Difference between revisions of "Against perpetual copyright"

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<table border="1" cellspacing="0" cellpadding="5" align="center"><td>This article is a work in progress. Before you edit, please view the [http://wiki.lessig.org/index.php/Talk:Against_perpetual_copyright Discussion Page]</td></table><br />
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In a ''New York Times'' op-ed article on May 20, 2007 ([http://www.nytimes.com/2007/05/20/opinion/20helprin.html?ex=1337313600&en=3571064d77055f41&ei=5124&partner=permalink&exprod=permalink "A Great Idea Lives Forever. Shouldn’t Its Copyright?"]), Mark Helprin suggests that copyrights, like physical property rights, should last forever. But in fact, copyrights and physical property rights are vastly different domains, both inherently and in their effects on society. A closer look at the consequences of perpetual copyright shows Helprin's suggestion to be based on faulty arguments.
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At the core of Helprin's article is the idea that physical and intellectual property are the same — that intellectual property ought to have the same term limit (none) as physical property. Physical property is quite different in every respect from intellectual property. Intellectual products by their nature are copied and shared freely and it is on the whole good for society that they be so.  Copyright law has from its inception in the early 18th century imposed a term limit upon intellectual property. This limit recognizes the great benefit conferred upon the public, and on the common good, to the vast majority, if the state refrains from punishing those who copy and share works for violating an author's "copyright," after a certain point in time.
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The framers understood that the state-created property monopoly of copyright was justifiable only to the extent that it would "promote the progress of Science and the Useful Arts." It created therefore a fixed, and originally very short, period of time in which one might sell copies of one's works with state protection. Without this protection, in the nature of intellectual things, piracy was naturally rampant. After authors have been given a decent interval to exploit their property, the monopoly to the work is ended, and the work may be reabsorbed into the culture at large, be remixed into new works, for the public benefit for the rest of time: hence the name "Public Domain" which refers to the domain of this public good.
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But why are intellectual and physical property different? How are the differences between laws related to the differences between domains? Would it really be so bad for society if they were treated the same way?  This article explores the answers.
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==A misguided sense of public good==
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Helprin argues that copyright is for the "Public Good", a stance that everyone can agree with. But then Helprin turns the concept of "Public Good" on its head by asserting that the "Public Good" is something that can only be measured by profit:"'Freeing' a literary work into the public domain is less a public benefit than a transfer of wealth from the families of American writers to the executives and stockholders of various businesses who will continue to profit"
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Helprin makes no mention of the "Public Good" that comes from the content of a work being placed into the Public Domain to be discussed in print, copied, derived, modified, mixed, remixed, or respun into some new work. He makes no mention of the Public Good that can come about by the creation of a body of brand new artistic expressions by others, without having to negotiate and pay for the privilege. Ninth Circuit Court Judge Alex Kozinski aptly said that the public good requires a mix of public and private in the dissenting opinion for the 1993 White v. Samsung Electronics case:
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<blockquote>“Private property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation; it stimulates the flourishing of our culture; it protects the moral entitlements of people to the fruits of their labors. But reducing too much to private property can be bad medicine. Private land, for instance, is far more useful if separated from other private land by public streets, roads and highways. Public parks, utility rights-of-way and sewers reduce the amount of land in private hands, but vastly enhance the value of the property that remains.
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So too with intellectual property. Overprotecting intellectual property is as harmful as underprotecting it. Creativity requires a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.”</blockquote>
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Copyright is a monopoly property right that has always been strictly limited to a term of years.  The mass of society has a tremendous interest in the public domain. Those who suggest eliminating the great social good of the public domain must show the greater positive benefits of wiping the public domain out, benefiting only distant heirs only of those artists whose works have any significance beyond roughly a century. Helprin has not. All he does is refer to the metaphorical similarity he imagines between intellectual and physical property.  Copyright in the United States was created for one purpose only, as stated in the Constitution: "to promote the Progress of Science and useful Arts". To destroy the public domain would postively harm the progress of science and the useful arts, killing off all creativity based on others' older works, not to mention the huge public benefit to the world of being free to reprint and quote from older works without the gigantic hassles and accounting and transactions costs licensing negotiation with unascertainable groups of heirs. The great blow to the public interest of eliminating the public domain also would confer a benefit of value only to an infinitesmal handful of those artists whose works retain any value at all, a century or more after publication.  Requiring the whole world to incur the enormous hassles of permissions and licensing to quote or copy, or create derivative works, of all old properties, would be an immensely costly burden imposed on the vast bulk of society, for the benefit a very few. 
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Helprin's argument appears to be a complete misreading of what is "public good" and how Congress is authorized to achieve that "public good".
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==A misguided concept of public domain==
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The United States Constitution gives the Congress the power to grant the author exclusive rights to their works for a limited time so long as it Promotes the Progress of the Useful Arts and Sciences. Helprin argues that this final step of releasing the work into the Public Domain is a confiscation.
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:"Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of '''confiscation''' not visited upon anyone else?"
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The only way this argument works is if Helprin completely ignores that Copyright grants a legal monopoly where no natural monopoly exists, that this monopoly is created and granted to authors only because doing so Promotes the Progress of Science and the Useful Arts, and that the cost of this monopoly is ''only'' justified by a balanced amount of Public Good it will create in the end.
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Helprin's argument ignores this balance, this tradeoff, and simply portrays Copyright as some sort of Natural Right and therefore the expiration of copyright and placing a work in the Public Domain is a "confiscation". The problem is that there is no basis for this Natural Right in the US Constitution. The Courts have consistently reinforced the notion that Copyright is not a Natural Right. The public, on the other hand, certainly posesses rights (whether "natural" or not) of free trade and free expression.  The right of free trade ordinarily would mean that any publisher has the right to bring out an edition of any book in competition with other publishers.  The right of free expression ordinarily would mean that anyone who speaks lawfully and truthfully may do so making use of others' words as well as his own.  Yet the public refrains from exercising its full rights of free trade and free expression for a time, in order to encourage authors by providing a stable market for new works.  So nothing has been taken from the author when a copyright expires.  The public merely resumes its full rights, which for a time it generously refrained from exercising.
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The U.S. Supreme Court has described the relationship of the public to a patentee in the case of ''Scott Paper v. Marcalus'':
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:The aim of the patent laws is not only that members of the public ''shall be free'' to manufacture the product or employ the process disclosed by the expired patent, but also that the consuming public at large shall receive the benefits of the'' unrestricted exploitation, by others,'' of its disclosures....The public'' has invested'' in such ''free use'' by the ''grant of a monopoly'' to the patentee for a limited time. (''Scott Paper Co. v. Marcalus Mfg. Co., Inc.,'' 67 USPQ 193, at 196. 1945. Stone, J. Emphasis added.)
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The same words, with only a few modifications, describe the relationship of the public to a copyright holder as well:  The aim of the copyright laws ought to be not only that members of the public shall be free to reproduce the expression formerly monopolized under the expired copyright, but also that the consuming public at large shall receive the benefits of the unrestricted exploitation, by others, of the work's expression. The public has invested in such free use by the grant of a monopoly to the author for a limited time.
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==Extracting a living has nothing to do with infinite copyright terms==
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Helprin's argument also invokes an emotional plea for authors as struggling artists and uses this as a basis for his argument that copyright should be infinite.
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:Would it not be just and fair for those who try to '''extract a living''' from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else?
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This does not stand up to even basic scrutiny. Copyright terms are already set to expire 70 years after the author's death. If an author cannot "extract a living" while he is alive, how does making copyright terms last a thousand more years allow the author to "extract a living" when he is long-since dead?
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Helprin's error is asserting that the problem of "extracting a living" as an author has something to do with the duration of copyright.  The two are completely unrelated. Yes, the financial life of an artist, a writer, a musician, can be difficult. The cause of that problem, however, is not that copyright terms are too short. If copyright terms were a millennium in duration, it would not be any easier to "extract a living" as an author. In fact, it would be harder, because they would find it more difficult and costly to build on earlier works, and more legally risky to draw inspiration from them.
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==Infinite copyright would impose unmanageable burdens on society==
