Curtailing Intellectual Monopoly: The Insanity of US Copyright Law

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Yves here. While our focus is on finance and economics, rentier capitalism is on the march , seemingly across the entire economy. One of the troubling examples is the expansion of intellectual property rights. The idea that seeds could be patented would be dismissed as ridiculous 40 years ago; we now have Monsanto controlling critical parts of our food supply as a result of its successful IP strategy.

Rajiv Sethi gives an update on the copyright front, where the Republican Study Committee (the RSC) issued a policy document that found, mirabile dictu, that copyright law had become skewed toward protecting content owners/creators. The document was withdrawn shortly after its release, leading to a chorus of complaints. You can read the paper here (I suggest downloading it, who knows how long it will stay up on ScribD).

By Rajiv Sethi, a Professor of Economics at Barnard College, Columbia University. Cross posted from his blog

I never thought I’d see an RSC policy brief referring to mash-ups and mix-tapes, but I was clearly mistaken.

The document deals in an unusually frank manner with the dismal state of US copyright law. Perhaps too frankly: it was quickly disavowed and taken down on the grounds that publication had occurred “without adequate review.” Copies continue to circulate, of course (the link above is to one I posted on Scribd). Although lightly peppered with ideological boilerplate, the brief makes a number of timely and sensible points and is worth reading in full.

Aside from extolling the virtues of “a robust culture of DJ’s and remixing” free from the stranglehold of copyright protection, the authors of the report make the following claims. First, the purpose of copyright law, according to the constitution, is to “promote the progress of science and useful arts” and not to “compensate the creator of the content.” Copyright law should therefore be evaluated by the degree to which it facilitates innovation and creative expression. Second, unlike conventional tort law, statutory damages for infringement are “vastly disproportionate from the actual damage to the copyright producer.” For instance, Limewire was sued for $75 trillion, “more money than the entire music recording industry has made since Edison’s invention of the phonograph in 1877.” Third, the duration of coverage has been expanding, seemingly without limit. In 1790 a 14 year term could be renewed once if the the author remained alive; current coverage is for the life of the author plus 70 years. This stifles rather than promotes creative activity.

The economists Michele Boldrin and David Levine have been making these points for years. In their book Against Intellectual Monopoly (reviewed here), they point out that the pace of innovation in industries without patent and copyright protection has historically been extremely rapid. Software could not be patented before 1981, nor financial securities prior to 1998, yet both industries witnessed innovation at a blistering pace. The fashion industry remains largely untouched by intellectual property law, yet new designs keep appearing and enriching their creators. Innovative techniques in professional sports continue to be developed, despite the fact that successful ones are quickly copied and disseminated.

In 19th century publishing, British authors had limited protection in the United States but managed to secure lucrative deals with publishers, allowing the latter to saturate the market at low prices before new entrants could gain a foothold. More recently, commercial publishers have turned a profit selling millions of copies of unprotected government documents. For instance, the 9/11 Commission Report was published by both Norton and Macmillan in 2004, and a third version by Cosimo is now available.

Copyright restrictions for scientific papers are especially illogical, since faculty authors benefit from the widest possible dissemination and citation of their work. Furthermore, in the case of journals owned by commercial publishers, copyright is typically transferred by the author to the publisher. Neither the content creators nor the uncompensated peer-reviewers who evaluate manuscripts for publication benefit from protection in such cases. Fortunately, thanks to the emergence of new high-quality open-source journals sponsored by academic societies, things are starting to change.

It’s not clear why the policy brief was taken down, or what motivated it in the first place. Henry Farrell, while agreeing with the positions taken in the report, argues that damage to an industry that has historically supported Democrats may be a factor. In contrast, Jordan Bloom and Alex Tabarrok both believe that pressure on Republicans from the entertainment industry led to the brief being withdrawn. They can’t all be right as far as I can see. But less interesting than the motivation for the report is its content, and the long overdue debate on patents and copyrights that could finally be stirred in its wake.

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  1. fresno dan

    “In 1790 a 14 year term could be renewed once if the the author remained alive;”

    We have GOT TO protect Mickey Mouse…for one thing, Walt isn’t really dead if he is cryogenically frozen – he could come back!

