Intellectual Property Conspectus
After reading an article on the misuse of patents, I’ve finally decided to write an overview of how I think intellectual property should work. Many of these ideas are probably borrowed or modified from other sources (notably Lawrence Lessig’s Free Culture), so I can’t claim true originality.
Patents
Even with the changes to the patent system currently in the pipeline, there are several things that really need to be resolved. First and foremost, we need to eliminate “obvious” patents like those listed on the EFF’s Patent Busting page or the Amazon.com “One Click Shopping” patent. This class of patents are of such broad scope as to be almost universal. It would be like GM or Ford patenting “a device with four wheels and an engine capable of self-propulsion”. Patents should only be granted on specific, non-obvious uses of technology.
Second, software patents as a whole should be abolished. Software is by it’s very nature an incredibly synergistic application, requiring the interaction of hundreds, thousands, or even millions of parts. The absence of any one of those parts will cause the entire software application to fail. The status quo of the software patent system virtually requires that a company have access to a broad spectrum of software patents, and frequently the only way to attain such access is to license the current “major players’” patent portfolios. Should software patents be allowed to continue, virtually all patents will wind up in corporate vaults, eliminating competition with the players with new and fresh ideas, ultimately leading to stagnation. The software patent process is further complicated by the fact that the existing patent office is horribly overworked, and typically lacks either the time or the skill (or both) to appropriately judge whether a patent should indeed be granted. Should the patent office be reformed such that it could devote an adequate amount of attention to each patent application, I might be convinced that software patents could remain in effect.
Third, the current trend of patent litigation should be squelched. At present, some minor company can patent some process or device, and then leave that field of innovation entirely (assuming they were ever in that field to begin with). After several years pass, and other companies have capitalized on a similar or identical process to make more useful devices, the minor company cries foul and starts seeking licensing fees or damages. In my ideal world, the company owning the patent should be unable to litigate unless it has actually made some effort to actually capitalize on the patent. For instance, the company that owned the patent on “browser plug-ins” should only have been able to press suit if they had some product with that functionality, or if they had approached the major players when they first realized that infringement was taking place. Sitting quietly in the background and waiting until the technology is virtually indispensible is tantamount to blackmail.
Should the U.S. change to a “first to file” instead of a “first to invent” patent system (as is currently the case in Europe, and is proposed in the upcoming legislation linked above), that may take a great deal of pressure off the patent office. The optimal result would be a system that can and will only grant patents for those innovations that truly deserve them, and would eliminate a great deal of the hassle currently involved with software patents.
Copyrights
Copyrights as currently envisioned have effectively gained immortality, in that every time a crucial copyright (such as Mickey Mouse or Superman) is in danger of expiring, the lobbyists convince Congress to extend the copyright duration. With effectively immortal copyrights, it becomes increasingly possible for all culture to be consolidated within the hands of the elite few, and increasingly probably that the vast majority of people will be reduced to consuming the existing content at whatever price the copyright owners deem acceptable, without right or recourse to produce anything to compete.
The entire purpose of copyrights (and intellectual property as a whole) is to give the creator an incentive to create. If you have a great idea, but can’t find a way to make money off of that idea, then you have no incentive to develop and distribute that idea to society. The end result is that both the creator and society are harmed: the creator cannot make money, and society is deprived of a great idea that could foster further growth and progress. By creating a copyright law, the creator is granted the ability to capitalize on his idea, which provides a benefit to both the individual and society as a whole. However, taken to their current extreme (as evidenced by U.S. Copyright Law), copyrights have been extended and enhanced to further benefit the individual at the expense of society.
