In last Wednesday’s post, I linked to a New York Times editorial entitled, “A Great Idea Lives Forever. Shouldn’t Its Copyright?” I found the article maddening to say the least. Here’s how it starts out:
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. Were you to have ushered through the many gates of taxation a flour mill, travel agency or newspaper, they would not suffer total confiscation. … 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.
Oh my. Where to begin!
First off, the comparison with taxation is completely off the wall. Copyrights are not “taxed at 100%” after life-plus-seventy. That would be equivalent to the copyright still existing in perpetuity, but with all royalties going to government coffers.
Expiration of copyright is an entirely different thing—it is restoring the creative work back to its original state, where it can be copied freely by anybody. The shackles of copyright are a temporary nuisance for the greater good, not some natural state of things.
One might assert that the same argument could be made for physical property as well. The natural state of a piece of land is that anyone can use it freely, and only by the use of force can you restrict that use to a single person.
But, unfortunately, the natural state of a piece of land is not that anyone can use it freely. Land and physical property, unlike creative works, are rival goods. My use of a piece of land reduces your ability to use it—I can’t build a house on it at the same time that you’re planting crops at the same time as somebody else is building a parking lot.
The opposite is true with intellectual goods. I can read a copy of 1984 at the same time you’re reading a copy without diminishing anyone’s enjoyment. In fact, if there were some magical way to copy a book instantaneously for free to every person on the planet, it still wouldn’t diminish in any way my ability to appreciate that book.
Furthermore, someone can, at the same time, be creating a musical based on the book, producing a movie version, translating the book into dozens of different languages, and writing music based on the book, all without stepping on each others’ toes.
So Helprin’s analogizing falls flat. Physical property is just plain different from intellectual “property”. The public good from expired copyright and the public good from government-seized physical property are in two totally separate realms.
Finally, Helprin skims right over what I consider one of the core issues surrounding copyright. He quotes Jefferson,
ideas are, “like fire, expansible over all space, without lessening their density at any point, and, like the air in which we breathe, move and have our physical being, incapable of confinement or exclusive appropriation.”
“But ideas are immaterial to the question of copyright,” Helprin dismisses Jefferson with a single sentence. I find his glib rebuttal amusing.
While ideas are not copyrightable (only the tangible expression of them is), Jefferson’s point goes a little deeper than that.
He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.
The natural state of creative works is to be easily copyable, enriching all of humanity in a way that only nonrivalrous goods can. When you place restrictions on them, you reduce the freedom people have to produce derivative works of ideas that came before them.
The only reason we have such a wealth of new creative works being created every day is because of the rich source of public domain ideas and creativity that prefaced our existence. Do you honestly think that, if every tangible expression that existed in the world today were fully copyrighted, from Mozart’s symphonies to Plato’s volumes, you could manage to eke out the tiniest bit of non-infringing creativity?
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