Re: copyright under stress

On Wed, Jun 07, 2000, Kevin Grierson <kgrierson[_at_]wilsav.com> wrote:
>
> [...]
> Copyright exists independent of moral rights, as a form of
> encouragement to authors to expose their works to the public. The
> idea that such public exposure would come without such protection
> is, quite frankly, wildly overoptimistic. Artists have made works
> for centuries that went to their patrons and were not displayed
> publically. Even if that were not the case, if someone is truly
> talented at music, or writing, or some other creative endeavor,
> society should allow some kind of remuneration so that person can
> pursue his or her talents full time, rather than being forced to
> take a paying job unrelated to their creative endeavors in order
> to put food on the table.

Well, I think you are probably right -- but only if you placed the proper emphasis on the idea that copyright is essentially "to promote the progress of science and the useful arts" and not to reward and sustain authors and inventors.

I can point to one interesting fact that might disrupt your thesis that innovation cannot occur without intellectual property protection. A study of small biotech firms (by a Harvard Business school professor) found that most were not filing patents on their innovations, probably because defending them has become too expensive, and instead they are protecting them by keeping them trade secrets. Here is a case where a law was passed to encourage inventors to publicize their discoveries, and to allow them to gain rewards for it if you like, but now it is being used by big companies to suppress innovation by small ones. Intellectual property law in these cases has had no effect "to promote the progess of science and the useful arts" when one considers that the lack of publication means the public will not benefit when the patent term expires. If one believes that the big companies are the ones that really do the innovation (think of Microsoft) then intellectual property law seems okay -- but otherwise not. Or if one thinks of "the progress of science and the useful arts" as coming not from whatever the public gets at the end of the term, but exclusively from the publication during the term itself.

> I respectfully disagree with your thesis that copyright and the
> first amendment are at odds. Courts have historically acknowledged
> that the government may lawfully regulate the time, place and manner
> of freedom of expression (e.g. bans on incitement to riot, public
> noise ordinances banning "speech" over a certain number of decibels,
> etc.). Copyright restricts a person's ability to copy someone else's
> particular expression of an idea, but does not prohibit the expression
> of that idea. "Fair use" of copyrighted material is generally accorded
> less deference as the use becomes more and more commercial, and this
> dovetails nicely, IMO, with the lesser protections accorded to
> commercial speech.

Well, copyright is a monopoly, and was intended as a limited one. Think what would happen if Congress passed a law to allow a certain church to copyright all texts and translations of the Bible. How could setting up such a monopoly be justified under copyright law? Easily, if one thinks that Congress has the right to pass such laws without considering the effects on First amendment rights or even "the progress of science and the useful arts." I assert that the mere fact that the copyright owner can prevent my publication of a derivative work illustrates such a monopoly, and any such monopoly can only be justified by "the monopoly clause" -- the only clause in the Constitution that establishes, "for limited times," a temporary monopoly, and only for the sole reason, "to promote the progress of science and the useful arts." Otherwise, it is easy enough to see that First amendment scrutiny should always be warranted, and that whatever laws Congress passes need to be weighed in that light.

This is also easy enough to see when one considers the Framers' intent when writing the Consitution. It is likely that the monopoly clause would not have been agreed unless the Bill of Rights followed.

Back to rewarding and sustaining authors: if that is an important public good, and current copyright law is not working to promote that public good, then it seems reasonable to many to suggest a different strategy. And that is exactly what Terry Fisher and Steve Shavell thoughtfully proposed at:

   http://www.law.nyu.edu/ili/conferences/

-- 
"Eric"  Eric Eldred  Eldritch Press
mailto:Eldred[_at_]EldritchPress.org
http://www.eldritchpress.org/EricEldred.vcf