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Helprin does not present the full costs of infinite copyright. Instead he presents it solely from the point of view of the author's benefit if their copyright were made infinite. However, were the idea of infinite copyright to be taken to its full conclusion, then authors would be paying the heirs of all the ancient Greek tragedies every time they created a derivation of Homer's Odyssey. The works of William Shakespeare and Charles Dickens would require permission from someone's distant heir to have a character named "Romeo" or a story about the spirit of Christmas. Many of Disney's stories (Snow White and the Seven Dwarfs, Sleeping Beauty, Cinderella, etc) are repackaged versions of old fairy tales that are in the Public Domain. Helprin is best known for his novel "Winter's Tale," which is loosely based on a Shakespearean work by the same name.  This raises the question as to whether Helprin intends to pay royalties to Shakespeare's descendants.
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The net effect of infinite copyright would tend to discourage the creation of new works, rather than encourage them, and the overall impact on the Public Good would be much more negative than whatever positive bonus comes from paying the thousandth generation of some author's descendants.
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This doesn't include all the negative costs associated with the simple logistics of tracking the authors and their heirs for all eternity. The owner of all personalty is one to one and relatively easy to ascertain, and the bill of sale simple.  In real estate, the owner is clearly recorded as to each part of one divisible pie. Intellectual works are not like a pie. They are divisible into many overlapping layers of rights both exclusive and non-exclusive each of which may not be mutually exclusive of the other.  Thus some copyright situations become complex, sometimes paralyzingly so.  It can take a specialist lawyer, not even a general practitioner, to figure out these complex relationships, and the transaction costs of locating, reading, and understanding a multiplicity of contracts, each of which has been generated independently of the others (and often in conflict with them) is high—very high.  In addition, many times contracts are missing, as authors are in the habit of blindly signing away rights to third parties without any awareness of what they are doing, over and over, without even bothering to retain a copy.  To reduce costs, corporations use paraprofessionals to administer rights.  This leads to ubiquitous errors (as well as the occasional rent seeking fraud) and to potentially conflicting claims of ownership, agency, authorizations to license, associated rights of notice and approval among many parties, including the creator, his or her licensing agent, publishers with various overlapping rights and interests, the beneficiaries and their heirs and assignees, and agents and attornies for all of the above. The administration of complex copyright situations can be even more structurally complex than a routine mid-size corporate reorganization or bankruptcy and involve just as much if not more due diligence, at least in theory.  All these parties and contracts proliferate independently of each other making conflicts and errors common. While copyright rights and interests can be tracked—and they are by businesses dedicated to the task when economically warranted—the vast majority of creations do not have any economic value a few years after creation, nothing that would justify the maintainence of an expensive transactional and payment apparatus that all of society would be endlessly forced to engage in for eternity.
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===Orphaned works===
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One outcome of the already existing copyright terms is the issue of "[[orphaned works]]": works that are still thought to be protected by copyright, but the current copyright holder cannot be found because the original author disappeared, died, published anonymously, and so on. Were copyright terms to be even longer, the problem of Orphaned Works would only be worse.
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==Differences between physical property and intellectual works==
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===Tangible goods are rivalrous goods ===
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For one person to gain some tangible item, another person must lose it. For one person to gain the ownership of some piece of land, the previous owner must surrender ownership. This is the ordinary state of physical property, and the laws around physical property are designed around this fact. Property taxes, zoning laws, and similar legal constructs are examples of how the law relates to physical property.
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===Intellectual works are non-rivalrous ===
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Intellectual works are ordinarily non-rivalrous.  It is possible for someone to teach a work of the mind to another without unlearning it himself.  For example, one, or two, or a hundred people can memorize the same poem at the same time.  Here the term "work of the mind"  refers not to physical items such books or compact discs or DVD's, but rather to the intangible content those physical objects contain.
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Because of the non-rivalrous nature of intellectual works,  the possibility is higher than with rivalrous goods that an unrestrained market for new works will fail.  The initial publisher of the work, who pays the author, has the first-to-market advantage, but this might not be enough to compensate for the second-comer's advantage in not having to pay the author.  Note that failure in an unrestricted market for non-rivalrous goods is not inevitable.  In 1998 the Kenneth Starr report on the Monica Lewinsky affair was offered by three competing publishers, and all seem to have enjoyed good sales.  But that was a case of a work for which there was certain to be a high demand, and for which no author had to be paid.  In other cases demand will be high enough to encourage second-comers, but not high enough for the first comer, the one who pays the author, to recoup.  Publishers will tend to hang back, waiting for someone else to take the chance on paying authors, so that few authors will be able to sell their new works; or the publishers will collude, creating a de-facto form of private copyright without the limitations and accountability of statutory copyright.
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Statutory copyright tries to prevent this sort of market failure by stabilizing the market for new works that must be purchased from their authors.  A publisher who takes a chance on a new work will, if the work be successful, have a limited period of monopoly control over the title.  This temporary freedom from sharp competition acts as an encouragement to publishers to seek out new works from authors, and to offer them to the public.
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==Deprivation==
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The owner of physical property can clearly be deprived of the use of their property by the act of confiscation. But no such deprivation occurs when a work enters the public domain. For this reason alone Helprin's analogy is inapt. This is the most powerful emotional argument the maximalists have on their side, and it is the one most easily demolished. The previous copyright holder can still publish their works, or market them more effectively, or even amend and modify them, at which time they will receive the benefit of continued copyright protection.
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Besides monetary differences, physical property and intellectual creations have deep differences in their respective uses by society. While one's ownership of some object may prevent someone else from owning the very same object, it often does not prevent that person from owning a physically or functionally identical one. (While two people can't have the very same waterfront view, two people can own virtually identical cars.) And because one can own a functionally identical object, another's physical ownership does not generally impede one's own personal behavior or use. A copyright, however, impedes others' behavior, and not just behavior but their speech, because to communicate something someone has already said, you must reproduce it (orally, visually on paper, etc.). To put it simply, a world in which physical property mirrored copyrighted intellectual property would be a world where no one could own anything without paying royalties for it to someone else.  If one happens to find Mr. Helprin's article a most effective argument, and wants to convince others of the same point by using those very effective words, copyright can prevent such speech from taking place. And because new creative works are often derivative in some ways from older works (i.e. mixes of excerpts of older works, original transformations of various kinds), copyrights stifle the ability to create.  How many high school plays would be impossible if Shakespeare's descendants charged a fee for every production?
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==Copyrights are personal property only by analogy ==
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Helprin's entire argument is based on the analogy of a copyright to a piece of real estate.  This is an unsatisfactory analogy for a number of reasons.  To begin with, to the extent that a copyright is "property" at all, it is for the most part treated in law as personal property, not real property.  Besides this, even the analogy to personal property is imperfect.  In particular, the copyright law contains a provision known as "termination rights" (of which Mr Helprin is perfectly aware, for he mentions them in passing) which throw up an extreme exception to any claim that copyrights are property.  In the world of personal property, barring cases of unconscionability or failure of consideration, all sales are final.  If you sell your apple after you take one bite, you don't get a second bite.  The termination rights are provided in copyright law precisely in order to provide authors a second bite at the apple.  But that makes a copyright quite unlike a property right.  If Mr Helprin truly believes that copyrights should be as much like property as possible, he should argue for the abolition of the termination-rights provisions.  But then, the more like personal property copyrights became, the less likely they would be to benefit authors and their heirs.  For in the nature of things, copyrights would almost always be sold irrevocably by the authors to publishers.  Authors in a strong bargaining position would get a royalty contract with a provision for a reversion of rights under certain circumstances.  Most would probably have to settle for less advantageous terms, or even find that they must sell the copyright outright for a lump sum.  In such a case their heirs would see nothing but what came from that one-time payment.
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The existence of an expiration date, on the other hand, does not necessarily make a copyright unlike a piece of personal property.  A number of items of personal property can have expiration dates.  A goldfish that I buy at the pet store is my personal property, but it must eventually die.  An egg that I buy from the grocery store must eventually be eaten or go bad.  A bank check in my wallet is my property, but it may become invalid if it is not cashed within a certain time.  I might buy an option to purchase a commodity for a certain price within a certain time. The option is my property while it lasts.  If I do not exercise the option, it expires, but I have not thereby been "stripped" of my property.  The expiration was inherent to the nature of the property.
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Perhaps Helprin is not comparing the copyright to a piece of real estate, but instead is comparing the work-in-itself to the real estate, and the copyright to the title in the real estate.  The first part, the comparison of a work of authorship to a piece of developed land, is absurd.  The two are nothing alike.  It was noted in the earlier discussion of rivalrous and non-rivalrous goods that works of the mind are intangible.  One can carry a work of the mind--the work itself--in the mind.  One cannot put a house itself into one's mind.  The analogy fails.  But if we go ahead and make the analogy anyhow, comparing the work-in-itself to a piece of land, why should we compare it to a piece of privately-owned land, rather than to a piece of ''public'' property on which the author has made some improvement, in exchange for which the he gets the exclusive right to manage the improvement for a term of years?  For example, if a builder were to build a bridge on public land, and be paid with the privilege of charging tolls for the use of the bridge for a limited term?  Or if a builder were to build a tourist lodge in a public park, and be paid with an exclusive contract to manage the lodge for a term of years?  So the analogy game can be played either way.  If anything, the inherently public and shared nature of works of the human mind would favor comparing the work-in-itself to a piece of public property, rather than to a piece of private property.
