The Monkey House

< Essays : Copyright >

In which a brief lesson in history illuminates the present, and a solution is proposed.

Although the conceptual basis for copyright in the United States can be traced with more or less certainty to British common law and beyond, its legal basis goes back to the US Constitution. The Constitution spans seven articles with numerous sections and clauses, but the passage relevant to copyright is in Article 1, Section 8:

The Congress shall have 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
One can debate endlessly the motivation, intent, and historical placement of the Constitution but ultimately it exists as its own document, the enumeration of the values of our Republic to which the States have all agreed. It is, then, this document to which attention turns in debating the breadth and scope of copyright as it exists at the dawn of the twenty-first century in the United States.

The central dilemma is to decide at what point further securing exclusive rights ceases to promote the progress of science and the useful arts. An ideal system would, for each author or inventor, determine the absolute minimum term the individual requires as compensation for a work. In this way the originator would be acceptably compensated for production, and the public would obtain maximum possible benefit from the invention or work. This obviously cannot be done. However, it can be approximated in a way I believe to be near enough the mark to satisfy all parties. The US Supreme Court believes that such approximation is unnecessary and that further retroactive copyright extensions are constitutional. On June 3 of 2003, the Court held, in the case of Eldred v. Ashcroft that

1. The CTEA's extension of existing copyrights does not exceed Congress' power under the Copyright Clause. Pp. 7-28.

(a) Guided by text, history, and precedent, this Court cannot agree with petitioners that extending the duration of existing copyrights is categorically beyond Congress' Copyright Clause authority.

It is my belief that Congress has already stepped far beyond its Constitutional authority in enacting copyright laws, and that any retroactive or blanket extension to copyright term is immediately unconstitutional and merits no further consideration. I propose an alternative that addresses these and other concerns with US copyright law.

A clear understanding of the Constitution itself is a necessary prerequisite to debating the issue of the constitutionality of any given law. To that end, I examine the copyright clause of the Constitution. That Congress "shall have Power" indicates that it need not establish copyrights at all - no burden is placed upon Congress to take any action whatsoever. However, it is generally agreed that the theory of copyright, if not the reality of it, is beneficial and in any case the Constitution is not here in conflict with current practice. Next, what Congress has power to do is "promote the Progress of Science and useful Arts". Ignoring for the moment what Science and useful Arts may be, we come to the first important point. Congress does not have the power to pass arbitrary copyright laws; it has only the power to promote the progress of science and art, and is specifically empowered to do so by securing exclusive rights to authors and inventors. It is here that I find myself in conflict with Congress's and the Court's interpretation.

Congress apparently believes that extending the term of copyright in this country will promote the progress of science and the arts. In some cases the law will undoubtedly have that effect, but Congress has misinterpreted the Constitution in believing that to be sufficient. The Constitution does not provide for the passage of laws whose effect is, upon occasion, to promote science. Rather, the Constitution provides for promotion of science via the securing of exclusive rights. The distinction is critical: in the first case, any law which applies in any case in such a way as to promote science would be constitutional; in the latter case, only those exclusive rights secured to authors and inventors which actually promote the progress of science are constitutional, regardless of the law which grants those rights. The Constitution applies, not to individual laws, but rather to instances where rights are granted.

The difficulty in applying Section 8 of the constitution lies in the determination of whether Congress is in fact "promoting the Progress...". It is impractical for Congress to individually examine each case in which it proposes to extend copyright to an individual in order to determine exactly how that copyright would promote science and art. The solution currently adopted by Congress is to make no effort whatsoever to determine whether copyright is satisfying its aims, and to blindly extend copyright protection to nearly anyone who asks for it. If Congress chooses not to determine how science and the arts will progress as a result of a given copyright, it has a duty to the Constitution to ensure that someone else takes up that burden. The logical choice is to empower the individual applying for the copyright to make that determination.

Congress must establish a mechanism by which an author or inventor can accurately evaluate the worth of his or her work. The system must posses certain qualities: it must allow protection of works with minimal value as well as those with lasting commercial prospects; it must also encourage accurate valuation of works, primarily by checking the applicant's first inclination to claim that indefinite (or, say 1000 years') protection would be appropriate compensation for the work in question. The solution is to create a force which will impede the applicant's natural inclination towards a "land grab", forcing the applicant to carefully assess the work's value. The system should allow for reasonable reassessment of a work's value while it remains under copyright, in particular to address the sudden popularity of an unlikely creative product. Since copyright's ultimate goal is to provide a financial incentive for production of cultural and scientific items for society's consumption, it seems natural that the incentive not to overvalue one's work would also be financial in nature. Indeed, paying for intellectual property protection is not a foreign idea, as patent applications and copyright registration both entail fees.