In addition, current copyright holders seek to extend their control further and further into their consumer’s lives. The DRM currently attached to most commercially available media can and undoubtedly will be used to restrict rights which the copyright holder never had control of previously. DRM, in combination with the DMCA seeks to curtail previously legal actions such as backup copies (for when your toddler decides to play frisbee with your DVD collection), time-shifting (recording TV shows when you can’t watch during the normal airtime), or place-shifting (such as transferring a copy of a DVD you’ve purchased for use on the
In my ideal world, copyrights would be automatically granted to every creator upon creation (as is currently the case). After 10 years, the copyright owner would have the option of renewing his copyright for a nominal fee - say $1. After each additional decade, the copyright owner can renew for an increased fee, first $10, then $100, then $1000, and so on. This would have the effect of granting everyone the protection of copyright, and would also allow those corporations with extremely valuable copyright properties (e.g. Mickey Mouse) to maintain that copyright without arbitrarily extending the copyright on everything. It’s also likely, given diminishing returns, that every intellectual property would eventually re-enter the public domain based on economic pressures. For example, Mickey Mouse was created in 1928. Assuming we follow the scaling system I’ve outlined, it would cost Walt Disney ten million dollars to renew Mickey’s copyright for another decade in 2008. Assuming Mickey is still worth at least $1 million per year, that’s a good deal. But renewing Mickey in 2048 would cost over $1 trillion, meaning Mickey would have to earn $100 billion each year in order for Walt Disney to break even.
The exponential scale guarantees that “normal” copyright successes last a reasonable amount of time, while granting major successes the option to continue potentially indefinitely. Because creators are required to renew their copyrights every decade, it should be relatively easy to discern whether a work is still under copyright (as well as making it easier to determine the owner of the copyright, making it easier to contact him for the purpose of licensing), and will also enforce the return of most “lapsed” works (those that are no longer commercially viable) to the public domain.
Conclusion
As I am in a career highly dependent on intellectual property for compensation, I’m strongly in favor of some intellectual property law. I also strongly believe that the current status quo is too heavily biased in favor of the creator, granting far too much control and terms that are far too long, which ultimately harms the public domain and society as a whole.
August 7th, 2006 at 10:07 pm
Interesting discussion which I am inclined to agree with on principle. However, I must beg to know who determines exactly what is or is not “obvious†with regard to the use of technology? I respect that patents should be specific, maybe even application specific, but so many things are so subject to having a specific view of what is “obviousâ€, I would be at a loss to make a list of most things I know and have worked with. For example, depending on how one looks at it, even the most advanced microprocessor is still just an obvious use of technology since, no matter how they are put together, they are still just an arrangement of transistor circuits and nothing more. The only advance in any regard may be the technology used to manufacture them, but that itself is only one way of achieving the result out of probably thousands. Since I did work in thin-film R&D for a while, I am fairly familiar with how such things are and can be done, and they are all just variations on a theme, so they could all be “obvious uses of technology†in that regard as well.
Mayhap something less consumer-invisible, mayhap something like the brakes on a motorcycle. Buell currently has a patent on their Zero Torsional Load (ZTL) break system, a performance and safety enhancing item that also provides a market advantage to their products. In terms of the engineering-level specifics of how it works, it is a radical departure from the norm used in every other type of car or motorcycle on the planet, essentially supplying the stopping power and control of a system twice as heavy and without all of the extra moving parts. Nevertheless, the ZTL system still works by pads which apply pressure to a disk to slow the wheel. So, obvious use of technology or innovation?
What if we decide that a whole category of things, like safety equipment, cannot be patented? Wouldn’t that be great! Everyone could have the latest equipment no matter who makes it! Wrong. Everyone would have the latest 1950s technology we could find because nobody had invented anything new since then which would later become a standard because there was no competitive advantage do doing so. The government (read: taxpayers) would have to foot the bill for this one as the cumbersome and slow standards offices take on the duties of improving equipment standards through invention at their own plodding pace.
That said, how about we only allow things to be patented for the duration of time that they are in production (or in process for production) within a year or two by the originating person or company? That way, nobody could sit on a patent and, if something is invented but not used, someone else could “reinvent†it and put it to market by refiling a patent affirming current use (since the original patent would not have expired). Since patents don’t last forever at any rate, they would really only be applicable for the length of time they provided a competitive advantage. Additional provisions could be put in place for things like software in that the patent is only good up to a certain number of units produced/sold and then it auto-expires and is no longer locked in a vault for electronic eons. There ya go, a competitive advantage but not a market lock-up.
