The Internets are having a spasm about writer Mark Helprin’s suggestion in the New York Times that copyright ought to be permanently invested in the author/creator, i.e., intellectual property ought never go into the public domain. Helprin uses a rather naive comparison of intellectual property to physical property to make his argument, which is surprising since I know Helprin is smarter than that. But this is a problem with being overridingly ideological in one’s political life, as Helprin is; it requires one to say and do silly things. I admire Helprin immensely as a writer, and rather somewhat less as a political thinker (although his arguments are always nicely written). I like to read his opinion pieces; I just don’t agree with them very much at all.
In this particular case, there are a lot of folks merrily swinging away at why Helprin has got this one completely wrong, so I’ll not go into detail about all of this. I will say, however, that one of the great flaws in Helprin’s argument is that it’s not at all provable that eternal private control of a copyright is to the benefit of the works in question, in terms of their ability to be part of the public life of the nation.
Let me give an example here. As many of you know, I’ve gotten offers for the movie rights to some of my books. Does this mean that the producers who are interested in the movie rights to my book want to make a movie from my book? Not necessarily. In some cases the producer in question may be trying to produce a movie similar in story/theme to my book, so in buying the rights to my book, he’s getting rid of the competition (since then no one else can make a movie from my book). Yes, it’s not cheap to do this (although you might be surprised), but it’s a lot cheaper than having to compete with a similarly-themed movie.
Another scenario: A movie company buys the rights to the book as a favor to a big star it wants to have act in other films; making a movie from the book isn’t the intent, making a bankable star happy is. It’s a bauble to give to the actor. I can name all sorts of other reasons why movie rights get sold that have absolutely nothing to do with making movies, but you get the point.
In Helprin’s formulation, the value of a copyright resides in monetizing the content the copyright represents. In the real world, however, there’s also value for the copyright holder in manipulating copyrights in ways that have nothing to do with the content itself. And not just for monetary gain but for ideological gain — honestly, now, if there were some way for certain fundamentalist groups to get hold of the copyright to Darwin’s Origin of the Species, don’t you think it would be worth it for them to do it to control access to the information within? (Of course, Origin of the Species is already in the public domain. But then again, if we’re talking about revamping the entire of copyright law to provide for eternal copyrights, why not auction off the copyright benefit for material previously in the public domain? There’s money to be made there, not unlike the money the government makes auctioning off the electromagnetic spectrum, ostensibly held in public trust by the government, to private interests). Now, perhaps Helprin is under the impression that an author’s heirs would be loathe to give up copyright for anything other than the purest of motives, but you know. Wave enough money in front of people and you’ll get what you want.
What would happen, almost inevitably, is that copyrights of any value (positively, negatively or ideologically) would be secured by a few large private repositories, who would jealously police any new content they believed infringed on their copyright portfolio. One suspects that most of these repositories would also be publishers themselves, who would publish on terms advantageous to them (i.e., works for hire and/or assignation of copyright to the publisher after the death of the author). If you don’t think it would happen, look at the actions of media companies today and the content protection groups they fund.
Yeah, I’d just as soon avoid all that. I don’t mind making my heirs work for a living, I don’t like the idea that one day the rights to my work might be owned by people who have no interest in the works themselves, and I like the idea that after I’m dead and don’t need the money, that my work goes out to the public in a diffuse, decentralized way. So, naturally, I vote for keeping the public domain aspect of copyright right where it is.