Monday, May 21, 2007

A great idea should live forever. Copyrights, on the other hand...

Mark Helprin makes the pitch for permanent copyrights in the NYT. His case primarily rests on arguing that not only are copyrights a form of property, but that "No good case exists for the inequality of real and intellectual property", consequently, an indefinite copyright should be viewed as real property arising from the act of creating the work just as much as the physical products of any process.

The first obstacle Helprin's interpretation runs into is that the language of the constitution tends to indicate that copyright is a subsidy which congress is granted the power to use "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" rather than a property right which congress is authorized to tax by limiting its duration. While lavishing praise on the founders for deciding to include copyright at all, Helprin never really makes a good argument why we should radically change the legal status of copyrights.

He raises the point that intellectual property production now accounts for the larger fraction of labor usage than when the constitution was written, but never demonstrates why this matters on any other level than a perpetual copyright would be good for the producers of copyrighted material, which is no more persuasive than arguing that a steel tariff is a good idea because it will be good for the steel industry.

He tries to dismiss Jefferson's objection to copyright on the grounds that ideas are immaterial on the grounds that copyrighted material isn't ideas. This example doesn't really make anything clearer.

Mozart and Neil Diamond may have begun with the same idea, but that a work of art is more than an idea is confirmed by the difference between the “Soave sia il vento” and “Kentucky Woman.”

The argument that art and idea are different things doesn't really help either, since copyright is commonly understood as not only covering a particular work (which itself is a piece of real property independent of any copyright), but also a range of reproductions and derivative works.

Of course, it does not follow when Helprin endorses the 1998 extensions based on arguments about a version of copyright that is entirely different than the actual law.

Besides failing to make much of an argument that "the right of property is natural and becoming" when it comes to copyright, Helprin also doesn't bother to address some predictable arguements that copyright is distinct from real property. He's silent on the requirement for copyright to be enforced by restricting the usage of the real property of others and how the usage of the real property of others in violation of the copyright does not do anything that would be considered harm to the real property of the copyright holder.

While, it's easy to dismiss Helprin on the grounds that as a potential author "the great American novel (again?)" (parenthetical Helprin's) of he has a vested interest in the matter, it's even easier to dismiss Helprin on the grounds that any op-ed piece containing the claim that Neil Diamond and Mozart are all about the same ideas is unlikely to make sense on any other matter, so I'm going to go with that.