Copyright Privileges Running Out of Control
Can Mickey Mouse Block All Future Ideas?
Patent and copyright restrictions have grown into major government-granted privileges. That is unjust.
Here are portions of an article that recently appeared in the Oberver (London).
by John NaughtonThe US Supreme Court announced last week that it would hear Eldred v. Ashcroft - an obscure case of which I guess most people are blissfully unaware. Yet the outcome of the court's deliberations will determine how our cultural and intellectual life evolves over the rest of this century. What's at stake is nothing less than the future of ideas.
How come? Well, Eric Eldred is one of those gloriously public-spirited figures who runs a website devoted to publishing literary works in the public domain. The problem that Eldred came up against is that said domain has been shrunk by the US Congress, as it has steadily increased the period during which creative works enjoy copyright protection - from the 28 years envisaged by the framers of the American Constitution to the current position of the author's life plus 70 years for individuals and 95 years for works created by corporations.
This has happened by a series of ad hoc extensions. Since 1960 the process has accelerated, with Congress, egged on by lobbying and huge campaign contributions from movie studios, recording companies and publishing conglomerates, granting no fewer than 11 extensions of copyright. The last straw for Eldred was the 1998 Sonny Bono Copyright Term Extension Act which ratcheted copyright terms up to their current absurd levels.
Eldred's case has been enabled by the 'Openlaw' co-operative project orchestrated by the Berkman Center at Harvard. At issue is whether there are constitutional limits to Congress's power to extend the term of copyright. The framers of the Constitution thought and argued a lot about the question and reached a sublimely intelligent view about it. The heart of it, they reasoned, was to balance the need of authors to earn income from their work, against society's need for the free and unimpeded flow of ideas. The balance they struck in 1790 was to grant copyright protection for 14 years with the possibility of one further extension of 14 years.
Given the dynamism of American cultural and economic life in the nineteenth and twentieth centuries, you'd have thought that the framers got it about right. Under the balance they engineered, creativity was rewarded while ideas circulated freely. So why did Congress tamper with it?
The answer appears to be that the framers thought mainly in terms of individual creativity and did not foresee the rise of corporations based almost entirely on intellectual property. And companies do not take lightly to the wasting of their main assets, so they lean heavily on legislators. To take one example: without the Extension Act, Disney's copyright on Mickey Mouse would have expired in 2003 and the rights to Pluto, Goofy and Donald Duck a few years after that.
It's tempting to, er, caricature this issue as a row about cartoon characters, but in fact it goes right to the heart of what makes a creative society tick. We all borrow ideas from one another all the time: imagine how few songs would be composed if songwriters had to pay for every song they'd ever listened to.
In a non-digital age, the control exercised by copyright on the circulation of ideas was relatively loose -- simply because it was difficult to enforce at the level of the individual. But in a digital world, it is technically possible to track every single access to a document, song or movie and Disney & Co plan to exploit that to the full. That's why copyright terms must be shortened, why Congress's extensions must be rejected and why the Supreme Court's deliberations in the autumn matter to us all.
We need to encourage innovation, not monopolization. Government should not give away special privileges freely or easily. What's your opinion? Tell your views to The Progress Report:
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