Use it or Lose It
As you probably know, Dr. Seuss Enterprises has quit publishing And to Think That I Saw It on Mulberry Street, Dr. Seuss’s first book for children, published in 1937, plus 5 other books. Dr. Seuss Enterprises owns the copyright and so the company has the right to decide whether to publish.
Is that the end of the story? No, I don’t think so.
The government grants copyright protection as a way of giving authors a monopoly in their written work. The argument is that that gives them an incentive to produce. It’s a good argument.
Various economists have contended, with some justification, that copyrights and patents are illegitimate because they are a government-granted monopoly. Let’s say that you reject that argument. There’s still no ethical principle that says how long a copyright should be. The argument for copyrights and patents is a pragmatic argument about costs, benefits, and incentives, not an argument from principle.
It’s hard to argue that present U.S. copyright is reasonable. The copyright law is complex, but here’s one way to see how extreme it is: to be considered in the public domain today, it must have been published before this date in 1926. That’s 95 years of protection.
Moreover, since the argument for copyright and patent protection is an argument for encouraging creative output, it is perverse to give such protection to owners who refuse to produce the item protected by the grant of monopoly.
One could argue that those who refuse to produce a protected item right now might be contending with an optimal timing problem. They might want to wait a few years before producing again.
OK, so a solution would be to say to owners of copyrights or patents: If you don’t use it for 5 years, you lose it. That way, we retain the incentive that the monopoly gives to the creative producer while not creating the perverse effect that output is zero. Those who favor patents and copyrights might object that this is undue government intervention. But they have already accepted the idea that government intervention is legitimate in this area, and so there can’t be a principled argument that (1) government grants of patents and copyrights are legitimate but (2) tweaking the terms of patents and copyrights to avoid some of the downsides is illegitimate.
HT2 Eric Garris for helpful discussion.
Note: Both the first and second editions of The Concise Encyclopedia of Economics have entries on intellectual property. In the first edition, “Patents,” is written by me. In the second edition, the much-more-extensive “Intellectual Property” is by Stan Leibowitz.
UPDATE: Easiest solution that avoids the problem that Josh S points out below: reduce the length of copyright.
READER COMMENTS
IronSig
Mar 8 2021 at 6:59pm
Someone sitting on a resource instead of mining/harvesting it has generally looked at the market prices and decided that the costs won’t get recouped until prices rise. This was the decision taken in some oil fields when oil prices dropped over the last 365 days.
If the work of assembling some narrative – fiction or non – has already been done, then there’s no excuse in a free society of waiting until that particular idea is in high demand. Only release of limited first run physical copies will show how much the public will value your idea.
A note on digital fiction marketing: https://www.brandonsanderson.com/warbreaker-introduction/
The only excuse for sitting on the copyright is “I’m afraid,” which at least would be honest.
SMH how many old filmstrips and manuscripts are sitting, locked up and decaying, by rightsholders who don’t explore what they’d be worth even as historical pieces.
Phil H
Mar 8 2021 at 7:13pm
There’s a confusion here between the act level and the rule level, and it’s a nice illustration of how regulation creep can occur!
The correct way to assess the success or otherwise of a copyright law is to look at whether it stimulates the production (or perhaps even better, the consumption) of copyright items *overall*. The fact that there will be certain absurd situations under a rule is inevitable; *every* rule (or lack of rule) creates absurd border cases. The existence of absurdities, like the refusal to use a copyright asset, does not in itself constitute an argument against the rule.
If the absurdities are too great, then of course a modification to the rule can be considered, as DH suggests here. But inevitably, the new modification will create absurdities of its own (in this case, a predictable surge in pointless publishing at the five year mark for the purpose of retaining copyrights). The question is whether those absurdities will outweigh the absurdities of the original rule. And of course, the more complex the rules become the more potential for absurdity exists.
