joegratz.net

The Op-Ed pages of today’s New York Times contain an essay inveighing against the current copyright term. The writer, Mark Helprin, finds the current term unjust, taking away vital resources from our children and grandchildren because of a rule better suited to an earlier time. The essay quotes Jefferson and opposes what the writer considers unwarranted regulatory interference.

More or less what you’d expect from an essay arguing for a shorter copyright term, right?

The funny thing is, though, that this essay is arguing for a longer copyright term. A term that lasts for seventy years after the author’s death is too short, Helprin argues, because property should not be “stripped from [his] children and grandchildren.” Instead, like other property, it should exist in perpetuity. In Helprin’s opinion, the Framers would have allowed a perpetual copyright term if they had “imagined that services and intellectual property would become primary fields of endeavor and the chief engines of the economy.”

The reasons Helprin is wrong as a matter of policy are numerous. Just a few:

• One additional year of copyright protection — the 71st year after the author’s death, let’s say — has an infinitesimal economic value today, literally on the order of a few cents even for the rare work that will continue to earn millions in that 71st year after the author’s death. That added value is simply not enough to lead an author to create a work he otherwise wouldn’t. Because the purpose of copyright is to act as an incentive to spur the creation of new works, a perpetual copyright term would have no effect other than giving an irrational author the warm fuzzy feeling that his heirs will reap the fruits of the sweat of his brow. The author’s grandchildren would be better off with a dollar invested today and passed on to them than with a perpetual copyright term.
• While the author’s heirs would reap the same amount as a few pennies invested today, the public will suffer. While Helprin may not be familiar with any uses for public domain works other than “price-reduced non-copyrighted” books at Barnes & Noble, the benefits of a robust public domain flow not only to “various business who will continue to profit from” works in the public domain, but also to the public itself. Archive.org, Project Gutenberg, and LibriVox are just a few of the nonprofit projects helping the public benefit from the public domain. In a hundred years, if Helprin’s works are mostly forgotten and no publisher finds it profitable to keep them in print, would Helprin want the works to be out of print forever, or would he want them to be available for free on the Internet — maybe even as an audio book?
• Helprin’s argument requires as a premise that no benefit to the public is great enough to justify depriving his grandchildren of a few pennies of net present value. This is not irrational, but it is unreasonable and mean-spirited.
• Finally, Helprin’s argument fundamentally misunderstands the American copyright tradition. Copyright are granted not because an author is naturally entitled to the fruit of his labor, but because granting copyrights gives incentives for the creation of new works. Helprin argues that this tradition is outdated, having arisen from an agrarian society where “[w]riters and inventors were largely those who obtained their sustenance from their patrimony or their mills.” But the importance of copyrights to the economy only strengthens the argument that copyright should be an economic right, not a moral one. If copyright is economically important, we should judge its effectiveness in economic terms.

Let us reflect, too, upon the irony that an argument in favor of perpetual copyright is being made by an author whose most successful work bears a title and a conceit appropriated from a work in the public domain.

Larry Lessig has set up a wiki on which the community is writing a response.