Cathy Young argues that our current copyright system isn’t working as originally intended:
My argument: copyright law as it currently exists does the opposite of its original intent (as formulated in the U.S. Constitution, which allows Congress to legislate on copyright, and in the very first copyright statute enacted in 1790): to promote arts and letters and encourage learning, by giving authors an incentive to create new works by ensuring that they can fairly profit from their writings. (In olden days, it wasn’t at all uncommon for unauthorized editions of books to be legally sold with no profits going to the writer.) Today, copyright violation claims are commonly invoked to suppress new works — whether it’s 60 Years Later, The Wind Done Gone (the “Gone With the Wind-from-a-slave’s-point-of-view” novel that was finally declared legal after much wrangling in the courts), a production of a James Joyce play, or fan-made Xena: Warrior Princess videos on YouTube.
I agree. But Cathy also writes:
Would it really be perfectly fine, from a libertarian point of view, if, after the huge success of the first Harry Potter book, Joe Smith or Mary Jones quickly popped out a sequel before J.K. Rowling could publish the second one?
Well, I’m not a libertarian. But why not?
I’d suggest that Smith and/or Jones should be legally required to pay Rowling some sort of licensing fee if their book has a print run over a thousand copies in a year; and that the front cover include a clear (“not written or authorized by J.K. Rowling”), so consumers aren’t deceived.
But with that in place, I don’t see what the problem is. Few if any Harry Potter fans would have said “oh, why even bother reading the Rowling versions when they come out, now that quick knock-offs are available,” so it’s not as if allowing the knock-offs would deprive Rowling of her ability to earn a living.
Meanwhile, forbidding Smith and Jones from publishing their Harry Potter knock-off might well deprive them of their ability to make a living as Harry Potter knock-off writers, and it arguably infringes on their freedom of speech.
I can already hear people saying: “Who cares? Smith and Jones don’t have an original thought in their head. They don’t have a right to other people’s speech.” But some artists work best by reimagining works they already love, rather than by creating “from scratch.”1 Sometimes the result is a better work than the original — think of Stephen Sondheim’s great musical Sweeny Todd, which was adapted from a play. I think the culture be richer for it if artists who feel compelled to work with the books and characters they loved as kids, were free to do so, and to do it full-time if there’s enough of a market for their work.
Often, when I make this argument, people ask me how I’d feel if someone out there produced a sleazy porno Hereville comic. Well, obviously, I’d be appalled. But just because I find someone else’s work appalling, doesn’t mean it should be illegal.
- Actually, no artist in the world creates from scratch. [↩]
FCH,
Other people on this thread have argued that mandatory licensing schemes would subject authors to the disincentive of suffering through other people creating derivative works not to their liking. That seems like a serious potential problem with Amp’s proposal, and one I don’t really see a good way around. However, I continue to fail to see how delayed mandatory licensing would be a threat to profitability.
So long as the mandatory licensing fees were at the upper end of typical licensing fees, as I have described before, mandatory licensing fees would decrease the number of works that fall out of print, which would provide an increased incentive to produce new works, as would the potential for increased income from reprinting and from derivative work licensing.
Furthermore, as Jake has described, a culture of inter-textual reference and shared fictional worlds is in some ways a richer culture than one in which each author must forge their own way into new worlds. There are other things that can be said with the universe developed in Rowling’s novels than the things that Rowling is capable of saying. Additionally, it is certainly a culture in which the difficulty of entry into authorship is greatly decreased. There are far more readers for fan-fic than there are for original fiction of equal quality, leading far more people into learning to write (derivative fiction is often described as fiction with training wheels). If amateur derivative works moved out of the legal shadows, it would provide a more continuous pathway to professional writing, leading more people to become writers, producing more and better fiction.
Furthermore, while there is a risk of directly derivative works saturating the market for a particular work, it is also the case that the number of readers and the frequency with which people read are not fixed numbers, so if people enjoy reading more derivative works than a single author can produce, then multiple authors will better satisfy that desire, increasing the total number of readers and therefore increasing the total number of books sold, providing more of an incentive to authors to write.
Certainly, none of that might come to pass, and there are a variety of problems with mandatory licensing that I have described previously and that others have described that I have stated my agreement, but I think it is at least as likely that a well designed mandatory licensing scheme would fulfill the constitutional obligation of copyright at least as well as the current scheme. When was the last time that an authorized work of any meaning or value, one that progressed the art, was produced using the character of Mickey Mouse? Mandatory licensing would allow the creators in whose heads variations on the theme of Mickey exist to author, and profit from, those works.