The other alternative is, if the absurdities under a rule are too great, is to scrap the rule. But it’s a mistake to thing that scrapping the rule will mean no absurdities. Scrapping copyright would lead to the absurdity of authors’ work being widely used to generate profits for people other than the authors. The way to assess this option is to look at whether this absurdity would be better or worse than the current absurdities.
Josh S
Mar 8 2021 at 9:47pm
But what defines “using it”? I can imagine large corporations that sit a lot of copyrights employing armies of copyright protection agents to technically meet the letter of the law. E.g. screening of old movies to one person, printing one copy of a book for to sell to a private insider, etc. Better to just limit the length of copyright to something more reasonable.
David Henderson
Mar 8 2021 at 11:51pm
Good point.
Mark Brady
Mar 9 2021 at 12:40am
Three thoughts…for now!
(1) Patents provide a more exclusive right than copyrights.
Patents provide a more exclusive right—although for a shorter term—than copyrights, for they prevent independent discoverers of an original and non-obvious idea from exploiting that idea for the term of the patent. Patents protect many but not all types of invention. Copyrights protect artistic and literary works.
(2) Patents last for a shorter period than do copyrights.
Utility and plant patents last 20 years, and design patents 14 years, from the date that the patentee is granted the patent. Copyright in individually-authored works last for the lifetime of the author plus 70 years. The shorter term of a patent is often defended on the grounds that it provides a more exclusive right.
(3) The ninety-five year rule.
The ninety-five year rule applies to works first published prior to 1978. This means that copyright may expire later in the U.S. than it does in (most of) the rest of the world, including the UK. See the Copyright Renewal Act of 1992. That said, works that had already entered the public domain by non-renewal did not regain copyright protection. Therefore, works published before 1964 that were not renewed are in the public domain.
Andrew_FL
Mar 9 2021 at 1:34am
A work of fiction is the product of a unique individual’s mind, and is unlike an invention or scientific discovery. In principle any man-or woman-can apply universally applicable natural laws or engineering principles to figure out how to invent an engine or a lightbulb, or discover the laws of gravity or electromagnetism. It is not right that coercive force should deny an independent discoverer as much right to spread or sell or give away that knowledge as someone who happened to file for a patent first. A Patent, therefore, is an unethical affront to natural law, however long the term. But I cannot, even in principle, “discover” or “figure out” a Doctor Seuss book, anymore than I can somehow apply science or engineering to becoming Theodor Giesel himself.
I deny that there is no ethical principle that says how long copyright should be. You never, ever have the right to the unique creative product of another individual mind. By this measure, US copyright law is not unreasonably long in its term, but unreasonably short.
john hare
Mar 9 2021 at 5:19am
I disagree that there should be no patent protection whatsoever, as I interpret your comment. In principle others can invent or discover new things, but in reality, very very few will put in the effort and thought to do so. The ones that invest their time, thought, and finances to bring a new product into the world need some incentive to do so. That incentive is massively reduced if anyone at anytime can run off copies and undercut any profits that would recoup the investment and make a profit for the innovator.
I am an inventor myself, though I have never filed for a patent. Most of my ideas are simple things that we use in the business, and someone copying would do at most minimal harm to me. And the unprotected ideas of others freely given have also helped me over the years. This free sharing of many simple ideas makes the world a better place. I think this is the type thing you have in mind that does work in the real world.
There is another real world problem at a different level though. Some of the concepts I have would take years and millions of dollars to bring to fruition, and that is if they would work at all. The end result is simple things that should have an impact well out of proportion to the labor going into the final product. If I get into a position to try one of these out, why should I invest, or talk others into investing, if others can quickly copy the process without the development cost and quickly price me out of the market?
On the third hand, I like trade secret for short term protection of most things. I consider the patent system to have some considerable flaws in it including the problem of others that do all the same work but are second to file. This means that all their brains and effort are wasted due to someone winning on paperwork. I believe the telephone example illustrates your point here. I can’t remember the name of the inventor a few hour late after Alexander Graham Bell filed.
