The Quarter-Century Rule

(Posted by John.)

via Matthew Yglesias, Tim Lee on Intellectual Property:

...copyright and copyleft products can perfectly well co-exist side-by-side. Bad legislation like the DMCA aside, there’s no reason a well-designed copyright system should in any way impede the creation and distribution of non-commercial creative works...

If, 20 years from now, we’re all running Linux, going to movies produced by volunteers in their free time, and taking drugs produced at low cost by Universities, then we can by all means abolish intellectual property then. But right now, intellectual property seems to be doing a pretty good job of stimulating the production of creative works, and I’m not inclined to upset the apple cart without a good reason.

First of all, this is an entire argument made out of straw - aside from the one guy Lee is actually talking about, I know of no one who advocates the dismantling of all IP law, especially people who work in the "copyleft" movement like Lawrence Lessig. Lessig has stated on a number of occasions that Creative Commons and other alternate IP forms rely on the protections of IP law as much as any other work.

Just to be clear, Lee is responding to some doofus who actually does advocate a maximalist position - dismantling all IP law - so Lee isn't being dishonest. He's just wasting his time on someone who shouldn't be taken seriously.

More broadly, we need to remember that there's a number of different areas of IP law, and some can reasonably coexist with pre-existing copyright law while others almost certainly can't. For example, law that restricts the creation of "derivative works" is pretty noxious, all things considered. While artists can reasonably expect to control whether or not their works are used to, for example, make blockbuster films or not, the whole area of "derivative works" has been abused pretty nastily.

There's also the increasing move to "legalize" DRM technologies in both the US and Canada, which makes otherwise non-criminal acts criminal. For example, circumventing the DRM on any one of the many (legally-purchased) DVDs I own is illegal. This is doubly so if I want to do something as obviously criminal as watch a copy of my DVD on my computer, so I can put the disc in storage somewhere. Normally, this would qualify as fair use. Under the DMCA in the US, this is illegal. (Canadian copyright law I'm not so sure about. A quick search of the text of the Copyright Act didn't find anything.)

In an extreme case, a publisher could put DRM technology on a work in the public domain, and if I circumvented it I could be prosecuted.

There's also the fact that copyright terms extend way, way beyond any reasonable philosophy could justify. Remember, the reason for copyright - indeed, all IP protection - is "To promote the Progress of Science and useful Arts" as the US Constitution phrases it. The law is creating an incentive (by granting monopoly profits to creators) for people who make new ideas and things.

So what should our goal be - the minimum protection, or the maximum? It's interesting to look at the difference between the obscenely profitable pharmaceutical industry, which does just fine with 20-year patents, and the obscenely profitable movie and music industry, where copyright extends for 75 years after the creator's death. This is the minimum allowed under international law (TRIPS.) In some locations, it is even more.

The Statute of Anne - the western world's first copyright law - guaranteed a 14-year term of copyright, with a possible extension for another 21 years 7 years, for a total maximum of 21 years. To date (including four years of studying this stuff pretty thoroughly) I have seen no evidence by serious economists to justify any IP term longer than this. I am not a maximalist about copyright - while I think the cultural industries are dominated by evil corporations, I believe artists deserve compensation for their works. The question is where the balance sits between compensation and rent-seeking.

And yes, the music labels (especially) and the movie studios are evil. There's no other word for an industry that has a century's worth of history of abusing talent, collusion to fix prices, monopoly control over distribution and production, and government support to suppress foreign cultures. (Look at the practice of the US Government's support for Hollywood exports during the Cold War, and continuing today.)

The whole point for copyright is to encourage talent, not protect large corporations. Anything that does the former is beneficial. Anything that does the latter needs to be abandoned, quickly.