Copyright and Innovation

By on February 10th, 2014 in Societal Impact, Topics

“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.” (Article I, Section 8, Clause 8 of the United States Constitution) is the foundation for U.S. Copyright (and patent) law.  In an article siding with Google Books against the Authors Guild, James Panero, Executive Editor for the New Criterion, argues that US Copyright law needs to be revisited, objecting in part to the apparent perpetual extension of copyright as Mickey Mouse comes up for expiration. The heart of his argument is that creative expression is suppressed by the (inappropriate?) application of copyright law.

Let’s get some disclaimer’s clear here.  First, IEEE (home of the Society for the Social  Implications of Technology) is a major scientific publisher, with more papers cited in US Patent fillings than any other publisher, and a primary source of income for IEEE is subscriptions to it’s publications.  I suggest that New Criterion is also a publication with all of it’s copyright protections in proper order.  (Although I wonder if the Wall Street Journal, in the case of Panero’s piece, actually has it’s written legal agreement with Mr. Panero protecting it’s rights— they called me the last time they published one of my letters but I know they did not ask about movie rights, international translation rights, or even e-rights.)

This issue IS complicated.  I’m a published fiction author as well as more typical engineering with professional publications. My daughter is a “real” fiction author (multiple books in print, and an active leader in her relevant professional societies.) So we get in some delightful discussions about copyright which in many ways is vital for both of us.  In the U.S. there are different rules that apply to performance copyright as opposed to the written word, and trademark’s which are different beasts (Mickey Mouse is presumably covered by all of the possible laws, in addition to having personal body guards.)  Many “plays” are never actually published (ergo becoming subject to copyright expiration.) This tradition actually goes back to pre-Shakespearean times.  Back then the Crown owned all intellectual property, so by not-publishing the author retained control for some period of time.  Patents, circa 1600, were monopolies granted by the Crown, and not necessarily tied to innovation.  (Much of the North American colonies were founded on land granted by Crown patents.)  So you can see when the American Spring occurred (1776+), there were reasons for the United States to consider parting ways on intellectual  property with the mother country.

Consider two examples: Harry Potter and The Lego Movie (no, that is not a new Harry Potter movie, these are two separate movies.)  As the date for Harry Potter’s film debut approached, Time-Warner (along with the other copyright holders) became quite aggressive asserting their rights, including threatening kids who had created Harry Potter fan sites. The lucrative after-market item business is a strong incentive for stakeholders to grab as much territory as possible. (The Harry Potter ride at Universal Studios is really great, for example. But I’m an engineer so I made my own wand, thank you.)  Panero’s examples of creativity available if you can gently infringe on the rights of others presumably includes the fan-pages involved here.  I encountered this problem while assisting kids with Odyssey of the Mind (OM) where use of trademarked-copyright protected characters was prohibited (for a while they allowed parody, which is one exception, but that became to hard to judge.)  Of course OM split into Destination ImagiNation over a legal dispute on copyrights and trademarks.  (What goes around, comes …)

Which leads me to the Lego Movie.  Here we have an official Lego “property”, which actually is a parody at some levels of the Lego concept. I might add that Lego is the only corporation I know of that has managed to legally span from Harry Potter and Star Wars into Batman and Disney franchises.   This movie is so “true” to the Lego concept, that sound effects can reflect the type of noises kids might make while playing with their creations.  It may be difficult to distinguish between the best made YouTube videos by creative individuals (Legos aren’t just for kids anymore), and authorized creations by the Lego Corporation.  I suspect they are not going to aggressively pursue Lego Movie copyright abuses, at least in the area of derivative works. (They even brag that every scene can be constructed from Legos.)

The problem for technologists is that we want to be able to make a living (as do the artists and authors protected by copyright.)  And in the areas of engineering, software and so forth, the Intellectual Property protections can be a key asset for our remuneration and in most cases corporate prosperity.  However, often it is the corporate interests and not the individual that both pursue and benefit from the government granted monopolies associated with intellectual property.  When corporations can lay off some of the key innovators while continuing to profit from their patents and creations, one has to question if the U.S. IP system is actually serving it’s purpose. Things like “Design Patents” cover the color and shape of things as opposed to functional capabilities (I wonder if Disney has a design patent on Mickey?) which makes the concept even fuzzier.

How long should the government granted monopoly on IP last?  How might this differ between a book, a software program, a design, a mechanical device, the singing of a song, writing the words of the song,  writing the music for the song, recording the song on media, etc?  And are we really protecting “Authors and Inventors”  when the individuals no longer have the actual rights? (Paul McCartney now owns Yesterday, having bought it from Michael Jackson as I understand it, but other stories differ.)  Traditional book contracts have the rights revert to the author after the book goes out of print, but does it ever go out of print in a Print on Demand world?

If Innovation and creativity is our objective, then do we actually have the right rules to facilitate this?  What is your view? (Only creative and/or innovative comments permitted?)
(Oh my,  if your comments are as long as this entry, they fall,  defacto under copyright law, so I will assume your posting them on this site constitutes a non-exclusive right to publish your comments….— you see it does get complicated.)