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Copyright: How should ownership be structured?
Author Lewis Hyde.
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TEXT OF INTERVIEW
Bob Dylan singing "The Times They Are A-Changin'">
Bill Radke: Ah, Dylan -- love him or hate him, he is an American original... Isn't he? Well, actually, Bob Dylan will be the first to tell you he's more of a borrower. He has always borrowed from the music around him -- old folk songs, blues, sea shanties. It all sort of mixed in his head -- he would copy a lyric here, a chord change there and then, add a little something of his own.
Well, that is not theft, says my next guest. That is the way the cultural commons is supposed to work.
Lewis Hyde's book is called "Common As Air," and he worries that we are privatizing our common heritage, thanks to the rise of intellectual property rights.
Lewis Hyde: It used to be the case that you had to register to get a copyright. But that's no longer the case. Everything that you create is automatically copyrighted. Your grocery list belongs to you. If I copied it without your permission, technically, you could take me to court.
Radke: Well, should Bob Dylan and his record company not own his songs for a good long time?
Hyde: I think that artists should own their work. The problem is how long the ownership should What's been happening in the last 50 years, especially, is an enclosure of the commons of the mind, as it were. When this country was founded, you got a 14-year property right in your writings. Now, a corporation gets 95 years. I get, if I live long enough, over 100 years.
Radke: Well, the argument for intellectual property rights is that, first of all, innovators deserve to profit from their work. And also, that that profit encourages more innovation. Is there an economic argument going the other direction, in favor of holding more in common?
Hyde: You know, often people think of common ownership and private ownership as at odds with one another. But in fact, they can work in tandem. Famous example in this country is that roads and waterways, navigable waterways, are held in common so that you can have commerce. A second example is the protocols that operate the Internet. The great innovation in the 1990s was to throw them open to common ownership. Such that nobody had a stake in them and everybody could use them. And as a result, you got tremendous commerce on top of that. So, one wants to think of the places where common ownership enables commerce and places where one or the other should better be the rule.
Radke: We're talking about the right number of years for a copyright or a patent, but it sounds like you're getting at something more philosophical about what it means to be people and community.
Hyde: Part of the point of my book is to go back to the founding generation and to understand why they thought we might do this. And one of their great concerns was that we were trying to set up a democratically governed nation. And in such a nation, you want to be very wary of giving people power over expression. They wanted people to be able to act publicly in a scientific community, to act publicly politically. And they thought that the more private control you have over art and ideas, the less you are able to be a public person.
Radke: Yeah, Ben Franklin wasn't interested in holding his ideas privately, and he didn't think that's the way it ought to work.
Hyde: Franklin got involved in trying to understand how electricity works. It was always the case that you could not own a natural fact. So Franklin figures out, for example, that electricity has polarity -- he's known as the discoverer of this. But he couldn't possibly own it. You can't own natural facts.
One thing that's happened recently is that we have changed the rule such that biotech companies can own parts of the human genome. This is a great change. In Franklin's day you couldn't do it, and rightly so.
Franklin also was an inventor. He invented the lightning rod, he invented bifocals. And he could have, but never did, take a patent on these. This is an old ideal called "civic republicanism." People often say, "Well, Benjamin Franklin had a lot of money by then," which is true, he was a very successful printer. But why do you have a lot of money? What is the end of becoming wealthy? In those days, the end was to turn yourself toward public service, and that was Franklin's ideal.
Radke: Lewis, do you mind if copy your book and represent it as my own.
Hyde laughs
Hyde: Well, there's two different pieces of that. One is attribution and one is ownership. I don't mind if you copy it, but you should attribute me correctly.
Radke: Fair enough. Lewis Hyde's book is called "Common as Air: Revolution, Art, and Ownership." Lewis, thank you.
Hyde: You're welcome.
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There is some confusion in these posts regarding when exactly we began to have default copyright. The answer is 1976. (Why that year? Because copyright in many countries vests automatically and in 1976 the U.S. was trying to bring its laws into harmony with those of other nations.) There is a good chart of the history of such "formalities" on page 13 of an essay by Jane Ginburg, "The US Experience with Copyright Formalities: A Love/Hate Relationship." (This can be downloaded from ssrn.com.) One distinction should be kept in mind: under current law, copyright vests automatically but an author can nonetheless register a work with the copyright office and, by so doing, get greater legal standing in the event of an infringement.
As for more specific criticisms in these posts:
* Jan Williamson complains that I compare the Internet and our public highways, but I don't. I compare "roads and...navigable waterways" not to content on the Internet but to "the protocols that operate the Internet." Like highways, these are treated as common assets and rightly so. Anyone who cares to go more deeply into this issue should look at pages 174-77 of Common as Air, or study up on the story of Tim Berners-Lee and the work he did in 1980 at CERN--work that was released to the public domain rather than taken private.
I think that Williamson got the impression that I would place "the creative content of individuals" in the public domain. I wouldn't. I support both copyright and patent in their properly limited forms. As for what "properly limited" means, that is the topic of my book
* In the interview I claim that "biotech companies can own parts of the human genome"; one responder, Peter Seferian, says this is false.
He and I simply disagree, though this may be a matter of terminology. His counter claim is that companies can "patent molecules that may also be encoded by discontinuous portions of the human genome if they are isolated or purified." To put the point more simply, what the U.S. Patent and Trademark Office says is that genes can be patented if they are "isolated from their natural state and purified." To my mind, that amounts to patenting a gene and to Seferian it doesn't.
