Nominally, copyrights in the United States are for a limited duration. But the corporations that own valuable, decades-old copyrights--think Mickey Mouse and Batman--don't want to see those copyrights expire. So they've gotten good at lobbying congress to retroactively lengthen copyright terms in order to ensure that Mickey and Bruce Wayne will continue to be valuable commodities forever.
This is bad on its own terms, but it also has some really perverse consequences. After all, most decades-old works aren't valuable. And most aren't owned by large ongoing business enterprises. But even though this vast back catalog consists of works with little monetary value, they could still each individually be of interest to some people and collectively they're of enormous use. But right now, if you stumble across something old and forgotten, it's often not clear how you would even go about getting the rights to it. Oftentimes a person may not even know that he or she is the heir to an obscure copyright owned by a great-uncle or some such.
I'm a pretty hard-core IP absolutist, a subject upon which I've had many . . . er . . . spirited discussions with libertarians. On the other hand, while I think that copyright infringement should be vigorously discouraged, I also think that the term of copyrights has gotten completely out of hand, and moreover, encourages infringement.
The economic rationale for the recent copyright extensions was, in my opinion, utterly moronic--in the absence of multi-century oligarchic family dynasties, I don't see how tacking on a few more years of copyright protection decades after the death of the author could possibly encourage more work. Neither human beings nor coporations work on that time scale.
But even if you bought this piece of self-serving corporate balderdash, there was no rationale at all for making the copyright extension retroactive. No matter how many years of extra profits we tacked on for the Walt Disney Company, we weren't going to entice even one more animated short out of its founder's silent corpse.
Meanwhile, as Matt notes, the copyright extension is putting other old works off limits to generations that could be discovering them through Project Gutenberg.
But it seems to me that what can be given retroactively can also be taken away, retroactively. How about some hope and change on copyright law? Shorter the term back to the author's life plus thirty years--enough to care for needy spouses, but not for greedy corporations.
This post mentions patent terms in the head and lead, but then discusses only copyright lengths. Patents are 20 years fixed, and require maintenance fees be paid during that period at intervals or the patent becomes null. Patents are not the same at all as copyrights, and you seem to be using the terms interchangeably.
Right. I don't think we're really stifling innovation by not allowing Marvel to start a Batman comic.
Note that even abolishing copyright wouldn't allow that. The characters of Batman and Mickey Mouse are amply protected by trademark law, which has no expiration term. What the recent copyright extension requires is that Disney gets to say who can show "Steamboat Willie" and how much a license to do so costs. The copyright holders feared that if those old works went into public domain, the airwaves would be saturated with them, diminishing the value of their brands. They are probably right about that, but that's nowhere near a good enough reason for the extension.
Although in 1996, DC allowed it. Worked out well for them - he kicked the krap out of Captain America.
, I don't see how tacking on a few more years of copyright protection decades after the death of the author could possibly encourage more work. Neither human beings nor coporations work on that time scale.
So, should property rights only extend to around 150 years or so? After all, human beings nor corporations work on that time scale.
This gets into the area of ideas versus physicality that makes IP different from other property. IP is a legal grant of the right to stop people from reproducing or using an idea. It is not a physical object that can be possessed. Think of patent/copyright expiration kind of like the statute of limitations on a criminal case. Its not that the crime didn't happen, or that the idea wasn't created by you, but its so far in the past we've stopped caring about it.
No doubt that they are different; one is excludable and non-rivalrous while the other is excludable and rivalrous. I just think Megan's time scale argument is pretty weak; real estate investors can sit on land for as long as they want, land that could, in many cases, be put to better use by someone else. Why should they have more rights than someone who chooses to invest in a copyright?
Land requires annual tax payments, and it's use almost everywhere is subject to all sorts of restrictions. Land is supposed to be something we take care of for a while & pass along. The relation between people and land goes deep; when it gets commodified the result is North Olmstead, OH.
I'm not sure how you could be aware of the differences in excludability and rivalrousness, and then ask that question.
"I'm not sure how you could be aware of the differences in excludability and rivalrousness, and then ask that question."
The question isn't meant to be pragmatic. I just don't see an ethical difference.
"Land requires annual tax payments, and it's use almost everywhere is subject to all sorts of restrictions."
Would the "maintenance fee system" that Rob mentioned be analogous to property tax payments? If so, that sounds like a good way to prevent patent hording and trolling while allowing the truly innovative to still profit from their ideas.
Stan B - why do you expect there to be an ethical difference as well as a practical one? Isn't a practical one perfectly adequate for explaining the difference in laws?
I don't see how tacking on a few more years of copyright protection decades after the death of the author could possibly encourage more work. Neither human beings nor coporations work on that time scale.
So, should property rights only extend to around 150 years or so? After all, human beings nor corporations work on that time scale.
Copyrights are not really property rights like a house or other things. Thinking of them like that will have you confused and lead to the wrong conclusions every time. Copyright takes away normal property rights to secure a specific set of privileges to certain people which are deemed by the government to be beneficial.
The US Constitution says that Congress will 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."
