The Indelicate Imbalancing of Copyright Policy

by on November 16, 2007 · 7 comments

Courts and commentators often claim that copyright policy strikes a delicate balance between public and private interests. I see copyright policy in a different pose, however. I see it wobbling precariously, tipping over, and falling into statutory failure. What has put copyright on such unsure footing? The brutish prodding of special interests. Rather than “delicately balanced,” then, I describe copyright policy as “indelicately imbalanced.”


Perfect policy equipoise will always elude us. We don’t have the numbers necessary to put copyright’s many various factors into exact balance. How can we quantify the importance of Picasso’s Guernica, for instance, or of Dr. Suess’s, Yertle the Turtle? In most cases, the numbers simple do not exist. What numbers we can pin down, moreover, appear to us only in a haze of uncertainty. Yertle the Turtle

We can, however, keep an eye open for evident policy disasters, taking care to steer clear of obvious hazards. We should moreover guard against letting copyright maximalists seize the tiller, lest they overemphasize private interests to the detriment of public ones. We should instead take the Constitution as our lodestar, following its call to “promote the general Welfare” and “the Progress of Science and useful Arts” by checking the excesses of copyright policy.

[NB: The above text comes from part of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Specifically, it comes from the introduction to Part I, Chapter 3: The Indelicate Imbalancing of Copyright Policy. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. I welcome your comments.]

[Crossposted to Intellectual Privilege and Agoraphilia.]

  • Charles

    “How can we quantify the importance of Picasso’s Guernica, for instance, or of Dr. Suess’s, Yertle the Turtle? In most cases, the numbers simple do not exist.”

    Reading about the situation of copyright in the US (and the world, really, to a certain extent), I’m starting to appreciate that the creative industry incumbents are about to achieve a feat of a framing exercise. They seem to have managed to equate, in the public view, the expressions “importance” and “monetary value”. The layman might be tempted to conclude, from hearing of the copyright situation, that works with no monetary value for an investor should go into the public domain. Picasso’s Guernica and Dr. Suess’ Yertle the Turtle have an undeniable social importance, at least, through their influence on future creative works. That is to say, Picasso’s Guernica, locked up in a box, out of the public view, in someone’s living room, loses a lot of its importance, yet none of its monetary value. The careful balance to be found, then, is between the importance of a work as a product to be sold and its importance as an influence on the development of culture.

    I may not be making a lot of sense, but it seems to me this opposition between corporate (in a loose sense) and social interests is not well explained to those less familiar with copyright law. Letting that happen is letting businesses frame the issue as “if I can still make money off of it, then it should remain mine. Once it has no value, it should go in the public domain.”

    I guess what I’m trying to say is that we need a catchy leitmotiv with shocking images that strongly carries, in 10 words, the fact that our grand-children’s bedtime stories will be made up of today’s copyrighted cultural works. Pushing to an extreme, one could say that by our modern standards, cultural evolution is nothing but copyright infringiment.

  • Charles

    “How can we quantify the importance of Picasso’s Guernica, for instance, or of Dr. Suess’s, Yertle the Turtle? In most cases, the numbers simple do not exist.”

    Reading about the situation of copyright in the US (and the world, really, to a certain extent), I’m starting to appreciate that the creative industry incumbents are about to achieve a feat of a framing exercise. They seem to have managed to equate, in the public view, the expressions “importance” and “monetary value”. The layman might be tempted to conclude, from hearing of the copyright situation, that works with no monetary value for an investor should go into the public domain. Picasso’s Guernica and Dr. Suess’ Yertle the Turtle have an undeniable social importance, at least, through their influence on future creative works. That is to say, Picasso’s Guernica, locked up in a box, out of the public view, in someone’s living room, loses a lot of its importance, yet none of its monetary value. The careful balance to be found, then, is between the importance of a work as a product to be sold and its importance as an influence on the development of culture.

    I may not be making a lot of sense, but it seems to me this opposition between corporate (in a loose sense) and social interests is not well explained to those less familiar with copyright law. Letting that happen is letting businesses frame the issue as “if I can still make money off of it, then it should remain mine. Once it has no value, it should go in the public domain.”

    I guess what I’m trying to say is that we need a catchy leitmotiv with shocking images that strongly carries, in 10 words, the fact that our grand-children’s bedtime stories will be made up of today’s copyrighted cultural works. Pushing to an extreme, one could say that by our modern standards, cultural evolution is nothing but copyright infringiment.

  • Anonymous

    Charles: You might want to check out Lessig’s presentation at the recent TED event. See . I think it would resonate with you.

  • Anonymous

    Charles: You might want to check out Lessig’s presentation at the recent TED event. See . I think it would resonate with you.

  • http://momspledge.com Julie Harris

    I see items in stores and I know that someone else created it, I was wondering if people really took action.

  • http://momspledge.com Julie Harris

    I see items in stores and I know that someone else created it, I was wondering if people really took action.

  • http://momspledge.com Julie Harris

    I see items in stores and I know that someone else created it, I was wondering if people really took action.

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