do we need to have copyrights NOT be perpetual (renewable)? Is it so 70 years, 80 years, 90 years, or whatever time frame Congress creates in the future, someone will be able to sell $1.00 DVDs of crusty old films that no one wants to watch at Wal-Mart?

Oh, I'm sure this will drive certain people absolutely nuts. I'm not saying this to push your buttons...I seriously don't get it. Explain it to me...(comments and trackbacks are open).

[Note: This rant brought to you by my reaction to
this debate.]


Comments (8) trackback

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Comments

Stephan Kinsella Says:

September 9, 2005 01:52 AM

"Patents are clearly a bargain. You tell the world "how" you did it (so we can learn from your great knowledge and invent our own improvements) and we'll give you a limited (in time) monopoly. Without this "trade," you'd keep it as a trade secret and society would never benefit from the knowledge. THAT I get. It makes perfectly good sense to me."

Well, they are not clearly a bargain; this has not been demonstrated, as I explain here.

"Copyrights...I don't get. Where's the bargain? Why again do we have copyright terms? I'm serious...I can't figure it out. I'm all for rewarding "authors" for their creations."

The wealth-maximizing mentality has apparently inflirated the entire world. Sad. You are all for "rewarding" them--what, with our money? or with mine?

notrealname Says:

September 9, 2005 02:32 AM

If the history of copyright is taken into consideration, I think it makes more sense. The original 14 year term was more like a patent right. Surely it is ok to allow an author a limited time frame to market and exploit their work. However, once you have made it 70 years, it may as well be perpetual, you are right. Although, there is a good argument to say something like 'look at Project Gutenberg'. At some point we want these works to be in the public domain. If copyrights were perpetual, in 2000 years the estate of today's Aristotle could prevent the work from being put out for general consumption. Where is the sense in that?

John Lambert Says:

September 9, 2005 11:58 AM

I am not sure what a "doozie" is but I assume from the context it means an easy question for the initiated. If I have understood the word correctly, I think that the question that you have raised is far from easy.

I think the reason states protect artistic, dramatic, literary, musical and other works from copying is very similar to the reason they grant monopolies for new inventions. As Lord Bingham put it in Designer Guild v Russell Williams:

"The law of copyright rests on a very clear principle: that anyone who by his or her own skill and labour creates an original work of whatever character shall, for a limited period, enjoy an exclusive right to copy that work. No one else may for a season reap what the copyright owner has sown."

The reason for the duration of the term is probably historical. In the days when printing and distribution were expensive and the market for new books was small, publishers needed decades to recoup their investment.

Times have changed. It is now much cheaper to publish and distribute though not necessarily to create new works. At the same time it is certainly cheaper and easier to infringe. There is also a human rights dimension with moral rights. Maybe it is time for root and branch reappraisal.

Joshua Marinacci Says:

September 9, 2005 01:52 PM

I think perhaps you are coming at it from the wrong direction. The question should be why *should* we have copyright at all, not why *shouldn't* we have it. Copyright is the right to copy, and more importantly the right to tell other people not to copy. This was granted in a limited form to promote the arts. It is an exception to prevent the norm: that people can copy whatever they want. It's not the other way: that nobody can copy anything unless the copyright has expired. Intellectual property is not physical property like real estate and doesn't have a basis in natural law. IP isn't rivalrous like physical property. If I copy your book that doesn't prevent you from using the book. I think that the term Intellectual Property is misleading but I haven't found a better one. I consider copyright to be like taxation: a necessary evil that deviates from the default (no taxation) in the name of the common good. Thus it should be minimized and all changes justified.

Now these are all theoretical arguments based on what is considered natural (certainly up for debate) and how law deviates from that for the common good. In practical terms this is why I think copyright should be of a limited term:

  • reduce undue concentration of power and wealth over time
  • prevent people from being governed by copyrighted laws
  • prevent loss of cultural artifacts
  • encourage widespread disemination of knowledge
  • reduce fraudulent uses of copyright (like preventing the refilling of printer cartridges)

Now some of these arguments are going to change as physical property and intellectual property start to converge and we get things like rapid prototyping machines that can build anything.

Tom Says:

September 9, 2005 04:46 PM

I respectfully disagree with your assessment of the "patent" bargain.

First, most (and I would say most) inventions can't be kept as trade secrets because once they're out on the market, the cat is out of bag. So, I think it's no right to say that the "bargain" in patent law is giving up your trade secret in exchange for an enabling disclosure.

Moreover, it would only be a bargain for those few inventions that could be kept as trade secrets. For any invention that couldn't be, there'd be no bargain. In other words, there would be no benefit to society under your model for an invention that couldn't be kept as a trade secret.

The bargain is, in my opinion, that you enrich the culture a little and in return the culture allows you to prevent others from using your enrichment for a while. It's the same bargain for patent and copyright.

Why aren't both perpetual then? I think that's just a realization that nothing comes from nothing and you create from a cultural context. Not to mention perpetual copyright and perpetual patent BOTH would stifle innovation.

tara Says:

September 10, 2005 08:18 PM

wait, you're saying you think copyrights SHOULD be perpetual? are you perhaps starting from a premise that patented inventions (science, technology, machinery) end up providing something valuable to the world once they are "freed", but copyrights (art, literature, music) don't?

Nipper Says:

September 10, 2005 08:57 PM

"tara":

At least leave your email address so I can reply....

Where did I say that "copyrights (art, literature, music) don't" provide something valuable to the world? (hint: I didn't)

The premise I was operating from was that inventors (absent the grant of the monopoly) are less inclined to disclose their secret (how they did it).

Does that same premise apply to copyrights (without copyright protection would authors stop distributing their work and choose to keep them secret)? If the answer is "generally no," then copyrights protection must serve a different purpose than patent protection does. (which leads back to my earlier question of (essentially)..."Copyrights...I don't get.")

Thanks for the response.

Trevor Hill Says:

October 17, 2005 07:58 PM

The only legitimate reason to limit the terms in my mind is the dual assumption that (1) some copyrighted works will be useful in the future (not too wacky in my opinion), and that (2) the proliferation of copyrighted works will make it more and more difficult (higher and higher transaction costs) to bring together a variety of works to make derivative works based upon a large number of them....

I think it's somewhat overblown... But in narrow cases is a legitimate gripe.