Copyright's Paradox: The Public Interest and Private Monopoly

Abstract

There is nothing new under the sun. For centuries, scholars have noted that the Romans copied the Greeks, and Shakespeare copied the works of others with wild abandon and without attribution. Most of our favorite bedtime stories and childhood cartoons were copied from works that have come before. It is well recognized that there is no completely new idea; rather, all artists are dwarfs standing on the shoulders of giants. A portion of all copyright activity is derivative. Appropriation has been an integral part of our creative process since the birth of mankind. Yet, over the last several decades, Congress has been in the practice of expanding the scope of protection granted to copyright owners.

Given the importance of appropriation in various fields of art and other expressive activities, the current copyright system seems at least counterintuitive. Due to the continual practice of extending copyright terms, and the broad scope of the derivative right, the present copyright regime is not in line with the constitutional mandate of the Progress Clause. Rather than incentivizing creation for the sole purpose of facilitating learning and public access to information, Copyright, in its current state, acts as a hindrance to creativity. If the primary goal of copyright is to facilitate a thriving national culture, then the only reason for granting a limited property right is to incentivize creators to share their works with society. Congress promotes this goal by striking a deal with the creator – a grant of a monopoly for a limited time, in exchange for the requirement that, upon expiration of the limited term, the product of their genius will be given to the public domain. Since the sole interest is with the public, and not with rewarding private interests of the author, Congress should work towards finding the minimum level of incentives necessary to promote creation.

Copyright in its current state presents two major concerns: 1) The broad scope of the derivative right undermines the idea/expression dichotomy and adds doubt in the minds of the secondary users; and 2) The custom of extending durations of “existing” copyrights is unconstitutional and is causing a stagnate public domain. As a consequence of these problems, the free flow of ideas and dissemination of information has been thwarted. In response to these problems, I have researched possible remedies, looking to copyright systems abroad, other legal scholars, our history, and other developed areas of law.

There must be some kind of mechanism to limit Congress’ ability of extending existing copyright terms; otherwise the Constitutional mandate of a “limited” term will have no consequence. This comments suggests reinstating requisite formalities, the two-term copyright regime, and a new formulation of the derivative works right.

Keywords: Progress Clause, Copyright, Incentivizing, Promoting, Limited, Public Domain, Creation, Derivative