Several things about this show it can not be equated with typical property assumptions. First, these "rights" are not required. There is no natural right to them. Congress may give copyrights out or take them away or never give them at all in the first place. They are a privilege given out (or not) at the whim of government.
Second, they are supposed to be "for limited times". If these were property rights like a house or a bicycle it would never say that. There never was, and shouldn't be, any assumption that the rights implied by normal property should have anything to do with how we treat or understand copyrights.
Third, the purpose of giving out these privileges is to "promote the progress of science and the useful arts". IOW, copyright is based in utilitarian theory. Giving these privileges out for a limited time to authors, the theory goes, will be beneficial to the public because it can create an additional incentive for authors to write and publish more books.
Megan gets that part right when she wonders how retroactive extensions of copyrights will further the goal of copyright (to promote progress...). Of course, it won't. It's just a special interest buying off the legislature to extend its privileges at the expense of everyone else who now has lost their right to copy, distribute or make modified versions of works from the 1920's. She also didn't go far enough though. The length of copyright prior to the extension was already far too long to serve the goal of promoting progress. She thinks "life plus thirty" is somehow justified, but this can mean maybe 100 years. I'd like to see one of these companies lobbying to have copyrights extended show me their projected balance sheets for 100 years into the future and explain how they factor these calculations in their decisions about whether to publish works today!
Megan, I also wondered about the reference to patents . Do you actually want to shorten patent terms in addition to copyright terms, or is the headline a typo?
On the contrary, once Walt is thawed from his cryogenic hibernation beneath the Pirates of the Caribbean ride at Disneylad, he will resume his work creating animated shorts.
What Peter said.
Beyond that, however, what examples of copyrights waiting to expire that are obscure are there? Yeah, the Google Books thing is interesting, but using examples of Batman and Mickey Mouse screams for some other cartoon character (the Green Hornet?).
Everything from the twenties.
Basically, almost nothing has entered the public domain since 1978, and the "clock" on the public domain has remained frozen at 1922 for the past thirty years. In 1978, things published or produced before 1922 were public domain. Same deal today.
That means a lot of Hemingway, Fitzgerald, Woolf, Steinbeck ... pick em. The great films of the 1930s.
If you're thinking of comic book characters ... under the copyright law that was in place when Superman was sold to DC comics, he should have gone into public domain in 1994. Batman should have followed in 1996. Casablanca, if copyright law had not been repeatedly extended, would have gone into public domain in 1998.
Shorter the term back to the author's life plus thirty years--enough to care for needy spouses, but not for greedy corporations.
You'll need to get a furiner-hating unilateralist back in the White House first, because the Berne Convention (International Law Most Holy, PBUI) calls for life plus 50.
That said, I'd favor a maintenance fee system like with patents.
WTO membership currently requires adherence to Berne. There are a lot of practical benefits to WTO membership that make cutting copyright terms inadvisable as a consequence.
It's been a while since I looked, but I think Berne only requires a minimum 28 year copyright period. I much prefer the fixed period copyright, and would even be satisfied with a period as long as 30 years - but anything beyond that (and probably anything beyond the first six years in which almost all profits are made) is a hindrance to progress and culture.
As another poster has noted, Trademark law is separate.
And I've been making these arguments for 15 years. Back then, hardly anyone seemed to understand why it might matter. It's good to see that awareness has grown.
Actually, we call these things "intellectual property" but they're not property in the normal sense.
The Constitution gives Congress the power to create copyrights, patents, etc. for limited terms. Congress does not, in fact, have the authority to grant perpetual copyright.
Before 1710, publishers (*not* authors, who alienated all rights upon publication) gave themselves perpetual control over "copyright" to books through a cartel system. The first English copyright law, in 1710, changed that system by making the author the official rights-holder, and limiting the term of copyright. (Initially 14 years, with one renewal.) Otherwise, we would live in a world where one publishing company "owned" the works of Shakespeare, and Twain, and Melville.
The publishers resisted this law in various passive-aggressive ways, and case law only got straightened out in 1774. So that *recent* common law was the context for the Framers deciding to empower limited terms of copyright, patents, and so on.
Doc Cleveland says:
"Congress does not, in fact, have the authority to grant perpetual copyright."
The late Jack Valenti, former head of the MPAA once said that "limited terms" should be defined as infinity minus one day. The Supreme Court has basically punted and said that Congress can set whatever terms they like.
If the Jack Valenti crowd wins then there really is essentially perpetual copyrights.
Personally, I would limit copyrights to a single 28 year period.
Yes. Valenti's comment is absurd. And we are in a perpetual-copyright environment, although this is explicitly unconstitutional.
I could settle for the pre-1978 system (28 year terms, with one 28 year renewal), or simply the international life + 50 years standard.
One future problem is enforcing laws in excess of the international standard, so that works will be public domain overseas but not here. It will be hard to make progress with, say, China on anti-piracy when we're calling things treating things that are public-domain elsewhere as private property.
