Part 3 (2/2)

Considered as a reward to him, the difference between a twenty years' and a sixty years' term of posthumous copyright would have been nothing or next to nothing. But is the difference nothing to us? I can buy Ra.s.selas for sixpence; I might have had to give five s.h.i.+llings for it. I can buy the Dictionary, the entire genuine Dictionary, for two guineas, perhaps for less; I might have had to give five or six guineas for it. Do I grudge this to a man like Dr. Johnson? Not at all.

Show me that the prospect of this boon roused him to any vigorous effort, or sustained his spirits under depressing circ.u.mstances, and I am quite willing to pay the price of such an object, heavy as that price is. But what I do complain of is that my circ.u.mstances are to be worse, and Johnson's none the better; that I am to give five pounds for what to him was not worth a farthing.25 30

Though Macaulay won the debate over copyright term extension, it is worth noting here that his opponents triumphed in the end. As I pointed out in the last chapter, the copyright term in most of Europe and in the United States now lasts for the life of the author and an additional seventy years afterward, ten years more than the proposal which made Macaulay so indignant. In the United States, corporate owners of ”works-for-hire” get ninety- five years.26 The Supreme Court recently heard a const.i.tutional challenge to the law which expanded the term of copyrights by twenty years to reach this remarkable length.27 (Full disclosure: I helped prepare an amicus brief in that case.)28 This law, the Sonny Bono Copyright Term Extension Act, also extended existing copyrights over works which had already been created.29 As I observed earlier, this is particularly remarkable if the idea is to give an incentive to create.

Obviously the authors of existing works were given sufficient incentive to create; we know that because they did. Why do we need to give the people who now hold their copyrights another twenty years of monopoly? This is all cost and no benefit.

Macaulay would have been furious.

31

When the Supreme Court heard the case, it was presented with a remarkable friend-of-the-court brief from seventeen economists, several of them n.o.bel laureates.30 The economists made exactly Macaulay's argument, though in less graceful language. They pointed out that copyright extension imposed enormous costs on the public and yet conveyed tiny advantages, if any, to the creator. Such an extension, particularly over works that had already been written, hardly fit the limits of Congress's power under the Const.i.tution ”to promote 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.”31 Macaulay doubted that these enormously long terms would encourage the living. Surely they would do little to encourage the dead, while imposing considerable costs of access on the living? Thus they could hardly be said to ”promote the progress” of knowledge as the Const.i.tution requires. The Court was unmoved by this and other arguments. It upheld the law. I will return to its decision at the end of the book.

32

The intellectual property skeptics had other concerns. Macaulay was particularly worried about the power that went with a transferable and inheritable monopoly. It is not only that the effect of monopoly is ”to make articles scarce, to make them dear, and to make them bad.” Macaulay also pointed out that those who controlled the monopoly, particularly after the death of the original author, might be given too great a control over our collective culture. Censorious heirs or purchasers of the copyright might prevent the reprinting of a great work because they disagreed with its morals.32 We might lose the works of Fielding or Gibbon, because a legatee found them distasteful and used the power of the copyright to suppress them. This is no mere fantasy, Macaulay tells us. After praising the novels of Samuel Richardson in terms that, to modern eyes, seem a little fervid (”No writings, those of Shakespeare excepted, show more profound knowledge of the human heart”), Macaulay recounts the story of Richardson's grandson, ”a clergyman in the city of London.” Though a ”most upright and excellent man,” the grandson ”had conceived a strong prejudice against works of fiction,”

”thought all novel-reading not only frivolous but sinful,” and ”had never thought it right to read one of his grandfather's books.”33 Extended copyright terms might hand over the copyright to such a man. The public would lose, not because they had to pay exorbitant prices that denied some access to the work, but because the work would be altogether suppressed. Richardson's novels--Pamela, Clarissa Harlowe, and so on--are now the preserve of the cla.s.sroom rather than the drawing room, so this might not seem like much of a loss. But Macaulay's next example is not so easy to dismiss.

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One of the most instructive, interesting, and delightful books in our language is Boswell's Life of Johnson. Now it is well known that Boswell's eldest son considered this book, considered the whole relation of Boswell to Johnson, as a blot in the escutcheon of the family. He thought, not perhaps altogether without reason, that his father had exhibited himself in a ludicrous and degrading light. And thus he became so sore and irritable that at last he could not bear to hear the Life of Johnson mentioned. Suppose that the law had been what my honourable and learned friend wishes to make it. Suppose that the copyright of Boswell's Life of Johnson had belonged, as it well might, during sixty years, to Boswell's eldest son. What would have been the consequence? An unadulterated copy of the finest biographical work in the world would have been as scarce as the first edition of Camden's Britannia.34 34

