Note: This post represents my proposal for an ideal copyright regime, free of any political considerations with respect to feasability of adoption. My later post will differ in that I will advocate the use of certain tactics by content providers, who, on the whole, I tend to support more than those who oppose them.
"Property, a creation of law, does not arise from value, although exchangeable -- a matter of fact." So begins this post by Prof. Cass Sunstein, quoting J. Holmes in INS v. AP. Although Sunstein’s post is on a different topic, he explains the quote:
“What Holmes is saying here is that even though property is exchangeable, it doesn't arise from value; it's a creation of law. And that's simply a matter of fact.”
“Property rights, as we enjoy and live them, are a creation of law; they don't predate law.”
Like Holmes, I take this as simply a matter of fact. It is the foundation for my proposal so if you disagree, you’ll have to play along for this post to make sense. Property rights, whether in real or intellectual property, are not “natural rights.” Private property rights (aside from the Crown) is a relatively young idea and practice; the notion of property rights in IP even younger. This proposal is aimed at works that can be digitalized and easily and widely distributed; namely music and movies.
The 2 questions I’ll try to answer are:
1. What is the goal of copylaw?
2. What regime would best further that goal?
The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Time to Authors and Inventors the exclusive Right to their writings. U.S. Const, Art I, sec. 8.
Even though this proposal is an ideal one, free from political considerations, I’ve restricted myself from any solution that requires modifying the text of the Constitution. Since we’ve covered this in class, I’ll exclude any detailed discussion. Like real property rights, the goal of copylaw is essentially a public policy argument, “To promote… the useful Arts.” The usefulness, or utility, of a particular work varies depending on the person deriving utility. I find Milli Vanilli’s most recent album "useless" in this sense. Perhaps you agree...
In this light, my proposal serves a pure public policy goal,
concerned only with maximizing overall utility. While imperfect, I offer the free market system as the best
mechanism to measure the utility, or value, of any particular piece of IP. Simply put, the goal of copyright law is to make the most money possible for society as a whole. Of course, we have to take into account fairness norms; we couldn't, for example, revoke someone's copyright simply because we thought they weren't maximizing the utility of a particular piece of IP. In this sense, the proposal should greatly reflect the society's current notion of private property (and IP) as a natural right.
We’re limited in our means: “securing for limited Time to Authors and Inventors the exclusive Right to their writings “
Implicit in the text is the notion that a grant of exclusive right in a work – essentially, the exclusive right to profit from ones labor – is an incentive that encourages the production of more “useful [a]rts” by society as a whole. This gain must be balanced against the lost potential gain the public bears for the duration of the copyright. For example, George Clinton may have written a song back in the 70's that is no longer sold anywhere. The Backstreet Boys may want to sample a riff from that song in order to create a new, hit song. Clinton could refuse to sell the right to sample that riff, even if offered $1 million, and society overall would be poorer for it. Following my proposal to an extreme conclusion, the governement would be authorized to rescind the right of exclusivity from Clinton and grant permission to the Backstreet Boys to use it.
But this is an individual case, and even though we don't behave rationally in every instance, on the whole, the market behaves both rationally and efficiently. Most people could be offered some price that they would agree to so the fact that there are some instances - and there always will be - where the market is not efficient does not show that the overall market system is inefficient.
My argument is that an exclusive right to profit, for a limited time, from a piece of IP is the regime that would best serve the goal. The time should be limited to 70 years from the time of creation (roughly one generation), however, this is not to be applied retroactively. I support this long duration because certain works and brands possess great value and reflect a substantial investment on the part of the copyright holder. Disney holds copyrights to their many characters and their movies, which they have invested a substantial amount in. Protecting their ability to profit from this work is in society's best economic interest - unless you believe that society at large would be better able to generate revenue from Disney's copyrights.
Registry: There should be a registry of all works copyrighted, more to serve notice to potential infringers than anything else. However, the registry should be free, much like the "Do Not Call" registry. This is to prevent an undue burden being placed on individuals who create IP.