    And the first thing Walt would want when he is defrosted is the revenue of 92 years of Mouse profit…because without such incentives our mickey mouse culture would collapse…

    1. WI Quarterback

      The great irony of Disney being one of the most forceful voices on extending copyright protection virtually forever, is that Disney’s empire was built, in no small part, by exploiting public domain content. Snow White, Pinocchio, and The Little Mermaid are all based on public domain works by The Brothers Grimm.

      It is interesting as well, to see Disney’s rentier business model gearing up to own Star Wars rights until after we are all flying around the galaxy in starships ourselves.

  2. David Lentini

    I’ve spent nearly 25 years in intellectual property law, mostly in patents and trademarks but with the occasional dip into copyrights too. From my experience, the main problem with all of IP law is the same as with the legal trends in general over the past 30–35 years, what I call the weaponization of the law: The view that the law is a means to express power, rather than a statement of a set of rights and obligations that apply to all. Of course, this enables rentier economics, but it also applies in other areas as well.

    So in our greed-is-good economy, IP law is transformed into a means to collect monopolistic rents in the guise that all creative activities are at their heart motivated by the desire for economic gain. The idea that authors and inventors create for reasons other than a desire for wealth, or that by allowing authors and inventors the ability to assign their ownership rights to third parties encourages exploitation rather than creation, is lost or conveniently ignored. The prevailing view looks at IP rights solely as means for collecting rents; inventions and publications are meant to be monetized.

    In this world, it becomes easy to expand copyright terms ad infinitum and make the penalties more and more draconian under the justification that the owner’s rents are being stolen. The incentive to sue becomes very easy when you understand that copyright functions on a registration system—the Copyright Office does not opine on the scope of a copyright, that only happens in court: Owners have every incentive to push outrageous claims with the idea of getting a fat settlement when the question of scope is wide open.

    In patent law, things are a bit different since the Patent Office does examine each application and defines the scope of the inventors rights. But the view of patents as primarily a tool for rent collection applies to the work of companies that collect libraries of patents solely for the purpose of demanding licensing fees, settlements, or damages from others, without the owners having any interest in actually practicing the invention.

    In trademark law, owners have begun to “bully” other applicants and users by making blanket assertions of rights on the flimsiest of grounds.

    The real problem is less about the ideas behind these laws, as the concept of how we use the law. Do we think of the law as just another means for getting money, or do we define what the function of the law is and then hold to the letter and spirit of that definition? Sadly, IP law has become dominated by business and financial leaders who have no concept of creation outside of devising new ways to get rich. If that’s what the function of IP law is now, then we should just scrap the whole thing.

      1. Gil Gamesh

        Well, the law looks to the logic of experience. “Property” is what the rich covet, possess, own, or expropriate. The purpose of Anglo-American law is to defend the rights of property owners. Indeed, owning property is the only genuine, inviolable right recognized by our society. The other rights are provisional, and subject to National Security, Executive Branch whim. And to even suggest that human rights entail access to health care, housing, food, education, living-wage employment, and a robust pension, is to leave the hymn book of Serious public discourse, to invoke Class War, and/or commit treason.

        As we are the richest society in human history, we simply cannot afford to recognize and fulfill the foregoing. And the IP regime shall remain, a Mighty Fortress of privilege, until the Millenials overthrow it.

        1. Ruben

          Mmh, we don’t own our own body; we can’t sell our organs, for example. So if we can’t trade our own body parts, how is it that property rights is the “only genuine, inviolable right”? Nothing is more our property than our own body. There is also the issue of eminent domain. In my view there is only one effective, sacrosanct right in our societies, the right of the State to control and harvest human populations.

          I know it’s a digression from the topic of the OP, our humble blogger, with whom I wholly agree on this issue, so I apologize in advance.

        2. Ruben

          Actually, Gil, IP laws are a constraint on ownership, because it makes it illegal to do whatever you want with your legitimate possesions, as in making illegal to reverse engineer and then produce patented medicine that you legitimately purchased.