My proposal addresses some of the problems with current copyright law, allowing for the needs of small creative enterprises, large commercial endeavors, and the public's need for creative works. It addresses the original intent of copyright law which is to be a mechanism by which government purchases for its citizens creative works, paying for them with copyright protections for the works' creators. It encourages creators to accurately value their works by punishing inaccurate valuations. It returns works to the public domain as soon as the creator is no longer interested in copyright protection, thereby maximizing the public good. And finally, by virtue of the active role required of creators, it solves the problem of orphaned works, works which remain under copyright but whose creators cannot be located.

My proposal is as follows. The meaning of copyright shall remain the same. Under my proposal, to say "this work is copyrighted" has the same meaning that it has today. I change only the mechanism by which copyright is obtained. Under my proposal, a creator must purchase copyright protection from the government. The first year of protection costs $1. Subsequent years cost double what the previous year cost. Additional copyright protection may be purchased at any time while the work is still copyrighted. When the copyright term expires, the work enters the public domain. In this way, works which are of little commercial value to the creator will rapidly enter the public domain. Works which are of considerable commercial value (and thus, one presumes, of considerable cultural value) can be protected for an arbitrary length of time, the copyright fees reflecting of the harm done to society by the protected article remaining out of the public domain.

Consider the hypothetical small-time artist, who produces a work of limited or unknown value. He or she may purchase 5 years' copyright protection for $31, a small sum in comparison to the cost of creation. Five years should be plenty of time to assess the work's commercial prospects, or to develop commercial prospects, as appropriate. If the work is not commercially viable, it does not need copyright protection at all: prohibiting others from reproducing a valueless work harms society and does not benefit the creator. Should the work gain popularity within the initial five years and become a commercial success, copyright protection can be extended to 10 years for under $1000.

Consider next a work of immediate commercial success, for example a novel by a popular author. A popular author (or his or her publisher) would likely purchase 10 or more years of copyright protection as soon as the work was produced, on the expectation of commercial success. One thousand dollars pales in the face of the cost of a large print run and would readily be considered part of the cost of production. Even 15 years' protection at just over $30,000 is quite reasonable. Such protection is obviously affordable for popular commercial products, yet even for large companies there is strong pressure not to over-value creative output: 20 years of copyright protection costs a million dollars, and thirty years' protection costs $1 billion.

Copyright is a balancing act, and my proposal seeks to attack the problem on general grounds. I do not claim that the specific values of $1/yr and a doubling each year provides the optimal balance of creator and societal benefit, but rather that the general outline is sound. I propose two variants which address separate possible problems with my initial proposal. First, the requirement that specific action on the part of the creator be taken in order to secure copyright protection may constitute an unreasonable burden whose effect would be to limit copyright protection to the rich. In that case I propose 5 free years of copyright protection obtainable as under current law: by affixing the © symbol (or under limited other circumstances). This grace period is deliberately short and should not be extended (except as provided above: by paying for further protection). It exists only to address the concern that creative individuals who produce large volumes of work, only some small subset of which is commercially viable, may not be able to afford copyright protection over each piece, and thus society will lose the individual's output as he or she is driven to some other, more profitable, line of work. The second variant I propose changes the multiplication factor. My initial proposal costs $(2^n - 1) for n years of protection. If it happens that this formula results in excessively short copyright terms (as measured by a decrease in the quality and / or quantity of creative output), it can be changed to, for example, $(1.5^n - 1), where each subsequent year costs 1.5x what the previous year cost. This will change (increase) the average term of copyright protection by reducing costs, while maintaining the overall shape of the cost curve. Either or both of these variables: the multiplication factor and the grace period, may be adjusted to obtain a societally-acceptable balance between protecting creators and benefiting society.

While the volume of copyrighted creative works has certainly exploded over the past century, it would be difficult to argue that this increase is due primarily or even in large part to changes in US copyright law. It is reasonable to believe that the increase is due almost exclusively to technological changes which, among other things, have dramatically reduced the cost of creation and distribution of intellectual property. Expanding copyright protection has not benefitted the public; perhaps reducing it will. This experiment needs to be run before the falacy that more copyright is always better becomes any more entrenched.

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