Copyright As Emphysema: Bad To Begin With And Only Gets Worse

from the now-there's-a-quote dept

An anonymous reader points me to the comment section of a recent Doc Searls post discussing problems with the copyright system. The post itself is interesting (though covering ground familiar to those around here), but the comment in question has this rather unique analogy from Searls comparing copyright to emphysema:
I won't speak for Bill Patry, but I'm beginning to see copyright (and patents, at least for software and business methods) as emphysema of the marketplace: something that is bad to begin with and only gets worse.
To support that point, he then asks an interesting question:
Can either of you name a single legislative or regulatory instance (in any country) when the concept of copyright has been challenged successfully -- or the scope of its restrictions (in time or any other dimension) has ever been reduced? I can't, but I'm not a lawyer.
It's a good question. I left a comment pointing to the only one I could think of off the top of my head: which was the US's decision that federal gov't documents could not be covered by copyright. That, of course, is a tiny tiny minor push back on copyright, and many other countries haven't even gone that far, preferring to use "crown copyright" to allow governments to claim copyright on documents. In thinking about it a bit more there are two other possible points -- though both are again pretty minor. First is the fact that the 1976 Copyright Act codified "fair use." Before that it existed in common law, but was not directly in the law. However, considering that we basically gave up nearly the entire public domain on modern works, that Act was hardly a step towards less copyright. In fact, it was the single largest step towards copyright expansion in the US's history.

The only other (again tiny) pushback on expansionist copyright law was not from the legislature, but the recent court ruling (pushing back on a legislative expansion) that found a certain classification of works that were temporarily in the public domain couldn't be pulled back under a copyright regime. That case is going to be in appeals for years, and it applies to such a small class of works, it's barely worth mentioning at all.

But, of course, as we were recently discussing, the expansion of copyright has been quite massive during the entire history of the US. But, again, like Searls, I'm not a lawyer (or a historian), so perhaps we can get some others more knowledgeable on the subject to weigh in on Searls' question: what examples are there of legislatures actually decreasing the scope of copyright restrictions?
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Filed Under: copyright, doc searls, emphysema, expansion


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  1. icon
    Mockingbird (profile), 19 Aug 2009 @ 8:42pm

    Re:

    You wrote:
    All "modern" works will enter the public domain at some point. It might not be fast enough to be "in your lifetime", but it isn't lost.

    That remains to be seen. We have already seen calls in Europe for an extension of the copyright in phonograms from 50 to 95 years. (More recent proposals knocked this down to 70 years, but an extension will still pass if the Council of Ministers agree to it). And writer Mark Helprin has already begun beating the drum for yet another U.S. extension. Is he a lone crackpot, or a pilot fish for the robber-barons? We'll see in a few years, when the copyright in Steamboat Willie will again approach expiration.

    You also wrote:
    Mickey Mouse is as vibrant and fresh today in new material as the mouse was 50 years ago, so why suddenly push a whole bunch of material into the public domain? Would the world suddenly be a better place if you could make legal copies of Steamboat Willie?

    The world would be a freer place if we had freedom to market competing editions of Steamboat Willie. This is called "free trade" and "competition". Deluxe versions would go for more, but still, lower prices would be available for those who wanted them, as budget editions would be sold at prices close to the marginal cost of production. The monopolistic market would become a competitive market. The monopolist's surplus would become a consumer's surplus. Ordinarily competitive markets are considered better than monopolistic ones. Ordinarily consumer surpluses are considered better than monopolistic surpluses. That is how the world would be a better place if the copyright in works published in 1923 through 1928 were to expire.

    And of course the market for Steamboat Willie should become a free market while the film is still "vibrant and fresh". Just as the patent on an antibiotic drug should expire while the antibiotic is still near the height of its potency.

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