Copyright or Copywrong? Evidence Suggests that Our Current System Might Be Broken

by Winthrop & Weinstine, P.A.

Intellectual property, like the information in a book, is different than other property like, let’s say, the coffee mug sitting next to me.  As for the coffee mug, only one of us can use it at a given time.  Either you have it, I have it, or we are sharing it (which, seriously, go ahead and keep it if that’s the case, I’ll just steal another one from work).  My book, “How to Raise Your Cats the Green Bay Packer Way: What Vince Lombardi, Mike Holmgren, and Aaron Rodgers Can Teach You About Restoring Honor to Your Cats’ Lives”, is different.  If I email you a copy, it doesn’t take anything away from me: we would both have the precious information contained in my manuscript.

Based on this, you might see why I need strong property rights in my mug (because you using it ruins the opportunity for me to use it), and not any rights in my book (because I can use it whether you or a million other people are using it at the same time).  As a society, we generally like information to be available and easily transferable (insert your own NSA/PRISM joke here), so it makes sense to do anything that encourages that free flow of information.  Like, for example, making information free.

But this is only half the story.  We also need to incentive people to create masterpieces like “How to Raise Your Cats the Green Bay Packer Way.” Without the proper amount of incentive, I wouldn’t have wasted six months writing the book and instead would have just waited for someone else to do the heavy lifting knowing I could take it for free once the author was done.  These competing factors make intellectual property subject to a difficult balancing act: on the one hand we want intellectual property to be spread as much as possible, while on the other hand we need to incentivize people to keep creating more intellectual property.  If the proper balance is met, we should meet our ultimate goal of creating the most and best intellectual property possible.

One way the government has attempted to strike this balance is through the Copyright Act, which gives authors a government-endorsed monopoly over their works for a set period of time.  The temporary monopoly gives me the incentive to create my book, while the expiration date on my monopoly ensures that society at-large will eventually benefit from my efforts on a larger scale.  While I’m sure everyone in Congress gave themselves a hearty pat on the back once they passed the most recent version of the Copyright Act in 1976, recently law professor Paul Heald came in and kicked over their lego sets when he asked a simple question: “Is this system actually working?”

According to his recent paper, the answer is a resounding “no.”  Professor Heald looked at the availability of books on and found that society is currently marinating in books from before the Woodrow Wilson administration, but struggles to have access to anything since.  This makes sense: almost every book from before 1910 or so has lost its copyright protection, while authors (or more likely publishers) still have their government-sponsored monopolies for more recent books.  The most popular books from any time period are always available, but oddly enough you would be more likely to find unpopular books like mine if it were published in 1880 rather than 1980.  You can see how society might not benefit when finding books on leaching sick people is easier than finding books on chemotherapy.

One possible solution I’ve seen is a tiered structure for copyright protection.  An author might get the first year for free, have to pay $1,000 for another year of protection, $2,000 for the next year and so on.  This would help ensure that popular books can continue to make money for the author and ensure that non-commercially viable books enter the public domain faster where they might help future authors create better books.  Anyone in the blogosphere have thoughts?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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