Re: copyright expiration as a spur to creativity

On 02 Sep 1998, Joseph Liu <liu3[_at_]law.harvard.edu> wrote:
>
> 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.

What efficiency is there in the allocation and development of land? Plenty of downtown property is undeveloped while owners await a sufficiently lucrative proposal. Other property is over-developed and unrentable. I think your property theories are aritrary political justifications. I see no intrinsic difference in "exclusive right" that compels such radically different, second-class, treatment of authors under the law.

> 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.

I think your theory is relies on form rather than substance.

Obviously counterfeit copies dilute the value. The owner of real estate without fences that is routinely used by trespassers loses its value too.

The emergence of photocopying as the linchpin of resource sharing has interfered with dissemination in the following way. The numbers of copies printed of most academic books has been declining. If you want to know about "scarce" ask Michael Scarpetti elsewhere on this thread about finding a used copy of the book he wants. Analyses of 70 large university libraries indicates they have been acquiring fewer and fewer titles -- a shrinking fraction of what's published. The Thor Decision, which compelled destruction of publishers' inventories, was the coup de grace.

> 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 law, then, is failing. The expansion of "fair use" has encouraged a reduction in library growth, for instance, and the decimation of university library collections: a major source of dissemination. Scientists who once read (and copied from) circulating "duplicate" subscriptions now must resort to databases and cites from published sources to order copies of articles. Not surprisingly, foreign sources have emerged to supply hundreds of thousands of copies to U.S. researchers.

> 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.

Not so. In commercial real estate, a "good location" attracts investment of developers and tenants who then use that location to serve the public. The more "traffic" the better they like it. How is that so different from a publisher investing in a book? Unfortunately, the present copyright law abuses the interests of the publisher and author in ways that landlords and tenants would not tolerate. The "exclusive right" is no longer exclusive.

> 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.

The longer term encourages (A) greater investment by publishers and producers (B) young talent who might easily choose some other outlet or career.

Under the present copyright law, many creative artists, musicians, actors, writers, software developers etc., etc. must underwrite their own development. A more stable and secure exclusive right might encourage more commercial investment in the form of grants, advances, patronage, scholarships, and works made for hire.

Albert Henderson, Editor, PUBLISHING RESEARCH QUARTERLY <70244.1532[_at_]compuserve.com> Received on Tue Sep 08 1998 - 13:30:37 GMT