Sorry for the lack of recent posting. The Black Death seems to have visited our family, and only now are we slowly recovering.
Anyway, I recently read an interesting post on copyright by Brian Tiemann of Peeve Farm. I sympathize somewhat with his point of view, and it’s especially understandable given that Brian is a published author, but I cannot fully agree with it.
The problem is this: the purpose of copyright as enumerated in the Constitution is “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. (Art. I, Section 8) I’m going to start on the plain meaning of the words as written, then I’ll get into original intent. After that, a lawyer would have to take over, because some theories of Constitutional interpretation are now getting so out there as to abrogate Article VI, which states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Anyway, the plain meaning of the copyright provision in the Constitution is that the Congress can grant a monopoly to people producing what we now call intellectual property, for a limited period of time, in order to enlarge the public domain. (For if works did not eventually enter the public domain, how could science and the arts progress? If a work, once created, is forever encumbered by restrictions, it cannot be used in a derivative way, and therefore no progress proceeds from its creation.) In other words, the presumption is that any work protected by Congress is protected for a limited time only, to ensure that it survives and is spread and reused, if it is useful.
As to original intent, we have little to go on. Madison mentions it in his notes on the deliberations of the Constitutional Convention, but without elaboration. In Federalist 43, Madison writes:
1. A power “to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.”
The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.
Jefferson, in a letter to Isaac McPherson, seemed to think that copyright produced a social good, but that the copyright protections were generally unnecessary at best:
It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.
On the original intent question, this seems to be an area where the Founders took British common law as a guide (Madison states this explicitly), without putting a lot of thought into the matter. I have heard that there was originally debate about limiting the copyright provision to a certain period, but that this was voted down because any period set would automatically become the period, rather than the maximum, but I cannot find a published reference on this. (It should also be noted that the original income tax was to be limited to a maximum of 3%, but this was voted down because no one wanted to give the government the power to tax income that high!)
Now, we’ve ended up interpreting this clause in all kinds of interesting ways. Expanding the language to include all intellectual property of any kind is somewhat reasonable, though I still think certain things – while arguably intellectual property – should be exempt: discoveries (as opposed to inventions) were not created, and should be public property, though their description could certainly be copyrighted; living entities or parts thereof were, again, not created and should be public property (I’m OK with truly created living things being patented, actually, but not, say, the human genome or parts thereof); algorithms; chemical formulae (very arguable); “business methods” and a few other things we’ve extended this protection to.
I don’t, however, see how anyone can reasonably argue that the Constitution’s purpose is being served by defining any enumerated period of time as “limited”. Technically true, yes, but essentially all copyrighted work created in the US since the 1930s is infinitely encumbered, and as a result virtually all of it will disappear without being preserved. The creative output of the US in the last 70 years (and for the foreseeable future) – vast though it has been – will amount to less than what was preserved from the ashes of the great library at Alexandria after it was burned. Any work which did not garner significant income – and many which did – will be lost. (Star Wars was almost lost, due to failure to preserve the original prints properly and insufficient duplication of those prints.) We have taken our intellectual heritage, and dumped it down the drain, for a few dollars more than would have been made had copyright been fixed at, say, 30 years. About the only real beneficiary has been Disney and its stockholders. (Ironic, since Disney made its fortune by making animated movies of public domain works.) There’s more to this than “wanting to get something for free”.
But here’s an easy solution: simply make copyright extend for, say, 30 years, and allow it to be renewed every 15 years for as long as the copyright holder wants, so long as a copy of the work is given to the Library of Congress after the initial 30 years, and so long as a minimal fee (even $1 is OK) is paid. One year following the nominal expiration of copyright, if it has not been renewed, the work becomes public domain. In other words, if you abandon the property, let others use it.
