In a New York Times op ed, Claremont Institute fellow Mark Helprin argues that we should have copyright laws that give the owners perpetual rights in their intellectual property. In my view, his proposal is deeply flawed. If it had been in force throughout our history, Shakespeare's heirs could presumably forbid any performances of his plays by groups that refuse to give the Bard's descendants a share of the take. As VC readers know, I'm a strong supporter of property rights; this proposal, however, is a bridge too far. Helprin defends his idea by analogy to real property:
What if, after you had paid the taxes on earnings with which you built a house, sales taxes on the materials, real estate taxes during your life, and inheritance taxes at your death, the government would eventually commandeer it entirely? This does not happen in our society ... to houses. Or to businesses. . .
Once the state has dipped its enormous beak into the stream of your wealth and possessions they are allowed to flow from one generation to the next. . .
That is, unless you own a copyright. Were I tomorrow to write the great American novel (again?), 70 years after my death the rights to it, though taxed at inheritance, would be stripped from my children and grandchildren.
Helprin also argues that perpetual copyright is compatible with the Constitution's Copyright Clause, which grants Congress the power to establish intellectual property rights. There are several major problems with Helprin's argument. He fails to consider key differences between intellectual and physical property. Moreover, his proposal is probably unconstitutional.
I. The Difference Between Physical Property and Intellectual Property.
Helprin ignores the crucial difference between copyright and physical property. Property rights in land and physical possessions protect assets that will lose much of their value if anyone is allowed to use them at any time or if the government can expropriate them at will. For example, if anyone could come and use a house anytime they wanted to, that home would lose much of its utility, since the ability to exclude others is a major part of the value of a house. No one could live in the house in safety and privacy, because they could be disrupted by squatters at any time. Economists refer to such goods as ones subject to "rivalrous" consumption. If I use the good, that makes it difficult or impossible for others to use it at the same time. As a result, all of society benefits from having clear rules that assign the right to physical property to individual owners who can exclude others from using the property without the owners' consent.
By contrast, if you "use" the phrases or ideas in one of my articles, that doesn't prevent anyone else (including me) from using them at the same time. Unlike property rights in physical objects, property rights in ideas actually undermine our ability to use resources in a productive manner rather than further it. The "consumption" of ideas is norivalrous.
Moreover, unlike rights to physical property, copyright and other intellectual property rights impose major restrictions on the ability of others to use their own physical property. I cannot use my property to reprint copyrighted works or incorporate patented inventions in a new product design. This too, is a significant difference between intellectual and real property, and a good reason for limiting the scope of the former more than the latter.
II. Why Perpetual Copyright is Unconstitutional.
Finally, Helprin's proposal is probably unconstitutional. The Copyright Clause does not give Congress the power to create perpetual copyright. Instead, it only gives it the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Helprin tries to get around this wording by claiming that Congress could simply "extend at will the term of copyright," and do so repeatedly. However, he ignores the fact that constitutional text allows Congress to create intellectual property rights only in so far as they "promote the Progress of Science and useful Arts." Copyright can only be extended if doing so furthers the creation of useful ideas and inventions. In cases such as Eldred v. Ashcroft, the Supreme Court has (in my view mistakenly) given Congress substantial deference in determining whether an extension of the copyright time limit really is needed to "promote . . . progress." However, even a deferential Court might recoil from a plan to extend copyright forever. Not only is perpetual copyright not needed to promote innovation, it is likely to actually impede it by making it more difficult to create new works that build on copyrighted ideas and images from old ones.
UPDATE: For a detailed analysis of the ways in which indefinite extension of copyright would undermine innovation more than promote it, see this amicus brief in the Eldred case, authored by 17 prominent economists from across the political spectrum.
UPDATE #2: James Grimmelman of Prawfsblawg rounds up critical reaction to Helprin's piece from various other legal scholar/bloggers.
UPDATE #3: For a more detailed explanation of the reasons why perpetual copyright is unconstitutional, see this excellent article by Glenn Reynolds/Instapundit and Robert Merges. As Glenn notes in a recent e-mail to me, some of the reasoning of this article was rejected by the Supreme Court in its Eldred decision. In my view, however (not to mention Glenn's!), the Court got it wrong. In any event, even Eldred does not explicitly endorse completely unlimited copyright extension.
Copyright need to be shortened, not lengthened. Making heirs rich is not something that promotes creativity. (And I say that as the author of 60+ books.)
Maybe someone will find a way to aggregate good writing that people do for free. Wikipedia comes close. And the best thing about Wiki is you can look up things that are not in a real encyclopedia like rock bands, TV characters, slogans and slang, and find the answer to everything you could ever ask.
