Mark Helprin, the novelist, makes a very weak case for removing all limits to copyright in this rather self-serving op-ed piece in Sunday's New York Times:
The genius of the framers in making 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.
As Helprin notes, the terms of copyright extend for seventy years after the death of the copyright holder. That would essentially allow someone to leave the copyright to their children and their grandchildren. Is that not enough to satisfy the creator of the work(s) in question? No one with a work copyrighted after 1977 will ever suffer the fate that Irving Berlin did in 1986 when Alexander's Ragtime Band went into the public domain in 1986 when he was still alive.
As for his argument that no good case can be made for this, this is pernicious nonsense. Here's one good case: when I worked for ASCAP, there was a family (who shall remain nameless) who are the descendants of one of the most brilliant songwriters in the history of American music, having written numerous standards as well as having music in the serious music canon. The job of this family appears to be perpetuating the copyrights of this songwriter, as not one of them has followed in their illustrious ancestor's footsteps. Trust me on this: they are hardly unique in this regard.
Helprin in his opening paragraph makes the following comments:
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 your
life, and inheritance taxes at your death, the government 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, they
would not suffer total confiscation.
His analogy is not merely flawed; it's specious. If one starts a firm, a flour mill, a travel agency or a newspaper and leaves it to one's heirs, the heirs in turn have no guarantee of the success of this venture. In other words, it must be worked in order to maintain the business, investment must be made and the enterprise is still subject to risk. The only aspect that the heirs do not have to contend with is the initial capital investment.
Heirs of copyright holders, on the other hand, do not have to reinvest in their business in order to maintain. Indeed, if the work is strong enough, one may be able to live solely on the royalties. If you think that the character Hugh Grant played in About a Boy, has no basis in reality, don't kid yourselves. Heirs of copyright holders suffer no risk other than the work falling out of favor and not generating the income expected of it. Should that happen, they can then do what so many of us have to do: get a job.
Helprin also makes this comment:
Were I tomorrow to write the great American novel (again?), 70 years
after my death the rights to it, though taxed at inheritance, would be
stripped from my children and grandchildren.
I don't know if Helprin has children, but if he does, they will be assured right now of having income from his works until they are at least 70 should he die tomorrow and his children be born today. Unless he plans to freeze his sperm in order to unleash an army of little post-mortem Helprins upon the world, his children and grandchildren have precious little need for worry.
I am all for protecting the creative rights of copyright holders while the copyright is in effect. There comes a time, however, when works should enter the public domain and a writer's heirs should be content with saying, for example, that their great-grandfather was Mark Helprin.
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