The Constitution gives Congress the power to protect intellectual property (IP), including patents, trademarks, copyrights, and trade secrets “to promote the progress of science and the useful arts.” And it has long been taken for granted that this is in fact what these protections do. The logic is that people will be more likely to create something when they know that they and they alone will have the right to profit from it for years to come. In effect, you’re increasing the potential reward someone can earn from an idea, which encourages them to invest more time and money into innovation than they otherwise would.
In many cases, this is undoubtedly true. Capital-heavy investments such as the development of new pharmaceuticals would doubtless look very different if we didn’t grant their patent holders an exclusive right of sale. But in many other cases, especially related to copyright, it’s not at all clear that the kind of strong IP protections now in place are, on balance, fostering innovation.
Copyright protects creative works, such as books, music, movies, even characters or plot devices. While such protections formerly lasted only a short period of time, lobbyists from major producers, most notably the Walt Disney Corporation, have succeeded in gradually extending copyright terms, step by step, to their current level: the life of the creator plus 70 years. Hence the reason why you can still get sued for using an unauthorized representation of Mickey Mouse, a character created in 1928.
We have to ask ourselves: is this what the framers of the Constitution had in mind? Are the marginal gains to creators of a few extra posthumous years of revenue serving any meaningful incentive role in the creation of new works? It’s hard to imagine that Walt Disney would have sat on his hands and refused to draw Mickey if he had known that the copyright would expire 50 years after his death instead of 70.
What is happening here is that a practice designed to spur creativity has now been captured by special interests to do the exact opposite. The reason Disney lobbies so hard for longer copyright terms is so they can use government to punish potential competitors, and maintain a monopoly on ideas that no one alive helped create.
Most people recognize the harmful effects of government granted monopoly in other spheres of the economy, as well as the benefits of competition, but turn a blind spot to copyright laws. People who readily agree that the prohibition on competition with the U.S. Post Office makes mail service worse than it would otherwise be, can’t see the same effect in practice in the realm of ideas.
In Disney’s case, the irony is particularly rich, because that company built its reputation largely on ideas generated by other people. The estate of the Brothers Grimm is still patiently awaiting royalty checks for the unauthorized use of stories such as Snow White and Cinderella. I’m being facetious here, because of course, most people would agree that the world is vastly richer and more creative place because of Disney’s adaptations of traditional stories. A legal prohibition on taking old ideas and making them something more would have not encouraged the Brothers Grimm to show more dedication to their task, but would merely have robbed today’s children of incalculable joy.
The problem with copyright when taken to extremes is that there is really no such thing as a completely original idea. As the Old Testament of the Bible states that there’s “nothing new under the sun” and that was written more than 2,000 years ago. Imagine how much more difficult it is not to borrow from existing creations today. Anthropologist Joseph Campbell pointed out in his book The Hero With a Thousand Faces that stories from around the world all follow more or less the same themes, and this book was the inspiration for Star Wars, which rips off major plot points from traditional mythology, and whose music score is in many places almost a direct copy of Gustav Holst’s classical composition The Planets.
The band Led Zeppelin has been widely accused of ripping off older blues songs as the basis of many of its hits, a charge that is undeniably true to some extent or another, but does anyone imagine that the music of today would be more rich, beautiful, experimental, or enjoyable had the members of that group been legally silenced? Their distorted high-wattage elaborations on older songs were an innovation in themselves, that helped shape modern music, and society would not have gained by the strict enforcement of copyright laws.
Supporters of the current copyright system argue that creators would not create if they were deprived of the legal monopoly over their works. Yet the fields to which IP laws apply seem strangely arbitrary. For example, you cannot copyright a fashion design, and yet the last time I checked, big name designers are not petulantly refusing to create new clothes for fear that someone else will copy them. You cannot copyright a recipe, but the Food Network continues to produce an army of celebrity chefs, and there appears to be no dearth of good food available to hungry Americans. In fact, I would argue that these two professions are among the most vibrant and creative ones out there, while copyright-protected Hollywood continues to churn out formulaic remakes and sequels, rehashing the same stories again and again and again.
Intellectual property protections may have an important role to play in promoting the arts and sciences (though personally I remain unconvinced of this) but reasonable people can agree that the extent to which copyright has become a tool for shutting down competition and stifling creativity among those who wish to elaborate an existing idea is a problem antithetical to the purpose outlined in the Constitution. At a minimum, we need to look at shortening copyright terms to a more reasonable length, and expanding acceptable fair use standards that would allow creators to borrow ideas for their own works without ripping off entire stories written by others.
This article originally appeared on Conservative Review.