IP Feudalism and the Shrinking of the Public Domain

Note: Mr Blake’s opinion is that copyright should be for ever and ever and ever, and that biological and nuclear weapons should be used against any rogue state that decides otherwise. I am not so sure. SIG

by Alex Tabarrok

Creators of intellectual property used to be granted up to 56 years of monopoly before their works entered the public domain. Since the 1976 copyright act (which came into effect in 1978) copyright has been progressively lengthened so it now extends to the life of the author plus an additional 70 years, i.e. an author’s heirs now get significantly more monopoly power than an author did prior to 1978, truly a kind of IP feudalism.

It’s hard to believe that the extension of copyright for decades after an author’s death can appreciably increase artistic creation and innovation, thus the public has gained little from copyright extension. What has been lost?

If the pre-1976 law were still in place then as of Jan 1, 2012 the following books, movies and music would have entered the public domain (from the Center for the Study of the Public Domain):

  • J.R.R. Tolkien’s The Return of the King, the final installment in his Lord of Rings trilogy
  • The Family of Man, Edward Steichen’s book of photographs showing the diversity and universality of human experience
  • Michihiko Hachiya’s Hiroshima Diary: The Journal of a Japanese Physician, August 8–September 30, 1945, translated by Warner Wells, md
  • Evelyn Waugh’s Officers and Gentlemen, the second book in his Sword of Honour trilogy
  • C.S. Lewis’ The Magician’s Nephew, the sixth volume his The Chronicles of Narnia
  • Vladimir Nabokov’s Lolita
  • Jerome Lawrence & Robert E. Lee’s play about the Scopes “Monkey Trial,” Inherit the Wind
  • Isaac Asimov’s The End of Eternity.
  • Jack Finney’s The Body Snatchers
  • The Seven Year Itch, directed by Billy Wilder; starring Marilyn Monroe and Tom Ewell
  • Lady and the Tramp, Walt Disney Productions’ classic animation
  • Alfred Hitchcock’s To Catch a Thief, starring Cary Grant and Grace Kelly
  • The thriller The Night of the Hunter, directed by Charles Laughton; starring Robert Mitchum and Shelley Winters
  • Two of James Dean’s three major motion pictures: East of Eden, directed by Elia Kazan and co-starring Raymond Massey and Julie Harris; and Rebel Without a Cause, directed by Nicholas Ray and co-starring Natlie Woods, Sal Mineo, and Jim Backus
  • Hollywood versions of major Broadway musicals such as Oklahoma! and Guys and Dolls
  • Richard III, Laurence Olivier’s film version of the Shakespeare play, co-starring Claire Bloom, Cedric Hardwicke, Nicholas Hannen, Ralph Richardson, and John Gielgud
  • Unchained Melody (Hy Zaret & Alex North)
  • Ain’t That a Shame (Antoine “Fats” Domino and Dave Bartholomew)
  • Blue Suede Shoes (Carl Perkins), Folsom Prison Blues (Johnny Cash)
  • The Great Pretender (Buck Ram)
  • Maybellene (Chuck Berry, Russ Fratto, & Alan Freed),
  • Tutti Frutti (Richard Penniman (aka Little Richard)

Under the old law these works and many others could today have been read, seen and played at low cost throughout the world. Consumers have certainly lost from copyright extension. What about creators?

We typically frame copyright and patent strength as an issue between consumers and creators, with consumers assumed to favor weaker rules and creators stronger. But, as I discuss in Launching the Innovation Renaissance, that is the wrong frame. A vibrant public domain can be good for consumers and for creators.

Under the old law, the above works could not only have been consumed they could also at low cost and without requiring the express permission of the original copyright holder have been remixed, reworked and extended in new directions. Under the new regime, innovators will not be able to easily build on these works until 2051 and it could be well into the 22nd century before we get Star Wars prequels worthy of the name.

4 responses to “IP Feudalism and the Shrinking of the Public Domain

  1. Two points. The first is that copyright and patents are really quite different things. The second one creates property in ideas. The first creates property in particular productions. This means they really should be considered separately in terms of utility. You can copyright a particular picture, such as a rendition of the Passion of Christ. You can’t copyright the idea of “a painting of Jesus on the cross”. So a copyright enshrines property rights in particular works.

    It comes down to this; if you want markets, you have to have property rights. You cannot have a market without property. As with all property rights chosen by a particular society, what is counted as property is entirely arbitrary and a matter of utilitarianism and sentiment.

    If, as the anti-copyrightists claim, there will be production without property in artistic matters, then the same argument must be used in all matters of production. That is, it is an argument against any free markets, and in favour of some other production system such as communism (or communalism). It is a general argument that there is no need for trade, or incentivisation by private profit. Saying “the public would benefit from free artworks” is the same as saying “the public would benefit from free food”, and saying “artists would create without property rights” is saying that “farmers would grow food without property rights”. Is this credible? Surely not, at least to a libertarian/free marketeer.

    The primary reason is this; producing art, like anything else, incurs a considerable cost. What is a little different, at least in the digital age, between food and art, is that the costs of art are almost entirely capital. A major movie might have $100M of capital costs. On a smaller scale, a comic book may take the full working time available of one or more workers. A novel may take a year or more of labour for a person. Sure, the distribution costs are now trivial. But how are the creators to be compensated for their considerable capital investments? There must be trade and exchange, and thus property rights in the works.

    Any “free” system seems to have benefits to the general population. This is the whole communist argument. But every experiment in this has shown the glaring problem; it only looks at half the equation- the consumers- and ignores the producers. What is the answer to this from the anti-propertarians? I have never seen one that is credible.

  2. Dear Dr Gabb

    You seem to be in two minds about this …


  3. This is lambent. I’ve reviewed such things a while ago however this is quite in-depth. Kudos