Intellectual Property

 

All Across the Universe

Images of broken light which dance before me like a million eyes
They call me on and on across the universe
Thoughts meander like a restless wind inside a letterbox 
They tumble blindly as they make their way across the universe.

If a universe is created by a work of art, who owns that universe?

A role of the sovereign is to protect the property of his subjects, whether that property is physical or intellectual.  Economists distinguish property, goods, by the characteristics of being rival and/or exclusive.  Goods are rival if a price is charged.  (and do NOT confuse price with value.  Price is a way of allocating resources.   A good can be unpriced but have a value, e.g. fresh air. “The best things in life are free”.).  A good is exclusive if my using the good prevents you from using that same good (e.g. if I sit in a seat then you can’t sit in that same seat. However, if I see a movie, you can also see that same movie.  The seat in the movie theater is exclusive, but the movie on the screen is not).   Physical property is almost always rival and exclusive.  Intellectual property is typically non-exclusive. To ensure that intellectual property is created, the sovereign should encourage that a price can be collected for this property, i.e. make sure it is rival.   If there is no price, then the creator has no incentive to create that intellectual property.

The Constitution recognizes this.  Article One Sections 8 reads, ”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.”  Among the first laws passed by Congress were the establishment of copyrights for arts and patents for science.  ( A digression.  I long for the day when Arts and Sciences were one and the same.  I have a Bachelor of Science, which fortunately my college calls an Sc.B., and not the unfortunate initials which would otherwise distinguish it from a B.A.)

The key terms in the Constitution are “promote” and “limited time”.  The law has acknowledged that when a work is for hire, the inventor or author can be a corporation that employs that “work for hire”.  While a human author and inventor has a limited lifetime, a corporation  can live for much longer.  However the “limited times” applies for Writings and Discoveries whether the authors and inventors are humans or are corporations. 

The sovereign additionally can offer an opinion on the trustworthiness of goods that are being sold. In order to do this the sovereign can help enforce a trademark. When Congress passed the laws covering patents, it also extended it to cover Trademarks.  A Trademark is a separate issue that does not promote the arts or sciences, but addresses the Trust that can be placed in a good.  A Trademark confirms who produced the good. The  sovereign can also agree that the Trademark identifies the source of the good.  It is not a writing or a discovery. Unlike these, it does not exist for a limited time, but exists as long as it is enforced and used.  For example, the Lowenbrau Beer lion Trademark dates to 1383. 

The United States Patent and Trademark Office is an agency in the U.S. Department of Commerce that issues patents to inventors and businesses for their inventions, and trademark registration for product and intellectual property identification. The United States Copyright Office, a part of the Library of Congress, is the official U.S. government body that maintains records of copyright registration in the United States including a Copyright Catalog.

In the United States, a patent is valid for 20 years, if it is renewed during that period.  In the United States, a Trademark is valid potentially forever.  In the United States, copyrighted works published after 1923, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years.

The fear is that Intellectual Property is fairly easy to copy and the benefit will accrue to the copy of the  Intellectual Property, especially since it is non-exclusive. If it is copied without a price being paid, there is no incentive for an artist to create that Intellectual Property.  The constitutional protections specifically mention authors and their writings.  At time of the drafting of the Constitution, the only works of art which could be easily copied were writings by authors.  Technology has changed since that time.  Many works of art can now be copied or photographed.  The creators of works of art now include photographers, movie directors, musical artists, etc. in addition to authors.  To promote the arts, protections are extended to their works. 

While 95 years is cited as the “limited time” for older works of art, it mentions the life of the author plus seventy years for works published after 1978.  If the “artist” is a corporation,  then its lifetime is not a reasonable limit.  Should the lifetime be the life of the “work for hire” artist employed by the corporation?  If the copyright is intended to cover the artist’s life plus the lifetime of his heirs, who are the heirs of a “work for hire”? It would appear that 95 years is long enough to cover the remainder of an artist’s life, plus the life of their heirs, if any.

But in addition to a work of art, the best storytellers create a universe in which their work of art is set.  That universe can be Disney, Marvel, the World of Harry Potter, etc.  That universe would not exist if the storyteller had not created it.  It would seem that the universe of the storyteller, whether it is the Star Trek, or Star Wars, that universe should also be protected.  The Intellectual Property which is that universe should be protected for as long as the work of art that was copyrighted. 

The problem is that while 95 years seems like a very long time, 95 years from the date that the Disney Universe was created with the first copyrighted appearance of Mickey Mouse in “Steamboat Willie” is 2023.  Ninety-five years from the  date that the Superman-DC universe was created with the first issue of Action Comics will be in 2033.   The ownership of those created universes is an immediate issue. 

It is suggested that these universes are a Trademark which could endure forever.  The trademark for Lowenbrau does not mean that there is no other beer, only that beer can not call itself Lowenbrau beer if it is not.  Characters in a fictional universe are already protected for 95 years from the date they first appeared in that universe.  Portions of the universe can be sold or licensed, as Sony Pictures has licensed Spider-man from Marvel.  That license presumably enters into the public domain 95 years after the first appearance of Spider-man in 1962. 

Will Disney seek to extend its copyright of Mickey Mouse for longer than 2023? Probably.  But just as Bayer has endured and sells Bayer Aspirin long after the patent for aspirin entered into the public domain, and there is still a market for coats with the Burberry plaid even though a plaid cannot be copyrighted, there will be value in a Trademark for Disneyland, long after Mickey Mouse has entered into the public domain.  The Disney Universe is a Trademark. If the House of Gucci has endured, then the House of Mouse will endure.