Re: copyright expiration as a spur to creativity

On Mon, 24 Aug 1998, Michael Bradley <michael[_at_]vision-soft.com> wrote:
>
> Dan L. Burk <burkdanl[_at_]shu.edu> wrote:
> >
> > The point of property ownership in intellectual goods is to prompt
> > the creation of a resource that will be inexhaustible once it comes
> > into existence, militating in favor of relatively short, limited
> > periods of ownership.
>
> Taking this argument, for the moment, as the starting point, the
> next question would seem to be, how long is long enough?
>
> Short of a well-designed scientific experiment, that question
> can only be answered by IP creators, and in Congress, both individual
> and corporate creators lobbied for the longer term. So I would say the
> question has been answered: the longer the better.

The problem of the duration of copyright is underlined by policies arguments such as economic arguments and moral arguments. One of them is to reward authors for creating a work. It brings progress and knowledge to society in the sense that the public benefit the creativity of this author. It is interesting to make a connection between how creative or original is the work and how long it should be protected. We may think the more a work is original the longer it should protected. Following that statement it would appear natural that a book or an art painting must benefit the longest protection as possible. But what about computer softwares which are very often obsolete after two years or so and which do not require a similar of creativity. It seems more difficult to justify a long period of protection for that particular kind of work. On the other hand it is possible to argue that a computer or database copyrightable work requires considerable investment, much higher than makimg a painting or a photograph. That leads us to consider the concept of originality. What is this concept, is it the sweat of the brow doctrine or the de minimis principle as defined in the the Feist case. Starting from the first concept, the sweat of the brow doctrine, we will reach an opposite conclusion to the first one namely that computer software should benefit a longer period of protection than books or paintings since they require bigger investment. In conclusion I would say that that question is not as simple as it appears at first glance. You have to take into account all the type of work that copyright law covers and all the different concept of originality.

Indeed it is self evident that any work whatever original it is, must benefit the same duration of protection.

Alan Ragueneau.
Dea de propriete intellectuelle (Nantes - France) Currently enrolled at the LLM program in UCLA RAGUENEA[_at_]student.law.ucla.edu Received on Tue Aug 25 1998 - 20:28:12 GMT