Copyrights should go much the same way as software patents by stepping-up the time it takes for something to fall into the public domain. Here too, units sold may be a good calculator to determine if/when something “expires†and is available for public use. The whole idea is to allow the competitive advantage without tying-up the industry, so a head start in sales should be an adequate yardstick in this case. Copyrights should be easily distinguished from trademarks, however, which are distinct to an organization and should always belong to that organization unless sold. After all, trademarks are generally tied to the image of the company and are actually a quantifiable asset as opposed to a product, for which things are issued patents or copyrights.
August 8th, 2006 at 10:59 am
To me, obvious should be determined by someone reasonably cognizant with the field in question, and should probably be measured by the amount of time it would take to develop the idea. For instance, I could have come up with the “One-click shopping” paradigm patented by Amazon in less than an hour of thought. Assuming you have the option to store billing and shipping information, the ability to automatically utilize that information without the customer’s explicit confirmation is truly trivial. It’s comparable to patenting a computer shutdown that doesn’t prompt “Are you sure?” twelve times. Or take any of the examples from the EFF’s Patent Busting page. Should a company be able to patent “Online Test Taking” or “Online Gaming” or “VoIP? These patents are so broad as to be absurd. To use your motorcycle company example, these patents are comparable to granting Buell a patent on “Device to decelerate motorized vehicle”. These patents should never have been granted in the first place.
I do agree that a major microprocessor design, or the ZTL brake system you’ve described should be sufficient for patents. The latest microprocessor designs involve hundreds if not thousands of man-hours to develop, but are trivial to replicate once the design is complete. Despite the fact that the individual components are simple, the interaction of the various components are decidely non-trivial. The brake system you describe is a total departure from the “standard” way of thinking. Despite the fact that it relies on several of the same core principles (pads applying pressure), I’d imagine that the time put into developing the underlying engineering details was substantial. Compare to the time it takes to develop the VoIP idea: the Internet can carry data, voice can be treated like data, let’s use the Internet to transmit voice data! A similar basic arithmetic can be performed on several other major patents: Internet + X = Patent! One plus one arithmetic should not be so heavily rewarded.
I should reiterate that the determination of “obviousness” should be made by someone familiar with the field in question. To quote Carl Sagan: “Any sufficiently advanced technology is indistinguishable from magic.” Many of the patents I have objection to seem trivially obvious to me simply because I am cognizant of the underlying technology. On the other hand, I would not be at all qualified to judge whether Buell truly deserves the patent on the ZTL brake system, because I don’t truly understand the underlying technology, thus making it appear “magic.” If the patent examination process is held to a similar standard, where only qualified examiners are able to pass judgement, I believe we’d see far fewer “objectionable” patents granted.
I’m not sure that I agree with the “units sold” model of copyright expiration, at the very least not by itself. By its nature it will tend to favor ideas that are cheap to produce with high margins, impeding the development of items that require significant investiture of funds to develop or low-margin goods that require significant sales volume to recoup development costs. There is also a potential that a creator could patent a process, produce and develop a limited number of goods (below the expiration threshold). If another company comes up with a substantial innovation that would be hugely beneficial, but depends on the patented process as one component, the company is stymied until the original creator produces beyond the expiration threshold.
Unless the “units sold” model is coupled with another system (time-based or production-based expiration), it could end up causing a reversal of the current problem. Properties with significant value would reenter the public domain quickly, while those properties of lesser value could end up languishing in copyright almost indefinitely. While this reversal would probably prove beneficial to the public domain (in the short term), I fear that it may be too detrimental to the creators. Press the creators too far and they lose the incentive to create, which harms both creator and society in the long run (as you pointed out with your safety device example).
My biggest complaint with the patent system is the sheer absurdity of some of the patents being granted. Simply improving the review process should eliminate the vast majority of frivolous patents. Meanwhile the biggest problem with the copyright system is the continual delay of copyright expiration through legislation, effectively granting creators the ability to own ideas in perpetuity, which will ultimately result in a dichotomous society of the rare few content creators hording all information and knowledge from the teeming masses of consumers.