Anyway, patent protection is an extensive subject with many subtle nuances. Universal agreement is, and should be, impossible. I think many of us can agree that there are flaws in the patent system, though we may disagree on what they are.
On copyrights, IMO once something is published, it becomes something other than the private creative property of the creator. I don’t know the terms or arguments, but it is now a commercial property that should be under different rules than a private creation for private use. I don’t know what those rules should be except that they should be in a different category.
Andrew_FL
Mar 9 2021 at 9:36am
I am unconvinced, on the whole, that monopoly rights are necessary to motivate truly novel inventions. I think most fall into either the category of being “too difficult to copy, even if one knows how to do so in principle” or “idea that was waiting to be had”-not much, as far as I can see, in between.
If there is want for specific inventions or solutions to problems I favor the offering of prizes or bounties for them.
Most people understand intuitively I think that if I copy a work of Michelangelo or Picasso, that I am doing something wrong-it is called “forgery”-even though their works have long been offered up to the public and they may be long since dead. But for some reason society would cheer and champion the rights of a forger of Disney or Geisel. Strange, curious even.
John hare
Mar 9 2021 at 1:36pm
I can respect your first and third paragraphs though with some disagreement. Your second however is extremely off base. With that, an idea person must first convince a prize committee or something if they happen to have an idea not previously accepted, which describes most useful innovations.
Andrew_FL
Mar 9 2021 at 3:08pm
No, the only criteria for winning a prize or bounty is “does it solve the stated problem” perhaps within some preset parameters for cost and risk.
If I set a bounty on a vaccine against HIV, I can’t deny a person who invents such a vaccine a right to claim their prize if the vaccine works, no matter what novel methods of synthesis they used.
john hare
Mar 9 2021 at 6:29pm
replying to Andrew FL at 3:05,
You make my point for me. You offered a prize for a Covid vaccine, but I think I have found a way to instantly heal broken bones. Your prize becomes worthless to me, and the guy working on the common cold, and the woman that is on track to obliterate athletes foot. Prizes only work for the thing targeted by the prize authority. Every other thing is prevented by lack of enough profit to make it worth pursuing.
Andrew_FL
Mar 10 2021 at 12:00pm
The difference between me and you John, is that I don’t think *every* idea needs to be subsidized.
John hare
Mar 10 2021 at 12:30pm
Replying to Andrew FL at 12:00
i understand that you approve of subsidizing ideas you approve of. I am not in favor of subsidies at all. I am in favor of letting entrepreneurs make a profit commensurate with the value delivered.
MarkW
Mar 9 2021 at 7:36am
I don’t think a ‘use it or lose it’ approach to copyright would work. In the days of print-on-demand books, there’s nothing to stop publishers from printing a very short run of new copies every few years to preserve the copyright. It might help with more obscure ‘orphan’ works, though, where nobody seems to know or care who owns the copyright. Those works would then flow into the public domain through mere neglect.
But the sort-of-good news about copyright is that no new Sonny Bono has come along to push yet another extension in Congress. So works have actually started trickling into the public domain again including The Great Gatsby this year, and Mickey Mouse will finally follow in 2024.
Jon Murphy
Mar 9 2021 at 8:58am
I think I understand your point, but I am going to push back (which I do so with great reluctance. As you know, I think the world of you David).
Firstly, property rights entail both the right to do something and not do something. If the government were to institute a “use it or lose it” regime, that could undermine property rights. It could lead to the Kelo type of abuses that Ilya Somin writes about. As Josh S points out above, what constitutes “use” is arbitrary.
Secondly, one could argue that IP isn’t the same as “ordinary” property rights. As you say above, some object because it’s a government-granted monopoly. However, that seems to me to be a distinction without a difference. A legal positivist could simply flip the argument around and claim that all property rights are government granted monopolies. The ownership of my car, for example, is a monopoly that is granted by the government (though the titling and registration process). Thus, my car could be seized if I don’t use it.
