YES! I would gladly accept the idea that our “intellectual property” (I hate that term) is subject to taxes. Under the current system, the extremely long copyright terms are designed to protect the statistical anomaly of a work that generates long term income. The vast majority of works have a short period of financial viability, and should then be placed in the public domain. Laws that protect the outliers force the majority into the legal limbo of orphaned works.

I’d like to see copyright registration brought back. Most people create a lot of material, with only a small part of their production having commercial value. When we register a work as commercial property, we’re asking to keep that work away from the public domain. That should come with a cost. So, lets say registration costs a modest sum, and gives us 14 years protection. If we feel the book still has value when that time is over, let us renew the copyright, and pay a somewhat larger tax for the privelege. If we find that, 100 years down the road, a particular book is still commercially succesful, then let us continue to pay fees to keep that book out of the public domain.

This would let authors protect the rare book with long running commercial success, without locking the vast majority of works into a legal purgatory. Most authors would probably let their works fall into the public domain after the initial 14 years. I think making authors pay to keep their books out of the public domain is a marvelous solution to the current problem. Of course, we can now begin to argue about the appropriate fees . . . but that would be a huge step in the right direction.

As technology changes, our concepts of things like property, rights, cost and usage must also change. The point is to decide what IP will be considered by all concerned, and practically whether or not IP needs to be taxed.

Helprin gets this difference when it helps him argue against a property tax being imposed upon copyrighted property, like other forms of property. As he writes “the fact that [copyright] is not taxed does not prove that it is not property, and the fact that it is property does not require that it be taxed.”

You might want to consider why those items are taxed, however… is it strictly because they generate income… or is it because there is an infrastructure that must be supported that goes along with it… inspectors… licensors… waste disposal… database maintenance? That is why things are taxed… it’s not just done out of capriciousness (in most cases).

Personally, I think it’s not outside of the realm of possibility to consider intellectual property as akin to physical property. But obviously, there are differences, such as the lack of tangible substance applied to intellectual property. So no, you wouldn’t treat the two exactly the same. But you could use practical aspects of physical property as a guide to handling intellectual property, and aspects of other things as a guide to other aspects of intellectual property.

IP as a concept is in serious flux right now, because the nature of electronics and electronic data is in flux. So far, though, most effort is put in denying that it is this or that, instead of trying to work out what it is, or how it should be treated. When we come to some universal understandings on how we will consider IP, many of our struggles over how to treat IP copyright will be solved.

Abandonment — under the current regime, a creator can deliberately “abandon” their work to the public domain (e.g. my comment here) or their work finds itself “abandoned” to the public domain once its’ copyright expires. I’ve not heard of any US jurisdiction applying a principle, and more importantly, the less favorable terms, of real property abandonment to intellectual property.

Taxation — ever hear of ad valorem? Anyone who owns a car or a home has. My home state — Georgia — determines the tax through a “fair market” valuation — based on its’ likely selling price, not necessarily on its’ income generation potential. A property that generates income — such as a vehicle for hire or a declared rental property — usually carries a higher ad valorem tax. Most importantly, the property owner must pay the tax in good times and bad, or face seizure by the state.

So I ask those who argue for treating intellectual property more like real property, “Are you prepared to handle the obligations of treating intellectual property as real property as well as you would handle reaping the benefits?”

honest to freaking god. if you ever hear someone say, “i would have written my book down and publish it, but it seemed like too much work for something from which my great-great-great-great grandchildren will reap no profits,” you can pretty well bet that they just *wish* they could write a book.

i am fully in favor of writers earning a living from their work. but in perpetuity? huh. only if i can will my pre-paid lifetime membership in my alumni association to my heirs and their heirs, etc. in perpetuity.

As for providing for minor children…while I think there might be some merit to the idea, I think it also ignores the fact that 90% of literary works will essentially be out of print with in a few years of being published (Though e-books could change this). I think a reasonable term might be something like life or 50 years, which ever comes second might be a better copyright term in the sense that it makes establishing copyright status much easier in an era when it is possible for men to father children years after their deaths.

Regarding secrets as a form of ownership… I suppose that is true, to an extent. Though one can hardly see any way to profit from a story by keeping it secret. And any attempt to make a profit from other secrets can lead to the loss of that secret. The early IBM PC clones were created by breaking the secrets that IBM hadn’t patented in the original PCs.

I do not believe the state of copyright law is having the slightest impact on writing… only on what gets published by the big publishers, which, thanks to the internet era, is shrinking fast compared to the amount of material being released. And most of the contentiousness about copyright is really about releasing Big Pub’s stranglehold on old and orphan works, isn’t it?

Although I don’t necessarily support perpetual copyright, I will make this point: Ideas have always been own-able. The definition of one is called a “secret,” and people have used “secrets” over the millennia to buy and sell, to take advantage in a market, to control and dominate, to rule and to subjugate. Copyright law simply provided a way to add legal protection, a modern concept, to those ideas, or “secrets.”