    1. Pepe

      “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”
      — Anatole France

    2. Pat

      Excellent assessment of the situation, David L.
      The copyright system has been perverted and should be scrapped in favor of some other – fairer – scheme.
      What bothers me is that that whole system is so maleable (all of a sudden, presto, by Congressional vote, the term changes from life plus 17 or 30 to 50 and then to 70), and that the rules are so maleable (Disney and the entertainment industry in LA write the rules). Really, it’s a big farce, and undermines any public confidence in statutory rules.
      What if Congress were to vote to change petty theft to a felony with 10 years minimum simply because Walmart wanted to deter shoplifters? Or why not make the Federal Government responsible for collecting rent from tenants?

  3. Maju

    IP madness actually damages progress of science and technology because nearly every part and concept might be patented/copyrighted, who knows?! And therefore taking any steps in any direction always risks being sued for “trillions” in “damages”.

    Better let the Chinese and the Russians invent, right?

    1. Procopius

      Yeah, right, we’ve never had the advantage of them inventing stuff that we could copy. Except for the magnetic compass. Gunpowder. Printing (woodcuts, not movable type). Paper. I thought silk was pretty good, but maybe you wouldn’t consider that an “invention.” Pasta was very good, but there’s some doubt about that — apparently the Sicilians were making some kind of noodles before Marco Polo made his trip.

  4. MacCruiskeen

    “In 19th century publishing, British authors had limited protection in the United States but managed to secure lucrative deals with publishers, allowing the latter to saturate the market at low prices before new entrants could gain a foothold.”

    Well, some did. Many saw no money from US publishers before the Berne convention, and this was a sore point in Britain. For a popular author, the key for US publishers was to get the book out first, so it was worth some money to strike deals with UJ publishers and authors to get timely copies of plates and some semblence of exclusivity. Also, it meant American literary publishing was dominated by British authors, since Americans had to be paid a roaylty.

    1. David Lentini

      Just ask Charles Dickens, who even pleaded his case for US royalties before the Congress on his only visit here. His inability to control US publication of his works left him quite bitter.

        1. MacCruiskeen

          The whole story of Twain’s publishing history is complicated, but basically he hated dealing with American publishers and had decided to go into business for himself. Huck Finn was the first of his own books he published. The book sold well but the business was still a financial drain and eventually failed.

      1. bluntobj

        What? Dickens was trying to get paid for his IP? Say it ain’t so!

        Amazing how systems that were meant to protect much smaller scale entities and individuals from predation have been turned to the task of supression and looting those individuals they were meant to protect.

      2. Lyle

        As I understand it, Dickens ran into an Irish judge who had no use for anyone or anything from the UK, so he lost. Of course for domestic look at Steven Foster, if you attend the show at My Old Kentucky Home, you learn he got shafted also, dieing broke.

  5. Kukulkan

    Less copyright would promote innovation? Well, let’s see…

    Take this youtube video: Copyright: Forever Less One Day, which argues that the term of copyright is too long — it wants it be twenty-eight years — but let’s look at the example of stifled innovation it offers to support it’s thesis.

    Basically it argues that a young aspiring director should be allowed to remake Star Wars because Star Wars came out in 1977 and its copyright should have expired in 2005 (28 years later). The fact that Star Wars is still in copyright is presented as a bad thing because it thwarts the young director’s creativity by not allowing them to remake the film.

    What makes this particularly bizarre is that back in the seventies, George Lucas wanted to make a movie based on the Flash Gordon serials, but couldn’t secure the license. So he had to create Star Wars. The last Flash Gordon serial — Flash Gordon Conquers the Universe — came out in 1940, so if copyright only lasted 28 years, it’s term would have expired in 1968 and Lucas would have been able to make a Flash Gordon movie in the seventies and there would have been no Star Wars. That means the aspiring director in the video would only have been able to make their version of Lucas’ version of Flash Gordon in the present.

    So, innovation: remaking Star Wars; stifled innovation: creating Star Wars because you can’t get the rights to remake Flash Gordon.

