November 3, 2006 · Lessig
I hadn’t seen this piece when it came out in July. The Value of the Public Domain by Rufus Pollock is an excellent analysis of how one might quantify the value of the public domain. It nicely introduces what otherwise strikes many as counter intuitive. Highly recommended.
After reading Pollock’s piece, for example, it is much easier to see the fallacy in any public policy argument that tries to suggest there is an economic harm from failing to extend the term of an existing copyright. The key is the distinction between social value and individual value.
E.g., imagine a society that every year randomly selected 100 people, and sent them a check for $1m. The $100m needed to fund this program is raised each year by a tax on everyone within the society. Then some enterprising politician says: Hey, this is a waste of resources. Let’s stop this program. While it’s simple to see why such a change would be “Armageddon” for those in the $1m club, it would take lots of hand-waiving to argue (convincingly at least) that the change would be harmful to society.
Or remember how Macaulay (1841) put it (nicely reproduced in full by Eric Flint):
The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that by so doing I should proportionally increase the bounty.
Me too. Absolutely. Taxes are awful, but necessary. Let’s have them where necessary, but only when necessary. And so why not have them to extend the term of an existing copyright? BECAUSE THIS IS A TAX THAT CANNOT “INCREASE THE BOUNTY.” The work is already produced. No matter what we do today, Elvis is not going to produce any more recordings in 1957. So it is a tax that benefits some plainly (those who get almost twice the term they originally bargained for), but benefits society not at all. I.e., a very bad tax.