August 8th, 2006 at 1:21 pm
Patents, I believe, are far too complex to broadly brush a solution. A good first step, as you indicated, would be to ensure that only experts in any given field (or combinations of fields) are deciding what does and does not deserve a patent. Beyond that, I believe that the inherent volatility and lifespan of the given technology should be a factor. E-systems, for example, go through generational evolutions very quickly so should have shorter inherent patent lengths. Architectural processes, on the other hand, may not change for decades and should have a proportionally longer basic patent length. Also, mayhap the same experts that determine the patent-worthiness of something are free to decide within a window what the patent length will be. And, even if there is a production or sales number tied to it, the expiration should be reached as a time or units, whichever comes first so as not to allow a company to produce a limited run and then sit on the patent. In a competitively reasonable time, the patent expires whether or not it was used to the organization’s advantage or not.
Regardless of the basic determination, I don’t believe that the amount of effort, assets, or time required to develop an idea should be a factor. Simply put, I don’t want a patent to take into consideration all of the wasted effort that went into producing the end-item. It is up to the company pursuing the idea to determine what price they need to sell it at to get a sufficient ROI, and that is a purely business function that should not be in the hands of some government office. Besides, if the paperwork involved with filing a patent begins to look like IBM’s tax paperwork, then the whole process will be gummed-up that much more.
The units sold issue with copyrights (or patents for that matter) really stems, in my mind, from the basic reason something would enter the public domain: because it is in such wide use that a general majority have been exposed to it. This is the very reason why all of Bach’s music is public domain (although individual performances and arrangements are copyrighted). Anyone can make an arrangement of a Bach piece, governed only that it is acknowledged as an arrangement and not a wholly original composition. Barring that we wait until decades after a copyright holder dies, I believe that a suitably high number of units sold (or produced) would be a good yardstick for expiring a copyright. I am willing to concede that there should probably be a relatively short, time-based attachment to this process that might come out to something sounding like a warranty: “5 years or 50 million units produced, whichever comes firstâ€. No extensions, no refiling, and no delays upon expiration. Innovate or die.
August 9th, 2006 at 3:19 pm
While I can readily agree with varying the duration of patents based on the technology, I fear that such a system might be untenably complicated. I can only guess at the impact, but I suppose that a few broad categories wouldn’t be too difficult to administrate. As for granting the power to determine the length of a patents term to the experts described above, I must wonder at where we are going to find these unbiased experts, and how they will be compensated for their efforts. Is there a simple open signup that anyone can contribute to? Or should it be invitation only? Can an expert patent examiner make determinations on a patent from a competing company? I think it’s relatively likely that an “expert” in any given field is probably employed in that capacity, and though such a conflict of interest might not come up often, it’s bound to happen sooner or later. On the flip side of that coin, should we allow patent examiners to make determinations on patents originating from their own company? I’d be tempted to shoot for a broad cross-section - perhaps combining a broad open-forum debate on the merits, coupled with a more restricted panel of specialists.
I’m still not sold on the “units sold” suggestion for copyrights. As I see it, you’ll either need to tailor the units sold individually for each patent (or at least for many specific categories of patent) or you risk damaging the whole purpose of the intellectual property system. Setting the units sold threshold too high will ultimately make the units sold system obsolete (since virtually every property will enter the public domain based on elapsed time), while setting the threshold too low will fail to provide sufficient incentive for the creation process. As an example, your suggested “50 million units produced” when applied to books would only result in the top 10 best-selling books of all time would have sufficient sales to return to the public domain, nor any of the best-selling albums of all-time. On the other hand, a special IC design might be utilized thousands of times on a single processor with unit sales in the millions, it might be released into the public domain after as little as a few months. Based on AMD Processor Sales, it’s possible that a patented IC that applies across their entire line could reenter the public domain within just over a year.
These examples also beg the question: how do we determine what a “unit” is? For example, a company patents an image compression algorithm (e.g. JPEG). They license that algorithm to six companies. Those companies sell 5 million copies of software incorporating the algorithm. Consumers use that software to compress 250 million pictures. When does the patent return to the public domain? After 50 million licenses are sold? 50 million copies of the software? Or 50 million compressed images? We could probably displace the responsibility for the “unit” determination to our “experts”, but that just places an additional load on the entirely hypothetical (at this point) division. Ultimately, I’m not sure that a unit-based metric is necessary for the proper functioning of the system, while the costs of adding such a metric probably outweigh any potential benefits it might contribute.
