Re: actuaries and copyright extension

Mark Lemley writes:
>
> Well, from an economic point of view, works of intellectual property
> simply *are* public goods, if by that you mean goods that exhibit the
> characteristics of nonexcludability and nonrivalrous consumption. In
> this, they clearly differ from tangible property.

Surely the IP rights are all about `excludability'. I own a copyright so I can exclude you from trespassing on my copyrights by making unauthorized copies. I own a patent so I can exclude you from trespassing on my patent rights by making and selling my invention. My property lecturer taught me that property was simply a bunch of rights with certain characteristics - `excludability' being one of the most important.  

> Regardless, one could choose to treat works of intellectual property
> in the same way as tangible property. Historically we haven't done
> so, and I don't think it is a particularly good idea. But there is
> certainly a growing group out there that thinks of them in that way.

The history of real property law exhibits some similarities here. Real property was originally in English law a public good (owned by the Crown) with limited rights granted to citizens effectively at the pleasure of the Crown in return for specified `rents'. Every real property interest was more like a lease than the current freehold interest. Even today in most common law jurisdictions, real property is owned by the Crown; citizens merely own interests in the real property.

Of course most citizens aren't even aware that they don't own what they consider to be their own property because freehold interests grant virtually the same rights as outright ownership.

However with IP rights there are some fundamental differences. Copyright and patent are relatively recent legal creations, certainly much more recent than tangible property rights. They were created for very specific purposes:

• patent primarily to encourage publication of details about inventions and manufacturing methods so that they were not lost and to allow subsequent improvement; and
• less altruistically originally, but eventually to protect the investment of authors and publishers in creating and publishing works, to encourage more marginal works to be published when otherwise they would not be.

To adopt the leasehold analogy:

• in patent, the public grants the patentee a lease in the monopoly in the invention in return for which the patentee provides a disclosure of the invention
• in copyright, the public grants the owner a lease over the monopoly in certain uses of the work in order to encourage the creation and publication of more works (no copyright and the only way to prevent people copying your work is to control access).

In both there is a balancing act between encouraging publication and allowing that increased publication to be built upon by others.

The fundamental difference is that the property rights exist to encourage the creation of the property. Creation of real property is a little more difficult (although it is done) and encouraging it clearly not the main purpose of protecting real property rights. The value to the public is severly reduced if the public has no access to the creations (if the term is indefinite or too long). The creations are not encouraged if the term is too short.

Unless we make a concious decision to change the purpose for which we have patent and copyright then these issues remain paramount and should prevent us from allowing IP rights to go the same way as real property rights.

Tim Arnold-Moore, LL.B. (Melb)      | Multimedia Database Systems, CITRI  |
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