Rather, I think it makes more sense (historically, morally, and legally) to conceptualize property and property rights in the conventional framework of David Hume, Adam Smith, James Coolidge Carter, and most recently Bart Wilson. Thus, property and property rights are recognized and defended by the government, but not granted. We’d have to make the case that IP is not part of the typical convention of property and rights, and thus undeserving of such protection.
Thirdly, and as hinted at in my second and first points, there’s no reason to think there wouldn’t be drift into other kinds of property rights.
JFA
Mar 9 2021 at 11:31am
I think this says it all. What is a property right? It’s the ability to use tangible and intangible thins as one pleases. Those property rights are restricted (by laws or norms) when there might be conflict. My use of stereo equipment is restricted by noise ordinances and my desire to be able to interact cordially with my neighbors. I can transfer my share of company stock to mostly anyone I please. I can keep that share as long as I want and pass it on to my children who can keep it as long as they want. But if I’m a writer, I can keep the rights to my book for only X years and only pass on the copyright if X extends beyond my lifetime.
I will say the statement “property and property rights are recognized and defended by the government, but not granted” also seems a distinction without a difference, but it does get at the crux of the issue.
People have a feeling that there is something somewhere that makes a thing someone’s property. There are certainly rules of structuring the use of things and ideas that can be supported by people with power and lead to what economists think of as efficient outcomes, but there is no state of nature in which property is innately defined. It is always whether the alleged owner can defend his/her use of the thing we call property. Once the “owner” cannot do that, they cease to be an owner.
Jon Murphy
Mar 9 2021 at 11:56am
Oh, no. It is a huge difference. My formulation (and that of classical liberals) is that rights pre-exist government. In other words, government is bounded and not omnipotent. Formulating property and rights as existing pre-government help us understand what is moral and proper for a government to do or not do; it prevents the tyrannical descent into “a government can do as it pleases” mindset.
JFA
Mar 9 2021 at 3:14pm
What makes property exist in a state of nature sans government? What makes an idea property without copyright or patent? What makes the apple on that far away tree mine and not yours (in the state of nature)?
Jon Murphy
Mar 9 2021 at 3:24pm
Those are interesting questions. I posit the answer is custom and convention. See Bart Wilson’s brand new book on the topic (or my forthcoming review in Public Choice).
JFA
Mar 9 2021 at 8:25pm
Thanks Jon. I’ll definitely check out Bart’s new book. I’ve been a fan of his stuff over the past few years.
Jon Murphy
Mar 9 2021 at 9:11pm
It’s very good. Dense, though. I am finding it very slow going, but that’s a high compliment. There’s a lot on each page and I find myself slowing down to fully understand his points
Rob Weir
Mar 9 2021 at 10:27am
With patents there are periodic maintenance fees that must be paid to the government in order for the patent to remain in force. These fees increase over time: $2K at 3.5 years, another $3.76K at 7.5 years, and another $7.7K at 11.5 years. So, just sitting on a patent and not using it can become an expensive proposition.
See: https://www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee-schedule
alvincente
Mar 9 2021 at 1:41pm
IMO, Henderson is right and Murphy is wrong, because intellectual property, despite its name, is not really a form of property. It is a right to prevent people from copying things, with all kinds of restrictions and conditions. Referring to such rights as property is kind of misleading. Those rights are more closely analogous to contract rights. If I contract with a builder to construct a residence, that means I have a right to get that building built, but I’m not sure that I would characterize that right as a kind of property. Because this right is entirely defined (in the case of patents and copyright) by statute, there is no reason that the statute can’t be changed to modify the right, and indeed the statutes are frequently modified. All of these forms of intellectual properties are relatively new, modern copyright law really developed only in the 19th century, pretty much the same with patents.
So Murphy is wrong that statutory modification would “undermine” property rights. Did it undermine property rights in 1992 when the copyright term was extended dramatically and stopped all of us from enjoying the right to copy works from the 1920s, ’30s, and ’40s?