More simply:
We all almost all agree that the copyright terms enshrined in the Mickey Mouse protection act (life + 70 years) is excessive, but part of the reason that excessive copyright terms developed is because once a work becomes public domain its reprinting benefits only the publishers, and it doesn’t make much sense that there be a 100% transfer of the profit from a work from the estate of the author to the publishers. However, such a long copyright leads to innumerable orphaned works that will likely be lost because they can not be reprinted for a very long time. While some of those works are truly orphaned, others are merely neglected by uninterested publishers. Both forms of orphaning are harmful both to the financial interests of writers and their children (making an unprofitable occupation even less profitable) and are pauperizing to the culture.
So we need a shorter copyright that also ensures that creators are not deprived of profit to the benefit of the publishers. One obvious way to achieve that is mandatory licensing.
Charles S,
A major change in what law? I think you are missing the difference between law and common practice. There is no law that forces me to allow my songs to be played at a Sarah Palin rally. However, if I am in the music industry, then I’ve almost certainly signed away my rights to control permissions for my music by having it go into a registry from which I obtain regular royalty checks. But I choose whether to do that or not. The (crappy) songs I have written are currently under my control because I never have signed away my permissions on them. If for some bizarre reason Palin wants to use them, she has to get *my* permission; she can’t just pay a fee to the registry.
“Physical property without the protection of an owner falls irreparably into decay.”
Huh? My dad owns undeveloped land in a rural area. He currently does nothing with it. (He’s holding onto it hoping that the housing market will come back and that the nearest city will begin expanding again soon, thus widening its suburban ring far enough to make this land worth building upon.) The land can’t “decay,” because it just is what it is. Even when there are storms and trees fall, there’s no point in clearing them or doing anything about it until land development begins. The fact that he has not improved the land doesn’t change his ownership of it. You can’t go claim the land as yours because he has provided insufficient “protection” of it.
Yeah, my understanding of the law concerning playing recorded music is wrong.
My phrasing of property falling into decay was poor. I specifically meant to differentiate between physical and intellectual products of human labor, not to include all physical things as physical property. Land, to my mind, is in the same category as air and water of things that can easily be treated as common property, although it shares other characteristics with physical products of human labor, making it more naturally susceptible to becoming legal property than air or water.
Charles,
Your analogy works only for physical property which requires maintenance to retain any reasonable value. While this is true of much physical property, it’s by no means true of all of it, including plenty of it which requires human labor. Some property is designed to last for centuries or longer (dams, pyramids, sculptures; many kinds of glass items); some will last essentially forever (cut gemstones, platinum or gold jewelry or currency, etc.)
You can keep limiting the analogy but eventually such limits get a little True Scotsman to be of much use.
The issue of orphan works is a valid one. Of course, in theory the market will be such that orphan works tend to be those which are not valued highly, and therefore they are not such a great cost.
But you seem to be making a lot of assumptions regarding the incentives for people to create new works.
Is anyone seriously arguing that intellectual property and physical property are indistinguishable? Can anyone who rejects my explanation for why they should be treated differently (and I’m just writing of the top of my head, so I’m unsurprised that my articulation of my reasoning is poor) explain why copyright should not be perpetual and why patents and copyright and trademark and houses and gold jewelry and the air should not be treated exactly the same in terms of ownership and property law?
The law doesn’t treat these things the same currently. Why is that?
Charles,
“Is anyone seriously arguing that intellectual property and physical property are indistinguishable?”
No. Of course they are distinguishable. I am easily distinguishable from my boss. Whether we are distinguishable is irrelevant to whether we ought to be treated the same under certain laws. Under some laws, we should be treated differently because of some of the things that distinguish us (e.g. he has children, belongs to a union, has been a longer-term resident of the state); under other laws, we should be treated the same regardless of our differences (e.g. we cannot be treated differently in a criminal proceeding based on the fact that he is white while I am not, because in criminal law all adult persons who are sane and not mentally retarded must be treated the same).
I think the question you want to ask is, “In what ways are physical and intellectual property similar that mean they should be treated similarly, and in what ways are they different that mean they should be treated differently?”
Possibly because we have had various forms of formal ownership of tangible property since pre-Biblical times, while we have not had many forms of ownership of intellectual property until fairly recently.
Were we to develop a tangible property protection scheme from scratch, there’s no guarantee that we would use the same one we have now. Much of it is historical.
