Mimsy Were the Borogoves

Editorials: Where I rant to the wall about politics. And sometimes the wall rants back.

Copyright law worse than anachronistic

Jerry Stratton, July 7, 2005

The Economist is arguing that because the digital age has made it easier to publish, and allows publishers to get to market more quickly, that shorter copyright terms are more appropriate than longer ones. Writing about the recent Grokster case, they said:

The Supreme Court tried to steer a middle path between these claims, and did a reasonable job. But the outcome of the case is nevertheless unsatisfactory. That's not the court’s fault. It was struggling to apply a copyright law which has grown worse than anachronistic in the digital age. That's something Congress needs to remedy.

It is worse than anachronistic because our original copyright term, fourteen years plus another fourteen if the copyright holder decides the copyright is worth renewing, is more appropriate to our digital age.

Our current law is anachronistic because it was born in a time when it was more difficult for the public to take advantage of the public domain that copyright was meant to enrich. The reason that copyright was originally short is that copyright was a trade intended to encourage more public works for the public to use: in return for a short-term monopoly, artists would make their works public, and then the public could use those works once the monopoly (copyright) ends. A fourteen-year copyright term made it likely that the public who had to pay for the copyright protection would also get to use the copyrighted item.

Today, copyright terms last far longer than any member of the public will remain alive. Copyright has become unbalanced: the public pays for a protection, and it will never see the benefits it was supposed to see.

But more specifically, the point of copyright is to protect public works: it is to encourage that works be made public, and in a form that they can be used. This is why the original form of copyright required that the item actually be released before it could be copyrighted; copyright only started ticking when the item was made public. If an item wasn’t public, it didn’t deserve a copyright. Today we give copyrights for things, such as software source code, that will never be made public. Of course, with the wildly out-of-control copyright terms we have today, it doesn’t matter, because the copyrighted source code will never return to the public as they were meant to.

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