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If we pass by these difficulties and let a work of authorship be considered analogous to a house built on private land, we come to the second part of Helprin's analogy, which considers the copyright in the work analogous to the title in the house and land.  This part of Helprin's analogy is even sillier than the first part.  If a private house is taken as the analog of a work of authorship, then the copyright would be analogous to a law passed by the state, forbidding all others from building "substantially similar" houses, even on their own land at their own expense.  (In the U.S., the copyright law does precisely this, since it applies to works of architecture).  If a private house must be taken to be analogous to a work of authorship, the expiration of the copyright is analogous not to the revocation of the title to the house, but is instead analagous to the expiration of the anti-competitive law that forbids all others from using their property in the same way that the first builder used his.
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So the only apt legal analogies to copyright come from the realm of state-granted monopolies, since that is what copyrights in fact are.  The closest analogy is that of a patent for an invention, which always comes with an expiration date.  Yet the expiration of a patent is not a "taking".  It was a giving, of an exclusive privilege in exchange for an invention.
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==Rule against perpetuities==
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The suggestion that a perpetual copyright would place intellectual property on equal footing with physical property ignores the reality that the laws that govern physical property also limit the length of time a property owner can restrict the use of that property -- perhaps not surprisingly, the limit is commonly the lifetime of the owner plus a set number of years.  Under both common law and statute, an owner of physical property cannot place limits on its use for more than a certain number of years after the owner's death (the so-called "rule against perpetuities").  For example, if I own land and want the land to only be used as the site of a church for my particular religion, I can do that.  I can even leave the property to someone in my will, and for a certain period of time after I die, I can make it so that the land continues to be used only as the site for my church.  But only for a limited time; the law won't let me place a "perpetual" restriction on the land.  After the limited time expires, whoever has the property can do whatever they want with it:  sell it; keep the church; tear down the church and build a park, a Wal-Mart, houses or a museum.  In other words, the law recognizes that dead people shouldn't be allowed to control the use of physical property that might be put to better use by the living. 
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The drafters of the Constitution made an analogous recognition of the value of limiting intellectual property rights when they wrote that an exclusive right to one's ideas -- a restriction on others' use of those ideas -- could only be enforced for a limited time.  We assume that it was James Madison who wrote the Constitution's "progress" clause; it is all the more meaningful therefore that, after retiring from the Presidency, Madison wrote a memorandum on "Monopolies [and] Perpetuities..." in which he makes it clear that the limit on copyright and patent was meant precisely to prevent perpetuities.  Perpetuities in land were, for Madison, one of the tools by which European feudal and ecclesiastical estates maintained their power over time.  He thus linked their erasure to political and religious liberty, writing that “Perpetual monopolies...are forbidden...by the Genius of free governments....” 
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It might be objected that the rule against perpetuities is inapposite to Helprin's point.  The rule agains perpetuities limits the term in which a dead owner's will can restrict the use of a piece of land, but it does not prevent the existence, for an indefinite term, of a private title to the land.  However, the analogy to perpetuities is not as off-point as it may seem.  For Helprin, the copyright is first and foremost an author's right.  Helprin's argument roots itself in his view of the deep and personal relationship between the author and a work.  Yet for a copyright to be assumed by someone who is not the author at all is prima facie a violation of this relationship.  The inconsistency is resolved only if one supposes the existence of some sort of ongoing relationship between the author and the work.  Hence the copyright, in a world in which authors are inseparable from their works, has the character of a perpetuity.
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Perpetuities in land, moreover, were not all that mattered to Madison; his memorandum opens with a remark on what we now call intellectual property: 
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"Monoplies, tho' in certain cases useful, ought to be granted with caution, and guarded with strictness against abuse.  The Constitution of the U. S. 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 withold 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."  (See:  "Madison's ‘Detached Memoranda.’" ''William and Mary Quarterly'', 3d ser., 3 (1946): 534-68.)
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==Surface glosses==
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Mr. Helprin writes:
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:"The flow and proportion of the elements of a work of art, its subtle engineering, even its surface glosses, combine substance and style indistinguishably in a creation for which the right of property is natural and becoming."
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Surface glosses? At this point, it seems to me that Mr. Helprin is confusing a physical painting, from the image depicted in the painting. No one could feasibly claim that the property rights the owner of a particular painting enjoys should be stripped away after a period of time, nor is this reflected in the copyright law. Instead, it is the exclusive right to reproduce, to modify, and to derive from that image new works that expires for the copyright holder.
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Let's take Picasso's painting, Guernica. Clearly the painting on the canvas -- what we would call the original -- can be bought and sold forever. However there is another Picasso painting called Guernica, and this is the reproduction of that original Art, in the millions. Let's assume for the moment that Guernica is covered by copyright (or some other intellectual property right). In this case, these millions of reproductions and copies have both value and existence independent of the physical version. They operate in their own regime. The peculiar nature of these copies, and the fact that one can make them without much effort, demands a different set of policies of fairness and encouragement. This subset of the law contains copyrights.
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But he doesn't have his manuscript in mind. He is thinking of the abstract virtual notion of the book as a reproducible intangible. However when it comes to protection of that work, he conflates the two into one. There's no difference between these two classes of property -- tangible and intangible  -- he claims, and this claim is central to his argument. But if Mr. Helprin really believed that there was little difference between real and intellectual property, he should not be advocating the infinite extension of copyright, but the immediate elimination of it.  After all, if tangible and intangible property are truly so indistinguishable, then the current property laws should cover both. Why have redundant laws?
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==Who benefits from sale==
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And why assume it is his descendents who benefit from the sale? As a physical good there's no need for the Art to remain in the ownership of Picasso's descendents. In fact, over the long-term, the parties who will make the most money from the sale and resale of this good are not Picasso's heirs, but the highest bidder.  The millions made in the future by this Art are zero benefit to Picasso himself. To use Helprins' example of a house one might build: In the long-term, the greatest beneficiaries of a house will most likely not be the children of the builder, but a long chain of unrelated others that live in the future. The builder himself gains nothing of that later value. The benefits may stay in with his genes for a generation or two, if that, and then, if history is any guide, the benefits go to the wisest investor.
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If the original Guernica (or any of Picasso's other paintings) had to return to the commons after Picasso's death, then that fact could diminish the value of his work during his lifetime, and thus affect his livelihood. Is there any evidence that copies behave in the same manner? Is there any evidence that had copyright been infinite from the beginning of history -- and that any literary or artistic use of a character, phrase, or plot line from the Greeks, Romans, and the Bible would have required permission and probably payment to someone  -- that society would be both wealthier and richer?  It is hard to imagine.
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== Cultural economics:  more money to dead authors means less for living authors ==
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It has been remarked above that intellectual works are inherently non-rivalrous:  access to an intangible good is not necessarily a zero-sum situation.  Nevertheless zero-sum arithmetic can influence the cultural marketplace.  This is most easily illustrated by means of an example.  A church denomination printing a hymnal will of course include old favorites.  They may also, however, encourage living writers to contribute words or music to the new hymnal.  A percentage of the price of each unit sold will be set aside to pay copyright royalties.  The money will be distributed among the various rightsholders whose works appear in the hymnal, in proportion to the size of their contributions.  An author who writes four stanzas of a new lyric will generally get more than an author who writes only one new stanza for an old lyric.  A composer who harmonizes an old tune will generally get less than a composer who writes a complete new tune with harmonization.  But all claimants will get a share.  However, if the publisher had to pay royalties to the eatates of George Herbert (d. 1633) and J. S. Bach (d. 1750), it would probably do so.  Works by these old authors are enduring favorites.  The publisher excludes them from the collection at its peril.  But the more the publisher would have to pay to the estates of long-dead authors, the less it would have to pay living authors for their contributions.  Note that this does not necessarily work the other way.  If a hymnal contains much ''publici juris'' material, the pool of clearance money is not necessarily distributed among fewer claimants.  Instead the publisher may simply pocket a share of the clearance money in proportion to the amount public domain material.  Yet if there were no ''publici juris'' material at all due to copyrights lasting for centuries or millenia, the heavy toll paid to the estates of dead authors would inevitably be paid at the expense of living authors.
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Helprin shows some knowledge of the book-trade where he writes
 +
 
