There’s something odd about

There’s something odd about intellectual property. Rules are necessary to prevent conflict in the case of tangible property but not intellectual property. So unlike other kinds of property, which would be found in almost any society, patent and copyright are visibly things we made up. The phrasing of the U.S. Constitution reflects the situation: Congress is empowered “[t]o 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”.

Someone who does intellectual work others find useful has a natural claim to compensation, so copyright protection isn’t altogether artificial. And it does seem useful to an extent, since if work isn’t compensated it probably won’t get done. Still, how much protection is right?

I don’t see a standard other than social usefulness. The Constitution implies the right analysis. Patent protection for drugs, or copyright protection for software, should be strong enough to encourage innovation but not so strong as to limit its benefits or restrain further innovation. It’s a messy standard, and applying it will be pure politics, and that’s unfortunate where stability is important, but what’s the principled alternative?

Things become even more puzzling in the case of cultural productions. How about poetry? Recordings of Glenn Gould or Madonna? Magazine articles? I’d like to say that the pop culture biz has no social utility at all—if copyright protection were abolished people would sing their own songs and the world would be better for it, so long live Napster! Still, some movies are good, there are serious individual authors and artists whose work is made possible by copyright, and if Madonna is objectionable making her music and videos available for free may not be the answer. A better response would be to make other things more easily available, which the possibility of file sharing over the internet is already doing.

Nonetheless, it was an obvious outrage to extend the copyright period retroactively from 75 years to 95 years—75 years was already much too long. The best suggestion I can come up with is to reduce the period of protection radically. The original period of protection was 14 years with a privilege of renewal for another 14. Why not reduce it to that again or something less, like 10 and 10? Any royalties after 20 years are rather a windfall, more so today than ever. How does creating the possibility of a windfall “promote the progress of science and useful arts”?
Posted by Jim Kalb at April 22, 2002 09:39 AM | Send