Tuesday, September 27, 2011

“Limited” lacks legal legitimacy

I recently completed my Master of Nonprofit Management degree from Hamline University.  It was a great experience, certainly worthy of well-written wrangle.  Another time, perhaps.  I’ve been thinking more about the work I did in the final phases of that degree; a capstone project on how nonprofits talk about value of intellectual property (copyright, patents and the like).

I was privileged to present some of these thoughts at TEDx1000Lakes, an event sponsored by the Blandin Foundation in Grand Rapids.  My talk was entitled Freeing the Value of Ideas, and focused on how we might create a new means for valuing open-source decisions.  I think the idea is worth spreading and hope you do, too. A key concept in my talk is the length of copyright protection.  The definition of "limited" in this context deserves a little more thought.

The Congress is empowered to create laws around intellectual property protection by Article 1, Section 8 of the constitution.  The specific language reads:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors, the exclusive right to their respective writings and discoveries.

The idea here is creators (artists, authors, inventors and other muse-inspired people) are only going to make things of value if they have the ability to get people to pay for them, and people are only going to pay for them if they can’t just get it for free.  I think Kickstarter may have some things to say about that, but let's take that for rote right now.  The flip side of this pretty, pretty coin is the public domain.  The Congress has been empowered to makes laws which protect exclusive rights for “limited” times. The definition of limited in the copyright realm has changed quite a bit.
  • 1790 – 14 years plus a possible 14 year extension
  • 1909 – 28 years plus a possible 28 year extension
  • 1976 – Life of the author plus 50 years
  • 1998 – Life of the author plus 75 years, or 120 years for works for hire

So just what is a “limited” time?  When do we in the public domain get our crack at your great idea?  We are killing the ability to riff – to build on another idea and make a new one.  We are suffocating our collective story in favor of silos of individual stories with no connection.  In short, we’re asking the golden-egg goose to get in the gallows.  It is short-sighted and petty, and we need to knock it off.

We can fight for a fair definition of exclusive use and a fair balance of public domain.  We can do it by going back to the constitution.  No reasonable person is going to say that 120 years is a “limited time” to secure a work.  Technically, yes, that is a limit.  So is one billion.  It is very clearly not the intention to use such a high limit –and an ever expanding limit – to keep works out of the public realm indefinitely.  Intellectual property protection is broken in many ways, but redefining limited is a place to begin.  I'll suggest 28 years is plenty, roughly seven times longer than the average length of employment at any one job in the 21st century.  I'm willing to negotiate the time, but let's make it something that includes the public.  A practical definition of limited - as in limited to the foreseeable future - is a great start.

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