Re: Copyright Extension Bill Passes Congress

Mr. Greenberg goes on at great length asserting that copyrights are property, something which I have occasionally asserted and never denied. But the question of whether copyrights are property
(they are) differs from the question of whether they should be
property (they probably should, but Congress would probably be within its rights to make them non-transferrable and non-heritable if it thought that by so doing it would better encourage the arts). This latter question, meanwhile, is separate from the question of whether the copyrighted WORK is property. This third question is separate in turn from the question of WHOSE property the copyrightd WORK is, if it be accepted as property. Those who hold up land ownership as a mirror of perfection to copyright seem to assume that a copyright is, or should be, a TITLE to the copyrighted work, analagous in every way possible to a title to land held in fee simple. I reject the notion that copyright either does or should relate to the work exactly as a modern fee-simple land title relates to the land. Others have pointed out that even if this notion be accepted it still only begs a great many questions analogous to the questions of how the freeholder's use of his land should be regulated in the public interest, and under what circumstances the community can annul the title in the public interest. I leave these points to others to make, since I reject the "copyright is to work as land title is to land" equation from the start.

Mr. Monachino fails to note the distinction between the WORK itself on the one hand, and COPIES of the work on the other. The WORK consists entirely of INTANGIBLE aspects of an object in which it is incorporated. Hence the buyer of a sculpture acquires the tangible sculpture as his chattel. The WORK which the sculpture manifests, however, consists of those non-utilitarian aspects of the sculpture that can be COPIED. It is these intangible aspects of the sculpture that I consider to be a public good, or, if they are to be considered "property", to be public property.

The analogy of writings and inventions to public goods (such as lighthouses) has been made by others as well. The analogy specifically to public lands was made by James Madison (d. 1836), in his essay "Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments"
(Not published until 1914, when it appeared as "Aspects of Monopoly
One Hundred Years Ago, Harper's Monthly Magazine, 128, 489-495, March 1914):

     Monopolies,  though  in  certain cases useful, 
     ought to be granted  with  caution,  and guarded 
     with  strictness  against  abuse.  The Constitution  
     of  the  United States has limited them to  two
     cases--the  authors  of  Books, and of useful  
     inventions,  in both which they are considered as 
     a compensation  for  a  benefit actually  gained  
     to  the community as a purchase of  property
     which  the owner   might  otherwise  withhold  from  
     public  use.  There  can be no just objection to a 
     temporary monopoly in  these cases;  but  it ought  
     to be temporary because under that limitation a 
     sufficient recompence and encouragement may be given.

My preferred view is that in works of authorship IN THEMSELVES it is no more appropriate to claim "ownership" than it would be for someone to claim to own the sun. Works of authorship are inherently SHARED creatures, ideally free to all who have the wit to percieve and use them. In the push-and-shove, workaday world we must compromise this ideal by awarding limited monopoly privileges over certain uses of works of authorhip. But only "for limited times." Copyright is a necessary evil in an imperfect world. Absurdly long copyrights are an unnecessary evil.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Fri Oct 30 1998 - 20:18:22 GMT