Law exists primarily to defend property. In medieval world, the primary concern was how real estate, often defined by a title, was maintained and passed on by the nobility. This was dramatically extended by the American Revolution when fundamental rights were determined to be something that everyone possessed. The idea of intellectual property, which are rights based on inventions of the mind, was also carefully codified. The US Patent and Trademark office was opened up to define just what property would be protected by law.
From there, it eventually starts to get a bit strange.
Pending in Congress right now is HR 848, the Performance Rights Act. This would extend performance rights for music to include radio broadcasts. That may not sound particularly sinister by itself, but when placed alongside a number of changes to copyright law in recent years will create a very high fence around music in particular and make some forms of intellectual property about as real as land, in practical terms. The focus on protecting musicians is not only completely out of whack with other intellectual property, it’s likely to shut down the art of music and complete the transformation to an industry that creates widgets.
US Patents currently give the inventor 20 years of protection. That means that if you invent a cure for cancer, you have exclusive rights to make money off of it for 20 years. This is a kind of contract between you and society, where you make enough money to properly reward you before your invention ceases to be a kind of property and enters the public domain.
If you write a song, however, the protection given to you by the Sonny Bono Copyright Extension Act of 1998 lasts as long as 95 years. In fact, “Happy Birthday” – tune from 1893 and words from 1935 – is still under copyright protection from Warner-Chappell until about 2030. The patents that duPont placed on nylon and a number of other polymers that changed our world at the same time ran out years ago, but music is protected nearly forever.
The Performance Rights Act, which does little more than require royalties for every song played on the radio, has been written about on its own merits in many places. I don’t have to go into those here. But the idea that the property defined by a song lasts considerably longer than a lifetime is added with the possibility of royalties being added for nearly every possible use of that song, you have a definition of property that goes far beyond the original idea of copyrights. It certainly goes beyond the idea of patents, which seem more useful.
Property that is defined by law and not reality is property that only exists in a social setting. Like so many things in our world, it’s what we as a people make of it. The process of policing this property always has cost that is borne by the members of society themselves in the corporations, cops and courts that enforce the law. The longer the term of the definition combined with a broader scope of how the property is defined means a larger and larger social cost.
Expansion of intellectual property means that our world has more fences running through it, slicing ownership stakes out of everything that we do. These should be considered very carefully because they privatize a part of the world we define around us at a very real cost – both in money and socially. Before we protect more and more things under law, we should be much more aware of what it is that we’re doing. Intellectual property has a proven and valuable place, but it’s easy to go too far. This bill takes an excessive time of ownership and ratchets up where if can be enforced. That’s not a good thing at all.