Creative liberty

For creative people, one of the most frightening applications of a wandering mind is the nightmare of losing credit for one's own work (a reality that Harry Chapin must experience daily due to his hit "Cat's in the Craddle" being so widely and wrongly attributed to Cat Stevens). And when you make a living off of the creative works that you produce, copyright law becomes an indespensible protection offered by the government. It may be difficult, then, for today's practitioners of creativity to understand why we should consider scaling back the scope of the protections awarded to copyright holders in the United States. Yet the history of our progress in science, art, and politics indicates that our growth in these areas depends on the preservation of one of the most important artifacts of democracy: the ease to use, access, and create information collaboratively.

Last week's Economist called for a policy shift back towards the 28-year maximum copyright protection guaranteed by the "Statute of Anne" in 1710 and away from America's 98-year "Mickey Mouse" protection. Although the editorial overstates the potential for a negative impact of copyrights on the creative process, it raises an excellent point that copyrights should not be seen as property rights to creative works, but as limited incentives that motivate creation while guaranteeing public access to the knowledge, ideas, and art of an enlightened society. The Economist breaks down the nature of today's copyright law, saying,
The moral case, although easy to sympathize with, is a way of trying to have one�s cake and eat it. Copyright was originally the grant of a temporary government-supported monopoly on copying a work, not a property right. From 1710 onwards, it has involved a deal in which the creator or publisher gives up any natural and perpetual claim in order to have the state protect an artificial and limited one.
Copyright protections are, by nature, a series of laws that grant authors the exclusive rights to distribute and profit from "original works of authorship," but ostensibly, not the topics they describe. The law explains specifically what copyrights do NOT protect: any "idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work1." That is to say that copyrights are rights to distribute the way that you choose to express ideas. This is distinct from a patent, which is a constitutional right that guarantees inventors a temporary monopoly on an invention. In exchange, the inventor must make the design of the invention publicly accessible. Like copyrights, patents operate under the Ayn Randian premise that all inventors are capitalists, and therefore the profit incentive of the guaranteed 20-year monopoly benefits all of us, because eventually these inventions fall into the public domain. This is how generic drugs become generic (and in turn why pharmaceutical companies are constantly churning out new drugs for old ailments as soon as their patents expire for the older, often equally effective medications).

Although on first blush it would seem that the public should have a greater interest in shorter patent terms than copyright terms, works protected by patents and copyrights have been equally nourishing to our national narrative. After all, even if a copyright holder has no claim over the events of the Civil War, we wouldn't be able to learn about it without reading a narrative about it. In spite of the law's intention to benefit authors themselves, more often than not these extended copyright terms (nearly 5x as long as patent terms) are exploited by large companies who purchase thousands of copyrights and withhold them from the public to create scarcity and increase demand. The parties that stand to loose the most are our schools, because the cost of distributing contemporary "works of authorship" written in the last 98 years may disincentivize schools from obtaining these works, thus contributing to slower intellectual growth than we are capable of.

Perhaps the greatest misconception about copyright law is that to support reduced copyright protections is to be anti-capitalist. Some of our country's earliest capitalists were also the largest supporters of the public dissemination of knowledge and ideas. Benjamin Franklin is widely respected for developing the first library, and Thomas Jefferson was a well known to be intimately involved with the patent office and a prominent supporter for public growth through access to the inventions described in patents. Greedy parties love to spin a half-headed libertarian defense for extensive copyright protection. The truth is that if you truly want to maintain ownership of your work or ideas, you shouldn't apply for a copyright or a patent, and instead hope to preserve your "trade secrets" indefinitely, as Coca Cola does for its soda recipe. This isn't very popular for most creative works that cannot be kept secret (music and writing, for example), because without copyright protection, anyone is allowed to use or reproduce any available work. There's nothing more hypocritical than anti-government profiteers calling for increased government intervention in the copyright process.

There are viable alternatives to the copyright. Wikipedia and FogMag are protected under the Creative Commons license, a licensing organization that gives authors flexibility over the way that they would like their work to be publicly shared.

Authors deserve to be compensated for their work. We need to remember that this precedent is not the only factor to be taken into account when determining the extent that the government ought to protect the author's right to exclusively distribute that work. I don't expect societal beneficence to be the only incentive for artists to create works in a capitalist society, but I hope that one's contribution to society is enough of an award that after 30 years of exclusive distribution of a work, the artist is ready to give up the exclusive distribution rights of that work and allow the democracy that created a space for inspiration and provided protection for the work in the first place to enjoy the limitless fruits of creativity.


  1. U.S.C. 17.102(b). I'm not a lawyer and don't know very much about legal citations, so here's the link:
  2. Published on December 5, 2010 in Other

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