Copyrights and Patents

By Susan Aker

Copyright laws and patent laws both have their basis in the exact same section of the Constitution of the United States. Article 1, section 8, clause 8. But how many people have really examined the differences between these two, in many ways, very similar ideas.

This power, given to Congress, was intended to offer creators a period during which they could collect upon their creations, whether those creations took the form of words, art, or some sort of device. This period was to be for a limited time and for the purpose of promoting progress.

Patents, the laws protecting the creators of devices, has a term limit of 17 years from the date of the patent grant (recently changed to a 20 year term from the date of the application.)

On the other hand, copyrights, the laws protecting the creators of words, music and motion pictures, have a term limit of a minimum of 70 years (assuming the author dies immediately after publication) and a maximum of over a century and a half.

The requirements to get a patent start with an idea, progress through the design phase, building phase, and then on to testing. Once the work is complete and the inventor is sure of what he has created – that it works the way he intended, that it is original and useful (the last is a questionable requirement with today’s patent office,) he must then write up an abstract, complete a complex application form, send it to the patent office with a sizable check and wait to see if a patent is granted. Many inventions take years, even decades, from idea to patent application, often with thousands, even millions, of dollars invested.

Now, let’s look at the requirements for protection under copyright law. Write something.

That’s all. Nothing more is required. You don’t need to register your work, you don’t need to put a copyright notification on your work. You don’t need to even publish your work. Just write it, and, unless you sell the copyright, it belongs to you and your heirs for your entire lifetime plus 70 years.

The science fiction/fantasy author Piers Anthony has said that he can write a novel in 2 weeks. Even assuming he must go out and buy a computer and the word processing software, the printer, paper and toner cartridges, this entire outlay of money adds up to less than $5000 (unless he gets a very expensive computer and/or printer.) For a relatively small investment (certainly as R&D costs go,) and 2 weeks of his time, Mr. Anthony now has the exclusive rights to his work for his own lifetime and 70 years additional.

Patent owners spend thousands and receive a 20 year monopoly.

Does anyone else see something wrong here?

Remember, the purpose of these monopolies is to promote progress. With patents, it is easy to see how an extended patent period would limit the opportunities for progress – which is probably why there have not been the same kind of extentions associated with patents that is seen with copyrights. Because progress is harder to define with literature, and because Congress apparently does not understand how much authors use existing works to inspire them and to build upon, they haven’t considered extentions to the term limit to even effect the purpose of promoting progress. The Sonny Bono Copyright Extention Act of 1998 was considered a win/win legislation, Congress not even considering the detrimental effect a 20 year extention would have on the Public Domain.

Another thing, most inventions benefit humanity. Most copyrighted works entertain humanity. Which one should be more valuable? Which one deserves greater protection? Why should we give our entertainers greater rewards than our inventors and scientists?

The Entertainment Industry would have you believe that people would not create for a shorter copyright term. Of course, if that were true, there would be no new inventions either and the patent office would have to lay off their increasingly huge staff they’ve got sorting through thousands of applications.

I think we should try a 20 year copyright, just for half a century, to see if the Entertainment Industry is right or wrong. If the movie studios quit making movies, and the authors quit writing books, and the musicians take up real jobs, then we can reinstate the excessive term limits. And meanwhile, the Public can enjoin the bounty of a Public Domain they’ve had no access to for more than 70 years, everything published between 1923 and 1981.

Anyone who lives in a large city has probably seen old theatres closing. These could be reopened and show movies that would now be in the Public Domain, charge $2 for admission. A lot of people would pay that much (or more) to see “Gone with the Wind” or “Casablanca” on the big screen.

Meanwhile, the movie studios, seeing their audience going elsewhere, might have to produce some quality movies in an attempt to compete with the greats of the past. Instead of stopping production of movies (as they claim would be the case) they might actually produce works to a higher standard.

As well, the shortened copyright term would be a boon to them as well. No longer required to seek the copyright owner for remakes, they could put new faces with the old stories. I know of several where the copyright owner has refused permission to a movie studio, in the belief that a new version would somehow cheapen the original. Derivative works would also be available.

Like patent law, copyright law was originally limited to bring about such innovation, where authors could build upon others works as “West Side Story” built upon Shakespeare’s “Romeo and Juliet,” and Disney’s treasure chest of animation built upon old fairy tales and historical figures. Today’s authors should be able to use such characters as ‘Superman’ and ‘The Lone Ranger,’ such stories as “Bonanza” and “Gilligan’s Island” without requiring any special permissions. Those things that are new to a child should be accessible for reuse when that child becomes an adult with the inspiration to innovate on those old stories they remember from childhood.

There is not that much difference between physical innovation and literary innovation. Both require building blocks, a starting point that already exists. In the physical world, the patent lasts 20 years, innovation using that original can begin the very next day. In the literary world, copyright lasts a century, currently. By 2018, when works will once more be eligible for the Public Domain, Congress will be lobbied yet again to extend the term. From that fateful day in 1998 when President Clinton signed the Sonny Bono Copyright Extention into law there may never be another building block for increased innovation in the literary world.