Perpetual Copyright - Copyright Philosophy

Copyright Philosophy

The basic philosophical argument employed by proponents of perpetual copyright presupposes that intellectual property ownership rights are analogous to other property rights such as those associated with material goods. Proponents such as Samuel Clemens and Jack Valenti have stated that owners of intellectual property should have the same perpetual right to retain and bequeath this property to their descendants that owners of material goods already possess. Jonathan Zittrain, a faculty co-director at the Berkman Center for Internet & Society, illustrated this argument using the analogy: " makes no sense to imagine somebody after a certain time coming in and taking your rug or your chair and saying 'Sorry, your ownership expired.'"

In an op-ed published in the New York Times, author Mark Helprin argues that it is unjust for a government to strip copyright holders of their exclusive rights after a set period of time. He also writes that copyright expiration transfers wealth from private copyright holders to corporations:

"'Freeing' a literary work into the public domain is less a public benefit than a transfer of wealth from the families of American writers to the executives and stockholders of various businesses who will continue to profit from, for example, 'The Garden Party,' while the descendants of Katherine Mansfield will not."

Calls for perpetual copyright have been widely criticized. Lawrence Lessig organized a community response to Helprin's editorial. Public Knowledge issued a response which argued that copyright expiration ultimately provides a net benefit to society. It distinguishes intellectual property rights from those associated with material goods; the latter "are scarce and rivalrous: cannot be created anew, and only a limited number of people can occupy and use a space at any one time. Copyrighted works are neither scarce nor rivalrous: books are created anew, by specific authors, and can be read by five million people as easily as by five dozen, depriving none of them, nor the author, of the ability to use the work." Critics state that copyright expiration does not deprive a creator's heirs of the right to continue to appreciate and use the works of that creator as though a government had legally confiscated their physical possessions after a set period of time. Society is a whole is granted the same right to appreciate and exploit the property that once was under the exclusive control of a single family or corporate entity. This wider potential for the creative exploitation of works formerly under the exclusive control of a copyright owner promotes learning. Public Knowledge and other critics wrote that existing copyright terms already provide more than sufficient compensation for creators of intellectual property. Copyright should not become a welfare system used to benefit remote descendants who happen to come into possession of a valuable copyright through the lottery of birth. Society itself is a "quite important heir" to copyrighted works.

Critics of perpetual copyright also point out that creative activity often involves the creation of derivative works that recast or build upon previous material. If this prior material were perpetually copyrighted, their respective copyright holders would have the indefinite right to license their intellectual property or deny its use as they see fit. Many new derivative works could not be produced if the interested parties were denied permission or could not afford the licensing fees. Moreover, the longer copyright persists, the more copyrighted material falls into the category of orphan works. Anyone seeking to create derivative works based upon orphan works faces the risk of copyright infringement if the copyright holders were to come forward at some later time to enforce their rights. Perpetual copyright would create a significant disincentive to the creation of new literary or artistic works which build upon older material.