In my last post I discussed issues involving the term of protection. I argued that there should be different terms of protection for different categories of works. If copyright law is predicated wholly or in substantial part on the need to provide incentives to create, then finding the right level of incentive is important given that different works have different levels of investment and different commercial lives. Giving all copyrighted works – from emails, lawyers’ cease-and-desist letters, software manuals, fashion magazines, maps, David Post’s Moose book, works of sculpture, and 200 million dollar movies — the same protection makes no sense if we accept the incentive rationale.
Some may misstake this as a call to weaken copyright, but as I noted in a comment on Part Deux, the term “weaken” is inappropriate here: copyright law is not a living organism, nor is it a building or other structure. The accusation of “weakening copyright” is simply a bad metaphor, used by those who support the status quo to resist basing copyright law on evidence. (“Looks like the upper hand is on the other foot”).
So what would an evidence-based approach to the term of protection look like? In Part Deux, I advocated using the approach taken by the economists in the Eldred case: figuring out what the present value/future value of an extension of term would be. This approach could also be applied to reductions in term: evidence whether any proposed reduction in term would take away meaningful amounts of present value would be important.
To date, the present value/future value approach has been applied at the macro level – to all types of works, and not as I also advocate, at the micro level for particular types of works. To do a better job at the micro level, we would [...]