Editors' Rating
Published: 20 Mar 2009
In February, the EU's JURI committee voted to extend the term of copyright in sound recordings to 95 years from 50 years. However, independent economic reviews, including the UK's Gowers Review of Intellectual Property, all came out against such an extension. As James Boyle, a professor of law at Duke University, writes in The Public Domain and previously in his Financial Times column, the proposal amounts to an attempt to retroactively change the recording industry's contract with the public.
That this is possible probably has something to do — as Boyle suggests in the opening pages of The Public Domain: Enclosing the Commons of the Mind — with the media's persistent description of copyright and/or intellectual property law as too difficult for the average person to understand. On the contrary, he argues, the concept is easily grasped. It's just the rules of its implementation that are complicated.
It's true. When you write about IP for general consumption you do buy in a gross of 'arcane', 'abstruse', and 'complicated'. But it isn't hard to say that the basis of intellectual property law is a balance: you, the creator, can have a monopoly on economically exploiting your creation for a limited amount of time, after which it becomes the property of everyone and no-one. It enters the public domain, like the earliest of the Beatles' recordings are supposed to do this year.
Or it would if the laws didn't keep changing so much and if we had a good definition of just what the public domain is and why it's important. So Boyle sets out to explain the territory, on the grounds that just as every citizen should know something about the environment and civil liberties, every citizen should understand the basics of intellectual — or perhaps 'imaginary' — property. IP law is only as arcane as it is because for the last eight decades we've left it to specialists to design it, much to our collective loss. Cory Doctorow and Richard Stallman may seem like extremists to today's business world, but Boyle is happy to see the framers of the US Constitution as their more-or-less direct antecedents.
Boyle, like many others, compares today's expanding IP laws to the enclosures of public land in Britain. Like their real property counterpart, IP laws have a real cost. Boyle notes that when copyright had to be renewed after 28 years, only 85 percent of owners took up the option. Some were probably dead; others probably didn't know. The material of greatest present commercial value did get renewed, but that 85 percent entered the public domain. Today, some 95 percent of 20th and 21st century culture is still under copyright but commercially unavailable.
Is there any benefit? Take, for example, the database right allowed under EU law. Because it has no counterpart in the US, where the governing judicial decision, Feist Publications v. Rural Telephone Service, held in 1991 that collections of facts could not be copyrighted, it's possible to make a direct comparison of the economic impact of this type of enclosure. The results are overwhelmingly in favour of the US model: the US database market is growing much faster than Europe's, and the gap is widening.
This part of Boyle's analysis is in the chapter titled 'An Evidence-Free Zone'. Which takes us back to JURI and that February vote. On what evidence did they base their vote? Boyle's book might have been a good starting point.
Digg
Slashdot
Del.ici.ous
Stumble
Reddit
