[Max Goodman]

Originally Posted by Roger Slater

Mind you, there is an important distinction. Non-intellectual property never goes into the public domain.

That's the relevant point, isn't it? Why should only creators of intellectual property get to contribute to the public domain? Why shouldn't their heirs enjoy the same rights as the heirs of others?

If public good is the issue, there's an argument for reversing matters. The more physical things my family owns, the less there are for others to enjoy; matter is finite (land, in particular). Allowing my family perpetual ownership of my writing doesn't limit what anyone else can own.

Originally Posted by W.F. Lantry

What was the copyright term in Shakespeare's day? Or Dante's? Were long copyright's necessary to Boccaccio or Du Fu? What's in our real interest here?

Excellent question. Difficult to answer in terms on non-intellectual property, but that doesn't mean it shouldn't be asked. Would creators of non-intellectual property stop creating if their heirs were limited to the same inheritance rights granted heirs of artists?

[Roger Slater]

And, by the way, there are several key distinctions between intellectual property and non-intellectual property that make it at least plausible to treat them differently. The most basic distinction is that intellectual property can be copied, but other property cannot. If you own an acre of land, no one can deprive you of it by copying it. Same thing with money. You're not worried about losing your money to copiers. So if there's to be a rule against stealing other people's property, it's a pretty straightforward proposition when that happens in the case of non-intellectual property. Two people can't have it at the same time.

But when it comes to intellectual property, we are forced to define what it is that the creator owns. We can't just point to a physical object. When Dickens wrote "Tale of Two Cities," he had a copyright, but did that mean that no one else was entitled to write a novel that also began with the phrase "It was the best of times"? Probably not. Assuming that no one else had ever written a novel featuring action in two separate cities, and culminating in the noble sacrifice of an individual who saves someone's life by exploiting his physical resemblance to that person, did Dickens thereby have the right to insist that no one else write such a novel? And did Lewis Carroll own the right to prevent other authors from naming their main character "Alice" and having her enter fantasy worlds?

It doesn't matter how you answer these specific questions at the moment. My point is that the rights need to be defined, and that need immediately gets you involved in questions of public policy. In defining what it is that a copyright holder "owns," and discussing policy (including the possibility that defining ownership too broadly would restrict the artistic freedom of other creators, or allow people to engage in activities resembling censorship, or prevent other people from engaging in public discourse, or unfairly restrict the intellectual activities of others), it has always been the case that one of the parameters of ownership under discussion has been the duration of copyright.

To assert that there is no reason it should not be the same as the duration of physical wealth strikes me as conclusory and facile. Maybe an argument can be made that this is so based on policy reasons (though I don't think so), but it's not enough to pound the table and beg the question by saying "that's what ownership is, goddamit!", or "that way socialism lies!" When it comes to intellectual property, ownership "is" what we as a society decide it is, and that has been the case in free, non-socialist societies for several centuries now.

[Max Goodman]

Roger,

As always, you argue intelligently, but I hope your last paragraph isn't meant to characterize what I've said. Maybe you're referring to posts by others.

Yes, there are reasons ownership of intellectual property is different than ownership of physical things, but it doesn't follow that its term must be limited. We limit it, I think, in the belief that this benefits the public, and it seems reasonable to ask in a philosophical conversation whether the public might benefit from putting a similar term on other forms of ownership.

[John Whitworth]

Justice, Bill. Our interest in justice for Tom. Dick and Harriet rather than the good of the state. 'The State is God walking on earth' said Bismarck. But I am not a Bismarck fan.

[Roger Slater]

Max, when there's a serious call from the right to eliminate the estate tax completely on the super rich, which would confer something like a $14 billion a year windfall on billionaires, and to pay for it with cuts to poverty programs such as food stamps, I think what you are suggesting is beyond utopian. Even Elizabeth Warren would be unlikely to go along.

[Julie Steiner]

Originally Posted by W.F. Lantry

What was the copyright term in Shakespeare's day? Or Dante's? Were long copyright's necessary to Boccaccio or Du Fu? What's in our real interest here?

For unauthorized copies to represent a threat to one's writing income, one's writing income needs to be primarily dependent on sales of legitimate copies.

This was not the case for any of the four people you've mentioned, whose writing income was primarily derived via the patronage system. (Shakespeare would have earned additional income from ticket sales, of course, but if I understand it correctly, the royal subsidies were what really made the new productions possible.)

Presumably, when poets died back then, their patrons stopped subsidizing them. There was nothing but already-paid commissions, and the investments of them, to pass on to one's heirs.

