Pamela Samuelson’s Viewpoint “Too
Many Copyrights?” (July 2011), along
with practically all other coverage of
the subject of copyright, seems to be
staring at the problem without actually seeing it. That problem isn’t the
law but the concept that the protected
rights of the creator and the invention
itself are equivalent, linked commodities.
Copyright is protection granted to
the originator (whether a team or an
individual) of a novel idea. The confusion comes from two daisy-chain errors: first, commoditizing copyright,
so it can be bought and sold; and, second, having commoditized a personal
“right” so the legal system then treats
it as a commodity, even though its advocates scream it penalizes the creator.
We can’t have it both ways.
People object to paying copyright/
patent fees that never (or trivially)
trickle down to the actual originator
and which is supposed to be the point
of the law. Another problem is the add-on protections, as in 70-year “lives” for
patents and copyrights. I say let protection die with the creator. Why let it
be used to line the pockets of corporations or descendants who haven’t created anything? Moreover, rewarding
people for mere proximity to genius is
common but unconscionable.
As for “corporate” copyrights or patents, since when did a company invent
anything? If patents are not fungible
assets, companies wouldn’t buy them,
and the actual rewards would go to the
real originators whose names appear
on the patent’s bottom line.
The argument that companies
need copyright protection to remain
competitive is specious. Companies
provide an environment that supports
creativity, allowing creative people
to create neat stuff. Their alternative
would be to simply not provide such
an environment at all. The straw-man
argument is that if I don’t do it, nobody
will. The reality is that someone can
always turn an advantage into a profit
without the legal system paving the
road for them with gold.
Turning “protection” of intellectual
property into something that can be
sold is absurd. The original (presum-
ably novel) idea can certainly be sold
and should be, but letting me sell you
both my idea and my insulation from
competition at the same time is the
root of the problem. The idea is mine;
how to make money with it is yours. If
you can’t, don’t buy it.
Prescott assumes my proposal would
hurt authors and artists who are ignorant
of or fail to comply with formalities,
such as registration of copyrights, but I
was not suggesting that works should
automatically end up in the public domain
for noncompliance with formalities.
Rather, works should be protected against
commercial exploitations, even when their
authors have not registered their works.
It’s just that some rights and remedies
should be available to those who have
registered, and not to those who haven’t.
Inventors don’t get automatic protection
from patent law; they have to apply
for protection, so why treat authors
differently? Copyright regimes around the
world have had formal requirements in the
past, and some still do.
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