Andrew_FL
Mar 9 2021 at 3:05pm
No, because there is no “right to copy”
You have a right to discover something pre-existing, or an application of physical, mechanical, or chemical principles. You have no right to forgery.
Folks like yourself who make arguments like this seem to think that Steamboat Willie or the Cat in the Hat is just some abstract thing which existed in the aether, waiting to be plucked by anyone, so you have as much right to claim you created it as anyone else. I’m afraid not, although I question what you hope to do with your forged copies of works from the 1920s.
john hare
Mar 9 2021 at 6:31pm
You seem to be unaware of the talent, time and effort it takes to bring new ideas to fruition in the physical world.
alvinccente
Mar 9 2021 at 7:54pm
Andrew – with respect, you are confused. “Forgery” is not copying, indeed has little to do with copying. Forgery is producing a document that purports to be other than what it really is; e.g., a check with a signature by “Andrew” that was actually signed by alvincente using Andrew’s name. A copy that does not pretend to be other than a copy is not a forgery. There is nothing wrong with a copy unless it violates a statutory copyright law. Contrary to your opinion expressed above, people copy Michelangelo and (at least the earlier) Picasso all the time, and no one thinks there is anything wrong with that.
Jon Murphy
Mar 9 2021 at 9:15pm
With respect, you misunderstand my objection. My objection is to the “use it or lose it” condition. That, coupled with the idea that the copyright is a government granted monopoly, may lead to power creep. So, the fact that copyright was extended is wholly irrelevant.
alvinccente
Mar 10 2021 at 3:19pm
Mr (Dr? Prof?) Murphy – Because the legislation sets all of the rules for copyright, there is nothing wrong with a “use it or lose it” provision. Until not too long ago, copyrights had to be renewed periodically or they would be lost. Until not too long ago, items had to have that copyright symbol on them to be copy protected. Copyright is not some ancient well established property right, but rather a quite recent innovation with constantly shifting rules. The constitution grants the power to Congress to create copyright and patent laws for a specific purpose, which is not to grant a benefit to creators: “To promote the Progress of Science and useful Arts. . . ” If it better serves the public good to require use it or lose it (which by the way, I agree with), then that should be the rule.
Jon Murphy
Mar 10 2021 at 5:11pm
Hello Alvinccente-
It’s “Mr” right now, hopefully “Dr” soon, but you can just call me Jon 🙂
Let me try to restate my concern as I don’t disagree with what you say in this post.
My concern is with “drift.” Legislation may originally just intend to have copyright be a “use it or lose it” privilege. But I fear someone would come along and, using the same logic of “rights are just government-granted privileges,” and use that to weaken tangible property rights a la Kelo.
alvincente
Mar 11 2021 at 3:05pm
Jon – in many areas, your concern about property rights being eaten away is well-justified. In the area of copyright, though, the drift is in the opposite direction – for fifty years now copyrights have been strengthened to an absurd extent. One unintended consequence is that thousands of works from the 1930s – 1960s are now lost us (unless you can find them in a library), since their authors (or the estates of their authors) cannot be located, so there is no one to give permission to reproduce them. By the way, one solution to the Dr. Suess issue would be compulsory licensing, where anyone can reproduce a copyrighted work without permission, but then would have to pay a licensing fee.
Mactoul
Mar 10 2021 at 1:40am
While the economists define a thing to be owned when someone mixes his labor with that thing, there can be no general answer as to how much labor must be mixed with which particular thing.
The political community exists to decide this particular question and thus property rights are both pre-political but also political in being instantiated differently in particular political communities
Jon Murphy
Mar 10 2021 at 9:34am
That’s Locke. Economists more define ownership by right of use, not mixture of labor.
Well, no. Many classical liberals argue that government exists to defend the rights that emerge from custom or tradition.
