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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Ever since the dawn of the digital age ( December, 1974) we’ve been hearing about the death of copyright and intellectual property.

The reasoning goes something like this: Information such as movies, music and writing can now be perfectly preserved, copied and distributed for virtually no cost anywhere in the world in any quantity needed. Because of this it inherently has no worth and ethically it makes no sense to restrict this information to only those willing to pay for it. Information has value only when freely disseminated to those who need it.

In this model “performance” becomes valuable. Intellectual Property owners should freely distribute their property in order to build “Mind share.” If the property is accepted by the audience, they will then be willing to pay for non-distributable performance events ( Concerts, film screenings, book readings, seminars, etc.) that add value to the base product.

There are lots of examples that point to this model succeeding. I-tunes, YouTube, MySpace and Linux all are successful. Yes, You pay a nominal fee for some products, but in most of these models, value rests in the fact that these are all freely available. I type this on a computer running Slax into a form from Wordpress, who will save it in a My SQL database. All free to me, and therefore more valuable to me as an aspiring writer than Office, Movable type and MS SQL.

This Model scares the gatekeepers- The editors and publishers- who cannot afford to relinquish control to the audience. Since they don’t create the product, Their value is in their expertise. Right now Scholastic will make Millions on the last Harry Potter book Both because they did all the heavy lifting on the previous books and they’ve been the ones to have to wade through all the horrible amateur clones trying to get published in an effort to find the next profitable series.

Now the gatekeepers are talking about the Long Tail. In this model, entry barriers have been removed, but the public still relies on the gatekeepers to filter out the trash. for them, they still make most of their money on a relatively few blockbusters, but now they can afford to keep the long tail of works in print. The publishers, having taken the risk to buy the rights, now are fighting for eternal copyright, both in case a popular work proves valuable in perpetuity, and if it does not so they can continue to market the few copies to this long tail.

But this is rapidly changing and the gatekeepers are becoming less valuable.. In the near future, the next Harry Potter, or LOTR or Green Day or Whatever might come directly from the Web- a meme that will be marketed directly by its savvy creator. Already there are author’s like Cory Doctorow and bands such as Arctic Monkeys that are successful without traditional publishers and editors.

In the future, then, I propose that copyright will become less important to creators as income will not be generated directly from the work itself, but from the performance of the work. as barriers to entry fall,I will be able to publish my work myself in a professional manner with very little financial risk. but the rewards will be greater. I will be able to set my own price, and will have to market myself as a performer.

Coming up next: Long live Copyright!

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