Re: A mere photograph

Bob Cumbrow <cumbr[_at_]perkinscoie.com> writes, in reply to Larry Urbanski's complaint about a decreasing public domain:
>
> We should not assume that works are more readily available because
> they are in the public domain. Sometimes the copyright monopoly
> will encourage publication and distribution of a work by the owner
> and his licensees, while the same work might not be deemed as
> valuable or as marketable once it goes p.d., and hence may ironically
> become LESS available to the public than it was when it was still
> under copyright.

The decreasing public domain to which Larry referred was that which resulted from automatic renewal in 1992. Automatic renewal affected ONLY works that were already in existence and had been published. Obviously, therefore, this decrease in the public domain could not have had any effect on creation or publication incentives for those works.

Presumably Bob has in mind the idea that a single monopoly is necessary to encourage exploitation of existing works. The idea, I assume, is that if more than one person is free to exploit a work, no one will do it because there is not enough profit to go around. I am aware of no evidence to support this often-made assertion. On the contrary, there is a large market for public domain works, and every year that passes with new works falling into the public domain results in a spate of new editions from publishers who are then free to publish without the costs of obtaining permissions and paying royalties. As far as I can tell the prices for these editions are, on average, much less than for current works, although no one to my knowledge has effected a careful, comprehensive and systematic study. Nor has anyone carefully studied how many new works are NOT created because the underlying works on which they would have been based are under copyright and the transaction costs of negotiating permissions--especially when the copyright owners cannot be found--are too high.

It is precisely such a study that Congress should undertake before rushing headlong into extending the term of copyright protection even further. Intellectual property is a nondepletable commons (absent legal protection). In this respect it differs fundamentally from tangible property and even most traditional intangibles, like choses in action. Economic efficiency arguments based on analogies to tangible property are simply not valid until they account for this crucial distincion. For a nondepletable commons, a reasonable first-order approximation to an ideal protection rule is to give just enough protection to induce creation and public availability and then allow everyone to take freely (because nondepletability, by definition, means that nobody's use depletes the opportunities for others to make the same or other uses).

And if we are in some doubt, we should err on the side of a larger public domain, because we can always increase protection later. We can count on the voices for more protection to continue to make us aware of the problem. If we err on the side of special interests, however, our democratic system is not up to correcting the mistake later. The public interest is not well represented in Congress on these matters.

Dennis S. Karjala
Professor of Law
Arizona State University
Tempe, Arizona 85287
602-965-4010
602-965-2427 (fax)
dennis.karjala[_at_]asu.edu
Visit the "Opposing Copyright Extension" web page at <http://www.public.asu.edu/~dkarjala> Received on Mon May 05 1997 - 18:51:40 GMT