Beg your pardon, but "unconstitutional" is a word with a meaning, and that meaning is not "anything I don't like". In the area of intellectual property, Congress has almost certainly gone far beyond anything the Framers ever conceived would be proposed or tolerated by reasonable people, but so long as the extension does have a nominal termination date, SCOTUS has declared that the term fulfills the requirements of "limited".
You don't have to like it (I don't), or think that it fits the spirit of the law (I don't), but that's no reason to call it "unconstitutional" when it has been declared constitutional by the legal entities that the same Constitution established for the purpose of hashing out distinctions involving unspecific phraseology.
aMouseforallSeasons - re: "but "unconstitutional" is a word with a meaning"
Yes and that meaning (or at least one important meaning) is something that actually violates the constitution. That meaning is not synonymous with "something the supreme court has said violates the constitution".
Note - I'm not making a point about copyright here. I'm not saying that our current copyright laws are constitutionally ok, or that they are unconstitutional. I'm just disagreeing with your argument that we shouldn't call something unconstitutional when the courts have said otherwise.
One future problem is enforcing laws in excess of the international standard, so that works will be public domain overseas but not here.
That's no harder than the current system with patents, which are quite frequently obtained in the US only because of expense, but copied worldwide.
Whenever copyright terms come up, I repeat the following suggestion:
Term of 10 years.
Renew for $100 (or whatever) for 10 (or whatever) more years, first time.
Each subsequent renewal is double (or .5x, or 3x, or whatever; Maybe even squared) the previous fee.
For constitutional reasons, no renewal after, say, 200 years.
The only non-negotiable part is the exponential fee increases.
Benefits:
1.anything that isn't pulling in enough money to support the fees will go into public domain. This is the vast majority of works.
2.If Disney wants to keep creating value around mickey mouse, I think that's a good thing, or at least defensible, so let 'em.
3. Enough government revenue to support a registration infrastructure.
The repeatedly-extended copyrights of valuable corporate properties doesn't bother me too much. But the way the current regime has effectively eliminated the automatic transfer of works to public domain is thoroughly corrupt.
"Renew for $100 (or whatever) for 10 (or whatever) more years, first time. Each subsequent renewal is double (or .5x, or 3x, or whatever; Maybe even squared) the previous fee. For constitutional reasons, no renewal after, say, 200 years."
Any scheme like this should have to take into account the degree to which the public wants to use the work. Extensions of copyrights ("renewal") means taking rights away from everyone who wants to use that work for 10 more years. In doing the renewal the government would be trading away the rights of every citizen that wants to copy, distribute or modify that work for 10 more years. Certainly it should matter how many people want to make use of the work, and therefore how many people must have their rights taken away to secure the renewal. If almost nobody has shown any interest in using a work in the ways forbidden by copyright then it would in general be of little burden for the government to trade away these rights to give the renewal. But if 100 million people are very eager to do so, then the government is imposing a significant restriction on lots of people. It hardly makes sense that this could just be bought for $100 if one copyright owner feels like it. The scope of the restriction is much greater in one case than another so the cost of buying the privilege can not be the same in both cases.
The government in this context would be acting as steward of the public interest and should only be trading away something (in this case the freedom of the public to use published works) where the public can reasonably be assured of getting something of equal or greater value in return. Getting $100 in return is hardly adequate. It might be a reasonable deal for an unknown or unpopular work that nobody wants to use anyway, but which might gain in popularity over the additional 10 years. This may help promote progress in that an author may be assured that even if his work doesn't produce much income in the first 10 years then he can only pay a small fee and have another 10 years to promote it more and maybe it will catch on.
And 200 years is far too long as a sum of all the extensions. One or two is more than enough. Anything that can extend past the lifetime of the author has no justification, and even that's far longer than I'd think appropriate.
Copyright terms. Not patent terms. Very, very different things. And I can't even imagine what "a pretty hard-core IP absolutist" means, given the breadth of what fits into "IP" (copyright, trademark, trade secret, covenants not to compete, patents, etc.). From the context, I assume that Ms. McArdle means she's a "a pretty hard-core [copyright] absolutist," which is a little clearer (but not much).
To Peter:
"Patents are 20 years fixed"
Add, for utility patents: 20 years from the earliest claimed filing date of the utility application -- which is not (necessarily) the filing date of the application from which the patent issued or the application that provides the priority date of the patent (the up to 1 year term of a provisional application doesn't count). Also, the 20 years term is subject to extension in some circumstances.
Also, applications for utility patents filed prior to June 8, 1995 have a term of either 17 years from issuance or 20 years from the earliest claimed filing date of the utility application, whichever is longer.
All of this is true. I am currently typing this from the confines of a patent agent's office where I work. I was making the 20 years point for simplicity's sake, to differentiate from the massive lengths of time given to copyrights.
Add, for utility patents: 20 years from the earliest claimed filing date of the utility application -- which is not (necessarily) the filing date of the application from which the patent issued or the application that provides the priority date of the patent (the up to 1 year term of a provisional application doesn't count). Also, the 20 years term is subject to extension in some circumstances.
