Intellectual Property

This is Joseph and I read over Mark's latest post with a great deal of interest.  One issue that was quite interesting was how many of the properties that he is talking about are ancient.  But they are highly profitable for companies because they remain under protection.  This applies not just to trademarked characters, but even to the original properties (which can make it harder to preserve them). 

Matthew Yglesias points out that this very fate is happening to Star Wars:

The ridiculous thing about the situation isn't that Lucas doesn't want to make the cut of the film that I want to watch. It's that it was illegal for Harmy to make it. And it was illegal for me to download it. And it would be illegal for me to make it available for download from Vox.com or even to put a link on this page that would let you go get it. It's illegal because of the ways that, over the years, Congress has extended and expanded the scope of copyright law in ways that have become perverse and destructive to human culture.

Of course it would be difficult to have a thriving commercial culture if films like Star Wars didn't enjoy some copyright protection.

But how many years of exclusive right to profit off a hit film do creators need to make production worthwhile? Five? Ten? Fifteen? Thirty? I'm not sure exactly what the right answer is. But obviously Star Wars made more than enough money in its first three decades of existence to satisfy any sane human being. The additional decades of copyright protection it enjoys do nothing to create meaningful financial incentives for creators. Even worse, Congress has gotten in the habit of retroactively extending copyright terms, so that in practice nothing ever loses copyright protection anymore.

With Star Wars, I am going to go out on a limb and note that it is exceedingly unlikely that the original film moving out of copyright (now) to allow fan versions would not have influenced the creators to not make the film in the first place. 

This also has a negative effect in other media.  The Kindle has been amazing for making very old books available -- I've read several histories from the 1800's which have been exceedingly useful in understanding how social norms have evolved.  But once the era of copyright enters, very few older yet obscure properties are around. 

What makes this annoying is that it is the reverse result of what copyright was intended to do.  It was supposed to spur creative work by making it financially rewarding.  But a book from the 1950's that has been out of print for decades is not making anybody money.  Instead, it makes it harder to preserve the intellectual history of some key areas, that might not be popular right now but could become so in the future. 

And, for the record, retroactive copyright cannot possibly induce more creative work because people judge risk/reward ratios on what the laws are and not what the laws might one day become.