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:"Barnes & Noble is able to publish price-reduced non-copyrighted works not so much because it saves the 10 percent to 15 percent of revenue that would go to the gruel-eating authors, but because it saves the 50 percent that would go to the publishers. Booksellers that publish their own titles benefit not from escaping the author’s copyright, but the previous publisher’s exercise of a grant of rights (limited, authors take note, to 35 years). “Freeing” a literary work into the public domain is less a public benefit than a transfer of wealth from the families of American writers to the executives and stockholders of various businesses who will continue to profit from, for example, “The Garden Party,” while the descendants of Katherine Mansfield will not."
 +
 
 +
but his view is distorted.  It is true that most of the price of a copyrighted book does not go to author's royalties.  Rather, it is the monopolist's mark-up.  Books from which the copyright has expired are in general cheaper, page for page, than copyrighted books because the market for them is competitive.  The monopolist's surplus has become a consumer's surplus.  This is ordinarily considered a good thing.  The entire public--including the descendants of Katherine Mansfield--is ordinarily thought to benefit from free markets and the creation of consumer surpluses.
 +
 
 +
==Comparisons to slavery==
 +
 
 +
Helprin writes: "[Copyright] is, then, for the public good. But it might also be for the public good were Congress to allow the enslavement of foreign captives and their descendants (this was tried); the seizure of Bill Gates’s bankbook; or the ruthless suppression of Alec Baldwin."
 +
Is Mr. Helprin seriously suggesting that the limitations on copyright are tantamount to slavery? No one compels an artist to create, he does it of his own volition. Thereafter, if he chooses to share his work with the world, he is entitled to certain (limited) rights in exchange for that act of sharing. 
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Helprin correctly observes that copyright is designed to promote the public good but soon goes far off track. The institution of slavery, he argues, was originally something Congress envisioned as being in the public good. Helprin is, perhaps, referring to the [http://en.wikipedia.org/wiki/Corwin_amendment Corwin amendment]. The amendment, which is still waiting to be ratified by 36 states, would have prohibited the federal government from preventing states from allowing slavery. As such, it is commonly seen as a last ditch effort to prevent the Civil war, and was actually supported by Lincoln. Arguably, Corwin's amendment was suggested for the public good, but not for the benefit of slave owners -- it was attempted to prevent the country from going to war, a cause most justifiably in the public good.
 +
 
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What's more, *ordinary* property rights governing land and chattel have evolved at common law in order to maximize the public good. You always have to make tradeoffs between plausible-sounding "natural rights" like the right to have peace and quiet on your land and the right to enjoy your land by having loud parties on it. You have to pick some legal regime to balance these interests, and it will inevitably exclude some "rights" that some constituency considers pre-legal.  Either Helprin thinks this process is illegitimate, and adopting one rule or the other inevitably "exclude[s] from common equity the rights you seek to abridge," or he really just doesn't get what this "law" business is all about.
 +
 
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==Copyright, patents and the idea-expression dichotomy==
 +
Helprin's article is titled "A Great Idea Lives Forever. Shouldn't Its Copyright?" Whether the title came from Helprin himself or a headline editor at the ''New York Times'', it raises an important point.  The word "idea" must be carefully used in a copyright context because it sometimes occurs in that context in a narrow, technical sense, referring to one pole of what is called the "idea/expression dichotomy".
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It should be noted that the word "idea" is not always used so narrowly as to exclude expression.  Some 17th- and 18th-century writers, for example, are aware of what we now call the "idea/expression dichotomy", but seem to prefer the terms "sentiment" or "thought" for the first pole of the dichotomy, rather than "idea", and "language" or "expression" for the second.  Even today the word "idea" can be used broadly to include, rather than exclude, "expression".  In the remainder of this section, however, "idea" will be used to refer to ideas in the narrow sense of the term, as distinguished from expressions, unless provided otherwise.
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Copyright law has long distinguished between '''expressions''', which can be protected under copyright, from '''ideas''', which cannot. Under this principle, the copying of major plot elements and characters from the book ''The Holy Blood and the Holy Grail'' in ''The Da Vinci Code'' was held not to be actionable in copyright by the Court of Appeal of England and Wales (Civil Division) in [http://www.bailii.org/ew/cases/EWCA/Civ/2007/247.html ''Baigent'' v. ''Random House'' &#91;2007&#93; EWCA Civ 247].  Ideas falling on the wrong side of the idea-expression divide have long been held to be within the province of patent law rather than copyright law.
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In this regard a particularly revealing fact is that patent law, which ''does'' concern the protection of ideas, has '''never''' recognised a perpetual monopoly. The traditional rationale for patent law is to incentivise the disclosure of new ideas by inventors in return for a ''time-limited'' monopoly. In this manner the public obtains the benefit of disclosure of that idea, and in return the inventor gets a limited period of time in which to exploit his idea commercially. After the patent period the idea enters the public domain and anyone is then free to improve upon that idea. The patent system is therefore built around the very notion that any new idea must eventually enter the public domain, and encourages proactive disclosure of ideas (and thus their entry into the public domain) by means of a limited monopoly period.
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In this discussion of Helprin's essay, the so-called idea/expression dichotomy is important because the "dichotomy" is not always clear, especially in cases of "altered copying": [http://www.bailii.org/uk/cases/UKHL/2000/58.html ''Designer Guild'' v. ''Russell Williams'' &#91;2000&#93; UKHL 58] (United Kingdom House of Lords).  In the field of music, is a IV-V-I chord progression "idea" or "expression" ?  If it is "idea", is it perhaps so only because it began as "expression" which was subsequently so widely ''copied'' that musicians came to abstract it as an idea?  One law court might rule that plot elements and characters are "idea" rather than "expression", but another might draw the line differently.  The only certain way of making sure that all "ideas" become ''publici juris'' is by making sure that all the expression containing those thoughts becomes ''publici juris'' as well.  If the distinction between ideas and expressions is merely one of degree of abstraction, having perpetual protection for expressions (copyright) but time-limited protection for ideas (patents) is unjustifiable.
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==The meaning of the Constitution==
 +
Helprin does not suggest amending the Constitution. Rather, he suggests interpreting it so that the qualifying phrase "for limited times" could be taken literally to mean very long times, presumably centuries. This interpretation suggests that this qualifying phrase is possibly extraneous language. However, the U.S. Constitution is one of the most carefully prepared documents in history, and Helprin explicitly argues against Thomas Jefferson's written rationale for the inclusion of "for limited times" in the Constitution. Words in written law are intended to have a practical effect on lives of people. The use of the word "limited" (in this context) requires a definable limitation with a practical importance. Helprin would extend copyright to the limits of the endurance of civilizations and far beyond the practical point anybody could possibly care about or remember the original authors.
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==The "starving artist" canard==
 +
The more time that passes from a period of time, fewer are the artists and authors whose works are studied and appreciated. Helprin suggests that the descendants of modestly successful writers might benefit from a further extension of copyright. Yet this argument has no practical validity whatever: the possible remuneration is too small to be worth the effort of collecting. Moreover, Helprin's entire defense of the rights of descendants to property is overwrought and presumptuous. We don't hold people liable for the crimes or debts of their forebears: indeed, credit card companies write off substantial amounts due to people dying in debt. Yet Helprin would have countless generations profit without effort from mere ideas (or recordings) of the past.
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==Additional material==
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*Spider Robinson's Hugo award winning short story [http://www.spiderrobinson.com/melancholyelephants.html Melancholy Elephants] follows a character named Dorothy Martin who goes to a powerful Senator in an attempt to kill a copyright bill that will make copyright terms last forever. Dorothy argues to the Senator that there are a finite number of musical notes and therefore a finite number of appreciably different melodies, and that an ever longer copyright will mean no one will be able to recreate those same melodies into new songs. This follows the "Only so many permutations" section above.
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**However, in 2003 Spider Robinson wrote that he believed that his children should be able to collect royalties on his writings after he dies. He also defended the Copyright Term Extension Act because if it hadn't, "Steamboat Willie (the Mouse himself!) would have slipped into the public domain." Robinson says he "wouldn't mind extending it (terms) further." Exactly when Mr. Robinson believes copyright should expire is not known:
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***The column in the Globe and Mail (hidden behind a paywall): http://www.theglobeandmail.com/servlet/ArticleNews/printarticle/gam/20030122/COSPIDERY
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***A google search that bypasses the paywall: http://www.google.com/search?q=site%3Atheglobeandmail.com+%22spider+robinson%22+%22lawrence+lessig%22
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***Contemporary reactions linking to the column (with quotes):
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****http://brockerhoff.net/bb/viewtopic.php?p=224#224
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****http://www.mememachinego.com/2003/01/stealing_food_from_the_mouths.html
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****http://soreeyes.org/archive/2003/01/28/melancholy-spider/
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 +
*Sadly this idea of perpetual copyright might have muddled some heads, and Egypt wants to ... copyright the pyramids!!!  see http://news.yahoo.com/s/afp/20071225/wl_mideast_afp/egyptantiquitieslaw
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How ridiculous!  They are thousands of years old!  Is the government the author? & how is this going to foster future innovation?  Some just think of copyright as the longest term that could assure them a protected monopoly, without any intent on satisfying (or even finding out) the requirements for copyright.  Hopefully such reports would sober up the public and let it squeeze the greed of a few successful authors and their lobbies.
 +
 +
*An argument against a Life-Plus-N year long copyright is put forth in [http://www.greglondon.com/bountyhunters/ Bounty Hunters: Metaphors for Fair Intellectual Property Law], which is available under a CC-BY license. In "Bounty Hunters", authors are paid for their labor of creating new works similar to the way a bounty hunter is paid for their labor of catching a fugitive. Once a fugitive is caught, the world is forever a better place, however no one would ever seriously argue for paying a bounty hunter a yearly reward that lasts for all eternity. The government's job of setting any such reward or bounty would be to set it as low as possible but just high enough to get the job done (i.e., lowest successful bidder). And American history, all the way up until 1976, shows that authors were willing to create new works, new movies, new artistic expressions for the reward of a copyright of 56 years or less.
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*[http://en.wikipedia.org/wiki/Statute_of_Anne The Statute of Anne], the first fully-fledged copyright law, was a reaction to the status-quo of the time (early 1700's), and replaced a regime remarkably like the one being proposed, except that then the authors had no option to even self-publish. However, the push to return to that regime seems to be coming from the modern equivalent of the Stationers, not the authors who have not yet made their names and fortunes.  So in that sense, this proposal has already been tried -- and failed.
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* "Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly . . . I believe, Sir, that I may with safety take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honourable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company's monopoly of tea, or by Lord Essex's monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good." -- [http://en.wikipedia.org/wiki/Thomas_Babbington_Macaulay Thomas Babbington Macaulay], in a [http://www.baen.com/library/palaver4.htm speech to Parliament] on February 5th 1841.