A detail that almost no one not a patent lawyer knows, and that patent lawyers often forget. I've got a case right now where a client is in a bit of trouble for forgetting that 20 years starts from the priority date, rather than from the filing date of the issued patent.
I think it's clear by now that what this comment section really needs is a pedantic discussion of the merits of filing a CIP vs. (for instance) a new application with a Jepson claim. Bonus points to anybody who links to the MPEP and points out where it doesn't yet properly take account of KSR v. Teleflex.
:-P
The point is, Rob, it's difficult to have a discussion about patent terms with people who don't actually know what the limits on those terms are. You and I know them, but almost no one else does.
For example, there were the comment threads full of howls of indignation over the Worlds.com MMO patent suit, where no one other than pedantic patent lawyers realized that the priority date was in 1993 rather than 2001, and so before the success of functioning 3D virtual worlds.
You and I know them, but almost no one else does.
Speak for yourself. I would never answer a question about patent term extensions without a least a hour with my nose in the MPEP.
Would it be utterly ridiculous to try to separate IP that is used for production from IP that is used for entertainment? Sure, there are some things that are hard to quantify, but its not an insurmountable problem.
I'm for granting rights for production IP, as this does encourage innovation. People and companies that develop drugs, lubricants, engines, will most likely cease most of their work if a competitor can instantly copy their product. A sharp drop in revenue will no doubt effect the quality of future products.
On the other hand, entertainers will continue to entertain, even if under much lower budgets. Perhaps society will loose out on multi-million dollar blockbusters, but someone has to convince me that having fewer tomb-raider movies would be a bad thing.
Innovations like the next Sponge Bob Square Pants © toy in a Happy Meal™? I think you'd see a lot of corporate displeasure with the notion these marketing tools are not innovations.
Yes, I expect the system to be gamed in the exact way you describe. But its still better than holding infinite rights to a sound.
Megan,
I support shortening copyright terms. That said, I feel someone needs to point out that the term still matters.
The net present value of a stream of payments depends on the amount of each payment, the interest rate, and the number of payments. This right, assignable as it is, has an intrinsic value. Changing the number of payments will lower this value of this instrument.
The "lump sum" value of an such an asset may be paid while the author/creator is very much alive and can act as an incentive to create additional works.
I do not think things work quite so neatly in real life, but "on the margin", ceteris-parabis and all that, it probably does have some impact.
This was my thought as well. As long as rights can be sold, a term extension increases the value of the work in the creator's lifetime.
On the other hand, there is so much content out there which is worth less than the cost of hiring an investigator/lawyer to figure out who owns it. In aggregate it's worth a whole lot, though. I like the idea of the copyright holder having to renew the right periodically, and publicly, so this stuff isn't lost to the culture because it's too much hassle to find out whether or not you can use it.
At any reasonable discount rate, earnings beyond 20 years or so add very little to the net present value of an income stream.
I'll join the bandwagon yelling about making the proper distinction between patent and copyright. Patent terms are generally not too long--unless we want to start separating by industry group (EE/CS types want shorter terms, Pharma wants longer), 20 years from filing date is a pretty reasonable compromise. It's much, much, much shorter than the ridiculous life of author + 75 years for copyright.
And remember, copyright does stifle creativity, because one of the exclusive rights granted by copyright is the right to create derivative works. That's why the Catcher in the Rye sequel lawsuit is going on.
We call patents intellectual "property," but IMO, that's an entirely wrong way to think about it. Really, they're not property at all.
Patents are a government mandated monopoly that's granted in trade with inventors to get them to publish their ideas for the betterment of society. IMO, there's no inherent right to exclusive use of an idea. As long as you keep your idea secret, you can use it exclusively forever. If you agree to share your idea with society, the government gives you 20 years or so of exclusive use of it.
Thomas Jefferson to Isaac McPherson:
"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"
Patents are a government mandated monopoly that's granted in trade with inventors to get them to publish their ideas for the betterment of society.
Patents are no more of a monopoly than any other kind of property ownership. Sure, I'm the only guy who can live in my house and drive my car, but it's not the only house or car out there, so I can't reasonably be said to have a "monopoly" on anything unless, like the English squires of old, I literally own the whole town. Similarly, unless you've managed to invent and patent something for which there is absolutely NO substitute whatsoever, you don't have a monopoly, you have a property right.
...putting you at odds with the founders of the country and pretty much all of legal history on the issue. (Hint, they're right and you're wrong).
Yeah, you may want to flesh that argument out a little bit. I've spent rather more time thinking about IP than the average bear.
Yeah, and perhaps the word monopoly doesn't help "promote the progress" of patent lawyers, and so their incentive is to spend a lot of time thinking about ways to argue it shouldn't be used.
