Intellectual Privilege: Has IP Protection Gone Too Far?

Tucker Vs. Mossoff, A Debate on Intellectual Property: https://fee.org/freeman/arena/intellectual-property-rights
 
How “Intellectual Property” Impedes Competition, by Kevin Carson: http://fee.org/freeman/detail/how-intellectual-property-impedes-competition
 
Principles to Guide the Intellectual Property Debate, by Clyde Wayne Crews Jr. and Adam D. Thierer: http://www.cato.org/publications/commentary/when-rights-collide-principles-guide-intellectual-property-debate

Should intellectual property rights be abolished?, An Internet Debate: http://www.debate.org/opinions/should-intellectual-property-rights-be-abolished

 
I have gone on record with the argument that we should think of copyrights not as a form of intellectual property but as an intellectual privilege. In fact, I wrote a whole book on the topic titled Intellectual Privilege Copyright, Common Law, and the Common Good. Why? I think we need a fresh perspective on copyright law. Traditionally, two viewpoints have monopolized debates over copyright policy. One side questions copyright just as questions all restraints on freedoms of expression, and it dismisses copyright as merely a play thing of political squabbles. The other side regards copyright as a form of property that deserves the fullest protection of the law. I offer a third view of copyright, revealing it as a statutory privilege that threatens our natural and constitutional rights. If copyright really were a type of property, most Americans would belong in jail. Most of us routinely and repeatedly violate the plain language of the Copyright Act, and in so doing, rerun the risks of court order gags, jail time, and damages of up to 150 thousand dollars per infringed work. Ignorance or indifference offers no excuse so far as the law goes, we are, all of us, guilty in theory. That in practice nobody seriously thinks that infringement should be enforced demonstrates that copyright is not property, and that copyright policy is broken. The Founders did not regard copyright as a natural right. Those who originally proposed and ratified the US Constitution did not mean to treat copyrights like natural or common law property rights, but instead, like statutory privileges. They kept copyrights short allowing a maximum term of just 28 years, and they gave copyright holders only a few spare remedies against infringers. Treating copyright like property has encouraged lawmakers to make it too big and too powerful. Since they passed the first copyright act in 1790, federal lawmakers have steadily increased copyright’s duration, scope, and complexity. The copyright term has gone up from a maximum of 28 years to up to 120. The length of the copyright act has increased from around 1,000 words to over 100 thousand. Copyright represents a federal regulation of unoriginal speech. It issues from out of Washington DC into the most intimate corners of our lives, imposing confusing and detailed regulations on how we share information with each other. It bars us from echoing our heroes, such as Martin Luther King, whose speech, “I Have a Dream” remains under copyright to this day. Copyright policy has fallen out of balance. Although courts and commentators often claim that copyright policy strikes a delicate balance between public and private interests, it does not and cannot do so. In practice, a few powerful lobbyists shape the law to suit their own ends, leaving the public interest poorly represented. Copyright doesn’t work that well for most creators. Few get damages when the try to defend their rights in court because the Copyright Act withholds statutory damages and attorney’s fees from the remedies of infringement for unregistered works. We’ll have less need for copyright in the coming years, and that’s something to celebrate. Both theory and real world observations confirm that as markets for expressive works grow, the need for copyright shrinks. Just think of how your access to music books, pictures, computers programs, and movies has increased in recent years. Thanks to continued innovation, we can expect that trend to continue. For all these and other reasons, we would do better to consider copyright a form of intellectual privilege than a form of intellectual property.