Re: copyright expiration as a spur to creativity

On 11 Aug 1998, Dan L. Burk <burkdanl[_at_]shu.edu> wrote:
>
> On 8/10/98, Albert Henderson <NobleStation[_at_]compuserve.com> wrote:
> >
> > You are a prisoner of "congestible" terminology. Property rights in
> > terms of "what's mine" and "what's yours" are very clear. In short,
> > you can't squat on my turf and you can't publish my prose without my
> > permission.
>
> You are making unwarranted assumptions about what *should* be yours
> and what *should* be mine. I can squat on your turf and publish your
> prose if we write the law to say that I can (and, in fact, we have so
> written it, under conditions like adverse posession or fair use).

It seems to me that you have been making assumptions what the copyright law "should" allow. The expansion of unauthorized copying was precipitated by the photocopier and photo-offset lithography, not any intrinsic economic value.

> > If creative works were not unique, who would want to publish them?
> > Who would want to make copies? The idea that creative works are
> > not unique and valuable went out with the Philistines (12th C. BC).
>
> Publication and copying generate as much of the creative work as we
> wish. We can't publish or copy land. You have a tendency to forget
> that.

You can use land in various ways without consuming it. Land ownership includes a bundle of rights that can be transferred, licensed, shared, or sold. The value of land depends on legal protection of ownership. Without such protections, no one would invest.  

It's not so different.

Speaking of forgetting, don't forget the conversion of open range by the Homestead Act. Defining and securing property ownership was clearly preferable to unfettered sharing.

> > > You seem to have a difficult time with the concept that
> > > intellectual goods are infinitely reproducable at zero cost,
> > > but land is not.
> >
> > Then it's OK, because it costs you nothing, for me to inhabit your
> > yard, swim in your pool, use your john, love your wife, and tell
> > tales around the neighborhood.
>
> We cannot both engage in those activities at the same time. We can,
> of course, both tell tales around the neighborhood at the same time,
> making it the only example of a public good that you have offered.

You have such a small yard. When it gets too congested, we could just take turns.

> > > Perhaps I am not explaining it well. Richard Epstein does a nice
> > > job in a recent essay:
> > >
> > > "The person who has internalized the labor should, as a first
> > > approximation, be allowed to internalize the gain. That statement
> > > becomes an exaggeration with intellectual property, but as an
> > > instinct it works most powerfully with land, where only one person
> > > will ever be in that position to internalize the gain in question:
> > > no matter how hard one labors, you cannot "copy" the crops."
> >
> > Epstein apparently does not realize that someone can certainly steal
> > some crops far below the cost of producing them.
>
> Yes, but in that case, the person who grew them has less. No one can
> "steal" your intellectual property, because you still have it. They
> can only infringe you exclusive rights to it.

Are you saying that artists and authors do not lose income from infringements of copyrighted property?

> > Stealing "only what I can eat" makes no impact on the market
>
> That statement is obviously false (and I cannot resist the obligatory
> cite to Wickard v. Filburn)

Just so. You have made my point. Thank you. Let all copiers pay royalties.

Albert Henderson, Editor, PUBLISHING RESEARCH QUARTERLY 70244.1532[_at_]compuserve.com Received on Thu Aug 13 1998 - 19:18:09 GMT