Anyway, not sure how you want me to flesh it out, but I can start with those who created the patent system in the US talking about whether or how much they should allow such monopolies:
"The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression." - Jefferson
"With regard to monopolies they are justly classed among the greatest nuisances in government. But is it clear that as encouragements to literary works and ingenious discoveries, they [monopolies] are not too valuable to be wholly renounced? " - Madison
"I like the declaration of rights as far as it goes, but I should have been for going further. For instance, the following alterations and additions would have pleased me . . . Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the
arts, for a term not exceeding ___ years, but for no longer term, and for no other purpose." - Jefferson
Too bad Jefferson didn't get this wording with a specific number of years and the "for no longer term" accepted in the final version. We wouldn't be having this discussion about absurdly long copyright terms, there'd probably be a lot more progress in the sciences and useful arts, oh... and there'd be fewer IP lawyers. But anyway, we can move on to more recent sources:
The US Supreme Court, Sola Electric Co. v. Jefferson Electric Co.:
"The question for our decision is whether a patent licensee, by virtue of his license agreement, is estopped to challenge a price-fixing clause in the agreement by showing that the patent is invalid, and that the price restriction is accordingly unlawful because not protected by the patent monopoly."
"..that the stipulation for control of the sales price of the patented articles manufactured by the licensee was a lawful exercise of the patent monopoly."
"Such a restriction on the price of articles entering interstate commerce is a violation of the Sherman Act save only as it is within the protection of a lawfully granted patent monopoly."
I could go on and on with such quotes, but do I need to?
I could go on and on with such quotes, but do I need to?
No, because you haven't actually bothered to interpose a thought among all your quotes.
I was already aware that many people use the word "monopoly" when describing a patent. (Some people use the word "patent" when referring to copyright, too). My point is that it is a poor choice of words because it does not describe the patent right, at least not in 2009.
A monopolist is the sole seller of something. Now, I note by examining the container my lunch is in that the maker has a patent. Does that mean whoever made that plastic box is the sole seller of plastic food-storage containers? Obviously not.
Only Pepsico can sell Pepsi, both because they have the rights to the trademark, and because they keep their formula secret. Is Pepsico a "monopolist" in the fizzy beverage market? Only GM can sell something called "Chevy Tahoe." Is GM a "monopolist" in the SUV market? Only WD-40 knows how to make their unique aerosol fish oil. Are they "monopolists" in the penetrating-oil market?
Patents don't make you a monopolist any more than trademarks or trade secrets do unless your patent is so pioneering that you really are the only person who can sell that product. The number of such patents is exceedingly small (although those are, of course, the most important ones)
Copyrights are more plausibly described as a "monopoly" because substitutes are likely to be hard to come by and might well be squelched as derivative works.
"you haven't actually bothered to interpose a thought among all your quotes."
I didn't think I needed to. My thoughts aren't superior to the thoughts of those I quoted on the issue, the founders of the country and the SCOTUS. Your attempt to equate their knowingly and correctly describing patents as monopolies with some people who ignorantly confuse patents and copyrights doesn't float.
You then go on to confuse patents and trademarks. All your examples are the latter when the point was the former. You're just playing games with how you define the scope of the monopoly and not allowing anything in below the patent threshold. A patent owner is someone (or some company) who is granted an exclusive right to use some idea in the making and selling of a product. This is an idea which everyone else could also use to make and market the same product. If this were to happen there would be market competition in its pricing. When the patent is granted, only one manufacturer can use that idea and gets to set a monopoly price.
Your trick is just to say, if the chicken were patented, that the chicken market can't be a monopoly because there's other kinds of foul or other kinds of meat or foods that can substitute for chicken and compete with United Chicken(tm), therefore there's no monopoly. The monopoly exists because other manufacturers could make chicken themselves and compete directly with United Chicken making chicken.
Likewise, other manufacturers could use any other patented ideas to make things themselves and compete directly with the patent holder making that thing, not some substitute for it, if a reasonable one exists.
When the patent is granted, only one manufacturer can use that idea and gets to set a monopoly price.
And that's my point in a nutshell--most patents don't give the holder the power to set anything resembling a "monopoly price," because in most cases there are perfectly good--if perhaps slightly inferior--substitutes. As I said, I have a monopoly on the sale of my house, but that doesn't mean the antitrust division at DoJ needs to look into my pricing practices. The evils we associate with true monopolies (such as abuse of market power to raise prices or force tying) are for the most part absent from the patent system (it has its own set of evils, I hasten to add), so it is more sensible to avoid that particular word.
There do exist patents which create meaningful monopolies (especially drug patents), but not many.
You then go on to confuse patents and trademarks. All your examples are the latter when the point was the former.
Some of my examples involve trade secrets, BTW. And it's not confusion; I simply don't see the difference under your analysis. Presumably Coke sells for a higher "monopoly" price than does generic fizzy soda; if a patent is a "monopoly" because a patented product fetches a slightly higher price, then a trademark or trade secret that results in a slightly higher price can be a "monopoly" too.
If I may interject a small dog into this fight, it appears one of you is talking about "monopoly" as a legal term of art (and I believe Magellan was also), while the other is discussing the economic definition. They're both valid and they're not the same thing, so unless I've misread this entire subthread, the both of ye are talking right past each other.
I'm trying to talk about monopoly in terms of the evils that we associate with it: excessive rents, abusive tying, dumping to drive small competitors out of business. Those are only possible with a tiny fraction of patents; most other patents more closely resemble ownership of ordinary property, which may be desirable enough to command a premium over similar properties, but are not meaninfully monopolies.
