Re: Copyright Extension Bill Passes Congress

On 25 Nov 1998, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> On 11/24/98, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
> >
> > 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.

Based upon my personal experience as an editor from 1964 onward, would say the majority of proposals are rejected because they are not what the publisher is looking for. They fall outside the publishers' interests. I have written many rejections that encourage the author to continue to seek a publisher.

I also can also tell you I have yet to meet an author or artist whose reliance on copying others' works to the point of potential infringement dominated his/her creative spirit. Quite the opposite. Most creativeness seems to be to spring from originality.

> 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.

You assume "poor quality" as if creativity were soap or some other commodity. Art is what you bring to it; most creativity addresses a defined audience with specific information presented in a specific syntax.

> 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.

I am not so sure about philosophical arguments that ignore publishers and distributors. It is publishers' investment that gives copyright the power to encourage creativity. I don't think you get *any* movies, for instance, without securing investments. It is the distributors who enable publishers to recoup and profit.

> 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?

Just think of the history that fills the news each day. Check some of the movies of the week or the 'fictional' plots of LAW AND ORDER and NYPD BLUE -- now in syndication for some time. The public domain must double every few years. How much of it can we stand?

Albert Henderson, Editor, PUBLISHING RESEARCH QUARTERLY <70244.1532[_at_]compuserve.com> Received on Mon Nov 30 1998 - 22:12:22 GMT