Why Copyrights Must Expire: a reply to Mark Helprin

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Mark Helprin has published an op-ed in the New York Times calling for a perpetual copyright. This seems more of a philosophical rant than a serious legislative proposal, but it's an eloquent expression of illogical and incomplete ideas, mixed with a little indirect name-calling.

Helprin begins by comparing intellectual property to real property, saying that, if land shouldn't be confiscated from people after so many years, neither should copyrights. This is a sloppy comparison of two very different concepts, and a quick rundown of the differences between the two should disabuse people of the notion that ending a copyright terms is like confiscating land.

Real property is scarce and rivalrous: it cannot be created anew, and only a limited number of people can occupy and use a space at any one time. Copyrighted works are neither scarce nor rivalrous: books are created anew, by specific authors, and can be read by five million people as easily as by five dozen, depriving none of them, nor the author, of the ability to use the work.

These aspects make very real differences. Helprin's analogy calls up the mental image of a landowner's descendents being kicked off of the land 70 years after the owner's death. Of course, that's not how real property works. The landowner has rights in the land because she bought it from someone or inherited it--she didn't create it. When she passes it on to her descendants, they become the new owners with as many rights in it as she had, since they as well acquired this bit of limited, rivalrous resource in much the same way as she did. But compare this to Helprin's books going to the public domain (some 90-100 years from now). By contrast, Helprin's descendants own the right to the works only insofar as he had a right to them in the first place--as their creator. They aren't the authors, the people who made the work exist. Nor, should someone else decide to publish or adapt a novel, are they deprived of the right to do the same.

This is not a mere recitation of "the state giveth, and the state taketh away." Copyright requires that a work have been published: ideas and their expression are only valuable in their transmission, whereas physical property, whether land or objects, can have inherent value. Thus, a whole different set of public issues are at stake here, including fundamental precepts of culture and free speech.

Unlike land or chattels, words are free for use and infinite, and so are their combinations. Copyright law, in order to incentivize and occasionally enrich authors, restricts some uses of words--restricts speech!--so that authors may profit. Restriction of speech is a drastic step to take, and we (and I) take it gladly--for a limited time.

Copyrighted works are distributed and used by people; they become part of our selves and our minds and our culture. Revisiting, adapting, and rewriting these works allows us to explore and examine the works and ourselves in ways that criticism alone cannot.

Copyright is not an end in itself, unlike life and liberty. From a very basic standpoint, we can see how physical property is necessary to support life, and how ownership of that physical property (my food, my shelter) is essential to liberty. Copyright, on the other hand, could be abolished without loss of life or liberty.

Yet I'm not arguing for that, by any means. Though plenty of creators have written great works without such protections, more authors can make more works with copyright in place. The economic basis for copyright--to promote progress in learning and its applications--means that it is subservient to that greater goal. So is Helprin arguing that greater, better novels will arise with perpetual copyright? That really, there are thousands of eager writers slaving away at day jobs, who would quit it all to write if only, if only they knew that their great-grandchildren would continue to exercise control over a work?

Helprin also underplays in his op-ed the control that copyright grants to an author. This isn't simply a matter of who gets to reproduce a work in print. Copyright owners can prevent anyone from reading a written work out loud to the public, adapting it for stage or screen, and translating it into another language or another format. Limiting how a work can be used limits speech. Has culture not benefited from Shakespeare's adaptations of tales told in Chaucer? The 1812 Overture's appropriation of the Marseillaise? We'd lack Verdi's Othello; Rhys's Wide Sargasso Sea; Updike's Gertrude and Claudius. The costs that perpetual copyright would place on creation would far exceed the prices that descendants would charge to use an author's works; remixers, authors and adaptors who lack sufficient funds may never get a project off the ground, and we lose the fruit of their subsequent efforts.

