Re: copyright expiration as a spur to creativity

On 9/8/98, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
>
> On 02 Sep 1998, Joseph Liu <liu3[_at_]law.harvard.edu> wrote:
> >
> > 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.

No, in fact, the difference is substantive. I've pointed out that copyright confers limited rights in order to promote creation and dissemination works and that this is not a justification for real property. The two bodies of law serve very different purposes, and analogies between them therefore must be drawn with care. You have offered nothing to rebut this.

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

I don't know where you get the term "value." In my post above, I was speaking only of scarcity and describing the state of things prior to any consideration of what the law should be. By introducing the terms "counterfeit" and "value" you are assuming the existence of legal protection, *which is the very question we are debating*. This is the classic intellectual property fallacy. The law does not protect intellectual property because it is valuable, as your statement above seems to suggest. Intellectual property is valuable because the law protects it. The interesting question, and the question you seem to be avoiding, is why the law protects it. I have suggested that the reason it protects it is in order to provide incentives for creation and broad dissemination of works (not because it is has "value"), reasons that are not implicated in real property protection. Once again, you haven't offered any explanation for why this difference is irrelevant, other than to draw more analogies to real property.

<snip>
> >
> > 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.

Whether or not the law is failing at its intended purpose, all I want is for you to agree that this is its intended purpose, and that it is different from the purpose behind protecting land. Again, you have not explained why the differences noted above are not relevant.

> > 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.

I'm afraid I don't see how this analogy is relevant. Like many of your other analogies to real property, you make it but don't explain it. Copyright protection, like protection for land, might attract investment and promote rational development of a given resource. But copyright protection also implicates *many other* interests that are simply not implicated in land (e.g. providing incentives for creating it in the first place, promoting broad dissemination because it is not scarce). Just because there are some ways in which intellectual property and real property are similar does not mean that there is no difference between them. (They both use the term "property," but surely that isn't sufficient). Your analogies focus on surface similarities, but you continue to ignore important differences.

Joe.

--
Joe Liu, Climenko Teaching Fellow 
Harvard Law School Langdell 175B
Cambridge, MA 02138
(617) 496-3141; liu3[_at_]law.harvard.edu
http://www.buyerszone.com/personal/jpl/index.html