Patent, copyright and posterity

Intellectual property and intergenerational rights - Michael Webb

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Article I, Section 8, Clause 8 - U.S. Constitution

There is a natural sympathy between the intergenerational concerns of the founding fathers and contemporary concerns about the diminishing public "intellectual commons".

One example is the serious erosion in recent years of the public domain - in the term extension of copyright to protect corporate assets, the problem of software copyright and patents, the proliferation of patents in the medical sciences, "business process" patents, and the recent bills for database patents.

Patents and copyrights are grants to the holder, by the state, of monopoly powers, for a specific period of time, for a specific reason. The goal is to provide incentive for invention and art. The balancing concern is that one can stifle endeavor, raise the price of entry to enterprise, or lock away the 'building blocks' of science, art and innovation.

The intellectual "commons" that a People share is an essential element for innovation, creativity, art and cultural health. As Thomas Jefferson writes in 1813,

“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possess the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lites his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement, or exclusive appropriation. Inventions then cannot, in-nature, be a subject of property. “

In the days of Benjamin Franklin and Thomas Jefferson, patents and copyright were seen as devices to help an individual to profit from his work and invention, and their term was seen in the context of a persons working life. The Copyright Act of 1790 was for 14 years, with option to renew for another 14 years and applied to maps, charts and books. But today corporations do not have a human life span, and see patents and copyrights they have collected as property; corporate assets, and have been lobbying heavily and successfully to extend the length and breath of their copyrights and patents. Trademarks have also been expanded. Congress is giving incentives to produce to dead men, extending the length of copyrights to keep Disney covered, and the Patent Office has relaxed almost all standards necessary to get a patent.

Traditionally Congress has relied on copyright lawyers from the major interested companies, to sit down and write copyright legislation, a recipe not designed to protect the public interest. Congress shows little interest in becoming educated in the details of copyright legislation, enacting what the major interested parties agree on. The line at the top of the page from the U.S. Constitution is the charge given to Congress to "to promote the Progress of Science and useful Arts, by securing for limited Times..." Recent experience, and economic theory suggests that enlarging and encouraging the public domain and "intellectual and innovative commons" may do more to promote the progress of science and useful arts than locking material away as coporate asset. And "limited times" is surely not 95 years.

A diverse and growing community, from conservatives, "Free Software" advocates, Academics, and musicians are alarmed about the situation. A new book by Stanford Law Professor Lawrence Lessig, 'the future of ideas' gives an excellent overview of the issue, particularly as it relates to the internet. He argues that the "innovation commons" the open platform the internet provided is what allowed its success, and that we can draw some lessons from that. Siva Vaidhyanathan 'Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity' examines recent copyright history, and argues for tighter and thinner laws. Wayne State Law Professor Jessica Litman, in 'Digital Copyright' looks at the process that has produced recent copyright legislation, the problems, and offers some proposals. James Boyle (see link below) argues "we should only give intellectual property protection when it is clearly necessary in order to encourage future innovation". This clearly includes compensating authors, musicians, software coders, etc., but it is rather a stretch to see how it applys to a 1920's cartoon character. Some very talented thinkers, much in the manner of our founding fathers, are saying we can look at the issue in a new light, and see what is really best for our country, and the world. We may be protecting the least productive at the expense of creativity, and saddling posterity with a proprietary pay-to-use subsitute for culture.

additional reading:
Copyright Act of 1790
Fair Use and Copyright Stanford Libraries
Conservatives and Intellectual Property An Address to the Federalist Society by James Boyle
Stanford Law Professor Lawrence Lessig A variety of essays on copyright, and the internet
Wayne State Law Professor Jessica Litman Paper, articles on copyright, intellectual property Copyright and Intellectual Property
Library Juice 3:35 Supplement - September 13, 2000 On Copyright
A Politics of Intellectual Property: Environmentalism For the Net? James Boyle

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