Nor is there any guarantee that these descendants will deal rationally or beneficently with the rights earned by someone long-dead. They can stymie the efforts of legitimate scholars, or those simply celebrating their great-grandparent's work. One notable example of this is Stephen Joyce, James Joyce's grandson, who has developed a reputation for being difficult in his idiosyncratic interpretations of what is and is not allowed for the world to do with Ulysses and Finnegans Wake. And this is with the current terms of life-plus-70 years. What will a perpetual regime create? Do the descendants of a forgotten novella's author know when someone is looking to make it into a poem, a play, or a computer program? Translate it into Russian and compare it with Chekhov? The vast majority of works in a perpetual copyright system would have unfindable rightsholders whose permission would be necessary for further work to be done.

We already have such a problem with our limited term of life-plus-70 years. Works whose authorship is unknown are called "orphan works," and how to find their parents is a pressing problem for historians and documentarians. Photographs from two centuries past may still have enforceable copyright now; what of the writings and carvings from millennia past?

Helprin's position thus vastly underestimates the damage it can do to culture, since restrictions for thousands of ideas will thus be subject to approval by those who had no say or interest in the work's creation. They can discriminate among potential researchers and writers, picking only their ideological, or pecuniary, favorites. And who is allowed to adapt, translate, anthologize, and remix the work? Right now, introducing a work into the public domain democratizes the discourse surrounding it; making new interpretations available to those "poor drudges," (as Helprin styles non-wealthy writers) who would lack the money to buy the rights to dramatize Dickens or novelize Shakespeare.

Helprin instead characterizes the benefit to society purely in terms of money saved by bookstore publishers like Barnes and Noble. But bookstores aren't the only ones who use public domain works. Vast digital libraries like Project Gutenberg and the Internet Archive bring the cost to readers to zero; free, digitized texts allow easy searching and indexing. Want to study the range of meanings of the word "nature" in King Lear? You can automate a search for the words. Want to create a machine-read version of Sir Gawain and the Green Knight for the blind? Done, and with no need to haggle with lawyers or accountants.

And to what end do we suffer this cost to culture? What good does a copyright do to the descendants of an author? If that author is wildly successful, and has written a work for the ages, their descendants can make a business of it, and be able to impose their will upon uses of the work, earning revenue in the process. But what of the vast majority of others? The returns to these descendants are meager, compared to the wealth available when every one of us, each a potential adaptor, translator, remixer, interpreter, are free to advance in small increments the concepts set out in the original author's expressions.

Helprin overlooks this democratizing factor, insisting instead that the value taken from the author's heirs is simply shifted over to large businesses that exploit the work. Here, Helprin makes the mistake of assuming that all value is adequately measured in terms of money paid in the marketplace. Such notions should be disabused in any introductory economics course. Value can be added to works by those other than the rich; a starving grad student or street musician can build upon a work he has already paid to read or hear, even if he cannot pay to use it. Benefits can be so widely distributed that they are hard to quantify on the individual monetary level, creating positive externalities like clean air, national defense, and musical improvisation.

Helprin ends with a plea to extend copyright yet again, nine short years after the term was extended for twenty more:

Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed form a form of confiscation not visited upon anyone else? The answer is obvious...

Indeed it is. The uncertainty of profit from an art is no excuse to subsidize and insure the practitioners of the art in perpetuity. Neither your great-grandchildren (nor mine) deserve the right to control conversation and culture long after we have already profited from the dissemination of our own ideas. Writers, composers, artists, sculptors, architects, programmers, and creators of all stripes contribute great things to our society, but that contribution does not give their ghosts the right to claim a stranglehold on the living.

Postscript Helprin's op-ed has generated a real buzz in the copyright blogosphere. There's several good posts on this at Techdirt, Making Light (which points out that Mark Twain made the same unconvincing argument a hundred years ago), Concurring Opinions, the Volokh Conspiracy, and Prawfsblog. Lawrence Lessig has an idea for a reply--let everyone concerned write one via a wiki. Here's a link to that. And anyone who reads this should feel free to incorporate any text from this post into that wiki, if they feel it's helpful or appropriate.

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