If anyone owned the rights to a poet's work under the patronage system, wouldn't it have been the patron, just as the patron would own a piece of artwork he or she had commissioned?* I can't see an artist's son waltzing into the Medici court and saying, "Hey, that's my late father's fresco, and you'll have to pay me to keep using it."

Nowadays, an artist's heir might still control sales of reproductions of such a fresco. But copyright as we know it today wasn't a concept back then. It wasn't until pirated copies of books started cutting into bookprinters' own profits--a situation requiring a critical mass of printing presses and a critical mass of literate people willing and able to buy printed matter--that anyone started making the kind of noises about copyright that sound anything like the ones of today.

(Actually, the very first rumblings about copyright were from Church and secular authorities, regarding whether or not something had passed their censors and been given their official permission to be circulated in the first place. Quite the opposite of protecting the author's or bookprinters' rights or freedoms. But I digress.)

*[Edited to say--I may be wrong about this. The folks who gathered Shakespeare's stuff into the First Folio didn't seem to have had to ask either the Crown's or Shakespeare's family's permission, or pay any fees. (I hope someone who really knows will pipe up. I don't have time to research this right now.)]

[ross hamilton hill]

Roger, will you be my lawyer?
But I digress.
Roger is absolutely right, it an enormously complicated business. Patients and trademarks are a minefield and copyright now with so much pirating.
Ever looked at the title deed to your property, you don't actually own the land, the government does, it's a lease.
Most ( and I mean most, not the rare book that becomes a classic) written art doesn't have a long lifetime, so the artist and his children or grandchildren are likely to be the only ones who make much money from it. If copyright went on too long (on anything) there would be illegal copies.
My previous comment was about beliefs, not practicalities.

[W.F. Lantry]

Originally Posted by Julie Steiner

*[Edited to say--I may be wrong about this. The folks who gathered Shakespeare's stuff into the First Folio didn't seem to have had to ask either the Crown's or Shakespeare's family's permission, or pay any fees. (I hope someone who really knows will pipe up. I don't have time to research this right now.)]

The whole thing gets complicated right fast. This is why the phrase Roger quoted is so hotly debated: "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."

"Useful arts" seems obvious. Guilds protected their "Arts & Mysteries" by agreement, oath, and later contract... and yet one cannot copyright or patent a woodworking technique or design, even though woodworking is a 'useful art.' So is the manufacture of cloth and garments, clearly... but again, no protection. One can patent a loom, but not what one makes on the loom. One can trademark a name, but not a title. Etc.

Then there's "limited times." I can invent that loom, and patent it for, what? 17 years? Or invent a drug and have the same time limit. Seems reasonable: I get to profit from my idea, but eventually it becomes an asset available to everyone. But if I write something, that 17 years turns into my three score years and ten, plus another 70? Does that even make sense?

And even the "exclusive Right" gets tricky. The most often cited case is Cervantes. Soon after Don Quixote, other versions, by other authors, appeared, essentially profiting from his work. They not only profited, but arguably diminished the original, by using the same characters in their own, sometimes hostile, stories. It got so bad, Cervantes had to write another book to go along with the first, in which the characters all know about the first book... and about the fakes.

But wait: doesn't that mean that the 'intermediate' authors unintentionally performed a kind of service, since the Quixote we have would be less without their own work? Or should Cervantes have had pre-approval rights to use of the characters he'd invented. And if it's not ethical to reuse the characters of another author, what are we to make of the rewritings of Jane Austen?

How can we "promote progress" by limiting use?

People can, and do, go on for hours on these issues, and on the relationship, if any, between law and ethics on the subject. It's not my intent to rehearse those arguments. My only point was that great works have been produced under many systems, and it may profit us to look at the variances, and try to figure out which course is most likely to produce the greatest benefit for both individual artists and the general culture. I don't think any of the issues are clear, but I'm pretty sure american law as presently written does neither.

Best,

Bill

[John Whitworth]

Ross, it is not an argument against a law that people may break it. And actually I do own the land on which my house stands and my children will own it after me. It is true I would not if I lived in London, that Great Wen.

[ross hamilton hill]

John the agument is how can a law be enforced, not whether it is broken, all laws are broken, if they weren't we wouldn't need that law.
and I too own my land but if the government wanted to and had good reason, there's nothing I can do about it. It happens all the time. They discovered coal under Hamilton Palace, nothing the Duke could do, the palace went and the coal was dug up.
Miners can come onto your property, dams can be built, highways built, there is always some fine print in your land title that allows it. In mine it's called 'schedule B'.