[Upd-discuss] Extract from Becker-Posner Blog

[James Davis]

Posted by Richard Posner. Thought some of you may be interested to read
this. Nothing particularly new or insightful but worth a read.

http://www.becker-posner-blog.com/

James

Another commenter asked, if the 20-year patent term is too long, as it
probably is, how can the copyright term, which is now the life of the
author plus 70 years, possibly be justified? It can't be justified in
traditional terms, that is, as necessary to induce people to write books,
make movies, and engage in other creative expression, because the
discounted present value of uncertain receipts 70 years after one dies
(which might easily be a century after the work in question had been
written) is negligible at any realistic interest rate, especially given
the likely depreciation in the market value of the work. William Landes
and I, however, in our recent book "The Economic Structure of Intellectual
Property Law," argue that there are two possible justifications for
indefinitely long copyright terms: to prevent congestion (overuse of a
copyrighted work might reduce its value to nothing), which is a
traditional economic argument for property rights; and to induce
investment in maintaining the value of the copyrighted work, for example
by producing frequent revised editions (only the revisions could be
copyrighted independently). These arguments are applicable, however, only
to the tiny fraction of copyrighted works that retain a substantial market
value beyond a few years. The serious problem with long copyright terms
concerns not those works, but the multitude of less valuable (but not
valueless) works that ought to be in the public domain so that they can be
published without the publisher having to engage in costly negotiations to
obtain a copyright license and also so that they can be used (again
without need for cumbersome negotiations) as raw material for new creative
works, almost all of which build on previous works rather than being
created ex nihilo. That problem could be solved even within the framework
of the very long copyright term if the courts would say that it is okay
("fair use") to republish an old work if the copyright owner has failed to
provide notice of his whereabouts and as a result it is infeasible to
negotiate a license from him. Such a rule would give rise to private
copyright registries that publishers could consult when they wanted to
publish an old work, and if there was no copyright listed in the registry
the work could be published without copyright permission. This argument is
developed in a forthcoming article by William Patry and me in the
California Law Review.

James

--
"You're turning into a penguin. Stop it"
http://jamesd.ukgeeks.co.uk/