L'Ombre de l'Olivier

The Shadow of the Olive Tree

being the maunderings of an Englishman on the Côte d'Azur

21 May 2007 Blog Home : May 2007 : Permalink

Mark Helprin - Greedy or Idiotic?

The Instapundit linked to this NY Slimes opinion piece by author Mark Helprin about copyright. Mr Helprin argues that copyrights should last forever which is, pardon my French, nucking futs. Obviously, as an author, Mr H will benefit from this extension but I'm not so worried about the greed he exhibits as the basic errors of concept he demonstrates.

Essentially Mr H thinks that because Copyright is a form if "Intellectual Property" it should be treated like real property and be a permenant right. This is a reasonable position at first sight but it doesn't stand up to more than a moment's thought. The most obvious problem is when he talks about how copyright is something that exists purely by government writ:

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 other 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 Securities and Exchange Commission?

If Mr Helprin had his way we'd be stuck in the position of paying the descendents of Messrs Diesel, Benz, Ford and Co for their internal combustion engine patents, Bayer shareholders for Aspirin and loads of other drug manufacturers, Alcatel Lucent, Nortel and loads of other old telecom companies, IBM and so on. The inventions that these companies developed (and patented) have benefited society far more than any author, although it is true that some authors are excellent alternatives to sleeping pills and others great mood alterers, but none of their inventions, nor those of the various companies who developed offset printing or any of the other ways we turn human thought into printed ink on paper, is protected by anything like the life plus 70 years of current copyright law. Perhaps Mr H thinks we should be paying royalties to these folks, but if so I bet he hasn't thought how this would stick a large hole in the economy. Realistically we accept that it is fair to pay drug companies monopoly prices for a few years so that they can recoup their investment, then we are happy to let the generic makers copy the drig so that it doesn't cost an arm and a leg anymore to cure our ulcers or heart disease. If it did then either we'd be paying about 50% of our salaries in medical insurance or we'd be dying rather sooner than we currently expect to. The point about copyright is that it is a government sanctioned monopoly and in most circumstances governmanet sanctioned monopolies are bad things leading to inferior service and high prices. Evidence to this effect may be found throughout history from the original monopolies granted by 16th century monarchs to Amtrak or SNCF today. It is unlikely that Mr H thinks other monopolies are good so why does he think this one is good? he fails to explain this.

Mr H also makes a strange claim about the yachts of the heirs of authors:

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. To the claim that this provision strikes malefactors of great wealth, one might ask, first, where the heirs of Sylvia Plath berth their 200-foot yachts.

Again he's missed the point. Yes it is true that the overwhelming majority writers do not get rich off their labours and never will even if copyright is infinite, but on the other hand we, the general public, lose our chance to have access to their output if copyright is infinite. As it is today, because of copyright we, the general public, fail to be able to read the works of authors who are slightly less well known than Ms Plath because they are out of print but still copyrighted. A lot of genre fiction (SF, Mystery, Romance...) falls into this category and while much of it is undoubtedly hack work that no one will miss it is also certain that there are many gems that would repay being reprinted in newer editions and it is a lot simpler to do this if copyright has expired. The choice is not between riches and poverty, it is between fame and oblivion, and copyright consigns many worthy works to the category of oblivion because they are out of print and will remain that way for anything up to a century after they were written. This does not bode well for their chances of rediscovery. By the time the copyright term has run out there will be very few extant copies of the book and very little chance that the member of a new generation will be able to find one to read and rediscover.

Finally Mr H seems to imply that life plus 70 is the bare minimum and that authors have failed to make a living from any smaller term. This is what the French might call a "crotte de chien", copyright has traditionally been far less and authors have made a living under those terms. Indeed as I hinted earlier Mr H utterly ignores the rationale behind the introduction of copyright and the arguments about its length and so on. Hence he leaves himself open to rebuttals about monopoly and copyright that have been made over a century and a half ago by another published author - Thomas Babington Macaulay, a man of many talents and the author of, IMO, a far better oeuvre than Sylvia Plath or Mark Halprin (as it happens I do own one Halprin work as it happens, but I haven't read it in years):

[..F]ew writers have ever controlled the language as did Thomas Babbington Macaulay. He wrote with a seemingly effortless power that made his subject, whatever it was, immediate, interesting and entertaining.

Macaulay lived a life that probably isn't possible any more, that of a scholarly man of business. He was a clever essayist and critic of literature, a politician of the most ardent Whig variety, a government bureaucrat in India, a Member of Parliament, Secretary of War, and the author of a famous History of England.

Macaulay spoke in two related debates in the Houses of Parliament in 1841 discussing copyright and the speeches are available at a number of places on the internet including the Baen Free Library. As Eric Flint writes in his introduction to them they are well worth reading in their entirety but there are a couple of parts that leave Mr H exposed as the grasping buffoon he appears to be. After restating (more elegantly) Mr H's property based argument he neatly demolishes the inheritance part based on the vagaries of laws of inheritance that many has come up with and then goes back to first principles in exploring why we have copyright in the first place:

We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those inconveniences, in truth, are neither few nor small. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. My honourable and learned friend talks very contemptuously of those who are led away by the theory that monopoly makes things dear. That monopoly makes things dear is certainly a theory, as all the great truths which have been established by the experience of all ages and nations, and which are taken for granted in all reasonings, may be said to be theories. It is a theory in the same sense in which it is a theory that day and night follow each other, that lead is heavier than water, that bread nourishes, that arsenic poisons, that alcohol intoxicates. If, as my honourable and learned friend seems to think, the whole world is in the wrong on this point, if the real effect of monopoly is to make articles good and cheap, why does he stop short in his career of change? Why does he limit the operation of so salutary a principle to sixty years? Why does he consent to anything short of a perpetuity? He told us that in consenting to anything short of a perpetuity he was making a compromise between extreme right and expediency. But if his opinion about monopoly be correct, extreme right and expediency would coincide. Or rather, why should we not restore the monopoly of the East India trade to the East India Company? Why should we not revive all those old monopolies which, in Elizabeth's reign, galled our fathers so severely that, maddened by intolerable wrong, they opposed to their sovereign a resistance before which her haughty spirit quailed for the first and for the last time? Was it the cheapness and excellence of commodities that then so violently stirred the indignation of the English people? I believe, Sir, that I may with safety take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honourable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company's monopoly of tea, or by Lord Essex's monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.

[...]I will take an example. Dr Johnson died fifty-six years ago. If the law were what my honourable and learned friend wishes to make it, somebody would now have the monopoly of Dr Johnson's works. Who that somebody would be it is impossible to say; but we may venture to guess. I guess, then, that it would have been some bookseller, who was the assign of another bookseller, who was the grandson of a third bookseller, who had bought the copyright from Black Frank, the doctor's servant and residuary legatee, in 1785 or 1786. Now, would the knowledge that this copyright would exist in 1841 have been a source of gratification to Johnson? Would it have stimulated his exertions? Would it have once drawn him out of his bed before noon? Would it have once cheered him under a fit of the spleen? Would it have induced him to give us one more allegory, one more life of a poet, one more imitation of Juvenal? I firmly believe not. I firmly believe that a hundred years ago, when he was writing our debates for the Gentleman's Magazine, he would very much rather have had twopence to buy a plate of shin of beef at a cook's shop underground. Considered as a reward to him, the difference between a twenty years' and sixty years' term of posthumous copyright would have been nothing or next to nothing. But is the difference nothing to us? I can buy Rasselas for sixpence; I might have had to give five shillings for it. I can buy the Dictionary, the entire genuine Dictionary, for two guineas, perhaps for less; I might have had to give five or six guineas for it. Do I grudge this to a man like Dr Johnson? Not at all. Show me that the prospect of this boon roused him to any vigorous effort, or sustained his spirits under depressing circumstances, and I am quite willing to pay the price of such an object, heavy as that price is. But what I do complain of is that my circumstances are to be worse, and Johnson's none the better; that I am to give five pounds for what to him was not worth a farthing.

The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that by so doing I should proportionally increase the bounty. My complaint is, that my honourable and learned friend doubles, triples, quadruples, the tax, and makes scarcely any perceptible addition to the bounty.

I'm tempted to rest my case, but I won't because while he has smacked the "infinite" provision above he did not address the current solution and the life plus X plan gets a very specific kicking in his second speech:

It must surely, Sir, be admitted that the protection which we give to books ought to be distributed as evenly as possible, that every book should have a fair share of that protection, and no book more than a fair share. It would evidently be absurd to put tickets into a wheel, with different numbers marked upon them, and to make writers draw, one a term of twenty-eight years, another a term of fifty, another a term of ninety. And yet this sort of lottery is what my noble friend proposes to establish. I know that we cannot altogether exclude chance. You have two terms of copyright; one certain, the other uncertain; and we cannot, I admit, get rid of the uncertain term. It is proper, no doubt, that an author's copyright should last during his life. But, Sir, though we cannot altogether exclude chance, we can very much diminish the share which chance must have in distributing the recompense which we wish to give to genius and learning. By every addition which we make to the certain term we diminish the influence of chance; by every addition which we make to the uncertain term we increase the influence of chance. I shall make myself best understood by putting cases. Take two eminent female writers, who died within our own memory, Madame D'Arblay and Miss Austen. As the law now stands, Miss Austen's charming novels would have only from twenty-eight to thirty-three years of copyright. For that extraordinary woman died young: she died before her genius was fully appreciated by the world. Madame D'Arblay outlived the whole generation to which she belonged. The copyright of her celebrated novel, Evelina, lasted, under the present law, sixty-two years. Surely this inequality is sufficiently great—sixty-two years of copyright for Evelina, only twenty-eight for Persuasion. But to my noble friend this inequality seems not great enough. He proposes to add twenty- five years to Madame D'Arblay's term, and not a single day to Miss Austen's term. He would give to Persuasion a copyright of only twenty-eight years, as at present, and to Evelina a copyright more than three times as long, a copyright of eighty- seven years. Now, is this reasonable? See, on the other hand, the operation of my plan. I make no addition at all to Madame D'Arblay's term of sixty-two years, which is, in my opinion, quite long enough; but I extend Miss Austen's term to forty-two years, which is, in my opinion, not too much. You see, Sir, that at present chance has too much sway in this matter: that at present the protection which the State gives to letters is very unequally given. You see that if my noble friend's plan be adopted, more will be left to chance than under the present system, and you will have such inequalities as are unknown under the present system. You see also that, under the system which I recommend, we shall have, not perfect certainty, not perfect equality, but much less uncertainty and inequality than at present.

By grasping both economics and the tendency of writers to improve as they age Macaulay makes it clear that having a longer copyright term on a writer's earlier works than his later ones in counter productive. If copyright is supposed to reward the value a writer produces then surely his later works, which are generally better than his earlier ones, should receive a longer term. But under "life plus X" schemes the opposite occurs.

I despise l'Escroc and Vile Pin