    The entire argument is an example of the big lie technique; it asserts t[he opposite of reality boldly and confidently and hopes people will be taken in because they don’t stop to think about it. Innovation does not consist of constantly remaking the same old stuff over and over again, it consists of coming up with something new and different because you can’t just remake the same old stuff over and over. The culture is not diminished by not having half-a-dozen versions of Flash Gordon, it’s enriched by having Flash Gordon and Star Wars and Star Trek and Babylon 5 and Battlestar Galactica and Firefly and Space Battleship Yamato and all the others.

    And it would be further enriched if the young aspiring director in Copyright: Forever Less One Day did the same thing George Lucas did and came up with their own space adventure story, different to all the other space operas we’ve already seen.

    This report is interesting only for its chutzpah. It’s just another attack on workers by those who want the products of their labour without paying for it. At base it’s just promoting plunder and slavery

    1. David Lentini

      One remedy for all this bad behavior would be imposing mantenance fees for copyrights and increasing patent maintenance fees (paid at 3.5, 7.5, and 11.5 years afer issue) that are steep enough to discourage predatory behavior, and providing “use it or lose it” defenses to make it clear that publications must be available and inventions must be actively worked by the rights holder to keep their rights. Given how valuable these rights have become, I think it’s only fair to the public that the owners pay for the right to block others, and that blocking others be available only for those actually doing something useful.

      We can also more narrowly define the scope of rights to prevent rights holders from threatening creators on flimsy infringement theories. For copyright, we can strengthen the fair use exceptions that have been weakened over the years.

      1. Jim A

        Certainly the former renewal process at least allowed those works which the copyright holder felt had no economic value left to fall into the public domain. Which is much better than the current “it’s under copyright, but nobody knows by whom at this point,” problem with older little used works. Even worse that rent sitting important works IMHO.

      2. Pat

        Instead of raising fees, I would suggest a system of lower penalties for copyright after a certain number of years, life plus 30, whatever, and damages capped at 5% royalties thereafter (instead of the normal 20%). That would effectively reflect what should be the decreased value of copyrights over time.

      3. Lyle

        Agreed and since a large part of the reason for the renewal was the threat of Mickey Mouse going in the public domain, lets go for each movie a charge of $1million after 100 years per year. If the property is worth it they will pay if not, it will go public domain.
        Otherwise at 50 years after publication a nominal fee of say $10 should be payable with a document establishing who at that point has the rights to the work.

      1. Jim A

        umm….28 + renewable for another 28 (and a large proportion of works were not renewed) does not equal “tied to the life of the author,” The only linkage to the life of the author was prior to 1831, when it could only be renewed if the author was still alive. Rather than a conflict of the rights of creators and users, I like to characterize copyright as a conflict between the rights of copyright owners and copy owners. Because copyright is a government mandated limitation of what one can do with a legaly owned copy. When you look at it this way, many of the features of the 1909 law that were eliminated in the 1976 statute make sense. Notice, registration, and fixed terms were very helpful in allowing one to determine what was copyrighted and what was in the public domain. Notice, told you who and when copyrighted something. Registration enabled one find out who currently owned the copyright and what, exactly was covered. And fixed (though renewable) terms meant that you could simply look at the date and in many cases immediately determine whether the work had passed into the public domain or was still protected. The 1976 act that enabled the US to join Berne changed all that. Now much expression is in a nebulous zone where you don’t know who has what rights.

        1. David Lentini

          zThe only linkage to the life of the author was prior to 1831, when it could only be renewed if the author was still alive.

          Read the law (35 U.S.C. 302.):

          “In general. Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death. ” (My emphasis.)

          It’s the other way around–Before 1978 the term was not based on the life of the author. See, here.

          1. Jim A

            Perhaps I misunderstood what you meant by “always”. Yes, the 1976 act ushered in “life + 50” (later extended to “life + 70”) terms. But between 1831 and 1977 the life span of the author had no effect at all on the duration of copyright. And of course 14 and renewable for annother 14 (which was the orignal duration of copyright in the U.S.) probably counts as “only 28 years,” since 28 years was the maximum available term. And yes, I have read the 1976 act. I’ve even read the House Report on the 1976 act.

