Copywrong

Mark Helprin is a great fiction writer (while every talks about Winter's Tale, I would suggest A Soldier of the Great War as his best). His latest piece of fiction, however, shows up as an op-ed in the New York Times. A Great Idea Lives Forever. Shouldn’t Its Copyright?. Helprin eloquently rails against government confiscation of private property -- because copyright expire. He believes in the "natural right" theory of copyrights: intellectual property is the same as real property. Unfortunately, this idea has its fact and logic backward. Copyrights and patents are state-granted monopolies. As Judge Richard Posner (a leading conservative thinker and founder of public choice theory) and William Landes have argued (in The Political Economy of Intellectual Property Law):

Equating intellectual property rights to physical property rights overlooks the much greater governmental involvement in the former domain than in the latter, at least in a mature society in which almost all physical property is privately owned, so that almost all transactions involving such property are private. Government is continuously involved in the creation of intellectual property rights through the issuance of patents, copyrights, and trademarks. Skeptics of government should hesitate to extend a presumption of efficiency to a process by which government grants rights to exclude competition with the holders of the rights. Friedrich Hayek, than whom no stronger defender of property rights can easily be imagined, warned that “a slavish application [to intellectual property] of the concept of property as it has been developed for material things has done a great deal to foster the growth of monopoly and . . . here drastic reforms may be required if competition is to be made to work.”

The conservative Stanford Review has argued that copyright impinges on personal freedom:

Truly vibrant culture requires the freedom to build on, modify, and borrow from others’ work. Copyright makes this process difficult, if not impossible. The creator must apply for permission to use each recognizable source of inspiration, and must change his or her work if denied. Copyright expansion is pushing us toward a sterile, lifeless “culture” where everyone pretends to work in isolation, afraid that others will hurl accusations of theft and sue for damages.

As James Boyle -- FT.com / Comment & analysis / Comment - Rocks in the web’s safe harbours has argued (from the left):

When we are dealing with intellectual property, how do we know who is a trespasser and who is a greedy landowner trying to enclose the public right of way? First lesson, analogies to physical property – like the one I just used – are dangerous. Most of these disputes are about whether a new market, enabled by technology, should lie inside or outside the scope of the artificial monopoly conferred by the intellectual property right. Because these rights are created for a purpose – to foster and disseminate science, innovation and culture – there are inevitable “should” questions involved.

So, the real question is why would a good libertarian like Helprin think the state should step in to stifle competition? After a certain point, copyright is no longer about income and royalties, but about the power to exclude others from utilizing the ideas. As has been pointed out on numerous occasions, one of the biggest flaws in the current copyright system is the blocking of new creations, based in part upon derivative works. (See here and here.) I find it highly ironic that Helprin should advocate state intervention to prevent individuals in the future from further disseminating his ideas.

Copyright exists to provide a balance of incentives for creation and dissemination of knowledge. Unlike Helprin, I think our founding fathers got the idea right when the Constitution provided for intellectual property protection "for a certain time." And when that certain time has expired, ideas should be free -- not locked in some golden cage.