I also disagree with your reasoning on why works enter the public domain. Bach’s music has entered the public domain because he’s been dead for over 250 years, not because lots of people have heard it. By the “exposure” reasoning, the latest pop single or hit TV show should instantly be transferred to the public domain, while more esoteric information (e.g. microprocessor designs) might never enter the public domain. The public domain is a term that refers to the collective knowledge of a society, and without the need to incentivize innovation, I strongly believe that it should encompass everything that is created. However, as you pointed out with the safety device example, there is a need to give incentives to innovate, hence the creation of the entire body of intellectual property law. Beyond the need for some incentive, however, we must ensure that the incentives we provide are sufficient to stimulate innovation, or both the creators and society will suffer. Considering that a not-insignificant number of innovations never see any ROI, and that those few that do prove profitable may not be able to be fully capitalized in the short term, I fear that the “5 year or 50 million units - Innovate or Die” ultimatum will ultimately result in a substantial number of creators choosing to die rather than spend effort for the limited potential return.
The reason I like the renewal process I’ve described above is threefold: First, it provides a substantial and ongoing incentive to produce new ideas with the potential for long-term value. If you manage to invent something of extreme lasting value (e.g. Disney’s Mickey Mouse, J.R.R. Tolkien’s Lord of the Rings, or George Lucas’s Star Wars), then you can continue to capitalize on that property until such time as renewing the copyright is no longer cost-effective. Second, it provides a guaranteed re-entry into the public domain for all works, with longer times (and thus greater rewards) for the more profitable ideas. Third, it provides a potentially tremendous revenue stream which can be used to support the administrative costs associated with the system.
August 9th, 2006 at 5:10 pm
It’s probably my fault that the “50 million†number seems to be stuck. I should probably have phrased it more to indicate that it should be an amount of units, items, licenses, or reproductions either produced or sold, as determined by a given industry, for which a sufficient competitive advantage has been realized as to no longer require protection. Mayhap it could be based on market share, or some other metric depending on the given industry, but the point is that the determinant is that a head start has been given to get the item efficiently and effectively to market as an incentive to innovate.
As for the experts, I believe that a panel of industry members from various different organizations who meet quarterly to review as many applications as they can. I believe that they should be solicited from by the organization based on their published works within the industry, and they should receive fair and equal compensation for their time. Compose the board with mayhap as many as 30 members so as to virtually eliminate the chances of a single conflict of interest causing problems in the process, and sign into law the required guidelines governing the communication and use of information given to board members for the purpose of making intellectual property-related decisions only. It is understood that these are all competitors or potential competitors, but I believe that is far better than grabbing some lazy university professors to do the same thing. I want people that are active in the industry, not people that are academically detached from it.
Copyrights are a sticky thing when one allows a company to continue to have exclusive use of a widely known item or image that is not also a trademarked property. For example, you can write a role playing book that may contain some original critter, so that critter is then copyrighted and cannot be used in future creative works such as novels without express permission. This becomes silly as even conceptual pieces of a work cannot be used to further the industry as a whole. More public icons such as good ol’ Mickey are part of the public consciousness at many different levels and should, on that basis alone, be public domain. Now, mayhap a graduated system of expiry would work, but do you start it at square one and let Disney begin with but $1 to extend for another decade something that it has had in commercial use for so many more than that? Do items which have been copyrighted for years simply drop into the public domain when nobody is alive yet (or knows) to pay the renewal? In truth, I am more interested in standardized and enforceable “fair use†of copyrighted material than having it all fall into the public domain.
I can live with the first two of your reasons for the graduated system, the third is fatally flawed. All federal revenue is fungible and is ultimately part of the general fund. Even if the revenue gained under this program is earmarked for the very specific purpose of supporting the patent and copyright process, that just means that the funding for the office that would otherwise come from the general fund will be proportionally less. Any surplus would also return to the general fund because government offices cannot save or otherwise carry money over from one fiscal year to the next. Also, the staffing and infrastructure required to do the job proposed will have to be done using existing numbers in the budget, not projected amounts that may or may not be realized in the form of renewal fees and other revenue. At best, four years after the program proves to be successful, if indeed it does, Congress may also approve additional funding to the office, but that could also be a dream because the office would have to have been doing the job successfully with what it already had, so the increase might be judged as unnecessary. In the government, agencies that generate some sort of revenue do not bear any real entitlement or exclusive claim to it, which is what keeps many of our fiscally retarded programs afloat and on the debate table with other emotion-based topics. If individual offices or even agencies had to support themselves, the whole government would crash.