"I'm trying to talk about monopoly in terms of the evils that we associate with it"
I never said every instance of a monopoly reflects all of the evils that might get associated with certain well known and disliked instances of the largest and most powerful monopolies. I think this is confusing differences in scale with differences in kind. And you seem to be able to set the scale wherever you want. If we're just using different definitions as Mouse says, then yours seems pretty arbitrary. In any case, your desire to avoid certain colloquial baggage of the term may be your interest, but that doesn't make Magellan, me, Jefferson, Madison, SCOTUS etc., wrong for using the term. We're using the term correctly as it has always been used and understood with patents.
You want people to equate patents (and apparently also copyrights, patents, trademarks or trade secrets) with ordinary property like a house but these are far more different than is the difference in scale or colloquial connotations you're worrying about. These go well beyond the rights inherent in ordinary property. If you own a house that's all you own. If I use my property to build a house that looks like yours that's my house, and you still own everything you did before. With the patent you don't just own a house. If i build mine somehow you then own mine too, or part of it, because it looks like yours, even though you still have the house you had before and didn't do any work to build mine. Ordinary property doesn't work like this. Monopolies over a particular good work like that.
I do not deny that there are very important differences between intellectual property and ordinary property. I merely point out that the difference between a "monopoly" as commonly understood (i.e. Standard Oil, Ma Bell) and "monopoly" as applied to most patents are at least as large as the differences between IP and OP.
The key word there might be "most patents". Since they seem to give patents out for almost anything these days, where it used to require "ingenious discoveries" (Madison's term above), something really unusual and non-obvious, we therefore have huge numbers of patents. In which case the most problematic might only be a minority of the total, but this is sort of like calling ketchup a vegetable to change the percentages around. You start handing out more patents for anything then the ones that really bother people will become a smaller part of the total number of patents, but so what? You haven't reduced the nuisance, you've just added more minor ones.
I'd like to know for example what exactly is the "ingenious discovery" in your patented lunch container you referred to earlier. I'd bet whatever it is it's not very ingenious, and not much of a discovery.
I don't know and I won't bother looking it up, but I presume it's something to do with how the lid locks down to the body. I don't know where it rates on your scale of ingeniousness, but I can say the patent was not ingeniously written, as there are imitators with slightly different designs who apparently haven't been forced off the market yet.
You're right about the proliferation of crappy patents and the attendant issues, and you're right that even quality patents on ingenious discoveries cause problems which require attention and consideration. But those problems are only rarely related to those which are associated with what we usually call "monopolies."
The IRS and stickup men both use the threat of violence to extort money. But people who refer to taxation as theft are obscuring the problem more than clarifying it because the problems that taxation creates, and the solutions to it, are quite different from the problems and solutions associated with bank holdups.
I agree with the fee based renewal systems the others have stated. You get some short amount of time for free, say 5 to 10 years. After that you can renew for a certain number of years for a fee. This fee keeps increasing as time goes on and you can't prepay. The act of having to renew is itself a discouragement on copyrights lasting too long, plus it lets everyone know who the current holder of the copyright is.
There should be a fee for transfer of ownership too, that way a national registry can be funded so interested parties can actually find the owner of the copyright.
I guess the fee amount doesn't matter much. It probably would be good enough if it just covered administrative costs, and would merely have to keep up with inflation. Even a $20 fee would cause many "abandoned" works to enter the public domain, either through apathy or a lost trail of ownership. I don't mind Disney keeping the copyright to Steamboat Willy forever, as long as they're willing to fork over administrative fees. I do mind "losing" IP because the legitimate owner of the copyright can't be established (or just doesn't care).
I disagree -- a relatively nominal fee might encourage people to maintain protection over works they don't really use, for sentimental attachment or "just in case," for the same reason that some people can't bring themselves to throw out boxes of junk that take up space in an otherwise useful utility closet.
The exponential fee increase someone else suggested is much more effective because it forces the IP holder to consider carefully if the commercial value of the IP justifies the ongoing maintenance expense. $1000 at the 10y mark? No problem. $10k at the 20y mark? Stop and think about that for a minute. $100k at the 30y mark? Only if it's really valuable. And so forth.
This was roughly how CFCs were phased out in the US, incidentally. For maintenance applications (e.g. recharging a car's air conditioner) they weren't banned outright, instead a special phase-out tax was placed on their use that doubled every year.
I agree that an exponential fee increase would be more effective. I've argued for such a system in the past in this blog's comment section. The reason I brought up the nominal fee idea is because it's "effective enough" and much easier to survive politically.
A nominal fee would cover almost all of the "abandoned/orphaned" works, which to me is a more interesting and compelling case than trying to wrest control of Steamboat Willey from Disney or Elvis' greatest hits from the Presley estate (or whoever).
So much content under copyright now has been entirely forgotten. Rights have moved from one person to another without anybody even knowing the work exists. Having a process which requires action on somebody's part would put all that stuff into the public domain.