Anyone who wants to sort out the fine points of this question might look at the litigation that has been conducted over the patents that Myriad Genetics Inc. holds on genes related to breast cancer known as BRCA1 and BRCA2. Here's a sentence from one of Myriad's own press releases about this litigation: "Myriad Genetics, Inc. (Nasdaq:MYGN) reported today [July 29, 2011] that the United States Court of Appeals for the Federal Circuit declared that the composition of matter claims covering isolated DNA and cDNA of the BRCA1 and BRCA2 genes are patent-eligible under Section 101 of the United States Patent Act."
Seferian has it that a patent on "isolated DNA" is not a patent on part of the human genome. I say it is.
This story was so shoddily researched and glibly presented that it should have never aired on Marketplace. The author, Lewis Hyde made all sorts of assertions that were factually wrong and the reporter Bill Radke, nor his assignment editor, did nothing to second-source or push back with the actual facts on what is a very complex and oft-misunderstood issue. But the worst part is that Marketplace let stand some very irresponsible ideas about copyright and protecting intellectual property and let someone who is essentially an I.P. quack, have a national audience about something he clearly knows very little about. Ask any intellectual property attorney and he or she will tell you that nearly everything Lewis Hyde said on air about Copyright and Copyright law, was flat wrong, glib, and really irresponsible. It's just bad journalism, because they knew what Hyde was going to say on air from his book and from the contents of his pre-interview. For shame, Kai. -- Reed Martin
As a person who works with hundreds of visual and performing artists I found this interview infuriating. The author compares the internet and our public highway systems - which are paid for with taxpayer dollars and rightfully belong in the public commons with the creative content of individuals, who must self-finance their work. The two do not equate at all.
Timothy Phillips wrote:
"It has been unnecessary to file for the initial copyright term since 1909. It has been unnecessary to file for the renewal term of old copyrights since the 1990s. So what? The extent to which formalities should or should not be required is an ongoing debate. Hyde's statement was both accurate and pertinent."
Pertinent, yes. Accurate, no. Remember when at least some media outlets fact-checked stuff? No more.
@everyone else
A copyright only protects the specific expression of an idea, not the idea itself. For instance, you cannot copyright a title (book, movie, etc.) As such, I see nothing wrong with extended copyrights for published material, performances, etc.
It does, however, seem to me that some items are covered by copyright that really belong in the trademark arena. Mickey Mouse comes to mind. (If you haven't seen Chris Sprigman's excellent blog post "The Mouse that Ate the Public Domain" you should track it down.) Of course, in some ways that makes whatever problem folks see even worse because trademarks can last forever!
Tony
"One thing that's happened recently is that we have changed the rule such that biotech companies can own parts of the human genome."
This statement is also false, one cannot patent parts of the human genome, it is a product of nature. One can attempt to patent molecules that may also be encoded by discontinuous portions of the human geneome if they are isolated or purified, much the same way some chemicals were purified and isolated from plants (natural product) or hydrocarbon chemicals from crude oil (natural product) that have constituted patentable subject mater. A chemical is a chemical, and DNA is a chemical.
He was, however correct, Franklin would not have done it because he would have been unable to do it, he was not even aware of the concept of a geneome, let alone the engineering abilities required to pursue such inventions.
Tony Lima wrote:
"Does anyone screen these writers? Hyde's assertion that you once had to file for a copyright has not been true for at least 30 years, probably more. Someone should fact-check this stuff first."
It has been unnecessary to file for the initial copyright term since 1909. It has been unnecessary to file for the renewal term of old copyrights since the 1990s. So what? The extent to which formalities should or should not be required is an ongoing debate. Hyde's statement was both accurate and pertinent.
I am surprised and glad to see Marketplace covering this issue. Current copyright law favors the content creators way too much over the creative commons. I agree with Tony Lima, somewhere between 10-30 years would be appropriate.
BTW, can someone please justify to me why an engineer or inventor gets 20 years of patent protection and a copyright owner gets 100 years? Both are creative expressions. Copyright laws are WAY out of balance.
That said, nothing said by Lewis Hyde or Lawrence Lessig will change US IP law until main street wakes up and decides to take back their country from corporate america. As we sow, so shall we reap.
BTW, I loved the juxtaposition of this segment with your piece on Corporate America at the Shanghai World Expo. Perfect summation of the problem with American IP law and politics in Washington.
@Tony Lima
Most proponents of rolling back IP rights to more reasonable things advocate going back to something similar to pre-1976 Copyright Act law. I think Hyde was aware of the length of time since this change, since copyright holders have been pushing for more control since before computers existed.
@everyone else
Since everything is automatically copyrighted the public domain has been mostly cut off from new content. Congress continually extending existing copyright terms further kills the public domain. This is the same public domain from which every creative mind has taken from to make something better.
A better option would be to look at why copyright exists. It isn't because the creator has some moral right to control every aspect of his/her work. It's having it in place is economically and socially beneficial because it encourages people to create new works. This is only true for copyrights of a limited term, however. There have been many studies on this, and they find varying terms in the range of 10 to 30 years to be adequate to reap benefit enough for the creator to continue to create. Going longer kills creativity, because we have to license works that have long since paid for themselves.
For more on why we need to pull back on copyright (and other IP), see Lawrence Lessig's book Free Culture (http://www.free-culture.cc). It's free to download as PDF, or you can buy it and support Creative Commons or Public Knowledge.
I am in no way affiliated with Lawrence Lessig or his organizations, I just vehemently agree with his take on IP rights.
Also, nice to see Marketplace giving some coverage to this issue. I was getting sick of hearing from copyright organization spokespeople spewing falsehoods unchallenged.
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