Another annoying copyright editorial

20May07

In today’s New York Times, Mark Helprin argues that copyrights should be eternal, U.S. Constitution be damned. His basic argument: copyrighted materials are intellectual property, and all other property rights are de facto eternal, not expiring into the public domain after an (increasingly approaching eternal) interval. And how dare anybody strip someone of what they worked hard to create?

A few major problems here. First, the concept of intellectual property as property is debatable to begin with (see the work of Siva Vaidhyanathan for the overview) – I won’t try to unpack this point, but suffice it to say that I think the basic metaphor Helprin’s argument is based upon is flat-out wrong. But on a less philosophical and more pragmatic level, Helprin’s aruges that we should grant a right benefiting a tiny minority of copyrighted works regardless of the cultural cost when applied to the vast majority. How many works still have the commercial value valorized by Helprin 70 years after the death of the author? Very, very, very few. But eternal copyrights, without registration or renewal requirements, lock-up all cultural products, even those that have no “property” value.

Why does that matter? As a historian of cultural works, it is debilitating for a copyrighted piece of our cultural history to be inaccessible by default because there’s no way to redistribute or copy a work whose copyright holder may not even know that they own the rights. Plus copyright no longer just means making a copy of the original – it also means derivative works, so if copyrights were eternal the entirety of our cultural heritage would be locked up by permission only. No reinterpretations, remixing, remaking, revising without permission – there will be no equivalent of Shakespeare or Disney to retell stories that have already been told. This is not simply a matter of cheaper books from Barnes & Noble – it is a recipe for whole forms of creativity only emerging by people & (more likely) institutions who can afford to pay the price of permission.

Lawrence Lessig has proposed a simple copyright renewal system that would allow rightholders who value their “property” enough to fill out an online form and spend a dollar to achieve the eternal rights that people like Helprin seem to desire; the rest of us would simply allow the bulk of copyrighted material (like this blog entry) to expire into the public domain. A reasonable compromise – and, since we’re living in an era of copyright fundamentalism, one that media industries have rejected as an undue burden. We need to battle the common sense link that copyright is the same as physical property, and highlight the damage being done by proposals & rhetoric like Helprin’s.

Update: So I discovered that Lessig, instead of writing a direct reply to Helprin’s piece, has set-up a wiki to create a community rebuttal. Very cool!

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One Response to “Another annoying copyright editorial”

  1. 1 Jonathan Gray

    The idea of eternal copyright could also be considered in class terms, as a way to ensure continuing legacy of royalties for one’s children … and on those terms, the idea becomes purely silly. Does Shakespeare’s distant great, great, great, great, great, etc. granddaughter deserve a penny of sales from King Lear? Should George Lucas’ family get any more money than they already will just because great grampa did Star Wars? Our planet’s already full enough of rich people who did nothing for their riches, and often even whose living relatives did nothing either — why do we need to find *more* ways to create such beings?


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