    2. Brooklin Bridge

      Your example sucks. 1) You have no idea what film Lucas would have produced had it not been for the threat of copy-right infringement – because he wasn’t able to – so whether or not Star Wars was good, great, or horrible has no bearing; the file Lucas couldn’t create might have been vastly better. 2) Your example is too narrow. You are completely overlooking the monopolistic uses of “crazy” patents such as Monsanto’s patents on seeds, or the ever closer to reality attempts to patent such generic things as “thought” or “thirst” or even people’s DNA sequences.

      1. bluntobj

        The problem is that the post here started out with Monsanto and patening genes, and then spent the rest of its space on copyright of literary, musical, and research papers.

        The music and literary industries are not responsible for damaging and monopolizing the food system such as Monsanto has done, nor are they responsible for the vast reliance on petrochemicals in an industrialized agricultural system that has done so much damage to the biosphere as Monsanto is.

        So, let’s clarify: Are we discussing literary or musical copyrights, or are we discussing monopolistic uses of law by multinational corporations to enforce their dominance in the market?

      2. Kukulkan

        Brooklin Bridge wrote:
        Your example sucks.

        Not my example. It’s the example offered by the people who made the Copyright: Forever Less One Day video, presumably because they thought it best supported their case that copyright needed to be reformed.

        You have no idea what film Lucas would have produced had it not been for the threat of copy-right infringement – because he wasn’t able to – so whether or not Star Wars was good, great, or horrible has no bearing; the file Lucas couldn’t create might have been vastly better.

        Both George Lucas and Gary Kurtz (producer of Star wars and The Empire Strikes Back) are pretty clear that what they wanted to do was a remake of Flash Gordon. So, if that was their intention, I think it’s valid to assume they would have followed through and produced a remake of Flash Gordon. That remake may have been good, great or horrible, but it would have been a remake.

        I really don’t see how a remake — any remake — is more innovative than something original.

        If you want to argue that copyright stifles innovation, then you basically have to argue that a remake of Flash Gordon would have been more original than making Star Wars.

        And the existence of Star Wars demonstrates that, despite what you say, copyright didn’t and couldn’t prevent Lucas from creating; all it could do was prevent him from producing a remake of Flash Gordon. Outside of that, he could create anything he wanted to. And he did.

    3. McMike

      Of course, Lucas stole everything he put in Star Wars except the Ewoks.

      I hear the heirs of Joseph Campbell and Lao Tsu are planning a lawsuit.

      Come to think of it, he probably stole the Ewoks too.

      1. Kukulkan

        McMike wrote:
        Of course, Lucas stole everything he put in Star Wars except the Ewoks.

        And he did so without violating anyone’s copyright.

        So, despite all the wailing and gnashing of teeth about how restrictive and stifling copyright is, it turns out it’s not really all that restrictive after all.

        1. McMike

          No Kuku, Lucas stole from ancient authors, who didnt have a good enough attorney. As well as from a variety of contemporary sources.

          The point is, Lucas’s ability to borrow from and build on previous work was essential to his own work. When you lock up all aspects of a work indefinitely, you stifle future innovation.

          1. Kukulkan

            McMike wrote:
            No Kuku, Lucas stole from ancient authors, who didnt have a good enough attorney. As well as from a variety of contemporary sources.

            A couple of points:

            First, copyright doesn’t last forever; after a while works enter the public domain and are available to everyone to copy, adapt, remake or use as they will. That’s why things like Project Gutenburg exist. The work of ancient authors is in the public domain and so available to people like George Lucas (and everyone else) to use. That’s part of what I meant when I wrote “he did so without violating anyone’s copyright.”

            Second, copyright covers only specific expression, not ideas. That means anyone can use any idea they want to in a work, so long as they don’t copy the exact words or details that someone else used to express that idea (unless, of course, that someone else did it long enough ago that their work is now in the public domain). That’s the other part of what I meant.

            Apparently you consider Lucas’s actions somewhat perfidious. Perhaps you think the duration of copyright should be extended so it last millennia and its scope expanded so that it covers basic ideas as well as particular expressions of those ideas. If not, then you have to acknowledge that Lucas managed to do what he did without violating anyone’s copyright and so copyright is nowhere near as restrictive as those opposing it claim.

            The point is, Lucas’s ability to borrow from and build on previous work was essential to his own work. When you lock up all aspects of a work indefinitely, you stifle future innovation.