August 10th, 2006 at 10:33 am
Maybe I’m just being pedantic, but I still think that defining “sufficient competitive advantage” will require far more effort and administrative resources than any tangible gain over a simple time-based expiration system. There are potentially an infinite number of ways a company can capitalize on a patent, and covering each of them to a sufficient degree to make the system both applicable (i.e. that it actually comes into effect in a statistically significant number of cases) and effective (i.e. it reduces or eliminates potential abuse that would exist in a purely time-based expiration system) seems to me a colossal undertaking. Especially since the time-based expiration is a requirement in any case, I just don’t see how the “units sold” paradigm can eliminate enough corner-cases to be worth the expense of implementation. There is also the argument that imposing the system will in effect be imposing governmental regulation on how a company makes money, which is typically injurious to the company or industry.
Perhaps my understanding is flawed, but I thought that the entire purpose of copyrights was to grant a company exlusive use of an item or image so that they could capitalize on the creation of that item or image. In the case of your role-playing example, if you come up with some original critter that is compelling enough that others want to utilize it in future creative works or novels, I believe that you should be entitled to some compensation for that usage or at the very least some say in the usage of something that you created. If such wasn’t the case, then there would be little incentive to create anything, save for the joy of creation. To utilize a different example, say that I create a rich and compelling campaign world, and I publish it in a small paperback handbook that is sold cheaply to a few dozen people. Without the protection of copyright, a major publishing company could acquire a copy of my work, make a few minor changes, slap their logo on it, and sell it worldwide without giving me a single penny.
I also disagree that just because an intellectual property has entered widespread use that it should automatically revert to the public domain. Besides the difficulty in determining exactly what “widespread use” entails, it would impose a penalty on anyone who develops an intellectual property of substantial worth. To utilize a role-playing example, why should my homebrew campaign world receive copyright protection just because no one knows about, while a popular commercial setting (e.g. Eberron or Forgotten Realms) cannot? I’ll guarantee that the commercial world is the product of substantially more time, energy, and cost, and dropping it into the public domain just because it’s popular will impose a strong disincentive to create such a work.
What becomes silly, in my opinion, is when the entitlement is extended nigh-indefinitely, granting complete control over your idea until long after your death. Consider that under the current system, no one can utilize the Mind Flayer in a creative work without the express permission of the Wizards of the Coast until sometime after 2075. I don’t know the exact copyright date, but we’ll assume it’s a corporate work created sometime after 1980. If it’s the work of a single author (who has transferred the rights to WotC), then it lasts 70 years after that author’s death. The Fair Use laws provide some leeway for extremely specific publications, but the use of the creature in a novel is not included. Under the system I’ve proposed, the Mind Flayer would re-enter the public domain as soon as the cost of renewing the copyright exceeds the monetary benefit of the property.
I strongly disagree that a standardized and enforceable fair use of copyrighted material would obviate the need for a rich public domain unless we dramatically extend the scope of the fair use laws. The purpose of the existing fair use law is to allow limited use of copyrighted materials without permission. If we eliminate the public domain, then you are in fact granting copyrights in perpetuity - Mickey Mouse will forever remain the exclusive property of Disney, and the Mind Flayer can never be used without Wizards’ express approval. Fair use (barring any extensions) would only allow limited usage for backup/archival purposes, teaching, commenting, or news-reporting. I think it makes far more sense to have a rich and diverse public domain than to keep everything under lock-and-key with the occasional and limited fair use exception. Especially given the Big Content companies recent push to reduce and/or eliminate fair use entirely. The whole purpose of several of their legislative endeavors (DMCA, DRM, the Broadcast Flags) in recent years has been to prevent actions previously covered under fair use law.