Revision as of 20:34, 2 April 2011

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In a New York Times op-ed article on May 20, 2007 ("A Great Idea Lives Forever. Shouldn’t Its Copyright?"), Mark Helprin suggests that copyrights, like physical property rights, should last forever. But in fact, copyrights and physical property rights are vastly different domains, both inherently and in their effects on society. A closer look at the consequences of perpetual copyright shows Helprin's suggestion to be based on faulty arguments.

At the core of Helprin's article is the idea that physical and intellectual property are the same — that intellectual property ought to have the same term limit (none) as physical property. Physical property is quite different in every respect from intellectual property. Intellectual products by their nature are copied and shared freely and it is on the whole good for society that they be so. Copyright law has from its inception in the early 18th century imposed a term limit upon intellectual property. This limit recognizes the great benefit conferred upon the public, and on the common good, to the vast majority, if the state refrains from punishing those who copy and share works for violating an author's "copyright," after a certain point in time.

The framers understood that the state-created property monopoly of copyright was justifiable only to the extent that it would "promote the progress of Science and the Useful Arts." It created therefore a fixed, and originally very short, period of time in which one might sell copies of one's works with state protection. Without this protection, in the nature of intellectual things, piracy was naturally rampant. After authors have been given a decent interval to exploit their property, the monopoly to the work is ended, and the work may be reabsorbed into the culture at large, be remixed into new works, for the public benefit for the rest of time: hence the name "Public Domain" which refers to the domain of this public good.

But why are intellectual and physical property different? How are the differences between laws related to the differences between domains? Would it really be so bad for society if they were treated the same way? This article explores the answers.

A misguided sense of public good

Helprin argues that copyright is for the "Public Good", a stance that everyone can agree with. But then Helprin turns the concept of "Public Good" on its head by asserting that the "Public Good" is something that can only be measured by profit:"'Freeing' a literary work into the public domain is less a public benefit than a transfer of wealth from the families of American writers to the executives and stockholders of various businesses who will continue to profit"

Helprin makes no mention of the "Public Good" that comes from the content of a work being placed into the Public Domain to be discussed in print, copied, derived, modified, mixed, remixed, or respun into some new work. He makes no mention of the Public Good that can come about by the creation of a body of brand new artistic expressions by others, without having to negotiate and pay for the privilege. Ninth Circuit Court Judge Alex Kozinski aptly said that the public good requires a mix of public and private in the dissenting opinion for the 1993 White v. Samsung Electronics case:

“Private property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation; it stimulates the flourishing of our culture; it protects the moral entitlements of people to the fruits of their labors. But reducing too much to private property can be bad medicine. Private land, for instance, is far more useful if separated from other private land by public streets, roads and highways. Public parks, utility rights-of-way and sewers reduce the amount of land in private hands, but vastly enhance the value of the property that remains. So too with intellectual property. Overprotecting intellectual property is as harmful as underprotecting it. Creativity requires a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.”

Copyright is a monopoly property right that has always been strictly limited to a term of years. The mass of society has a tremendous interest in the public domain. Those who suggest eliminating the great social good of the public domain must show the greater positive benefits of wiping the public domain out, benefiting only distant heirs only of those artists whose works have any significance beyond roughly a century. Helprin has not. All he does is refer to the metaphorical similarity he imagines between intellectual and physical property. Copyright in the United States was created for one purpose only, as stated in the Constitution: "to promote the Progress of Science and useful Arts". To destroy the public domain would postively harm the progress of science and the useful arts, killing off all creativity based on others' older works, not to mention the huge public benefit to the world of being free to reprint and quote from older works without the gigantic hassles and accounting and transactions costs licensing negotiation with unascertainable groups of heirs. The great blow to the public interest of eliminating the public domain also would confer a benefit of value only to an infinitesmal handful of those artists whose works retain any value at all, a century or more after publication. Requiring the whole world to incur the enormous hassles of permissions and licensing to quote or copy, or create derivative works, of all old properties, would be an immensely costly burden imposed on the vast bulk of society, for the benefit a very few.

Helprin's argument appears to be a complete misreading of what is "public good" and how Congress is authorized to achieve that "public good".

A misguided concept of public domain

The United States Constitution gives the Congress the power to grant the author exclusive rights to their works for a limited time so long as it Promotes the Progress of the Useful Arts and Sciences. Helprin argues that this final step of releasing the work into the Public Domain is a confiscation.

"Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else?"

The only way this argument works is if Helprin completely ignores that Copyright grants a legal monopoly where no natural monopoly exists, that this monopoly is created and granted to authors only because doing so Promotes the Progress of Science and the Useful Arts, and that the cost of this monopoly is only justified by a balanced amount of Public Good it will create in the end.

Helprin's argument ignores this balance, this tradeoff, and simply portrays Copyright as some sort of Natural Right and therefore the expiration of copyright and placing a work in the Public Domain is a "confiscation". The problem is that there is no basis for this Natural Right in the US Constitution. The Courts have consistently reinforced the notion that Copyright is not a Natural Right. The public, on the other hand, certainly posesses rights (whether "natural" or not) of free trade and free expression. The right of free trade ordinarily would mean that any publisher has the right to bring out an edition of any book in competition with other publishers. The right of free expression ordinarily would mean that anyone who speaks lawfully and truthfully may do so making use of others' words as well as his own. Yet the public refrains from exercising its full rights of free trade and free expression for a time, in order to encourage authors by providing a stable market for new works. So nothing has been taken from the author when a copyright expires. The public merely resumes its full rights, which for a time it generously refrained from exercising.

The U.S. Supreme Court has described the relationship of the public to a patentee in the case of Scott Paper v. Marcalus:

The aim of the patent laws is not only that members of the public shall be free to manufacture the product or employ the process disclosed by the expired patent, but also that the consuming public at large shall receive the benefits of the unrestricted exploitation, by others, of its disclosures....The public has invested in such free use by the grant of a monopoly to the patentee for a limited time. (Scott Paper Co. v. Marcalus Mfg. Co., Inc., 67 USPQ 193, at 196. 1945. Stone, J. Emphasis added.)

The same words, with only a few modifications, describe the relationship of the public to a copyright holder as well: The aim of the copyright laws ought to be not only that members of the public shall be free to reproduce the expression formerly monopolized under the expired copyright, but also that the consuming public at large shall receive the benefits of the unrestricted exploitation, by others, of the work's expression. The public has invested in such free use by the grant of a monopoly to the author for a limited time.

Extracting a living has nothing to do with infinite copyright terms

Helprin's argument also invokes an emotional plea for authors as struggling artists and uses this as a basis for his argument that copyright should be infinite.

Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else?

This does not stand up to even basic scrutiny. Copyright terms are already set to expire 70 years after the author's death. If an author cannot "extract a living" while he is alive, how does making copyright terms last a thousand more years allow the author to "extract a living" when he is long-since dead?