            So it’s just as well that copyright is of limited duration and limited only to specific expression, isn’t it?

    4. reslez

      Considering the fact IP laws did not exist for 99% of human history, you are honestly trying to argue they somehow foster creativity? Go tell that to Homer and Shakespeare.

      You are the one spreading the Big Lie, and worse — you do so on behalf of your masters, the IP overlords, who ultimately seek to own every story in our culture and every idea in our heads.

      It’s just another attack on workers

      Another disgusting lie. The IP conglomerates you defend pay authors a pittance. The true creators are given the begging bowl while execs skate away with billions. Everyone knows this is true, you fool no one. Go wave the bloody shirt of “the workers” and spread your pro-IP balogna somewhere else.

      1. Kukulkan

        reslez wrote:
        Considering the fact IP laws did not exist for 99% of human history, you are honestly trying to argue they somehow foster creativity?

        No, I’m trying to argue that not being able to just remake the same old stuff over and over forces people to come up with something new. And I seem to have done so rather well given that:
        i) the evidence I cited supports the contention; and
        ii) no-one has actually disputed that evidence, instead all various people have done is try to change the subject.

        Or are you seriously suggesting that remaking Flash Gordon would have been more innovative than creating something like Star Wars? You don’t even have to like Star Wars to acknowledge that it’s not just a remake of an older work.

        Another disgusting lie. The IP conglomerates you defend pay authors a pittance.

        I’m not defending any conglomerates, but I will point out that those wishing to change copyright want to pay authors even less than a pittance. They want to pay them nothing at all and get the products of their labour for free.

        It’s an attack on workers — and a rather vicious one — seeking to take away what little they have, to effectively reduce them to the status of serfs or slaves.

        Go wave the bloody shirt of “the workers”

        Will do, comrade, and gladly. I’ve never understood the sheer vitriolic hatred some people have for those who work for a living. It’s really very strange.

  6. Jim Haygood

    “The purpose of copyright law, according to the constitution, is to “promote the progress of science and useful arts” and not to “compensate the creator of the content.”

    You don’t say … someone should’ve passed word on to Kongress Klowns, the last people who would ever stoop to reading our dead-letter constitution. This is from the Senate report on the 1998 Sonny Bono Copyright Extension Act:

    The purpose of the bill is to ensure adequate copyright protection for American works in foreign nations and the continued economic benefits of a healthy surplus balance of trade in the exploitation of copyrighted works. The bill accomplishes these goals by extending the current U.S. copyright term for an additional 20 years.

    Such an extension will provide significant trade benefits by substantially harmonizing U.S. copyright law to that of the European Union while ensuring fair compensation for American creators who deserve to benefit fully from the exploitation of their works.

    Don’t be misled: ‘creators’ in this context doesn’t refer to lonely authors scribbling poetry in their garrets. It means ‘Hollywood movies’ (including Disney animations), while ‘fair compensation’ means ‘pornographic profits’ (and yes, Southern Kali is the world’s porn capital).

    Screw advancement of science — copyright was simply a corporate weapon in the trade deficit wars.

    Why get mad? Get even. Every time a new copyright outrage occurs, I go on a wild downloading orgy as payback to the RIAA and the MPAA. Fight crime with crime!

  7. Aquifer

    Of course there’s the issue of getting access to the protections of the system in the first place – costs mucho bucks (in terms of the “little guy”) to walk through the hoops and blow the bells and whistles for the little guy to even get a patent – I suspect that most “little folk” invent for the love of it, not to make a buck – that is just sort of “gravy”. Of course one could argue that it isn’t “fair” for the little guy to invent something and get nothing while a corp makes money off the invention …. but that never stopped my Dad who was a very clever fellow, indeed ..

    STM that one thing IP lawyers could do if they really wanted to foster invention is do pro bono work for the small inventor …

    And then there’s the whole issue of patenting life forms … A whole new twist on the term “life of the patent” …

  8. McWatt

    It seems to me that copyright is a basic protection. Like real estate law. Wait, they already took that away from us.

    “Catch-22 says they can do anything we can’t stop them from doing.”