Vivian Darkbloom
Mar 10 2021 at 1:51pm
There is an essential difference between “intellectual property rights” or “intangible property” and other tangible property rights that has not been noted here, at least not directly. That is, unlike tangible property, absent legal restrictions, the use of an idea by one person doesn’t, as a practical matter, preclude simultaneous use by another. Only one person can sit in a chair or operate an auto at the same time. But, the entire world can use the same intangible idea at the same time. The second practical difference is that it is much easier to identify the existence and boundaries of a physical thing than it is identify an intellectual idea that is novel. The essence of copyright, trademark and patent law is to grant the owner the right to charge for the use by others. This is the essence of the right to exploit. Use of what is recognized as intellectual property by others than the “owner” doesn’t restrict the owner’s personal use at all, but rather it grants the owner the ability to create revenue from the property. Thus, intangibles need (and deserve) less protection than tangibles.
Aside from other policy reasons, this is the most important *practical reason* intellectual property rights are given by law less protection than physical property rights. The rest is just an exercise in drawing the proper balance, as I think David noted.
The balance has, in my view, been recently drawn too much in favor of the owners of intellectual property. The politics of this are pretty simple: the group of persons who stand to gain from greater rights have much more to gain than the vast majority of the rest individually who are “merely” being nickled and dimed. Those who stand to gain (notably, for example, Disney) focus a lot of energy on expanding their rights while the rest of us are not that much interested.
Finally, I’m with David on the general idea of “use it or lose it”. This principle has been recognized with respect to real and personal tangible property from Roman law through the common law to today’s “adverse possession” statutes. These rules were not derived from the abstract theories and principles most commenters here (and some specific authors) are too fond of arguing from. As Holmes famously quipped, “the life of the law has not been logic, but experience”, and rightly so, in my view. Holmes further added “The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”.
alvinccente
Mar 10 2021 at 3:29pm
Vivian – I am agreeing with you but want to draw the distinction I noted above – that “intellectual property,” for the reasons you note, isn’t really property. It’s the right to stop people from doing a particular thing, namely constructing a copy. Calling that right “property” is a bit of s stretch. Not every right can be thought of as property. Further, patent law and copyright law are recent in origin and constantly being amended, so it isn’t as though there were long-settled principles arising through the centuries that have created settled expectations that a “use it or lose it” rule would upset.
Vivian Darkbloom
Mar 11 2021 at 2:43am
” that “intellectual property,” for the reasons you note, isn’t really property.” (etc)
This is exactly the kind of argument that I criticised in my comment. The law dictates what is “property”, in all its forms, not your theories. Your circular theorizing isn’t achieving anything useful.
“Further, patent law and copyright law are recent in origin and constantly being amended, so it isn’t as though there were long-settled principles arising through the centuries that have created settled expectations that a “use it or lose it” rule would upset.”
I wrote:
“This principle (“use it or lose it”) has been recognized with respect to real and personal tangible property from Roman law through the common law to today’s “adverse possession” statutes.”
Nota bene that nothing there indicates that intellectual property rights date back to Roman times! Quite the opposite. The obvious sense was that there is a long-standing tradition with respect to tangible property and that a “use it or lose it” rule with respect to more recent intangible properties would certainly not be inconsistent with those precedents with respect to those other forms of property rights. (I hope that the last two words have solved your semantic conundrum).
alvinccente
Mar 12 2021 at 5:01pm
You know, Vivian, notwithstanding your rather snippy language, I don’t really think we disagree much. You are right that the law dictates what is property. In the case of copyright or patent, it doesn’t say that these rights are “property,” so my theories (in your phrase, are entirely apropos. Your theory is that copyright and patent rights are “property.” My theory is that they are not. The reason it might make a difference is reflected in Jon’s comment, where he has concerns that property rights are being eroded. I think these rights are simply statutory monopolies that can be granted, withdrawn, modified, or conditioned at any time – something that does not sound that much like property.
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