Re: Carmen Jones Question
- From: Mark D Lew <markdlew@xxxxxxxxxxxxx>
- Date: Thu, 19 Jan 2006 10:18:10 GMT
In article <WdCdncujw4s2gVDeRVn-sQ@xxxxxxxxxxx>, Lookingglass
<Shemakhan@xxxxxxxxxxx> wrote:
> I am curious as to WHY you think the current copyright laws are "hilariously
> over-generous" for intellectual property?
The concept of intellectual property is directly contrary to the ideals
of freedom of speech and freedom of thought. The enlightenment
philosophers rejected the idea that one could own an idea, and they
rejected the idea that said ownership should dictate what another
person is allowed to say.
America was founded on these enlightenment ideals, and the new nation's
fundamentally different political philosophy is what made it so great.
At the same time, the founders, while rejecting the notion of
intellectual property per se, nevertheless recognized the practical
value of offering protections, and thus our constitution reflects that
as well.
Every copyright law of any term would be unconstitutional (ie, contrary
to the First Amendment) were it not for Arcticle 1, section 8,
paragraph 8. That paragraph, in the section enumerating the powers of
Congress, states that Congress shall have the power 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".
By its wording there, our constitution explicitly rejects the idea that
any person has a *natural* right to his intellectual creations. That
right only exists as a monopoly right granted by the government, and
the government is only allowed to grant that monopoly -- and by "grant
a monopoly to someone" we really mean "enforce a ban for everyone else"
-- because doing so promotes the progress of science and art, and
therefore it benefits society as a whole.
Stated another way, it is our free society's fundamental belief that
ideas are not owned by the person who voices them. If you write a
poem, you may keep it to yourself if you like, but as soon as you
pronounce it to the public, it becomes part of the common wealth free
to everyone. However, since we *want* you to pronounce your poem,
thereby enriching the public, and we're afraid that you might choose
not to (or never write it in the first place) without a bit of
financial support, we choose to grant you monopoly rights over it for a
limited period of time. That is a compensation that the government
gives you in order to coax you to do something that will enrich the
entire society -- rather like we might pay an architect who enriches
the society at large by designing a public building.
The government's *only* legitimate interest here is promoting the
general welfare. Copyright laws in America exist to motivate artists to
generate work for the public good. They do not exist to protect the
artist. If they did, they would be unconstitutional.
That is the fundamental legal and philosophical premise of copyright
protection in America.
Actual copyright law for the past 40 years or so has flouted that
premise in so many ways. For one thing, it's doubtful that granting a
monopoly right for death plus 70 years motivates anyone at all. How
many artists are going to withhold their work or decline to create if
they know their heirs will only own their copyrights for 10 years after
they are dead instead of 70? Even if it's possible that the extension
has *some* motivational value, it surely is a case of overpaying for
the product. It's as if we paid the architect of the public building a
million dollars for three days work. Sure, you get a little more by
paying top dollar, but it's still a boondoggle. And in the case of
copyright law, you're postponing that much longer the day when the work
finally reaches the public domain.
For another thing, the constitution specifically says "for limited
times". The current pattern in copyright law is that no copyright ever
expires, because just before it's about to run out, they pass a new
amendment extending the term.
That's yet another problem: extensions. Every time a copyright term is
extended, the lawmakers are relying on the legal fiction that this
extension promotes the useful arts by motivating artists to create
more. Think about this. When Irving Berlin published White Christmas
in 1940, he did so knowing that he was promised the rights to the song
through 1968. This was sufficient to motivate Mr Berlin to publish the
song. He was happy, and the public -- represented by its government --
was happy, knowing that the song would soon pass into the public
domain. It was a fair deal. Since then, Congress has extended that
promise so that Irving Berlin Music Corp owns the rights until 2055.
How exactly does that motivate Mr Berlin, who is now dead, to write
more songs?
Every retroactive extension of copyright is absurd. The work is
already published. What gain is there to the public to give up more
rights? That's like revisiting the architect in our example and giving
him another $10,000 twenty years after the contract was completed. How
does that serve the public?
This was the basis of the Eldred case. The Supreme Court threw it out
for the same reason it always rejects copyright cases. The Court feels
that it has no business deciding whether the law actually does serve
the constitutional purpose. All it cares is that the legislature
*intends* for it to serve that purpose. If the legislature intends one
result but ends up with another, well, accidents happen. The Court
can't be expected to judge every law on its effectiveness.
The Court is right about this. It really should be a legislative
issue, and the public really ought to be furious at the legislature for
handing over public wealth to private corporations for absolutely
nothing. The legislature is supposed to represent the public's
interest here, getting it the best deal for public domain art, but in
fact it does no such thing.
This is hardly unique in government. An individual interest with a
strong lobby will always beat out a diffuse public interest.
Anyway, that's what we have in mind when we say copyright terms under
current U.S. law are absurdly over-generous.
mdl
.
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