    1. liberal

      It seems to me that copyright is a basic protection. Like real estate law.

      In both those cases, the State hands out rents to the privileged.

      The difference is that, while there might be a case for the legal regime in the case of copyright (flimsy as it might be), there’s no moral case for it whatsoever in the case of real estate (land).

  9. nobody

    “Godard presciently understands copyright as a crucial artistic and political issue. Most legal discussions turn around differences between the French and Anglo-Saxon systems, with the French being held to favour the author, while the Anglo-Saxon favours the owner of the copyright. What differences there are pale into insignificance beside the fact that neither system allows the audience any rights whatsoever. But in a world where we are entertained from cradle to grave whether we like it or not, the ability to rework image and dialogue, light and sound, may be the key to both psychic and political health. What is certain is that the work that Godard accomplished with Histoire(s) du cinéma would be more or less impossible for any other individual on the planet. When Rod Stoneman bought the first two episodes for Channel 4, the head lawyer decided that although one might argue that there were ‘gross breaches of multiple copyrights’, they would be broadcast without clearing these rights under the protection of the ‘fair dealing’ provision of the British copyright act, which allows a limited amount of quotation for the purposes of criticism.

    “Even if such individual bravery is to be commended, its effects will always be local. It is impossible to imagine broadcasters across the world daring to take on the massive entertainment corporations which understand their copyrights to be their most significant asset.

    “When John Milton wrote Areopagitica, his classic defence of free speech, the only part of the censorship bill he excused from censure was that which preserved ‘justly every man’s Copy to himself.’ It may seem simply an amusing paradox that the first bill in England to introduce copyright is famous for Milton’s attack on its other provisions which prevented the free circulation of ideas. But three and a half centuries on it is neither amusing nor a paradox, for copyright is now one of the major obstacles to the free development and exchange of ideas.

    “In so far as people think of copyright, they imagine (as did the drafter’s of Milton’s bill) an individual handing on to their children and grandchildren a right which then expires. In fact two thirds of global copyrights are now owned by six corporations. Even when the copyright rests with an individual, that individual may in the twenty-first century have amassed royalties beyond the dreams of those early Protestant capitalists trying to define a new property right. Should the Rolling Stones still own ‘Satisfaction’ when they have already earned many millions from it and when, if I wished to make any record of my own life, it would be impossible not to use it and yet impossible to afford the cost of permission? There is little doubt that these questions will become more pressing throughout this century. Godard’s obsession with copyright is not merely an individual idiosyncrasy but rather a real understanding of the contemporary realities of sound and image.”

    (pp. 301-2)

  10. S Brennan

    A few points:

    David Lentini above argues that periodic fees should be accessed…as a patent holder, I can assure you they already are and they are painful to the independent patent holder trying to render to practice or bring the product to market. Flat fees are unconscionable after the cost involved in getting a patent. A far better system would limit the gross revenue of IP to some multiple of median income before becoming public domain. Also the “render to practice” should be strictly adhered to, the devil is in the detail, hand waving patents should be rewarded with finger waving.

    Also, I invite folks to read about Philo Farnsworth:

    [Farnsworth was the first of the two inventors to successfully demonstrate the transmission of television signals, which he did on September 7, 1927, using a scanning tube of his own design. Farnsworth received a patent for his electron scanning tube in 1930. Zworykin was not able to duplicate Farnsworth’s achievements until 1934 and his patent for a scanning tube was not issued until 1938. The truth of the matter is this, that while Zworykin applied for the patent for his iconoscope in 1923, the invention was not functional until some years later and all earlier efforts were of such poor quality that Westinghouse officials ordered him to work on something “more useful.”

    In the late thirties, when RCA and Zworykin, who was now working for RCA, tried to claim rights to the essence of television, it became evident that Farnsworth held the priority patent in the technology. The president of RCA sought to control television the same way that they controlled radio and vowed that, “RCA earns royalties, it does not pay them,” and a 50 million dollar legal battle subsequently ensued.

    In the height of the legal battle for patent priority, Farnsworth’s high school science teacher was subpoenaed and traveled to Washington to testify that as a 14 year old, Farnsworth had shared his ideas of his television scanning tube with his teacher.

