What if, after you had paid the taxes on earnings with which you built a house, sales taxes on the materials, real estate taxes during its life, and inheritance taxes at your death, the state would eventually commandeer it entirely? This does not happen in our society…to houses. Or to businesses. Were you to have ushered through the many gates of taxation a flour mill, travel agency, or newspaper, it would not suffer total confiscation.
Similarly with many classes of assets abstract or concrete, from land to Treasury bills to stocks, paintings, and much else; once the state has dipped its enormous beak into the stream of your wealth and possessions they are allowed to flow from one generation to the next. Though they may be divided and diminished by inflation, imperfect investment, a proliferation of descendants, and the government taking its share, they are not simply expropriated.
That is, unless you own a copyright. Were I tomorrow to write the great American novel (again?), 70 years from my death the rights to it, though taxed at inheritance, would be stripped from my children and grandchildren. To the objection that this provision strikes malefactors of great wealth, one might ask, first, where Sylvia Plath’s inheritors berth their 200-foot yachts. And second, why, when such a stiff penalty is not applied to the owners of Rockefeller Center or Wal-Mart, it is brought to bear against legions of harmless drudges who other than a handful of literary plutocrats (manufacturers, really) are destined by the nature of things to be no more financially secure than a seal in the Central Park Zoo.
The answer is that the Constitution states unambiguously that Congress shall have the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The italics are mine, the capitalization likely James Madison’s.
It is, then, for the public good. But it might also be for the public good were Congress to allow the enslavement of foreign captives and their descendants (this was tried), the seizure of Bill Gates’s bankbook, or the ruthless suppression of Alec Baldwin. You can always make a case for the public interest if you are willing to exclude from common equity those whose rights you seek to abridge. But we don’t operate that way, mostly.
Furthermore, one should not envy the perpetrators of sensationalist trash, but rather admire them, in the hope that someday, somehow, without prostituting, debasing, and degrading oneself while recklessly destroying what is left of the literary culture, one might enjoy a fraction of their wealth. They represent, however, only a fraction of writers, and their good fortune is a poor excuse for seizing either their property or that of their leaner colleagues.
Barnes and Noble is able to publish price-reduced non-copyrighted works not so much because it saves the 10-15% of revenue that would go to the gruel-eating authors but because it saves the 50% that would go to the publishers. Booksellers that publish their own titles benefit not from escaping the author’s copyright, but the previous publisher’s exercise of a grant of rights (limited, authors take note, to a period of 35 years). “Freeing” a literary work into the public domain is less a public benefit than a transfer of wealth from the families of American writers to the executives and stockholders of various businesses, who will continue to profit from, for example, The Garden Party, while the descendants of Katherine Mansfield will not.
Absent the government’s decree, copyright holders would have no exclusivity of right at all. Does not then the government’s giveth support its taketh? By that logic, should the classes of property not subject to total confiscation therefore be denied the protection of regulatory agencies, courts, police, and the law itself lest they be subject to expropriation as payment for the considerable and necessary protections they too enjoy? Should automobile manufacturers be nationalized after 70 years because they depend on publicly financed roads? Should Goldman Sachs be impounded because of the existence of the SEC?
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Why would the framers, whose political genius has not been exceeded, have countenanced such an unfair exception? Jefferson objected that ideas are, “like fire, expansible over all space, without lessening their density at any point, and, like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.” But ideas are immaterial to the question of copyright. Mozart and Neil Diamond may have begun with the same idea, but that a work of art is more than an idea is confirmed by the difference between the “Soave sia il vento” and “Kentucky Woman.” We have different words for art and idea because they are two different things. The flow and proportion of the elements of a work of art, its subtle engineering, even its surface glosses, combine substance and style indistinguishably in a creation for which the right of property is natural and becoming.
And in Jefferson’s era 95% of the population drew its living from the land. Writers and inventors were largely those who obtained their sustenance from their patrimony or their mills; their writings or improvements to craft were secondary. No one except perhaps Hamilton or Franklin might have imagined that services and intellectual property would become primary fields of endeavor and the chief engines of the economy. Now these are, and it is no more rational to deny them equal status than it would have been to confiscate farms, ropewalks, and other forms of property in the 18th century.
Still, it is the express order of the Constitution, long imprinted without catastrophe upon the fabric of our history. But given the grace of the Constitution it is not surprising to find the remedy within it, in the very words that prohibit the holding of patents or copyrights in perpetuity: “for limited Times.“
The genius of the framers in stating this provision is that it allows for infinite adjustment. Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw. Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else? The answer is obvious, and transcends even justice. No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and the mind.
A version of this essay appeared in the New York Times.