January 25, 2003
More on Metaphors and Eldred

Timothy Phillips responds to Ed Felten's post on Eldred and the language of the common's argument as mentioned in the bIPlog earlier. Felten proposed changing the debate to reflect the difficulties of copyright, but Phillips believes those arguments are about the complexity of the current system, not the problem of the duration of copyright protection. He thinks ideas are only public property, and therefore, the public needs to be more diligent about protecting the public domain, rather than letting the copyright industry frame the argument as a private property issue. Also, he points out the language the Supreme Court used in Scott Paper v. Marcalus, where they said, "...the consuming public at large shall receive the benefits of the unrestricted exploitation..." about patents. He believes the principle should hold true for copyright protected works.

The Economist has an opinion piece, A Radical Rethink, on crushing creativity in the digital age, saying the battle over copyright, "could yet determine the future character of cyberspace itself.... Copyright was originally the grant of a temporary government-supported monopoly on copying a work, not a property right." Those seem like fairly powerful metaphors, used before to insist that the Internet remain open and free.

Posted by Mary Hodder at January 25, 2003 04:47 PM

To say that I think that "ideas are only public property" is not quite nuanced enough. My position is that applying the word "property" to works of the human mind is a practice probably best avoided; but that IF one insist on introducing the word, then works of the human mind should be considered a form of public property. Another approach is James Madison's: we not only have a right to property, we have a "property in rights", and one of these rights in which each of us has a "property" is "the free use of...faculties and free choice of the objects on which to employ them." ("Property", National Gazette, March 10th 1792. James Madison, Writings, Library of America, 1999, pages 515-517.) I accept the right when the "objects" are works of the human mind, though I think the public is entitled partially and temporarily to waive this right as to newer works in order to encourage authors. I consider the use of the word "property" as applied to this right of the public to be entirely optional. I suspect that Madison, too, was pragmatic about his "larger and juster meaning" of the word "property". My hunch is that Madison's purpose in writing the Essay on Property was to object to a tendency on the part of the public to let the narrower sense of "property" to swallow up other important considerations.

Posted by: Timothy Phillips on January 26, 2003 11:26 AM
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