Re: copyright under stress

On 6/8/2000, David Hale <dhale[_at_]aggt.com> wrote:
>
> I would submit that this second from of creativity (which patent
> jargon would call "inventing around the patent") is really the
> only one that copyright is concerned with, for better or for worse.

Then you would be wrong. Copyright's purpose is not to create a forbidden zone of creativity which creators must work around. It is to create an incentive by means of a grant of a temporary monopoly, so that works will be produced that will enrich the public domain. Necessity may be the field of invention in the short term, but prior invention is a much more fertile field in the long run. The "incentive to invent around" may be a benefit of a short term of copyright, but it is a side benefit. If Congress passes a law with this benefit in mind, it exceeds its constitutional authority. The chance of a return on original creativity is the only means of copyright Congress is empowered to create; the public domain is copyright's only legitimate end.

> Later in your post you mentioned that copyright terms have become
> too long -- this is probably a direct result of society / Congress
> placing too much emphasis on the creating of new (non-derivative)
> works function of the copyright law to the exclusion of other
> valuable social goods which may be served by a shorter term.

It is the direct result of greedy interests beguiling Congress into doing their bidding. I agree that it erects barriers to entry into the derivative-work market that are higher than those it erects to the market for, say, original novels, stories, and plays, PROVIDED the idea/expression distinction, fair use, and other in-term user privileges are not narrowed by the courts to the vanishing point. In music, the doctrine of "unconscious infringement" makes even original songwriting chancy, as Jerome Kern and George Harrison discovered to their rue.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Fri Jun 09 2000 - 23:35:06 GMT