2004-08-24

Posner Blogs

Judge Richard Posner is guest blogging for Lawrence Lessig this week, commenting on copyright, fair use and the CIA. Here's how he identifies the problem with long-duration copyrights:
But, contrary to appearances, limiting access because copyright enables copyrighted works to be sold at prices in excess of marginal cost (the cost of one more copy) is not the main problem created by the Sonny Bono Act. Very few works of art, literature, or entertainment retain significant value 50 or 70 years after the death of their author. As Lessig's brief in the Supreme Court pointed out, the problem for people like Eldred who want to publish old works (works that would have entered the public domain by now were it not for the Act) is transaction costs, not license fees: the costs of locating and negotiating with the current copyright owner. Those costs may well exceed the modest commercial returns from publishing a public domain work (which anyone can copy). The beauty of the old (pre-1976) copyright system, with its requirement of renewal beyond a shortish initial term (like 28 years), was that most copyrights, lacking commercial value by the end of their initial term, were not renewed, and so fell into the public domain, and so licensing costs fell to zero.

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