From more recent examples we can see that outright suppression is not the only thing to fear. The authors' heirs, or the corporations which have purchased their rights, may keep policing the boundaries of the work long after the original author is dead. In 2001, Alice Randall published The Wind Done Gone. As its t.i.tle might indicate, The Wind Done Gone was a 220- page ”critique of and reaction to” the world of Gone With the Wind by Margaret Mitch.e.l.l.35 Most crucially, perhaps, it was a version of Gone With the Wind told from the slaves' point of view. Suddenly the actions of Rhett (”R”), Scarlett (”Other”), and an obviously gay Ashley (”Dreamy Gentleman”) come into new perspective through the eyes of Scarlett's ”mulatto” half- sister. Mitch.e.l.l's estate wanted to prevent publication of the book. At first they were successful.36 As Yochai Benkler puts it, 35

Alice Randall, an African American woman, was ordered by a government official not to publish her criticism of the romanticization of the Old South, at least not in the words she wanted to use. The official was not one of the many in Congress and the Administration who share the romantic view of the Confederacy. It was a federal judge in Atlanta who told Randall that she could not write her critique in the words she wanted to use--a judge enforcing copyright law.37 36

”They killed Miss Scarlett!” the astonished trial judge said after reading Randall's book. My colleague Jennifer Jenkins, one of the lawyers in the case, recounts that the judge saw the case in relentlessly physical terms, seeing the parody as a ”bulldozer” and Gone With the Wind as a walled country estate into which the bulldozer had violently trespa.s.sed. He was consequently unimpressed with the claim that this ”bulldozer”

was protected by the First Amendment. Eventually, the court of appeals overturned the district court's judgment.38 Fifty-two years after Margaret Mitch.e.l.l's death, it was a hotly debated point how much leeway copyright gave to others to comment upon, critique, embellish upon, and parody the cultural icon she had conjured up.

37

A NATURAL RIGHT?

38

To some people, my argument so far--and Jefferson's and Macaulay's--will seem to miss the point. They see intellectual property rights not as an incentive, a method of encouraging the production and distribution of innovation, but as a natural or moral right. My book is mine because I wrote it, not because society or the law gives me some period of exclusivity over allowing the copying of its contents. My invention is mine because it came from my brain, not because the law declares a twenty-year monopoly over its production or distribution. My logo is mine because I worked hard on it, not because the state grants me a trademark in order to lower search costs and prevent consumer confusion. One answer is simply to say ”In the United States, the framers of the Const.i.tution, the legislature, and the courts have chosen to arrange things otherwise. In copyright, patent, and trademark law--despite occasional deviations--they have embraced the utilitarian view instead.”

39

Broadly speaking, that answer is correct.39 It also holds, to a lesser extent, in Britain. Even in the droits d'auteur countries, which have a markedly different copyright law regime, it largely holds for their patent and trademark law systems, and utilitarian strands suffuse even ”the sacred rights of authors.”

So, on a national level, we have rejected or dramatically limited the natural rights view, and on an international level, we have rejected it in ”industrial property”--patent and trademark--and modified it in copyright.

40

I think this answer is correct and important, but we have an obligation to go further. Partly that is because intuitions about owners.h.i.+p coming naturally with labor or discovery continue to influence the law. Partly it is because those moral intuitions are important and appealing. Partly it is because we might wish to modify or criticize our current system. Using the views of the framers, or current law, to preempt discussion is unsatisfactory--even though those views are of particular importance for the legal policy decisions we face in the short run, the issues on which much of my argument is concentrated.

41

There are varying stated grounds for natural or moral rights in intellectual creations. Some people may think the book is mine because I worked on it--a Lockean conception where I mix my sweat with these words and receive a property right in the process.

42

For all its attractions, there are considerable difficulties with such a view. Even within the world of tangible property, Locke's theory is more complicated than a simple equation of labor with property right. Jefferson's account of property is actually closer to Locke's than many would realize. When Jefferson points out the difficulty in justifying a natural right even in an acre of land, let alone a book, his premises are not radically different from Locke's. The same is true when Jefferson says that ”[s]table owners.h.i.+p is the gift of social law, and is given late in the progress of society.” Even if natural right does create the ground for the property claim, it is ”social law” that shapes its contours and guarantees its stability. Jefferson, of course, thought that was particularly true for intellectual property rights. In that context, he felt the natural rights argument was much weaker and the need for socially defined purposive contours and limitations stronger.

43

Locke's own views on what we would think of as copyright are hard to determine. We do know that he had a strong antipathy to monopolies--particularly those affecting expression. He believed, for example, that giving publishers monopolies over great public domain books caused a disastrous fall in quality. Instead, he argued, such books should be open for all to compete to produce the best edition. Of course, he was writing in the context of monopolistic printing privileges--to which he was strongly opposed--rather than of individual authorial rights. Yet he went further and suggested that even for contemporary works, after a particular time in print--say fifty years--books could be printed by anyone.

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