Re: Proposed Extension of Copyright Ter

Dennis S. Karjala <dennis.karjala[_at_]asu.edu> writes:
>
> Bruce Hayden writes:
>>
>> The reason that I think that most copyrights, patents, etc. are
>> considered property is that these grants have value, and can be
>> transferred. What more do you need? I would like to see you argue to
>> the IRS that you shouldn't be taxed on inheriting the copyright on a
>> valuable work because it was not property.
>
> I think that the question of whether we apply the label
> "property" to copyrights is much less important than the actual rights
> we recognize and the policy reasons for such recognition. There are
> many different kinds of "property," even within the traditional
> classifications (real and personal), in the sense that different legal
> rules apply in particular cases in order to optimize overall social
> policy. Analytically, "property" is simply too abstract a term to
> serve as a basis for coherent argument and discussion.
>

....
> If I understand Bruce's comment, however, it seems to me to err
> in conflating not just "property" but "property rights" with "value."
> Governments do not create property or value, but they do create
> property rights, which effect an allocation of value. The air we
> breath has value. Society has not yet deemed it worthwhile to
> recognize property rights in air, although in many cases it does
> recognize them in the water we drink. The value to society of
> something that we may refer to as "property" is simply allocated among
> those who own the property rights, or to the general public where no
> property rights are recognized. In neither case is the value itself
> altered--only the identity of the person who reaps the economic benefit
> changes.

....

     This is not always true. Prior to the copyright acts, an author only had a non-exclusive right to publish his work. The copyright law created a new valutum: the right to exclusivity. In the same way, shares of corporate stock are not just simply accounting devices for the assets of the corporate entity, but an entirely new valutum created by legislative fiat -- the roman collegium was not at all similar. There is a diference between the good of being able to exploit an asset -- the right an author had before the Statute of Anne -- and the right to also prevent others from exploiting that asset -- the modern copyright. This kind of legislative act not only shifts an economic benefit, it creates a new kind of property.

> In the case of tangible property, we find that it is in most cases
> economically more efficient to recognize more or less exclusive and more
> or less perpetual property rights, but we do not always do so. In the
> case of copyrights, and in particular the length of the copyright term,
> it is to me not enough simply to observe that some works have a value
> that extends more than 50 years after the author's death. If the
> "property right" known as "copyright" expires at that point, the value
> of the work will not be lost. It is simply reallocated to the public,
> and away from the author's heirs and assigns, in the form of lower prices
> and lower transaction costs for the producers of new works. It also
> eliminates the dead weight loss in transaction costs for those members
> of the public who wish to make use of works that have no significant
> economic value.

     The question is not the value of the work, but the value of the right to exploit the work. "Moby Dick" is still valuable and is still exploited (as is Plato's "Republic"). The question is whether, in addition to the value of the work, we want to have an additional asset, the right to exclude others from exploiting the work. Melville's descendents can still publish "Moby Dick" and receive value for it; they simply cannot prevent Penguin Books from doing so as well.

Buford C. Terrell                       1303 San Jacinto Street
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