Re: copyright expiration as a spur to creativity

On 9/1/98, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
>
> On Fri, 28 Aug 1998, Joseph Liu <liu3[_at_]law.harvard.edu> wrote:
> >
> > At some point, a long copyright term may work against the interests of
> > both consumers and future authors. I don't know precisely what that
> > point is, but my original point was that the question should not be
> > left to solely to existing copyright owners.
>
> Why would perpetual copyright deprive interested parties
> any more than ownership of real estate or personal property?
> I must accept that I am denied "access" to your property
> forever unless you are willing to loan, lease, or sell it.

This basically raises the same debate from an earlier thread about the difference between real property and intellectual property. At the risk of repeating some of the points made earlier, let me try to lay out the difference. The law protects both real property and intellectual property, yes, but for substantially different reasons. Land is protected largely because it is scarce; they're not making any more of it. By granting exclusive rights in land, the law facilitates the efficient allocation and development of a scarce resource.

By contrast, copyright law gives authors certain limited rights as an incentive to produce creative works. (Note that this is *not* a justification for real property protection because real property already exists). Moreover, once produced, a copyrighted work is not scarce in the way that land is scarce. Rather, it can be copied a million times and enjoyed by a million different people without depleting the original supply of that work. (By contrast, you can't copy or produce more land). Furthermore, for copyright law purposes, the more people who can enjoy the work the better. The whole purpose of the copyright grant (at least in the U.S.) is to facilitate production *and dissemination* of creative works for the benefit of the public as a whole. (Again, another interest for which there is no direct real property parallel).

The reason all of these differences are important is because this means that the proper scope of copyright protection is a much more complicated question than your analogies to real property suggest. On the one hand, we need to provide incentives for the creation of works; on the other hand, once they are created, we want to promote their widest possible dissemination. The tricky part is that these two interests exist in some tension. The greater the protection, the more works produced, but the less access consumers have to the works that are produced. These interests are not implicated in the case of real property.

With specific respect to the term of copyright protection, this is relevant because at some point, additional copyright protection may result in very little additional creative incentive, while at the same time restricting broad access to already-created copyrighted works. Again, I'm not sure exactly where that point might be. In fact, that point may be quite far out. But the basic point is that focusing only on incentives for production misses a huge part of the reason for copyright law. And an even more basic point is that analogies to real property need to be drawn with care.

(Sorry about the length of this post.)

Joe.

--
Joe Liu, Climenko Teaching Fellow 
Harvard Law School Langdell 175B
Cambridge, MA 02138
(617) 496-3141; liu3[_at_]law.harvard.edu
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