10 July 2003

To slightly paraphrase Winston Churchill:

Intellectual property is the worst means possible to encourage progress in science and the useful arts—except for all the others.

The real difficulty with economic arguments against particular aspects of IP, such as the length of term accorded a copyright, is that they are arguments in a constitutional and logical vacuum. The vast majority of the individuals and organizations who argue against long copyright terms, for example, do not earn a living based directly upon income from their intellectual property. Richard Stallman, for example, is a tenured professor. Yes, professors do earn a living from IP, but only indirectly; the number of copies of a particular journal with one of Stallman's articles in it has at best an indirect effect on his income. This often results in a peculiar blindness toward the consequences of weakening IP protection, most especially for copyright. (In the postindustrial economy, the most valuable patents are on ideas, not mechanisms, and thus perhaps more akin to copyrights than to intermittant windshield-wiper control systems—which makes for some very interesting tangents.)

It is fine to argue against long copyright terms in the abstract. The unanswered, and all too often unconsidered, corollary issue is "What alternative means do you offer to promote progress in science and the useful arts as commanded by Article I, Section 8, clause 8?" Government subsidies for artists are not an acceptable answer; down that path one finds all those Soviet artists whose names no one knows, because their work was essentially censored. Patronage is no better, whether of wealthy individuals or of organizations; censorship without any means of objecting to it, even in the courts, is worse.

The problem, instead, is with who actually owns copyrights. That so many copyrights are not owned by the actual creators, but instead by middleman corporations, seriously distorts the entire debate. Simply prohibiting ownership of copyrights by business entities, however, does no good whatsoever, for then very little collaborative art (such as classical music recordings and cinema) would be possible. Can you imagine trying to get copyright clearance from each individual member of an orchestra and opera company to produce an edited version of Der Ring des Nibelungen?