Helprin on Perpetual Copyright

Mark Helprin has an op-ed in today’s New York Times calling for perpetual copyright terms. He acknowledges that the “limited times” requirement of the Copyright Clause would scuttle an explicitly infinite copyright term. But he then borrows a page from Sonny “forever minus a day” Bono and praises Congress’s recent strategy (upheld in Eldred v. Ashcroft), of repeatedly extending copyright terms, saying Congress should continue to extend copyright “as far as it can throw.”

Other bloggers are already busy responding to the op-ed’s policy arguments. Larry Lessig has put together a wiki page for a collaborative rebuttal, Joe Gratz points out that Helprin’s A Winter’s Tale “bears a title and a conceit appropriated from a work in the public domain,” and I’ve taken an entirely uncalled-for cheap shot at Helprin on my personal blog. But in this place of elevated scholarly discourse, I’d like to point out something very intriguing about Helprin’s op-ed: it fits comfortably into neither of the two dominant theories of copyright. His argument isn’t really about economics, and it isn’t really about authors’ moral rights.

Helprin’s central claim is that the expiration of a copyright term amounts to “expropriation” of property. Copyright economists usually trade off reward to authors against public access and defend their preferred balance by arguing that it maximizes public welfare. Helprin, on the other hand, all but pooh-poohs the public interest, writing, “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.” He makes some further arguments that term expiration is a wealth transfer rather than a wealth-increaser, but his “common equity” is really where the action is at for him. Taking property away is wrong.

That may sound a bit like a moral rights argument, but it’s not. Common moral rights discourse in copyright holds that an author has brought something unique into the world and imbued it with her personality. That is, it defends special right for creators by pointing to the special nature of creativity. For Helprin, however, the point is precisely that intellectual property is indistinguishable from other forms of property: “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?”

It may be that he went this route because the current life-plus-70-years copyright term makes it a little awkward to advance a moral rights argument that would benefit ones’ remote descendants. Or it may be that his commitment to private-property libertarianism made it seem the natural position to take. Either way, it begs the question of whether intellectual property rights really are property rights in the relevant sense.

Most of the time, I happen to think that they are. Society recognizes property rights in all sorts of things, many of them intangible. What makes them “property” rights is the thing; even if you can’t see or touch it, provided there’s enough social consensus as to what the thing is that we can agree when someone has used it, it’s capable of being property. The exclusionary right against the world in a recognizable thing—whether a house, a handbag, a domain name, a logo, or a work of original authorship—to me, that’s “property, and it helps enormously with understanding the law to recognize how similar doctrines operate across the whole range of things that can be property.

This, however, may be one of those cases in which Mark Lemley and Richard Stallman have a point about the rhetoric of “intellectual ‘property.’” As a formal matter, the “expropriation” argument would vanish if Congress abolished copyright for all future works; there would be no property to be expropriated. Presumably Helprin would complain that this proposal would “treat[] with special disfavor the work of the spirit and the mind” to an even greater extent. But whether they are disfavored or not depends on the whole structure of the law they face and not just the shape of copyright; perpetual copyright terms, but a ban on printing presses, would be little better. What’s really at stake in Helprin’s equal-treatment argument is the opportunity open to those who write and to those who build factories. Focusing on the formal “inequality of real and intellectual property” just distracts attention from whether writers are getting a fair shake.