Helprin's error is asserting that the problem of "extracting a living" as an author has something to do with the duration of copyright. The two are completely unrelated. Yes, the financial life of an artist, a writer, a musician, can be difficult. The cause of that problem, however, is not that copyright terms are too short. If copyright terms were a millennium in duration, it would not be any easier to "extract a living" as an author. In fact, it would be harder, because they would find it more difficult and costly to build on earlier works, and more legally risky to draw inspiration from them.

Infinite copyright would impose unmanageable burdens on society

Helprin does not present the full costs of infinite copyright. Instead he presents it solely from the point of view of the author's benefit if their copyright were made infinite. However, were the idea of infinite copyright to be taken to its full conclusion, then authors would be paying the heirs of all the ancient Greek tragedies every time they created a derivation of Homer's Odyssey. The works of William Shakespeare and Charles Dickens would require permission from someone's distant heir to have a character named "Romeo" or a story about the spirit of Christmas. Many of Disney's stories (Snow White and the Seven Dwarfs, Sleeping Beauty, Cinderella, etc) are repackaged versions of old fairy tales that are in the Public Domain. Helprin is best known for his novel "Winter's Tale," which is loosely based on a Shakespearean work by the same name. This raises the question as to whether Helprin intends to pay royalties to Shakespeare's descendants.

The net effect of infinite copyright would tend to discourage the creation of new works, rather than encourage them, and the overall impact on the Public Good would be much more negative than whatever positive bonus comes from paying the thousandth generation of some author's descendants.

This doesn't include all the negative costs associated with the simple logistics of tracking the authors and their heirs for all eternity. The owner of all personalty is one to one and relatively easy to ascertain, and the bill of sale simple. In real estate, the owner is clearly recorded as to each part of one divisible pie. Intellectual works are not like a pie. They are divisible into many overlapping layers of rights both exclusive and non-exclusive each of which may not be mutually exclusive of the other. Thus some copyright situations become complex, sometimes paralyzingly so. It can take a specialist lawyer, not even a general practitioner, to figure out these complex relationships, and the transaction costs of locating, reading, and understanding a multiplicity of contracts, each of which has been generated independently of the others (and often in conflict with them) is high—very high. In addition, many times contracts are missing, as authors are in the habit of blindly signing away rights to third parties without any awareness of what they are doing, over and over, without even bothering to retain a copy. To reduce costs, corporations use paraprofessionals to administer rights. This leads to ubiquitous errors (as well as the occasional rent seeking fraud) and to potentially conflicting claims of ownership, agency, authorizations to license, associated rights of notice and approval among many parties, including the creator, his or her licensing agent, publishers with various overlapping rights and interests, the beneficiaries and their heirs and assignees, and agents and attornies for all of the above. The administration of complex copyright situations can be even more structurally complex than a routine mid-size corporate reorganization or bankruptcy and involve just as much if not more due diligence, at least in theory. All these parties and contracts proliferate independently of each other making conflicts and errors common. While copyright rights and interests can be tracked—and they are by businesses dedicated to the task when economically warranted—the vast majority of creations do not have any economic value a few years after creation, nothing that would justify the maintainence of an expensive transactional and payment apparatus that all of society would be endlessly forced to engage in for eternity.


Orphaned works

One outcome of the already existing copyright terms is the issue of "orphaned works": works that are still thought to be protected by copyright, but the current copyright holder cannot be found because the original author disappeared, died, published anonymously, and so on. Were copyright terms to be even longer, the problem of Orphaned Works would only be worse.

Differences between physical property and intellectual works

Tangible goods are rivalrous goods

For one person to gain some tangible item, another person must lose it. For one person to gain the ownership of some piece of land, the previous owner must surrender ownership. This is the ordinary state of physical property, and the laws around physical property are designed around this fact. Property taxes, zoning laws, and similar legal constructs are examples of how the law relates to physical property.

Intellectual works are non-rivalrous

Intellectual works are ordinarily non-rivalrous. It is possible for someone to teach a work of the mind to another without unlearning it himself. For example, one, or two, or a hundred people can memorize the same poem at the same time. Here the term "work of the mind" refers not to physical items such books or compact discs or DVD's, but rather to the intangible content those physical objects contain.

Because of the non-rivalrous nature of intellectual works, the possibility is higher than with rivalrous goods that an unrestrained market for new works will fail. The initial publisher of the work, who pays the author, has the first-to-market advantage, but this might not be enough to compensate for the second-comer's advantage in not having to pay the author. Note that failure in an unrestricted market for non-rivalrous goods is not inevitable. In 1998 the Kenneth Starr report on the Monica Lewinsky affair was offered by three competing publishers, and all seem to have enjoyed good sales. But that was a case of a work for which there was certain to be a high demand, and for which no author had to be paid. In other cases demand will be high enough to encourage second-comers, but not high enough for the first comer, the one who pays the author, to recoup. Publishers will tend to hang back, waiting for someone else to take the chance on paying authors, so that few authors will be able to sell their new works; or the publishers will collude, creating a de-facto form of private copyright without the limitations and accountability of statutory copyright.

Statutory copyright tries to prevent this sort of market failure by stabilizing the market for new works that must be purchased from their authors. A publisher who takes a chance on a new work will, if the work be successful, have a limited period of monopoly control over the title. This temporary freedom from sharp competition acts as an encouragement to publishers to seek out new works from authors, and to offer them to the public.

Deprivation

The owner of physical property can clearly be deprived of the use of their property by the act of confiscation. But no such deprivation occurs when a work enters the public domain. For this reason alone Helprin's analogy is inapt. This is the most powerful emotional argument the maximalists have on their side, and it is the one most easily demolished. The previous copyright holder can still publish their works, or market them more effectively, or even amend and modify them, at which time they will receive the benefit of continued copyright protection.

Besides monetary differences, physical property and intellectual creations have deep differences in their respective uses by society. While one's ownership of some object may prevent someone else from owning the very same object, it often does not prevent that person from owning a physically or functionally identical one. (While two people can't have the very same waterfront view, two people can own virtually identical cars.) And because one can own a functionally identical object, another's physical ownership does not generally impede one's own personal behavior or use. A copyright, however, impedes others' behavior, and not just behavior but their speech, because to communicate something someone has already said, you must reproduce it (orally, visually on paper, etc.). To put it simply, a world in which physical property mirrored copyrighted intellectual property would be a world where no one could own anything without paying royalties for it to someone else. If one happens to find Mr. Helprin's article a most effective argument, and wants to convince others of the same point by using those very effective words, copyright can prevent such speech from taking place. And because new creative works are often derivative in some ways from older works (i.e. mixes of excerpts of older works, original transformations of various kinds), copyrights stifle the ability to create. How many high school plays would be impossible if Shakespeare's descendants charged a fee for every production?

Copyrights are personal property only by analogy

Helprin's entire argument is based on the analogy of a copyright to a piece of real estate. This is an unsatisfactory analogy for a number of reasons. To begin with, to the extent that a copyright is "property" at all, it is for the most part treated in law as personal property, not real property. Besides this, even the analogy to personal property is imperfect. In particular, the copyright law contains a provision known as "termination rights" (of which Mr Helprin is perfectly aware, for he mentions them in passing) which throw up an extreme exception to any claim that copyrights are property. In the world of personal property, barring cases of unconscionability or failure of consideration, all sales are final. If you sell your apple after you take one bite, you don't get a second bite. The termination rights are provided in copyright law precisely in order to provide authors a second bite at the apple. But that makes a copyright quite unlike a property right. If Mr Helprin truly believes that copyrights should be as much like property as possible, he should argue for the abolition of the termination-rights provisions. But then, the more like personal property copyrights became, the less likely they would be to benefit authors and their heirs. For in the nature of things, copyrights would almost always be sold irrevocably by the authors to publishers. Authors in a strong bargaining position would get a royalty contract with a provision for a reversion of rights under certain circumstances. Most would probably have to settle for less advantageous terms, or even find that they must sell the copyright outright for a lump sum. In such a case their heirs would see nothing but what came from that one-time payment.

The existence of an expiration date, on the other hand, does not necessarily make a copyright unlike a piece of personal property. A number of items of personal property can have expiration dates. A goldfish that I buy at the pet store is my personal property, but it must eventually die. An egg that I buy from the grocery store must eventually be eaten or go bad. A bank check in my wallet is my property, but it may become invalid if it is not cashed within a certain time. I might buy an option to purchase a commodity for a certain price within a certain time. The option is my property while it lasts. If I do not exercise the option, it expires, but I have not thereby been "stripped" of my property. The expiration was inherent to the nature of the property.