Twain’s suggestion of copyright that extended to his children is, I think, fair. I also think it would be fair to extend copyright to a holder’s children, but only until they are of legally adult age (and at that point, able to earn a living for themselves).

But as I can also accept the concept of an original and complex idea as property, I also would consider longer terms to allow a copyright holder, and their descendants, to maintain long-term exclusive rights to that property in the same way that they could hold onto land or businesses owned by their ancestors.

Perhaps all of the above are fair… and the question must rely on more practical issues to choose which is the best answer for individuals, and for society, as a whole.

With this attitude, they should not expect the public to give them any more thought than any other person, whether aviator or zoo-keeper. Both of the latter of course are more important to society than the endless streams of people desperately hoping to make lots of money as entertainers.

150 years or whatever on average protection for non-fiction is even more insane. Anyone think their grandchildren will make any money out of their Java for Dummies or Brad Pitt exposes after all those years?

The purpose of copyright, and all intellectual property is not ultimately for the author’s benefit. It is to provide an incentive for the author to produce and to ultimately publish new works (in fact for a long time copyright required publication for protection). Ultimately, the only justification for any copyright law is that it might increase the incentive for authors to produce and publish. Further more that increase to the incentive to publish must be balanced against the harm it does to the public by limiting their access to copyrighted works.

When one considers the literary output of the 19th and early 20th century, it is hard for me to see how the extensions of copyright that have occurred in the last several decades has provided any increased incentive to authors to create (I will grant more is created now, but I believe that is due to other factors). Certainly, no one can argue that retroactively extending copyrights for dead authors can in any way increase the incentive on said dead authors to create new works.

Finally, ultimately perpetual copyrights actually ultimately hurt the interest of the vast majority of authors. Ultimately, most authors, I think, create to be known as much as to make money (certainly their are easier ways to make money). For these authors, the copyright system as it stands serves as a disincentive for publishers to publish their works… particularly after the author is dead and the rights are shared by several members in the estate.

As usual, I appreciate your informative research! Would that I had the time to check out Twain’s true intent myself Thanks for broaching the issue. Ah, the glories of the many-to-many approach in appropriate circumstances like this one!

I’d like to hear others’ thoughts on Twain. Any legal scholars reading this and ready to drive in?

David

In “Ripped” Greg Kot — a music critic at The Chicago Tribune since 1990 — contends that peer-to-peer file sharing and CD burning has empowered music consumers, while providing musicians with more “opportunities to be heard”: “In this world, the fringe players could more easily find and build a dedicated audience, and a musical ecosystem encompassing thousands of microcultures began to emerge.” In “Digital Barbarism” the novelist and sometimes political writer Mark Helprin argues that “copyright is important because it is one of the guarantors of the rights of authorship, and the rights of authorship are important because without them the individual voice would be subsumed in an indistinguishable and instantly malleable mass.” The problem with both books is that the authors fail to come to terms with arguments that run counter to their own opinions.

David Rothman raises the issue of Mark Twain’s attitudes toward copyright, and he criticizes Helprin for not acknowledging Twain. However, Lawrence Lessig indicates that Helprin does indeed invoke Twain in his book. But Lessig complains that Helprin portrays his beliefs inaccurately :

He tries to mark himself as more reasonable than the IP-maximalist Mark Twain, who he asserts proposed a term of “a million years.” I’ve never seen that claim attributed to Samuel Clemens, and of course, Helprin doesn’t cite anything. But Twain did testify that he didn’t believe copyright should extend to his grandchildren. “They could take care of themselves,” Clemens said.

Twain is one of the most important American writers, and it is worthwhile trying to determine his views on copyright. I think Twain is being misunderstood by Lessig and that a careful reading of Twain’s essay here shows that he wanted copyright in perpetuity. Speaking before legislators Twain expressed pleasure that copyright might be extended:

I am interested particularly and especially in the part of the bill which concerns my trade. I like that extension of copyright life to the author’s life and fifty years afterward. I think that would satisfy any reasonable author, because it would take care of his children. Let the grand-children take care of themselves. That would take care of my daughters, and after that I am not particular. I shall then have long been out of this struggle, independent of it, indifferent to it.

Superficially the quote suggests that Twain is satisfied with a term of fifty years, but later in the same essay he makes clear that he is unhappy with any term limit:

I am quite unable to guess why there should be a limit at all to the possession of the product of a man’s labor. There is no limit to real estate. Doctor Hale has suggested that a man might just as well, after discovering a coal-mine and working it forty-two years, have the Government step in and take it away.

He also says “Therefore why put a limit at all? You might as well limit the family to twenty-two children.” Twain concludes with the prediction that in fifty years “we” shall ask for the removal of limits on copyright term.

So if, as that gentleman said, a book does consist solely of ideas, that is the best argument in the world that it is property, and should not be under any limitation at all. We don’t ask for that. Fifty years from now we shall ask for it.

Barbarians! What is best in life?

To crush your enemies, drive them before you, and hear the lamentation of such thieves.

So would Mr. Helprin prefer sword, flame, bullets, or electronics to bump him off in this life?