The Purpose of Copyright and the Purpose of Law: Benefiting Society – by “Brian S”

Mark Helprin makes an interesting point in his 2007 op-ed piece, “A Great Idea Lives Forever. Shouldn’t Its Copyright?” Arguing exactly what the title suggests, Mr. Helprin draws an analogy to property, noting that it would seem silly to us were someone’s property rights to be taken away by the government at a set point in the future.

We all know why this happens, though; we want “to promote the Progress of Science and useful Arts.” But as Mr. Helprin points out, we are harming innocent artists in the meantime. There is a balancing act in play: if the copyright protection is too great, then we hamper the creativity of new artists who want to draw on old material without licensing it or risking a lawsuit; too little, and we give artists, scientists and authors no incentive to create new works at all, as the public will steal them. One might argue that 70 years is, in fact, much too long; most artists will no longer be around to enjoy their royalties by then anyway, and we stunt creativity in the meantime. Mr. Helprin would disagree. Think of the families, the descendants, and perhaps even the family friends and third cousins of a brilliant author such as Mr. Helprin. How cruel it is to remove this source of income and sense of pride that comes from owning a copyright! After all, in America we encourage people to become phenomenally wealthy to the point where their descendants do not have to do a day’s work in their lives. This privilege, however, seems doomed to run out for the children of authors and artists, but not of the children of corporation owners, whose stock in the corporation will never be eliminated or lose value as long as the business continues to prosper.

Surely this is a massive disincentive for artists and authors to create new works! Just because some creators are willing to work for free does not mean that we can inhibit the capitalist rights of those artists who choose to do it for a living. Or can we?

Lessig’s communist hippies henchmen boys want everything to be freely shared. They argue that creativity is hampered by current copyright, noting that music, science and art have always evolved in the past by building on the work of other people. “If I have seen further, it is by standing on the shoulders of Giants,” a famous man once said, but did he ever stop to consider the royalties he owes to the Giants? If he cannot pay a licensing fee, he cannot stand on their shoulders. This is how our country works. An alternate solution that Lessig’s copyright terrorists boys might consider is maintaining copyright forever, but drastically increasing the bounds of fair use, and clarifying those bounds so that progress can occur. A reasonable man might see that the Progress of Science and useful Arts is the goal here – not only what the founding fathers intended, but also what is of greatest benefit to society. Mr. Helprin, however, sees The One Truth: that this is all a set-up to ensure that the creator of an idea can get not only credit for it, but also the ability to profit from the idea for the rest of time, never mind the cost to society. He defends this by noting that Congress cannot infringe other people’s rights just because it is for the public good. If Mr. Helprin paid a licensing fee to stand on the shoulders of a Giant, he might see that Congress actually does this sort of thing all the time. For example, Congress takes the money of every citizen with an income and uses it for the public good, calling this ridiculous notion “taxation.” The government also reserves the right to take one’s house, if it is blocking an important road; the homeowner is given compensation, but it is still a clear example of the public good trumping an individual’s rights. Mr. Helprin’s argument about the “infringement of individual rights” could, in fact, be used as a justification for doing away with laws entirely. Laws exist to balance individual rights with public good. The police infringe my right to drive 100 mph all the time, citing “public good” as a reason for the existence of the speed limit.

Finally, there is an important distinction between physical and intellectual property which escapes Mr. Helprin. By building something on top of a house, the house and its occupants are adversely affected. By making a piece of property useable by the public, it affects the pleasure of its owner. With intellectual property, there is no harm done to the original work when it is modified or cited. We don’t want to do away with copyright entirely; it’s important to give the author credit and the ability to profit from his creation. This is why copyright exists: to incentivize the creation of new work by protecting it. But there is no reason to make this protection last forever, or even as long as 70 years. Plenty of people create art for free with no expectation of financial remuneration, nor any intention of ever using a copyright to protect it at all. Other artists want their dues, but recognize that they all mix and remix and that this is an essential part of the growth of culture. 70 years is already a huge damper on this. As long as we can ensure that the truly talented artists are able to make a comfortable living (and thus can devote their lives not, for example, to a second job but rather to doing the absolute best job they can with their art) and are appropriately credited (because fame is a better drug even than money), we should keep the benefit of society as our primary concern.

2 thoughts on “The Purpose of Copyright and the Purpose of Law: Benefiting Society – by “Brian S”

  1. Mark Helprin expanded on his article in a book called Digital Barbarism. He does not call for an unlimited copyright term. Further, the quote “standing on the shoulders of giants” has meant in the past, taking an artist’s idea and ingesting it and then letting your own art be influenced by it. It does did not mean until, I guess, recently, that you had to license something or worse sample it (make an exact copy of it) and use it in your work. Shakespeare stood on the shoulders of giants to create, he didn’t license, he let his mind be influenced as others were in turn influenced by Shakespeare. Only in our time do we now want the easy answer, let’s just copy it because today we can. The tools are there but in this case the tools hinder creativity.


  2. In response to John’s last sentence I would argue that the tools do not hinder creativity, but allow the user to bypass certain steps on the way to a creative result. I will agree ability to exactly copy the work of another and remix it does not require as much creativity as creating from scratch. But I would not underestimate the creativity involved in some remixes. It is always easier to look at remix and notice how a sample was used than to look at a sample and construct a remix around it. I would argue that the new tools open the door to new kinds of creativity rather than hinder creativity. Perhaps the sample should be paid for through licensing but the fact that a sample was used does not automatically preclude creativity.


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