EconTech

I would contend that this is an excellent[1] way of solving the ‘languishing value’ of out-of-print but socially valuable material problem. The objection “If I have something in my house with sentimental value - a real piece of property worth something to me but worth nothing to anyone else - people shouldn’t be able to take it just because it has no market value,” is extremely frustrating for me. Copyrights are NOT property in the sense that your house, car, or sandwich are your property. This analogy does not hold. Copyrights exist for the SOLE purpose[2] to “promote the Progress of Science and useful Arts.” It is not like your embarrassing song will get out, unless you put it out there, and you can have your lawyer destroy it when you die, or not. Since you are dead, does it really matter anymore? Thus, if the copyright is inhibiting the progress of science and useful arts, then the copyright should be expired. By putting a tax on it, you can see that if there is still utility being derived, income will be generated and the tax cost covered. Otherwise, it will cost you to hold on to your copyright. You can still choose to do this, if you value your works’ ‘privacy’ so much (but then, how would the government know to tax it if you haven’t already made its existence public) that you are willing to take a loss on its taxable value. There is now an incentive to release the copyright so that others can work with the material.

However, this is not a solution to the copyright problem in full. It certainly would help with the vast majority of works, but I don’t know if you could implement something like this retroactively. Plus, the vast majority of works are rather worthless, hence the reason for their minimal commercial value. You only get value from this policy for that narrow space of works for which the social/commercial value is positive but less than the cost of re-publishing. Plus, this doesn’t solve the problem that Mickey Mouse’s copyright should probably just die. The original creator is dead, and I fail to see how maintaining the copyright maintains his incentive to create. Of course, Disney Corp has an incentive to build upon that work, but so does several million other people.

The much more sane policy, which would be a solution to both of these problems (though not the patent problem, which is just as much a problem of length as patenting quality) without implementing another complicated tax, would to make copyright expire after a sane amount of time. Quartering the current copyright period (to 20 years or so) would, I think, just about do it for the majority of ’slow’ works. With the high pace of technological innovation though, there may be good cause for shortening even further the copyright period in such ‘fast’ sectors.[3] However, I would like to see the impact of the first cut before I went all in on the second cut. And, though this is much more of a problem with patents, I’m sure there are analogous concerns with copyrights, ancillary regulations can prevent marketing of the new work for some time. The expected delay due to regulations should not exceed the copyright period.[4]

Taxing Copyrights?

Should copyrights be taxed so that socially valuable work with little economic value is forced into the public domain?:

Copyright this, by Dallas Weaver, Commentary, LA Times: Jon Healey correctly points out that the debate over intellectual-property theft is complex because we are often dealing with “non-real properties.” These properties cost nearly nothing to produce, and an infinite number of people can use the same property at the same time. And yet, we still want to treat them as if they were “real” property.

Significantly, some of these non-real properties have major effects on human welfare. Take, for example, the formula for “oral rehydration therapy,” a mixture of salt, sugar and water. Although it could potentially be copyrighted, it has saved more lives in the Third World than almost anything else. The world is lucky that this formula is in the public domain, not copyrighted and subject to use charges that people who need it couldn’t afford.

The present system treats these copyrighted works as a funny kind of real property with no carrying costs, taxes or significant fees. Without carrying costs, copyrights remain in force almost forever - even though, over time, the demand for the copyrighted material can fall to almost nothing. As the demand decreases, … it becomes effectively unavailable to, as the Constitution puts it, “promote the progress of science and useful arts.” Witness all the copyrighted books, scientific journals, audio works and visual works that are out of print or otherwise unavailable because copyright law prevents the new, low-cost methods of distribution from being utilized.

In the scientific field, this has devastating effects on the advancement of human knowledge - which is just the opposite of the intent of copyright law.

As a member of a scientific journal’s editorial board - and as a senior citizen - I see reams of manuscripts that just reinvent the wheel. Because the whole scientific enterprise has become so complex that non-electronic research is effectively impossible, many young scientists don’t know and can’t find out what has already been done from older, copyrighted, paper-based literature. This results in a huge waste of resources. The same can be said for copyrights in creative areas such as music and writing, in which older works with limited distribution could be built upon to “promote the progress of science and useful arts.”

A solution to determining which works are in the “Mickey Mouse” category of copyrights and which are in the more socially valuable “oral rehydration therapy” class of work is not feasible for a government bureaucracy. However, if all copyrights were taxed at a fixed (but significant) amount per year to maintain the copyright…, there would be a significant carrying cost and most of the copyrighted material would revert to “public domain” and become available to “promote the progress of science and useful arts.” As intellectual property and copyrights become an even more significant part of our economy, and as copyright holders … make claims of “stealing” as though it is real property, it should be taxed. Relative to copyrights’ significance in our economy, the amount of revenue from this source should be in the hundreds of billions of dollars per year.

With a proper tax system, publishers like the L.A. Times or scientific journals may maintain a copyright for only a year or so before letting the content revert to public domain and letting Google and everyone else utilize the material for its small, but socially significant, remaining value. The human enterprise could continue to build on itself … creative … ways, with copyrights only applying to a small subset of this enterprise.

It should also be noted that some of the most valuable and significant intellectual property and creative works can’t be copyrighted. For example, Mickey Mouse is copyrighted, but E=MC² could not have been. Which was truly the more significant creative work?

I’m not so sure about this. If I have something in my house with sentimental value - a real piece of property worth something to me but worth nothing to anyone else - people shouldn’t be able to take it just because it has no market value. Should a song with sentimental value but no market value - it was a hit briefly 30 years ago but nobody else cares now but you - be any different? If someone takes an apple off of my tree and it magically replaces itself instantly so that I have lost nothing, why should I care? Why should I care if the song falls into the public domain and someone else sings it? Isn’t it the same as the apple since placing the song in the public domain doesn’t stop me from singing it?

Perhaps not. What if someone else sings the song in public and it’s terrible - it appears on YouTube, it is widely ridiculed, and it becomes known you were the author. It seems like the creator of the song should have some control over how the song is performed. If the copyright was purely to protect market value, then I might be in favor of something like this, particularly work with academic value (though I haven’t thought it through completely). But I think copyrights are more than that, they also allow for control over how works are used, and a “significant” tax on copyright protection would force some works to lose this type of protection.

Footnotes:

1. Taking the current system as given, see my objections below [↩]
2. If you think otherwise, you need to amend the Constitution [↩]
3. That is, for the vast majority of works, the vast majority of value comes right after initial publishing. In a quickly innovating sector, this effect is likely to be even more pronounced, making a case that the creator gets enough of their returns back quickly enough to be able to profit from them and then release it to the public with very minimal effect to their future income. [↩]
4. Oh, yes, this is ripe for unintended consequences. If you don’t think companies won’t slug through as slowly as they can tons of cheap, worthless materials through the regulatory processes in order to increase the expected regulatory delay to market thus increasing the copyright term, and then pushing through their expectedly valuable materials as quickly as possible, you haven’t seen the games pharma plays with the orange book. [↩]