Against perpetual copyright, a Q&A at Gawker

Mark Helprin rendered me temporarily silent with apoplexy when “A Great Idea Lives Forever. Shouldn’t Its Copyright?” appeared in Sunday’s Times. But the paralysis abated as the week progressed, and today I answer questions from Gawker’s Alex Balk.

Balk admires Helprin’s fiction, but is “extremely wary of his political views, which can be found frequently on the op-ed page of the Wall Street Journal, if that gives you any idea. Still, something about his argument seemed plausible, which deeply disturbed us.” Here’s an excerpt:

So is Helprin’s argument sound?

No, not really. Slippery, but not sound.

Not even from a legal standpoint?

The Constitution authorizes Congress to give authors and artists exclusive rights to their work “for limited Times.” Limited is by definition not perpetual. But then, as my high school government teacher was fond of observing, “The Constitution says whatever the Supreme Court says it says.” I wouldn’t put it past the current court to rule that “limited Times” means anything short of infinity…

But shouldn’t authors and their descendents have the right to royalties from their work?

Authors hold copyright for life plus 70 years, meaning that their heirs reap the benefits of exclusive rights for seven full decades after they die. But the purpose of exclusive rights like copyright and patent — both of which flow from the same twenty-seven words of the Constitution — is “To promote the Progress of Science and useful Arts,” not to fund vacations for John Grisham’s great-great-grandchildren.

If you’re interested in reading the major Supreme Court ruling on the subject, turn to Eldred v. Ashcroft. There the majority deferred to Congress’ 1998 extensions of existing copyright, finding that they were “a rational exercise of the legislative authority conferred by the Copyright Clause.”

Though it’s not the law of the land, I enjoyed Justice Breyer’s dissent in Eldred, especially this part:

What copyright-related benefits might justify the statute’s extension of copyright protection? First, no one could reasonably conclude that copyright’s traditional economic rationale applies here. The extension will not act as an economic spur encouraging authors to create new works… No potential author can reasonably believe that he has more than a tiny chance of writing a classic that will survive commercially long enough for the copyright extension to matter. After all, if, after 55 to 75 years, only 2% of all copyrights retain commercial value, the percentage surviving after 75 years or more (a typical pre-extension copyright term) must be far smaller… [A report estimates] that, even after copyright renewal, about 3.8% of copyrighted books go out of print each year… And any remaining monetary incentive is diminished dramatically by the fact that the relevant royalties will not arrive until 75 years or more into the future, when, not the author, but distant heirs, or shareholders in a successor corporation, will receive them. Using assumptions about the time value of money provided us by a group of economists (including five Nobel prize winners) … it seems fair to say that, for example, a 1% likelihood of earning $100 annually for 20 years, starting 75 years into the future, is worth less than seven cents today…

What potential Shakespeare, Wharton, or Hemingway would be moved by such a sum? What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?

The Court itself finds no evidence to the contrary. It refers to testimony before Congress (1) that the copyright system’s incentives encourage creation, and (2) (referring to Noah Webster) that income earned from one work can help support an artist who “‘continue[s] to create.'”… But the first of these amounts to no more than a set of undeniably true propositions about the value of incentives in general. And the applicability of the second to this Act is mysterious. How will extension help today’s Noah Webster create new works 50 years after his death? Or is that hypothetical Webster supposed to support himself with the extension’s present discounted value, i.e., a few pennies? Or (to change the metaphor) is the argument that Dumas fils would have written more books had Dumas père’s Three Musketeers earned more royalties?

Regardless, even if this cited testimony were meant more specifically to tell Congress that somehow, somewhere, some potential author might be moved by the thought of great grandchildren receiving copyright royalties a century hence, so might some potential author also be moved by the thought of royalties being paid for two centuries, five centuries, 1,000 years, “’til the End of Time.”

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