I think the real issue is the denial of creative expression to the public domain. If a corporation can appropriate Miles Davis, Mark Twain, Hemingway, Bukowski, the Dukes of Hazard, and Sly Stone for an eternity, our society will suffer a banality implosion. There is a no creative spark under the sun; all we know, think, feel, and express is a composite of every sensory impulse we have ever received.
In closing I would like to give a big FU to Sonny Bono and his crass, although successful, attempt to extend copyright to protect his own vested interests and that of Hollywood, Disney, and the other money grubbing bastards. I love free markets and liberty, except when my Constitution mandates otherwise.
Johnny
Ilya:
This would seem to be an argument against ~any~ intellectual property rights. What makes holders of "intellectual property" so special that they get different rules than holders of physical property?
See N. Stephan Kinsella's case against all intellectual property:
http://www.mises.org/journals/jls/15_2/15_2_1.pdf
Isn't the pro-intellectual property rights position primarily a utilitarian one, which is something a libertarian ought to be very uncomfortable with? The "greatest good for the greatest number" is highly subjective and cannot be made into some formula. It is also a concept that has also been used to justify every atrocity and injustice known to mankind.
Mark Helprin may not be stupid but he sure does excellent impression of being a complete idiot.
Read it.
Mark Helprin has a tiny mind.
It makes no sense to extend property rights out beyond a point by which the very legal framework is likely to have changed.
A Fair(y) Use Tale by Eric Faden
The answer there is to tax the copyright based on its age. The older it is, the higher the tax. This creates a progressive incentive to release copyrights to the public domain. Someone above linked to a paper by Landes and Posner. Very worth reading.
The world would be a much poorer place with unlimited patents and copyrights.
OTOH, he would have kept Disney from getting started. Not only did Walt and Co. take, without compensation, from the works of the Grimms [well, they in turn "stole" their tales from grannies who told them stories] but often used then-cultural materials (notably, "Steamboat Willie" traded on - if not stole from - Buster Keaton's "Steamboat Bill, Jr.").
Physical property becomes lessened if shared/distributed: intellectual property usually becomes enlarged if so treated. Copyright is a compromise.
Also, Helprin admits that broad plot outlines can't be copyrighted, only specific expression, so that argument doesn't work either.
On the "houses are rivalrous and novels aren't" argument, houses aren't *that* rivalrous. The privacy aspect is destroyed the minute a stranger enters, but the shelter value will be undiminished until the house becomes too crowded to enter. Should houses get less property rights protection than, e.g., food?
So what? Your children and grandchildren have seventy years to profit from something that they had no hand in making. Isn't that enough?
Imagine how technology would stagnate if we had perpetual patents.
Indeed, I inadvertently slipped on a slippery slope and expanded Helprin's proposal... It is odd, though, that one can copyright 3 notes or a minute of silence of silence but not the assemblage of letters and sounds that create a new word. Perhaps Helprin will address this deficiency of copyright law in a future article.
As far as perpetual copyright, probably not. But certainly as long as somebody is willing to sustain a work, they should be able to control it. Mickey Mouse is valuable to the masses because Disney makes the effort.
With regards to taxes, etc. We pay taxes on our houses, but we don't pay taxes on our shoes or cars (eg. you can own a car without ever paying any tax on it over sales tax.)
That by itself is an amazingly poor argument. There are buildings over one hundred years old that are still making money for the owners. There are coins that were minted hundreds or thousands of years ago that make money for the owners. And if you wanted to make the argument that people don't have the right to exploit something they had no hand in making, why should anybody be allowed to own empty land?
Unlike real property, the whole point behind intellectual property is to grant the creator a *limited* monopoly for the purposes of encouraging creation. Once that monopoly has done its job -- encouraging creation -- its job is done. In fact, this is explicit in the Constitution. Even though Eldred basically held that the upper limits of this were a political question, economic arguments that somebody has had "enough" profit are not "an amazingly poor argument" when taken in the context of the very purpose of IP. It is extremely well known and proven that adding additional time to copyright protection does virtually nothing to encourage more creation. Unfortunately, in fact, additional time may very well stifle creativity by locking up works for longer times and increasing the chances that they are forever lost to history.
Disney couldn't have cribbed Snow White and many other stories from the Brothers Grimm, not even by paying royalties to the Grimm's heirs or assigns because the Grimm's could never have tracked down the rights to old tales and obtained permission to publish their works in the first place.