If the rights holder is aware of the work and actually owns the rights I don't see any reason to penalize them for wanting to keep the rights.
There should be a fee for transfer of ownership too, that way a national registry can be funded so interested parties can actually find the owner of the copyright.
The thing is, there isn't one "copyright," there's a big package of exclusive rights, and who "owns" it is ambiguous at best, because it can be rented (and sublet) for extended periods, or fractionally sold or rented (e.g. hardback rights to A, 1st serial rights to B, paperback rights to C, 2nd serial rights to D, stage rights to E, movie rights to F, book-on-tape rights to G, etc).
And you can (but need not) record transfers of copyrights already. That's why the maintenance fee idea is important: it creates a default assumption of invalidity after a certain unless a document can be found evidencing payment. That is in contrast to the present system, where you have no choice but to assume there are 27 great-grandchildren, all of whom own a fraction of the copyright by virtue of intestacy, but none of whom know about it.
As far as I'm concerned, they can make as many derivative copyrights as they can think of, as long as each of them is registered with a name, contact info and fee based renewal requirements.
Megan, I think you need to change the headline (and the link) by replacing “Patent” with “Copyright.”
Nothing created during my life will come into the public domain until after I die. This is an unlimited term as far as I'm concerned. Actually, nothing created during my grandfather's life will come into the public domain until after I die, probably.
I like 28 years or 10 years + 10 more years upon payment of a fee that increases exponentially every 10 years.
If anyone ever creates a work of art that does not refer to any previous work of art or any concept from any culture or any other idea that was conceived by another person (in other words, a 100% unique work), then I would be willing to grant that person a perpetual copyright.
All other works draw on the public domain and should therefore contribute to it.
I disagree with those who claim moral ownership of their works. I believe it is good policy to grant copyright for a period to allow for those with outstanding ideas to profit from them but I also don't want a great artist to create ONE great work and get rich off of it, never to create another. I'd rather encourage him to create more by letting him profit off of each one for a limited time.
Life + 30 years? That's crazy? I assume Megan merely tossed that out as a timeframe that could easily be deemed politically acceptable, but it WAY too long.
The purpose of copyright isn't to provide for an author and their spouse, it's to create an incentive for content producers to create valuable works. Who, exactly, produces a movie, tv show, album, or book foreseeing their break even point, in terms of profits, 20 years down the road?
Can someone even give a single example of a copyrighted work that would not have gotten produced if copyright were limited to 20 years?
Even if you believe that a content creator should be given longer term control over the characters they've created, there's still no apparent benefit to preventing the copyrighted work itself from being freely distributable after 20 years.
Nothing created during my life will come into the public domain until after I die.
That's not completely true. Some creators have put their works in the public domain voluntarily. And material created by the government is often public domain... the other day I downloaded the The Navy Electricity and Electronics Training Series (NEETS). Created for the Navy, but public domain for everyone to use. It seems like a pretty good course so far, and far cheaper than the normal EE text books that usually cost somewhere in the 100+ dollar range.
In another venue, I suggested that patents be abolished.
The reply was so smoothly Sophistical that I'm unsure
what was said; I _think_ it could be translated as:
Of course the current system is rigged in favor of
Big Business, and against the individual inventor,
and should be; The economy works better that way.
Furtherandmore, if Regulatory Capture of the
Patent Office is seen as a bad thing by the voters,
all they have to do is elect politicians who will
reform the system. :(
Leaving aside the Doomsday Scenario, wherein TEOLAWKI
occurs because one disgruntled inventor hides a
discovery critical to the survival of the human race,
consider the doubly unique situation in which we find
ourselves:
1) We desperately need to invent things which our
creditors want and can afford to buy; I'm talking
national survival here, folks.
2) Individual inventions are becoming exponentially
more valuable, to the point where their effect
on society makes them different in kind, rather
than degree, from those in the past; The printing
press took centuries to provide less availability
of information than the Internet has in, what,
20 years ?
As MM remarked when the scope of our current financial
catastrophe began to sink in:
"Maybe we need to play the game by different rules."
When does this ever happen? I've never heard of a successful artist, of any variety, who hit the jackpot early on and then hung up his pen/paintbrush/typewriter/keyboard to retire in luxury. Every one hit wonder spends the rest of his life (usually quite miserably) trying to recapture the glory of that popular work with new material. Just because Del Shannon never recaptured the glory of Runaway doesn't mean he didn't try like hell.
A good read on this subject is Jerry Pournelle. He's a relatively successful science fiction author who's written quite a few books over the years. Some by himself, some with co-writers. Now he's in his '70s and the residuals from those books pay the rent. Individual books don't contribute much, but the aggregate is (almost, apparently) enough to live on. A system with a high renewal cost would put people who depend on a small amount of money from multiple works into the poorhouse.
tsotha -
after 10 years, there are very, very few books pulling in much revenue for their authors. Paying a $100 fee, which I proposed upthread for the first renewal at ten years, would work out to not much more than $10/year for the next ten years. If the book is still making enough in royalties to make any kind of dent in someone's rent, $10 a year would be a fraction of the income taxes on those royalties. This is effectively a tiny tax increase on a tiny group of people, and I don't think it's worth worrying about given the potential benefits.
