Long Live Copyright!
Recently in the NY Times, Mark Helprin asked the question, A Great Idea Lives Forever. Shouldn’t It’s Copyright? The argument he makes is simple: If I invest in and develop real property, I and my heirs own the rights to that property until such time as we sell them. Intellectual Property, on the other hand, reverts to public domain after a certain set period of time, currently 70 years after my death. Originally, this was done on purpose by our founding fathers to foster a free exchange of ideas. After all, Any idea still valuable years after it’s creator’s death must be widespread among the culture anyway.
Helprin argues that this is not fair. The founding father’s could not see the many varied media we have available to us, nor could they foresee the huge industries making their primary revenue from these intellectual pursuits. Therefore, Intellectual property rights should last as long as they are valuable, just like Real Property.
This Goes directly against prevailing wisdom, as espoused in my essay Death to Copyright. That the digital age has effectively killed the idea of copyright as it is now possible to freely disseminate intellectual property. Indeed, It can be argued that books, movies, music and other intellectual properties can become more valuable to their creators if copyright restrictions are relaxed. Using the open source model, artistic works find an audience when freely distributed and can become the building blocks of later, more lucrative endeavors ( see Cory Doctorow or Charles Stross, both of which have published noels under Creative Commons concurrently with their publication.)
Gatekeepers, the editors and publishers, are stuck between these two opposing forces. On the one hand, they are expected to make the investment in quality works and then to provide them in a wide range of formats at cheaper and cheaper costs.
The Opening Salvo in this war was the NY Times Co. vs Tasini case. In this case the Freelance authors won the battle, but lost the war as contracts were amended to allow publishers electronic rights. It should then come as no surprise that publishers, unable to foretell the future beyond a few quarters, now either ask for “All rights” or vaguely define Electronic rights to cover any possible future technology. And of course artists negotiate to retain these rights, often taking less of an advance up front.
So it boils down to this: An author can retain future rights on his work, taking the risk that these rights will not be worth anything, or he/she can sell these rights, taking the risk that they WILL be worth something in the future.
The Publisher wants to buy these rights, because he/she is already stuck taking the risk when buying the property in the first place.
In both cases, the parties want to hold on to the rights for as long as possible, regardless of any inherent value in them right now. The Artist might, or he might not use his rights to freely distribute his work. He might let other artists play with his creations, and might sell off different rights as the technology becomes available.
He might even hold on the them long after his death. After all, It worked for Walt Disney.
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