The Case Against Perpetual Copyrights

In today’s New York Times, Mark Helprin argues in favor of what effectively amounts to an extension of copyrights for an indefinite period. And does so by making what is, at best, an imperfect analogy:

WHAT if, after you had paid the taxes on earnings with which you built a house, sales taxes on the materials, real estate taxes during your life, and inheritance taxes at your death, the government would eventually commandeer it entirely? This does not happen in our society … to houses. Or to businesses. Were you to have ushered through the many gates of taxation a flour mill, travel agency or newspaper, they would not suffer total confiscation.

Once the state has dipped its enormous beak into the stream of your wealth and possessions they are allowed to flow from one generation to the next. Though they may be divided and diminished by inflation, imperfect investment, a proliferation of descendants and the government taking its share, they are not simply expropriated.

That is, unless you own a copyright. Were I tomorrow to write the great American novel (again?), 70 years after my death the rights to it, though taxed at inheritance, would be stripped from my children and grandchildren. To the claim that this provision strikes malefactors of great wealth, one might ask, first, where the heirs of Sylvia Plath berth their 200-foot yachts. And, second, why, when such a stiff penalty is not applied to the owners of Rockefeller Center or Wal-Mart, it is brought to bear against legions of harmless drudges who, other than a handful of literary plutocrats (manufacturers, really), are destined by the nature of things to be no more financially secure than a seal in the Central Park Zoo.

The most fundamental difference, of course, is that copyrights, unlike property rights in land, are purely a creation of the Constitution, which gives Congress the power to:

[P]romote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Rather than recognizing that this provision constituted the Founders understanding that copyrights and patents, rather than merely being a recognizing of already existing property rights were, in reality, the granting of monopoly power by the state and, for that reason, their duration should be limited to a period of time deemed sufficient to reward the creators for the effort and innovation involved in their work.

Helprin ignores this however, and continues with yet another bizarre analogy:

It is, then, for the public good. But it might also be for the public good were Congress to allow the enslavement of foreign captives and their descendants (this was tried); the seizure of Bill Gates’s bankbook; or the ruthless suppression of Alec Baldwin. You can always make a case for the public interest if you are willing to exclude from common equity those whose rights you seek to abridge. But we don’t operate that way, mostly.

The problem with this analogy, of course, is that it ignores the distinction between individual rights (to life, liberty, property, and free speech in the case of the examples cited) and a government created monopoly grant. It is arguably the case, and certainly something that the Founders were concerned about, that grants of monopoly power such as copyrights and patents actually infringe on the liberties of others —- even if were to come up with an idea, or a song, or a poem, completely independently, I would be prevented from profiting from it by virtue of the fact that someone managed to beat me to the Patent and Trademark Office by a few hours.

More importantly, though, how can the government grant a perpetual monopoly over an idea ? Thomas Jefferson himself noted this about intellectual property:

[ideas are] “like fire, expansible over all space, without lessening their density at any point, and, like the air in which we breathe, move and have our physical being, incapable of confinement or exclusive appropriation.”

In other words, once it is in the public domain, whether protected by copyright or not, can anyone truly be said to “own” an idea ? Helprin tries to ignore this argument by making a distinction between ideas and “art”, but the point is the same.

Whether it’s the formula for Bayer Aspirin, though, or the text of To Kill A Mockingbird, there is no rational reason to extend copyright protection indefinitely.  And, more importantly, such a proposal would seem to violate the clear limitations placed on Congresses power to grant these monopolies by the Constitution.

  • Saul

    “Whether it’s the formula for Bayer Aspirin, though, or the text of To Kill A Mockingbird, there is no rational reason to extend copyright protection indefinitely.”

    Moreso when one recognizes that copyright is a construct of the state. We may squabble over whether or not rights are categorical in nature, but surely no one would be so crass to suggest that property of the “intellectual” sort is valid in the same sense.

  • Conrad

    Selection of terminology often changes the nature and direction of a debate. The term “property” refers to an idea that has built up over several millenia in various cultures about control of physical objects. The creators of the term “intellectual property” have misappropriated these ideas by applying them to copyrights, patents, and trademarks. The author of the original article follows thought process that are wholly logical if we really think that ideas can be “property”.

    The author of this Liberty Papers article, while well-intentioned, makes the fatal mistake of continuing to use the inappropriate term “intellectual property” to refer to ideas, and thus undercuts his whole argument.

    Try calling them accurately what they are – “intellectual monopolies” – and if we can get that term broader exposure and adoption the right decisions will follow automatically.

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  • Peter

    The author mischaracterizes the Jefferson quote. It is meant to explain how one cannot copyright or patent an idea in the first place, not how a copyrighted idea can become public domain. In fact, Mr. Helprin got it right when delineating between ideas and art – art, an expression fixed in a tangible medium, is copyrightable, while facts and ideas alone are not.

    I do not agree with Mr. Helprin’s ideas, however. The perpetual copyright is not only unconstitutional, but fails to recognize that the limit on the copyright term can foster creativity as well – perhaps now more than ever. Yet it is now (or in 1998) when the Feds extend the term. Ugh.

  • Ted


    I feel, from your comment, that you misunderstood what Doug was trying to say (This being my possible misunderstanding – That the “author” you speak of is Doug).

    His use of the words Public Domain seem to imply that the public is aware of the idea, not Public Domain as is so oft used in Copyright law.

  • Gunnar

    You guys all have it wrong. Doug, you miss a very important distinction: patents vs copyright. Patents, in fact, are govt granted monopolies. However, copyrights are intellectual property. Copyrights do not protect ideas, only the expression of ideas. That expression is true property. This inalienable right does not exist, merely because the constitution says so, but because they are inherent in reality.

    There is, and there should be, a genuine sense of injustice when a copyright is violated. Just imagine if thousands of groups released their versions of “Hey Jude”, shortly after Paul wrote it, and paid nothing to him. It’s an injustice.

    It’s totally illogical to assume that the right is merely derived from government, simply because it’s mentioned in the constitution. So is the right to life, liberty and property. A human has the right to life. As such, a human being has the right to his own labor, and the expression of ideas is one such labor. How can one own the tree, and not own the fruits of that tree?