An even tinier fraction of books have a fiscal life past a second ten year term, so an increasing fee would matter proportionally less.
Part of the problem here is the royalty system; in music, too. Author/composer frequently gets screwed in the original contract for publication in all sorts of ways.
I'm waiting on all the music I hope Miles Davis played and recorded after he stopped making records (dispute with record company over royalty payments) and before he died -- a period of at least ten years. That music, if it exists, is extremely valuable; and because of his recording contract, likely property of his publishing company until the copyright expires. 30 years will put any release in my twilight years, if I'm so lucky. Sigh. I hope my hearing lasts.
Your Jerry Pournelle example is a good one. Perhaps the renewal fee should be royalty based; the more a property earns, the more it costs to renew it.
J. D. Salinger retired 14 years after "Catcher", but is still alive (and suing to enforce rights which copyright doesn't give him), but that's exceptional.
As an alternative to mdimeo's suggerstion of ever-increasing renewal fees, I propose that maintenence of a copyright depends on the product remaining in print. If you own a copyright, and let the work go out of print for 5 years, the copyright expires, or reverts to the original creator, or the work may be reproduced with a set payment to the original creator or copyright holder. There might have to be a separate class of copyright for unique works or very-smal-run limited editions. The details can be worked out, but the point would be to make sure that copyright works remain available.
My understanding is that "in-print" is already a pretty fuzzy concept that is cause for a lot of legal argument and heartache in publishing contract disputes (some contracts have rights reverting to the author when a book goes out-of-print, for example). A publisher could keep a book legally "in print" just by keeping a few copies around and offering them for $10000 each on ebay every few years. And with ebooks, there's really no reason for anything to go out of print, ever, which puts us back to perpetual copyright.
I also think an in-print system would have fewer benefits than frequent increasing fees, but I think its unworkability would be enough to drop the idea from consideration.
-m@
Another way to keep abandoned works from vanishing would be a mandatory licensing scheme where either by statute or by some sort of court action, anyone can reprint and/or create derivitive works if they pay a fee. Not sure how the fee should be set (% of gross? flat fee? greater of the two?) or how you would pay unknown creators (some kind of escrow account?). It would also keep authors from suppressing works, assuming someone was interested enough and willing to go through the effort to gain the license.
If we're going to be stuck with these ridiculously long terms by treaty, then mandatory licensing would be a way around having works disappear.
Another example of the problem are the number of old movies that are sitting in warehouses slowly corroding away into nothing but the owner isn't interested in spending any time or money on restoring them but isn't willing to give away the copyright "just in case." By the time the copyright expires, the film will be gone.
I'll admit that the laws around this topic have always confused me, but this, I know:
I don't want or need competition in the field of "creating new & innovative ideas with the Mickey Mouse character." Some things don't require competition. The fact that only Disney gets to decide where & how Mickey appears is what makes Disneyworld special. Without it, there'd be a Disneyworld in every town in America, and 99% of them would be krep. Just finding the "real" Disneyworld would become a chore, rendering it economically infeasible to even exist. In that scenario, the world loses a unique, creative, innovative and entertaining piece of art.
Lawyers and other legal vultures may now pounce as appropriate. I'll be in the corner, hiding behind my mouse ears...
Without it, there'd be a Disneyworld in every town in America, and 99% of them would be krep.
Mickey would still get trademark protection. They couldn't prevent him from being a movie or storybook character (provided it was made clear that Disney didn't make the film or book), but they could probably prevent his image from appearing at amusement parks because it would give the false impression that Disney sponsored or approved of the park.
I can imagine that Mickey is enough of a cultural icon to deserve alternative imaginings of his existence, like Jesus or King Arthur or Oliver Twist.
The fact that "Happy Birthday" is still under copyright after almost 100 years is a travesty... it IS part of our culture and nobody can or should own a part of our culture.
I've been opposing unreasonably long copyright terms since the early 1990s, when my involvement with Project Gutenberg got me interested in the subject. I can say from personal experience that the problem with orphaned works is very real. It can be virtually impossible for someone on a reasonable budget to find out who the copyright owner is, much less pay any fees. As a result, history and culture are lost - which is precisely the opposite of what American copyright law was intended to do.
When I started telling people about the problems with copyright, the general attitude was "Who cares? That doesn't affect anyone." It is nice to see that attitudes have changed.
But since the actual title of this thread relates to Patents, I will note that (1) the period for patents is fortunately far more reasonable than for copyrights, but that (2) the cost of a normal person obtaining a patent is too high for routine use by most individuals, and (3) the overload of patent applications has created a great deal of problems because a number of patent trolls routinely receive patents for inventions that have already been in the public domain for twenty years or more, or for obvious improvements that occur to everyone studying a problem and which are not actually patentable by law (but which get a patent all the same).
In short, there are huge problems with the patent system as it now exists, and the 20 year term is the least of these. It remains questionable how useful patent law is to society in general.