Communications - November 2011

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.

author’s Response:

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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© 2011 aCm 0001-0782/11/11 $10.00

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