Perhaps Helprin is not comparing the copyright to a piece of real estate, but instead is comparing the work-in-itself to the real estate, and the copyright to the title in the real estate. The first part, the comparison of a work of authorship to a piece of developed land, is absurd. The two are nothing alike. It was noted in the earlier discussion of rivalrous and non-rivalrous goods that works of the mind are intangible. One can carry a work of the mind--the work itself--in the mind. One cannot put a house itself into one's mind. The analogy fails. But if we go ahead and make the analogy anyhow, comparing the work-in-itself to a piece of land, why should we compare it to a piece of privately-owned land, rather than to a piece of public property on which the author has made some improvement, in exchange for which the he gets the exclusive right to manage the improvement for a term of years? For example, if a builder were to build a bridge on public land, and be paid with the privilege of charging tolls for the use of the bridge for a limited term? Or if a builder were to build a tourist lodge in a public park, and be paid with an exclusive contract to manage the lodge for a term of years? So the analogy game can be played either way. If anything, the inherently public and shared nature of works of the human mind would favor comparing the work-in-itself to a piece of public property, rather than to a piece of private property.

If we pass by these difficulties and let a work of authorship be considered analogous to a house built on private land, we come to the second part of Helprin's analogy, which considers the copyright in the work analogous to the title in the house and land. This part of Helprin's analogy is even sillier than the first part. If a private house is taken as the analog of a work of authorship, then the copyright would be analogous to a law passed by the state, forbidding all others from building "substantially similar" houses, even on their own land at their own expense. (In the U.S., the copyright law does precisely this, since it applies to works of architecture). If a private house must be taken to be analogous to a work of authorship, the expiration of the copyright is analogous not to the revocation of the title to the house, but is instead analagous to the expiration of the anti-competitive law that forbids all others from using their property in the same way that the first builder used his.

So the only apt legal analogies to copyright come from the realm of state-granted monopolies, since that is what copyrights in fact are. The closest analogy is that of a patent for an invention, which always comes with an expiration date. Yet the expiration of a patent is not a "taking". It was a giving, of an exclusive privilege in exchange for an invention.

Rule against perpetuities

The suggestion that a perpetual copyright would place intellectual property on equal footing with physical property ignores the reality that the laws that govern physical property also limit the length of time a property owner can restrict the use of that property -- perhaps not surprisingly, the limit is commonly the lifetime of the owner plus a set number of years. Under both common law and statute, an owner of physical property cannot place limits on its use for more than a certain number of years after the owner's death (the so-called "rule against perpetuities"). For example, if I own land and want the land to only be used as the site of a church for my particular religion, I can do that. I can even leave the property to someone in my will, and for a certain period of time after I die, I can make it so that the land continues to be used only as the site for my church. But only for a limited time; the law won't let me place a "perpetual" restriction on the land. After the limited time expires, whoever has the property can do whatever they want with it: sell it; keep the church; tear down the church and build a park, a Wal-Mart, houses or a museum. In other words, the law recognizes that dead people shouldn't be allowed to control the use of physical property that might be put to better use by the living.

The drafters of the Constitution made an analogous recognition of the value of limiting intellectual property rights when they wrote that an exclusive right to one's ideas -- a restriction on others' use of those ideas -- could only be enforced for a limited time. We assume that it was James Madison who wrote the Constitution's "progress" clause; it is all the more meaningful therefore that, after retiring from the Presidency, Madison wrote a memorandum on "Monopolies [and] Perpetuities..." in which he makes it clear that the limit on copyright and patent was meant precisely to prevent perpetuities. Perpetuities in land were, for Madison, one of the tools by which European feudal and ecclesiastical estates maintained their power over time. He thus linked their erasure to political and religious liberty, writing that “Perpetual monopolies...are forbidden...by the Genius of free governments....”

It might be objected that the rule against perpetuities is inapposite to Helprin's point. The rule agains perpetuities limits the term in which a dead owner's will can restrict the use of a piece of land, but it does not prevent the existence, for an indefinite term, of a private title to the land. However, the analogy to perpetuities is not as off-point as it may seem. For Helprin, the copyright is first and foremost an author's right. Helprin's argument roots itself in his view of the deep and personal relationship between the author and a work. Yet for a copyright to be assumed by someone who is not the author at all is prima facie a violation of this relationship. The inconsistency is resolved only if one supposes the existence of some sort of ongoing relationship between the author and the work. Hence the copyright, in a world in which authors are inseparable from their works, has the character of a perpetuity.

Perpetuities in land, moreover, were not all that mattered to Madison; his memorandum opens with a remark on what we now call intellectual property:

"Monoplies, tho' in certain cases useful, ought to be granted with caution, and guarded with strictness against abuse. The Constitution of the U. S. 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 withold 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." (See: "Madison's ‘Detached Memoranda.’" William and Mary Quarterly, 3d ser., 3 (1946): 534-68.)

Surface glosses

Mr. Helprin writes:

"The flow and proportion of the elements of a work of art, its subtle engineering, even its surface glosses, combine substance and style indistinguishably in a creation for which the right of property is natural and becoming."

Surface glosses? At this point, it seems to me that Mr. Helprin is confusing a physical painting, from the image depicted in the painting. No one could feasibly claim that the property rights the owner of a particular painting enjoys should be stripped away after a period of time, nor is this reflected in the copyright law. Instead, it is the exclusive right to reproduce, to modify, and to derive from that image new works that expires for the copyright holder.

Let's take Picasso's painting, Guernica. Clearly the painting on the canvas -- what we would call the original -- can be bought and sold forever. However there is another Picasso painting called Guernica, and this is the reproduction of that original Art, in the millions. Let's assume for the moment that Guernica is covered by copyright (or some other intellectual property right). In this case, these millions of reproductions and copies have both value and existence independent of the physical version. They operate in their own regime. The peculiar nature of these copies, and the fact that one can make them without much effort, demands a different set of policies of fairness and encouragement. This subset of the law contains copyrights.

But he doesn't have his manuscript in mind. He is thinking of the abstract virtual notion of the book as a reproducible intangible. However when it comes to protection of that work, he conflates the two into one. There's no difference between these two classes of property -- tangible and intangible -- he claims, and this claim is central to his argument. But if Mr. Helprin really believed that there was little difference between real and intellectual property, he should not be advocating the infinite extension of copyright, but the immediate elimination of it. After all, if tangible and intangible property are truly so indistinguishable, then the current property laws should cover both. Why have redundant laws?

Who benefits from sale

And why assume it is his descendents who benefit from the sale? As a physical good there's no need for the Art to remain in the ownership of Picasso's descendents. In fact, over the long-term, the parties who will make the most money from the sale and resale of this good are not Picasso's heirs, but the highest bidder. The millions made in the future by this Art are zero benefit to Picasso himself. To use Helprins' example of a house one might build: In the long-term, the greatest beneficiaries of a house will most likely not be the children of the builder, but a long chain of unrelated others that live in the future. The builder himself gains nothing of that later value. The benefits may stay in with his genes for a generation or two, if that, and then, if history is any guide, the benefits go to the wisest investor.

If the original Guernica (or any of Picasso's other paintings) had to return to the commons after Picasso's death, then that fact could diminish the value of his work during his lifetime, and thus affect his livelihood. Is there any evidence that copies behave in the same manner? Is there any evidence that had copyright been infinite from the beginning of history -- and that any literary or artistic use of a character, phrase, or plot line from the Greeks, Romans, and the Bible would have required permission and probably payment to someone -- that society would be both wealthier and richer? It is hard to imagine.

Cultural economics: more money to dead authors means less for living authors

It has been remarked above that intellectual works are inherently non-rivalrous: access to an intangible good is not necessarily a zero-sum situation. Nevertheless zero-sum arithmetic can influence the cultural marketplace. This is most easily illustrated by means of an example. A church denomination printing a hymnal will of course include old favorites. They may also, however, encourage living writers to contribute words or music to the new hymnal. A percentage of the price of each unit sold will be set aside to pay copyright royalties. The money will be distributed among the various rightsholders whose works appear in the hymnal, in proportion to the size of their contributions. An author who writes four stanzas of a new lyric will generally get more than an author who writes only one new stanza for an old lyric. A composer who harmonizes an old tune will generally get less than a composer who writes a complete new tune with harmonization. But all claimants will get a share. However, if the publisher had to pay royalties to the eatates of George Herbert (d. 1633) and J. S. Bach (d. 1750), it would probably do so. Works by these old authors are enduring favorites. The publisher excludes them from the collection at its peril. But the more the publisher would have to pay to the estates of long-dead authors, the less it would have to pay living authors for their contributions. Note that this does not necessarily work the other way. If a hymnal contains much publici juris material, the pool of clearance money is not necessarily distributed among fewer claimants. Instead the publisher may simply pocket a share of the clearance money in proportion to the amount public domain material. Yet if there were no publici juris material at all due to copyrights lasting for centuries or millenia, the heavy toll paid to the estates of dead authors would inevitably be paid at the expense of living authors.

