[darryl]

Sorry about the length of this post but I think there are a few things which it is worthwhile writing about.

Arguments about whether copyrights are "property" or not are beside the point. Intellectual property including copyrights are not "property" in the same sense as physical property, be it land or goods. However, copyright laws do confer upon copyrights some of the legal characteristics which define physical property, for instance, the ability to transfer it.

Modern copyright laws began their life as tools of censorship and control, though they now seek to serve the public good, as Ralph's quote from the US Constitution shows. The US Constitution is the basis of copyright law in the United States, and the effectiveness of the copyright law must be evaluated against the aims set out in the Constitution. So far as the United States are concerned, there is no defensible basis for copyright laws not aimed at achieving these aims.

These aims are very clearly set out, that is, to promote the progress of science and useful arts. The Constitution also sets out how this can be done, that is, by way of securing a monopoly to authors and inventors. But not a perpetual monopoly. Your founding fathers were very wise. It now seems to be generally accepted that a monopoly is against the public interest. I’m not sure if that was accepted at the time the US Constitution was drafted, though it was certainly recongnised generally that locking an asset up in perpetuity was undesirable. Any person with legal training in a common law country will recognise the “rule against perpetuities” which has a very general application. Wikipedia has a very succint summary as follows:

The rule against perpetuities is a rule in the common law that forbids legal instruments from tying up property for too long a time beyond the lives of people living at the time the instrument was written.

So, in creating the US framework for a copyright and conferring upon it some of the characteristics of property, it is not surprising that the founding fathers specified that such right could only be for a limited time. Actual copyright laws seem to have borrowed from the framework of the rule, specifying time limits on the basis of a life plus a number of years.

The US Constitution is not about protecting authors or inventors and their descendants. It is not about creating a property right for authors and inventors. It is about promoting progress in useful arts and sciences. In a previous post I linked to a journal article on Roman influences on Copyright. But the Romans themselves did not have copyright. To quote from that article:

First, let us be frank. As was mentioned, it seems to be quite clear that the ancient Romans did not develop a law of copyright. Ancient authors borrowed wholesale from one another to a degree that would easily be considered copyright infringement under modern copyright laws. Generally speaking, authors, painters, and sculptors were funded by wealthy patrons or worked on municipal projects funded by governments. Thus, authors and artists had no need to seek a financial reward through making multiple copies of their works.

Yet the Romans have left an enduring legacy in science and the arts. It is clear that there would still be progress in both without copyright. However, it seems intuitive that some incentive to authors and inventors will result in more “progress” in these fields. This is why copyright exists. Not to give authors and inventors a valuable property right, but to encourage “progress”, in the case of books, the writing of more of them. If a copyright law does not do this, then it is a failure.

Copyright is not property. It is a privilege, granted to creators and inventors to encourage them to create and invent for the greater benefit of society. It does this by giving them a limited monopoly in their own work. The starting point is that a monopoly is against the public interest. However, it is in the public interest to encourage progress in the arts and sciences by providing incentives. Copyright law balances these competing public interests by giving preference to the latter but for a limited time. As time passes the utility of the latter declines until it no longer prevails. This does not mean that there is no value in extending copyright beyond the life of the creator. Whilst a dead creator can not be encouraged to create, creators still alive can be encouraged by knowing that the rewards of their work will continue to flow to their descendants for a period after their death. But, of course, given that the law exists not to protect but to incentivize creators, how long a period can be justified?

Another interesting point is that the constitution makes no reference to the role of rights-holders. The theory, of course, is that it is pointless to grant a statutory monopoly as an incentive if many creators cannot effectively exploit that right. So to grant an effective incentive creators must have a market for their work. Hence they must be able to sell and licence their monopoly rights. And, of course, the price they can achieve is dependent upon the extent to which rights-holders are able to protect and exploit their rights. But we should not make the mistake of believing that a creator’s interests and the interests of a subsequent rights-holder are the same. For instance, it is difficult for me to see how the Disney extensions to copyright duration confer any further benefit on the public or encourage “progress” at all. If there is any such effect I suggest that it would be so minor that it does not justify the public harm caused by the monopoly continuing.

Intellectual property law is a minefield of balancing competing interests. My view is that intellectual property laws in general are now meeting their aims very poorly. In some cases they are not only not achieving their aims but are in fact hindering the very progress they seek to encourage. They have become far more about protecting the interests of largely large corporate rights-holders than encouraging progress in the arts and sciences. The aim of encouraging “progress” in the arts and sciences is a worthy one. We do need intellectual property laws to do this, but a wide-ranging and fundamental review is long overdue. Such a review should also consider whether a statutory monopoly is the best way to encourage progress in all cases. For example, take the development of life saving medications which a monopoly makes ruinously expensive, but which would never have been developed without the incentive of such a monopoly. Some countries have taken the step of compulsorily licensing such drugs at a statutory affordable royalty rather than allow their citizens to die needlessly. Surely we can and must do better.