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Copyright Inheritance

As a writer, I have a stake in the protection of copyright. Not that my words have collected a lot of attention or wealth for me, but I’d resent having others publish my writing as their own—or even under my name, if they don’t pay me something for the privilege.

Sure, money is part of the issue. It is not, however, my main point. I don’t want others to attribute words to me that I did not utter or write. I will take responsibility for my words that might prove unfortunate in some context or other. Neither do I want my words to float around the world under somebody else’s byline. (I acknowledge that in this Internet Age, that’s difficult to prevent.)

Currently, I understand that my copyright protection extends to 70 years beyond my death. That’s more than enough for me. If I were to be the author of some best-selling work, I’d rather my children profit from it than some stranger who happens to have a printing press.

However, there ought to be a limit. Some artistic works, if they survive beyond the rather limited public notoriety of their authors, probably should become part of the public domain. I would never have known some authors’ work were it not for the Internet. John Donne, for example, or Frederick Nietzsche, comes to mind. I don’t mind paying for a book written a hundred years ago, but if I want to simply look up one for my personal research, I am indebted to those who have made such works available on the Internet without my having to trudge to the local library. The Public Domain is part of our cultural heritage, and rightly so, in my opinion.

Writer Mark Helprin, a fellow at the Claremont Institute, thinks differently. In an op-ed piece in the New York Times of May 20, 2007, he makes the point that we don’t expropriate the real property of citizens after a period of time—inherited wealth, he says, is and ought to be passed on and enjoyed by the descendants of the originator. And artistic wealth is, in his opinion, no different.

Why, he asks, “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.”

Copyright law is for the express purpose of protecting such “harmless drudges” from exploitation by others. It’s true that many artists have produced works for which they (and their progeny) have never much profited. I’ve read that a lot of the youth who moved us all with their music thirty years ago signed their rights to their music over to those who manufactured the records. I feel for them. Many of them just didn’t know enough about the rules of the game. They might have had a more comfortable retirement had they hired an attorney. And of course there are writers in the same boat. Some, unfortunately, have died penniless because their work wasn’t “discovered” until after they died.

Even though he uses such examples in his argument, this is not the main point that Helprin makes in his essay:

 “It [copyright protection] 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.”

That statement, ridiculous as it is, is not relevant to his argument.  The “right” that Helprin assumes is the right of one’s property to be recognized in perpetuity. I can tentatively agree to that for the moment. What I don’t agree with is that intangible property is the same as tangible property. Protecting by law an intangible property such as a copyright is a reasonable thing, but for a different reason from protecting tangible property.

The issue is not whether the writer can hang onto his accumulated wealth. Copyright doesn’t address that at all. It is whether an invention or an artistic creation can be protected from copying for a limited time—or forever. Granted, the right to reproduce some object may have economic value. At some point, however, if the object has cultural value, the public good is better served to declare it in the public domain. Beyond that limit, the community and its culture ought to be the beneficiaries in fact as well as in spirit.

Helprin distinguishes between art and “ideas,” even though his article is titled, “A Great Idea Lives Forever: Shouldn’t its Copyright?” (We’ll assume that the headline writer at The New York Times didn’t read the piece carefully.)

“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.”

We all claim some kind of ownership of those we know, even to the extent of saying, “She’s my friend.” Parents have such ownership privileges of children and children have such ownership privileges of parents. “Our city” is an honored possessive expression; outsiders don’t have the right to come in and tell us what to do with it, short of a larger governmental right to defend individual rights or to protect a larger area from insult by the city, such as the pollution of waterways. Such expressions of ownership are metaphoric.  Somewhere between them and “my money” lies intangible property.

“My song,” claimed by the lyricist or composer, trumps “My song,” claimed by the singer. Even so, a performance is protected by copyright.

Cultural artifacts ought someday to revert to the culture.

Halpren’s real issue is not about art, however; it is about money. And that’s where he and I disagree most. Inherited wealth rightly passes on from the generators to their offspring. At some point in time, those who have inherited wealth from ancestors they do not even know reap unearned benefits. And I’m enough of a populist that I think each citizen ought to pull his or her own weight.

He concludes:

“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.” 

To me, the answer is not obvious. And what law can ever transcend justice? It sounds as though he means that privilege transcends justice.

Helprin points out, rightly, that when the U.S. Constitution was drafted, most Americans were farmers. “Property” was for the most part real or personal property, and nobody thought that the Government had a right to confiscate it without cause. A patent or an artistic creation ought to be encouraged; that’s the reason for the Patent Office, to protect a person’s economic reward for his or her inspiration and effort. But the framers didn’t foresee the gigantic proliferation of inventions that was to come with the Industrial Revolution. Nor, it might seem, did they anticipate the scale of production of literary and artistic creations; at that time art and literature were more personal endeavors.

The test, it seems to me, is at what point government intervention tips the incentive to the individual creator. To encourage the creation of novelties in general, protecting the corporations that pay for them seems appropriate; to encourage individual creativity, such corporate protection would tend to stifle the individual. A recent report in The New Scientist magazine discussed the advantages of the scientific environment in the United States, where individual inventors have more opportunity to reap the rewards of their discoveries over that in Japan, where the corporation takes all, relegating meager financial payments to the individuals involved in novel discoveries.

Today we face an entirely new situation. Ownership of property, except on a relatively small scale, eventually goes into the hands of corporations and far beyond the personal possession of the individual inventor or artist. We recognize that corporations have many of the same rights as individuals. They are not, however, individuals. Theirs are not the “unalienable rights” granted by the constitution. Their purposes are almost invariably to increase the wealth of shareholders. That’s not something to be guaranteed by the Government. When property—especially intangible property—passes from the hands of individuals into the hands of corporations, it leaves (or ought to leave) the protections granted to those individuals.

Mark Helprin has a right to his opinions. He’s an author, and it’s reasonable to expect that he wants to maximize the benefits accruing from his efforts. He is also far to the conservative side of the political spectrum, and seems to me to place the benefits to the market too far ahead of the benefits to the community. I realize that it’s a philosophical choice, and that there is no absolute “right” choice.

The separate issue of protecting wealth from confiscation by the government or other individuals may have merit. For a writer or her agent to incorporate her works as property, forever protected from copying—or for a person who accumulates wealth in business to have the wealth institutionalized and protected forever—in my mind perpetuates class distinctions beyond the talents of those who stand out as producers and artists. There ought to be limits.

I understand the desire for the wealthy to protect their wealth for their progeny. It isn’t a big thing for me because I’ve never accumulated anything that would benefit my offspring. I’ll be lucky to have enough to keep them from having to support me in my last days. I admit my bias as I recognize the bias of those who have such surplus.

While I acknowledge the argument, I can agree only to an extent. Wealth, after a time, loses its personal identity. It becomes simply wealth. Some people have it and some people don’t. At some point, it takes on the flavor of class, and for me that is distasteful. (The complaint of the disadvantaged, perhaps.) It might better be applied to benefit the cultural infrastructure, in museums and public buildings and even stipends for those young people who might one day provide further enrichment of the world, or for the support of the educational system in general.

Some wealthy people see this already. No one could object to the cultural inheritance in the system of local libraries provided by Andrew Carnegie, or the charitable support of millions of poor and sick by Bill and Melinda Gates, or the generosity of Warren Buffett. Not to diminish the character of such benefactors, making such distribution of excess wealth more or less compulsory (I’d prefer the term “expected” if that makes any difference) could give our descendants a society that is more “of the people, by the people and for the people.”

Donald Skiff, May 20, 2007

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