I’ve gotten into a bit of a discussion elsewhere on the subject of copyright and its duration. I thought I’d rant on my own blog, a bit.
Let me begin by pointing out that the historical problem of intellectual property is that it is not like real property. It is intangible. It is infinitely replicable with no cost of production.
Another aspect of intellectual property is that it is inspirational. Its existence sparks response; both extension and rebuttal, and sometimes movement in an entirely different direction.
Protection of intellectual property is an attempt to balance both those elements. A creator who gains no reward for creation is less likely to create. But too much reward stifles the opportunity for dialogue.
Allow me to expand, please.
A common argument tries to equate intellectual and real property. If you create a building, the argument goes, you and your heirs can gain from that building in perpetuity. Why, then, should creation of a book not have the same potential?
The answer is that intellectual property – say, a book – is not a building. A building – or a car, or a computer – has a finite existence. The intangible nature of the book is such that it has potentially infinite life, and has it with no maintenance costs on the part of the creator. Once written, it lasts until it is forgotten.
A secondary answer is that intellectual property is not a whole. You cannot take the dining room of the building and put it in several other buildings. You can, however, take the world or the characters or the events of the book and use them in other books.
This last is the inspirational element. At the most simplistic, it generates fanfic. fanfic is usually dreadful, but that is true of all writing. Fanfic, however, is also a violation of copyright except where the holder of the right has specifically allowed it. Or so it is at least until the copyright expires.
Well done intellectual property can inspire for, well, for a very long time. Consider how many variations there are on the tale of Romeo and Juliet. Anabasis has directly inspired dozens of stories and indirectly influenced thousands. The Prince and the Pauper echo through our nation’s stories. Should we be required to make payment to those we build upon? Do we need to find the heirs of Clement, of Shakespeare? Can we even find the estate of Xenophon?
Add to the issue of societal burden. I understand the need of people to see that their children do not suffer from want. I do much for my daughter for just this reason. However, the other side of the coin is when we allow our children to become non-contributing drones. If I create the next Great Work that outsells even the tales of Harry Potter, should my great grandchildren still be able to collect on sales of the books and their derivatives, and never have to contribute a thing to the society of which they are a part?
The societal contract is that as we pay forward. Nobody – no single person – did it “on their own”. Yes, they finished the last mile, and for some the last mile was longer than it was for others, but all of us build on what has been done before. Perpetual copyright breaks that contract.
The position of Halperin and others that copyright should be forever is wrong. It is my opinion that copyright as it presently exists is too long. On the other hand, the position of Lessig (five years, renewable in five year blocks up to 75 years) is too short (and onerous). In fact I think the original limits in the US (14 years with another 14 years on explicit renewal) was too short. I’m sympathetic to a version that lasts for as long as the creator lives for now, though I’m slightly concerned given some anti-aging research. If I had to make a starting marker, I’d start with a hard limit, and I would start with a time likely to outlast the lives of most creators: 70 years. No less than 28 (no explicit renewal required), no more than life plus enough time for the creator’s children to establish their own lives; say 30 years.
My opinion only, of course.