As for the implementation of my proposed graduated expiry system, I think that wherever possible, we should calculate renewal costs from the original copyright date. Thus Disney would have to drop $10 million in 2008 to extend Mickey’s copyright for another decade, and the Tolkien estate would owe $100,000 come 2014. We could even be more ruthless and force existing copyright holders to pay for the most recent term retroactively (meaning Disney would pay $1 million for Mickey from the 1998 renewal, and still owe $10 million in 2008) or even for every term retroactively (meaning a veritable ton of instant revenue). Any copyright owners that refuse (or simply neglect) to pay the required fee will find their properties reverted to the public domain. Obviously the implementation of this plan will result in the largest contribution to the public domain in over 70 years, but given that virtually nothing has entered the public domain in that time, I think it’s a fair rebalancing of the equation. It’s also worth considering that the vast majority (probably 95%+) of works that would re-enter the public domain as a result of this change have already left the productive stage in their evolution. It’s currently impossible to utilize any of these works as a basis for transformative or evolutionary ideas without consent from the original creator. And it’s typically extremely difficult to contact the original creator due to incomplete records, changes in address, or a variety of other roadblocks. As a result, anyone who would like to utilize material that has left common circulation but still has value is left with the choice of proceeding with the publication at the risk of potential lawsuits, or canceling publication entirely.
Consider the “demographics” (ideographics?) of copyrighted ideas: out of perhaps 1 million ideas created in a given year, it’s likely that 90% of them will have left their productive cycle (i.e. they aren’t making money anymore) after 10 years. After another decade, perhaps 90% of the remaining hundred thousand ideas will leave their productive cycle. By continuing the trend, only the rare few ideas continue to make money after decades in production. Under the current system, however, it’s those rare few ideas that survive for decades (like Mickey or Lord of the Rings) that are driving the copyright extension acts. As a result, thousands (if not millions) of works that were created since 1923 will remain under copyright until 2019, even if the vast majority are no longer fiscally viable, and there is nothing to stop those rare few copyright owners from pushing another extension prior to that time. In effect, the public domain is being plundered of all value - if you ascribe to the mantra that there are no truly new ideas, and everything is build upon ideas of those who came before, we are effectively transferring all ideas into the hands of a few creators, effectively creating an intellectual oligarchy, and preventing new ideas from surfacing (at least legally). In practice, it may not be so dire since if I make infringing use of a little-knownm, non-productive work created in 1934, it’s highly unlikely that the copyright owner will bother to sue, but I’d still be breaking the law in the pursuit of something that should be (at least in my humble opinion) perfectly legal.
I’ll readily admit that your understanding of governmental funding is far more nuanced and accurate than my own, but I fail to see how an additional revenue stream would be a bad thing. Given the choice between a program that brings in nothing and a program that has the potential to bring in billions, I can’t imagine that the government as a whole would be better off with the former. Even if the revenue is not earmarked for the patent/copyright office, it’s still additional funding which can be used to fund the project, which should make the potential increase in administrative costs associated with the project less daunting. While I’ll readily agree that we shouldn’t require every governmental agency to support itself (and indeed, that doing so would make many of the primary purposes of government impossible to implement), I also believe that an agency that can support itself is preferable to an agency (providing the same service) that cannot.
It’s also worth considering that the Big Content companies currently spend a significant sum to continue extending and supporting their copyrights, but these funds typically go towards campaign funding for the congressmen required to pass the copyright extensions, rather than the government itself. Theoretically, the content companies may even save money in the long run, and it will only be the incumbent congressmen who suffer (and I for one could care less whether we hinder the umpteenth reelection of some career politician). It’s also worth noting that the system probably doesn’t require much in the way of funding over the existing system. The only additional requirement is some method to facilitate copyright owners renewing their copyrights, which could be done very cheaply and effectively with an e-commerce style website, requiring only minimal development and oversight.
To reiterate:
August 10th, 2006 at 3:51 pm
I can agree to your system as a market driven means to a median between what exists now and what I would rather see; so long as the format for renewing can be written on a single sheet of paper as opposed to something that looks like the current tax code, I’ll play along.
My main objection is the issue of bringing in money to the government in the form or huge renewal fees because it means that the money will ultimately be spent on pork and nothing truly productive. However, that issue in particular and the government in general are probably best left as a discussion for another topic(s) entirely.