Shakespeare would have been bankrupted by lawsuits over cribbing major portions of his plots from older writers - and Chaucer, Sophocles, and Homer would have had it even worse. Not that the originators or their distant heirs would have received anything from these cases but huge legal bills from eternal proceedings attempting to determine the true originators...
And so on. Most of our culture isn't original, but in some way derivatory. Even really original works generally consist of a mixture of originality and pieces derived from older works, so the more stuff becomes copyrighted, the more creation is choked off.
I would accept a copyright limited by the owner's willingness to pay a renewal fee at regular intervals, if at 20 years or so they became large enough that corporations could only afford to routinely renew exceptionally valuable properties. This could be better than a fixed term copyright, that gives equal protection to a Harlequin novel as to great literature. A suggested fee schedule:
-First application: Just a filing fee to cover the cost of putting the work in the database. (And I do mean the entire work goes in the database, without copy protection - so that when the copyright is allowed to lapse, there will be a copy of it available to the public domain.)
-10 year renewal: $10,000
-20 year renewal: $50,000
-Every ten years after this, the fee grows by $50,000
And of course, inflation-index the fees. Disney could still protect their "classic" animated works at a small percentage of what they could make by keeping them on the market - but I doubt they would hold them off the market for a generation, as they seem to have been doing. Individual authors would be little affected - mostly they live from advance to advance, and what happens to their work in even ten years matters little.
I wasn't commenting on profiting enough. I was commenting on descendants of creators profiting from their progenitors works.
Let me try to put things this way. Society benefits from access to works of art: I can print new editions of plays by Shakespeare and sell them; I can print modern translations of works of Shakespeare and sell these; I can perform the plays, recite the sonnets and charge admission fees; I can make movies
(or piano sontats) using the characters, plot elements, or just pieces of the dialog. I can also publish an illustrated edition. Now the important thing about such works is that me doing these things does not interefere with anyone else's ability to do the same (including Shakespeare's heirs ability to do them). In other words, society as a whole gains when everyone can enjoy and use existing works of art their own way.
Why should I give a whit about the author's heirs (or even the author himself) making or not making money off the work? My goal is to enjoy Shakespeare's plays, and prehaps to make my own money off them. Any benefits to Shakespeare are incidental as far as I'm concerned. Of course, the catch is that if anyone can immediately print my own edition of Shakespeare's popular new play, Shakespeare will make little money off it (in a free market, the marginal cost of the product equal the marginal cost of production, independently of the sunk cost of product development).
From this comes copyright, a voluntary concession by me (and everyone else) that we will refrain from doing several things we could otherwise easily do in order for the author to be able to recoup his investment in creating the work. Note that we (society) are balancing costs here: we are willing to tolerate this legally created monopoly to compenstate the author just enough to motivate him to create the work, but no beyond — we'd like to eventually get to use the work ourselves too!
If an author would write a book given 30 year copyright protection, why should the critical (or unauthorized) editions have to wait 70 years after his death? I want to read the critical edition even if the author disapproves of the criticism. Should I have to literally wait forever (in a world of perpetual copyright)? Of course, the descendants of an author should inherit any rights he has, but only to the extent that such rights are needed to get the author to write in the first place.
The worst injustice related to this is when copyright terms are extended for works that are already been written. Since the author already wrote the work based on a contract with society (we refrain from copying for X years, in return for getting to read the book right away), extending the term won't increase the author's motivation to write books. In fact, it will decrease it: if the royalty stream from the existing book is getting extended, why write a new one?
If copyright is perpetual, why should Disney innovate and create new charcters, when they still control the old ones? I'm sure many modern artists could give us wonderful new takes on Mickey Mouse — but every time they gear up to do it, Congress seems to extend copyright again.
Copyright doesn't guarantee continued sales. The actual evidence suggests that absent ongoing investments in sustaining the work, interest wanes and sales drop off regardless of the ongoing copyright protections.
Not in California you can't.
A character on its own is not copyrighted. When the copyright on the first Mickey Mouse cartoon expires, "Mickey Mouse" does not fall into the public domain, only that first cartoon. All other uses of Mickey Mouse are still copyrighted until their own period expires. Of course, at that point, you can probably create your own derivative work sequel to that first Mickey Mouse cartoon, but that would not permit you to use the version of Mickey Mouse in Fantasia.
What I should have said instead is that Helprin is making a natural rights in IP argument, which is in the end anathema to utilitarian considerations such as Ilya's.
Finally, "limited time" in the Constitution seems like a very specific direction that the time be limited, and in fact, probably quite short. Now that information is disseminated faster and becomes obsolete more quickly, copyrights should be shorter rather than longer. Two to five years seems like a reasonable length of time.