Conversely, many of the copyright issues are comparatively recent.
Charles,
There’s a certain frustration on my part because you keep ignoring pretty much everything I’ve said and instead inserted your own interpretations — despite repeated clarifications by me — of what I’ve said.
For the umpteenth time, the limited monopolies on intellectual property are to insure that PROGRESS in those arts and sciences is promoted. That’s it — that’s the big deal. I really could give a flip about all this “why are they treated differently” you keep trotting out.
That limited monopoly takes the form of an exclusive property right. In the case of copyrights, the exclusive right is life + 75 years or so right now. For patents it is shorter. The government imposes certain requirements. For example, for a patent the inventor has to disclose how to make the thing. The patent system works very well — you can go read patents all day long (sometimes I do just for fun, other times I do for a “prior art search”) and learn all sorts of neat things. Without the disclosure of how the invention works, no one learns. Without the limited monopoly the financial incentives may or may not even exist.
Here’s the part you can’t seem to grasp — if Bob owns a patent on a variable pitch wood screw (the harder you screw it, the finer the thread, so the easier it goes into the wood — let’s just say) — he is perfectly within his rights to license it, not license it, give Sue a better deal on licensing, or whatever he wants. If the government says “You must do it OUR way”, he doesn’t have that choice. Bob can’t have his special cross-licensing deal with Sue, who’s invented similar products, he has to do it the government way. Now he and Sue, who’ve had an otherwise great business relationship, are stuck doing what the government says they must.
NOTHING is keeping JK Rowling from licensing Harry Potter, just as NOTHING kept the Star Trek fan base from producing massive amounts of fanfic with the blessings, more or less, of the owners of the Star Trek franchise.
FCH,
We don’t disagree that much. I cavil at your statements that imply that intellectual property is not different from physical property (you refer to the The notion that “art” or “performance” is somehow different from a can opener or wide screen TV is part of why people feel entitled to steal “art” and “performance”. The work-product is intangible, but the “work” was still “work”.), but not at your descriptions of the state of IP or the reasoning for having IP.
I agree that patent law seems to work pretty well, but I think the terms of copyright law are excessive (and my belief in this does not seem to be particularly eccentric). I see no reason why the various components of copyright (right to profit from ones work and right to control the production of derivative works, as well as right to control reprinting) should all have the same duration. We know from historical experience that a short copyright period benefits publishers at the expense of authors, but that is specifically in relation to the right to profit from ones work, not the right to control derivative works.
It is certainly debatable whether doing so would improve the progress of the arts (a debate we have already had in sufficient detail for now I think), but the reasoning for supporting or opposing these changes both depend on what we each believe would support the progress of the arts.
Charles,
I think it depends more one what one considers to be “Progress”. To me, and to everyone involved in patent work, “Progress” means innovation. Derivative works, by their very nature (being “derivatives”, that is) are not considered to be “innovative”.
I own a software product. My competitors all make the same kind of passive monitoring and reporting product. The differences between their products is typically the GUI. My product is analytical, predictive, dynamic and active. That’s the difference between “innovation” and “derivation”. Now, someone can go copy my software, but I was here first, and the features I don’t include are often covered by patents. (I know — I wrote the invention disclosures).
(And I had to look up “cavil”. I thought for sure you meant to write “k’vel”, when “k’vetch” would have made more sense. I’d hope your arguments are more than trivial objections. Some people make their money with intellectual property — it isn’t some trivial matter worthy of trivial arguments.)
I’m aware that this is a bit late, but I wanted to address this argument in particular–it’s not as clear as it might seem. Trademark dilution can take the form of “tarnishment”, where the brand is associated with something unflattering, such as terrible writing or pedophilia. This doesn’t depend on brand confusion.
You’re only providing part of the story. Providing a monopoly to creators encourages work… but so does a rich public domain on which creators can draw. Yes, there are benefits to extending the copyright term, but there are also costs, and the question here is at which point they balance.
Some time ago, I wrote a particularly linky comment over here at Slashdot which describes the costs of copyright, affecting everyone from researchers to documentary filmmakers to people who can’t get their wedding photos restored because of copyright issues. Oh, and the Science Fiction/Fantasy Writers of America. Go give it a read; it’s worth the time.
In re #113:
Please see my post @ 6. I’m all for liberating “Orphaned” intellectual property. I don’t think anyone here said that orphaned intellectual property needed to be protected “just because”.