Re: Copyright Extension Bill Passes Congress

On 11/24/98, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
>
> On Fri, 20 Nov 1998, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> > On 11/18/98, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
> > >
> > > What's wrong with obtaining permission? Many movies today are
> > > derived, with permission, from books, plays, and other movies.
> > > It is really a path favored by industry professionals.
> >
> > If the second artist (author, director, etc.) is required to obtain
> > permission, then his or her artistic vision may be compromised by
> > the constraints placed upon use of the work by the copyright owner.
> > With public domain works, the second artist is free to use the work
> > in any manner that he or she sees fit. This is much more in keeping
> > with our free speech tradition. Copyright is necessary to ensure
> > that new works are created; but the public domain is necessary to
> > ensure that artists have a store of prior works upon which to draw
> > in their creative endeavors.
>
> There is no shortage of new work being produced under
> present constraints. Most publishers I know report
> rejection rates of unsolicited materials over 90%.
>
> What's the problem?

Why are these manuscripts being rejected? I venture that some of them are being rejected because the publishers don't want to risk infringement lawsuits. But the vast majority are probably being rejected because they are of poor quality. Adding to the public domain from which authors draw might result in an improvement in quality. We simply don't know; the point is that the free market should be free to make that choice.

Your statistic raises another interesting issue: why is there an oversupply of artistic works? If people are trying to write because they think there's big money in it, then maybe we should REDUCE the term of copyright, to reduce the economic incentive, and thereby reduce the number of bad works being created. I don't really believe that, because I think it would deter talented people as well as untalented ones. In other words, 90% of everything is of poor quality. That's going to be true no matter what the term is.

On the other hand, if people are going to write and create enough quality works even without the promise of big money, then society would be better off without copyright. Those quality works would get more widely distributed, and under this assumption, it wouldn't affect the supply of works at all. Most people would reply "but that would be unfair." That's because the natural rights argument for copyright is more intuitive than the utilitarian argument. And I don't disagree that some term of copyright would be justified under a natural rights notion even if it were not also utilitarian. But I do think that this "natural right" ought to be limited in duration in order to serve the utilitarian purpose promoted by the public domain. Even those countries with a strong natural rights tradition (e.g., France) agree that copyright should not be unlimited in duration.

So again, I ask: do you think there should be a public domain at all? If so, when would you have new works enter the public domain?

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Wed Nov 25 1998 - 20:10:31 GMT