    With patent priority status ruled in favor of Farnsworth, RCA for the first time in its history, began paying royalties for television in 1939, Farnsworth received very little as result of the decade long legal battle with media giants.

  11. McMike

    Patents, like much of our regulatory regime, have devolved from means to encourage competition and innovation into its simulacra: means to inhibit competition and innovation.

    Big hint: when after the fact patent extensions are granted, which of course makes a lie of the very premise.

    See Dean Baker for much more on this.

  12. McMike

    One thing is certain, if Clyde Stubblefield had copywriten his funky drummer riff, he’d be rich and rap music would not have been invented.

  13. Hugh

    I came late. What current copyright law means is that for most people and certainly those born in the 1970s onward, everything copyrighted at their birth will still be under copyright at their death. In human terms, that is effectively forever. As in so many other areas, the social purpose of copyright has been completely lost and twisted into a rentier cash cow for corporations and the rich who own them. It is a private raid on the commons. Companies and individuals that hold and maintain rights to intellectual property until they can extract every cent from, and even though often they aren’t even the original authors of it, are stealing from us. Copyright law as written and practised is simply another form of looting.

    Especially nowadays with the web and cheap high volume storage media, digital versions of print, film, and music can be stored and transmitted for almost nothing. Yet now that we have the means to make the vast storehouse of our society’s production and creativity available to all, corporations and their bought politicians (just look where Christopher Dodd is now) scheme to lock this all away from us, and charge us for what is and should be our common and publicly held property.

    1. Kukulkan

      Hugh wrote:
      Yet now that we have the means to make the vast storehouse of our society’s production and creativity available to all, corporations and their bought politicians (just look where Christopher Dodd is now) scheme to lock this all away from us, and charge us for what is and should be our common and publicly held property.

      Over 95% of all human production and creativity is in the public domain and potentially available to all. The problem is that making it available requires work, which is why things like Project Gutenburg are an on-going project.

      The odd thing is that, while there are lots and lots of people who proclaim that society’s production and creativity should be available to all, the number who are willing to devote any time and effort to helping make that happen is significantly less. As the Project Gutenberg website says: “you can help us produce ebooks by proof-reading just one page a day”, but apparently all those people are too busy decrying copyright to do that. They seem to like the idea of having all that production and creativity available, they’re just not to keen on doing anything to actually help make it so.

      And my interpretation of events is a little different.

      The internet was invented by a bunch of brilliant engineers, programmers and scientists who then graduated and discovered that out in the real world they needed to earn a living. “No problem,” they thought, “we’ll just use our skills to sell people gadgets like iPods and non-throttled access to downloads and adverts on websites.” Only it turned out the number of people interested in such things was quite small, even despite the wondrous technology involved in creating them.

      Instead, it turned out the vast majority of people were interested in something called “content”: music they could listen to on the iPods, movies and television shows they could download and stories, essays, comics and reports they could read on the sites with the ads. “Okay,” thought the young tech wizards, “we’ll offer ‘content’ to attract the customers to all the cool stuff we really want to sell.”

      Then they discovered that the people who owned that content expected to be paid for its use. This outraged the young tech wizards, who saw it as an assault on their right to free speech – I mean, if they had to pay for it, it wasn’t free, was it?

      Just as an aside, young tech wizards really don’t get the notion of free speech as most people understand it, and have no compunctions about silencing those they disagree with. See Anonymous.

      Looking into the matter, they discovered that the reason all the creators of content expected to get paid was because they had something called “copyright”. This, they decided, was a problem that had to be dealt with, so they started talking about and promoting the idea of and agitating for copyright reform — with “reform” being used in exactly the same way as in phrases like “labour market reform”, meaning finding plausible sounding reasons and ways of paying those who actually do the work less or, preferably, nothing at all. They enlisted various others to this cause by telling them they could get all the content they wanted for free — neglecting to mention they would still have to pay for the gadgets and the non-throttled downloads and there would be lots and lots of ads around everything.

      And that pretty much brings up to the present and Derek Khanna’s report, referenced in the post above. It’s simply the latest salvo in the ongoing campaign to reduce those who create the content to serfdom or slavery.

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