Helprin shows some knowledge of the book-trade where he writes

"Barnes & Noble is able to publish price-reduced non-copyrighted works not so much because it saves the 10 percent to 15 percent of revenue that would go to the gruel-eating authors, but because it saves the 50 percent that would go to the publishers. Booksellers that publish their own titles benefit not from escaping the author’s copyright, but the previous publisher’s exercise of a grant of rights (limited, authors take note, to 35 years). “Freeing” a literary work into the public domain is less a public benefit than a transfer of wealth from the families of American writers to the executives and stockholders of various businesses who will continue to profit from, for example, “The Garden Party,” while the descendants of Katherine Mansfield will not."

but his view is distorted. It is true that most of the price of a copyrighted book does not go to author's royalties. Rather, it is the monopolist's mark-up. Books from which the copyright has expired are in general cheaper, page for page, than copyrighted books because the market for them is competitive. The monopolist's surplus has become a consumer's surplus. This is ordinarily considered a good thing. The entire public--including the descendants of Katherine Mansfield--is ordinarily thought to benefit from free markets and the creation of consumer surpluses.

Comparisons to slavery

Helprin writes: "[Copyright] is, then, for the public good. But it might also be for the public good were Congress to allow the enslavement of foreign captives and their descendants (this was tried); the seizure of Bill Gates’s bankbook; or the ruthless suppression of Alec Baldwin." Is Mr. Helprin seriously suggesting that the limitations on copyright are tantamount to slavery? No one compels an artist to create, he does it of his own volition. Thereafter, if he chooses to share his work with the world, he is entitled to certain (limited) rights in exchange for that act of sharing.

Helprin correctly observes that copyright is designed to promote the public good but soon goes far off track. The institution of slavery, he argues, was originally something Congress envisioned as being in the public good. Helprin is, perhaps, referring to the Corwin amendment. The amendment, which is still waiting to be ratified by 36 states, would have prohibited the federal government from preventing states from allowing slavery. As such, it is commonly seen as a last ditch effort to prevent the Civil war, and was actually supported by Lincoln. Arguably, Corwin's amendment was suggested for the public good, but not for the benefit of slave owners -- it was attempted to prevent the country from going to war, a cause most justifiably in the public good.

What's more, *ordinary* property rights governing land and chattel have evolved at common law in order to maximize the public good. You always have to make tradeoffs between plausible-sounding "natural rights" like the right to have peace and quiet on your land and the right to enjoy your land by having loud parties on it. You have to pick some legal regime to balance these interests, and it will inevitably exclude some "rights" that some constituency considers pre-legal. Either Helprin thinks this process is illegitimate, and adopting one rule or the other inevitably "exclude[s] from common equity the rights you seek to abridge," or he really just doesn't get what this "law" business is all about.

Copyright, patents and the idea-expression dichotomy

Helprin's article is titled "A Great Idea Lives Forever. Shouldn't Its Copyright?" Whether the title came from Helprin himself or a headline editor at the New York Times, it raises an important point. The word "idea" must be carefully used in a copyright context because it sometimes occurs in that context in a narrow, technical sense, referring to one pole of what is called the "idea/expression dichotomy".

It should be noted that the word "idea" is not always used so narrowly as to exclude expression. Some 17th- and 18th-century writers, for example, are aware of what we now call the "idea/expression dichotomy", but seem to prefer the terms "sentiment" or "thought" for the first pole of the dichotomy, rather than "idea", and "language" or "expression" for the second. Even today the word "idea" can be used broadly to include, rather than exclude, "expression". In the remainder of this section, however, "idea" will be used to refer to ideas in the narrow sense of the term, as distinguished from expressions, unless provided otherwise.

Copyright law has long distinguished between expressions, which can be protected under copyright, from ideas, which cannot. Under this principle, the copying of major plot elements and characters from the book The Holy Blood and the Holy Grail in The Da Vinci Code was held not to be actionable in copyright by the Court of Appeal of England and Wales (Civil Division) in Baigent v. Random House [2007] EWCA Civ 247. Ideas falling on the wrong side of the idea-expression divide have long been held to be within the province of patent law rather than copyright law.

In this regard a particularly revealing fact is that patent law, which does concern the protection of ideas, has never recognised a perpetual monopoly. The traditional rationale for patent law is to incentivise the disclosure of new ideas by inventors in return for a time-limited monopoly. In this manner the public obtains the benefit of disclosure of that idea, and in return the inventor gets a limited period of time in which to exploit his idea commercially. After the patent period the idea enters the public domain and anyone is then free to improve upon that idea. The patent system is therefore built around the very notion that any new idea must eventually enter the public domain, and encourages proactive disclosure of ideas (and thus their entry into the public domain) by means of a limited monopoly period.

In this discussion of Helprin's essay, the so-called idea/expression dichotomy is important because the "dichotomy" is not always clear, especially in cases of "altered copying": Designer Guild v. Russell Williams [2000] UKHL 58 (United Kingdom House of Lords). In the field of music, is a IV-V-I chord progression "idea" or "expression" ? If it is "idea", is it perhaps so only because it began as "expression" which was subsequently so widely copied that musicians came to abstract it as an idea? One law court might rule that plot elements and characters are "idea" rather than "expression", but another might draw the line differently. The only certain way of making sure that all "ideas" become publici juris is by making sure that all the expression containing those thoughts becomes publici juris as well. If the distinction between ideas and expressions is merely one of degree of abstraction, having perpetual protection for expressions (copyright) but time-limited protection for ideas (patents) is unjustifiable.

The meaning of the Constitution

Helprin does not suggest amending the Constitution. Rather, he suggests interpreting it so that the qualifying phrase "for limited times" could be taken literally to mean very long times, presumably centuries. This interpretation suggests that this qualifying phrase is possibly extraneous language. However, the U.S. Constitution is one of the most carefully prepared documents in history, and Helprin explicitly argues against Thomas Jefferson's written rationale for the inclusion of "for limited times" in the Constitution. Words in written law are intended to have a practical effect on lives of people. The use of the word "limited" (in this context) requires a definable limitation with a practical importance. Helprin would extend copyright to the limits of the endurance of civilizations and far beyond the practical point anybody could possibly care about or remember the original authors.

The "starving artist" canard

The more time that passes from a period of time, fewer are the artists and authors whose works are studied and appreciated. Helprin suggests that the descendants of modestly successful writers might benefit from a further extension of copyright. Yet this argument has no practical validity whatever: the possible remuneration is too small to be worth the effort of collecting. Moreover, Helprin's entire defense of the rights of descendants to property is overwrought and presumptuous. We don't hold people liable for the crimes or debts of their forebears: indeed, credit card companies write off substantial amounts due to people dying in debt. Yet Helprin would have countless generations profit without effort from mere ideas (or recordings) of the past.


Additional material

How ridiculous! They are thousands of years old! Is the government the author? & how is this going to foster future innovation? Some just think of copyright as the longest term that could assure them a protected monopoly, without any intent on satisfying (or even finding out) the requirements for copyright. Hopefully such reports would sober up the public and let it squeeze the greed of a few successful authors and their lobbies.

  • An argument against a Life-Plus-N year long copyright is put forth in Bounty Hunters: Metaphors for Fair Intellectual Property Law, which is available under a CC-BY license. In "Bounty Hunters", authors are paid for their labor of creating new works similar to the way a bounty hunter is paid for their labor of catching a fugitive. Once a fugitive is caught, the world is forever a better place, however no one would ever seriously argue for paying a bounty hunter a yearly reward that lasts for all eternity. The government's job of setting any such reward or bounty would be to set it as low as possible but just high enough to get the job done (i.e., lowest successful bidder). And American history, all the way up until 1976, shows that authors were willing to create new works, new movies, new artistic expressions for the reward of a copyright of 56 years or less.
  • The Statute of Anne, the first fully-fledged copyright law, was a reaction to the status-quo of the time (early 1700's), and replaced a regime remarkably like the one being proposed, except that then the authors had no option to even self-publish. However, the push to return to that regime seems to be coming from the modern equivalent of the Stationers, not the authors who have not yet made their names and fortunes. So in that sense, this proposal has already been tried -- and failed.
  • "Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly . . . I believe, Sir, that I may with safety take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honourable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company's monopoly of tea, or by Lord Essex's monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good." -- Thomas Babbington Macaulay, in a speech to Parliament on February 5th 1841.