My grandfather wrote a book in the 1940s that’s been out of print since the mid 50s. Every entity associated with the book is dead, including the publisher, which merged into another in the late 50s and is probably an inactive imprint of some successor company. Grandpa died in 1985, and a cousin or I is likely the heir to his rights.
I have a copy of the book, which I bought via Alibris from a bookstore in Wales 15 years ago. If you needed the book for research, you’d probably get it via inter-library loan from a university or a big city library. Whomever the publisher is, they don’t have it and aren’t selling it. In no scenario does anyone get paid for transacting, other than a reseller or the post office.
Stay with me for a second; I'm going to go wildly afield... does intellectual property need an Adverse Possession law, too? [1]
Your grandfather had a book, the rights of which should have been presumably passed down to you. My grandfather had a patented mining claim that has been passed down to me. Where the ownership of your grandfather's book is questionable, for me the physical corners of the property are questionable. A number of them are defined by things like a "4 foot spruce post" or a "12 inch diameter tree trunk" that haven't survived the ravages of time.
But it is important that I patrol my property at least every couple of years because of Adverse Possession. If someone else were to use my property continuously and I don't say anything against it, one day their trespassing suddenly and magically would become ownership. For a land-owner, it is a scary idea that someone can steal my property from me, as has actually happened. [2]
But I can acknowledge that it makes some sense. It comes from the idea that land is meant to be used, and if you aren't using it, maybe the person who is using it should get the rights.
If nobody can stand up for an intellectual property claim, perhaps some kind of adverse possession is in order.
We actually do have a sort of 'adverse possession' in US copyright law, for libraries: the "Last 20" clause, which IA has recently begun exploiting for distributing still-copyrighted books (https://blog.archive.org/2017/10/10/books-from-1923-to-1941-...).
Counter-argument: Adverse possession is justified by the scarcity of real property. Which does not apply to IP.
- Real property (i.e. land) is a scarce and limited resource. If a party is making productive use of the land, they should hold title. (There is only so much arable land. If someone raises crops, let them.)
- Intellectual property (particularly copyright) is not a scarce or limited resource. (Create your own copyrightable work if you wish to own the rights.)
Of course, adverse possession presumes that land ought to be made "useful." (Haven't thought yet about how these critiques of real property theory map to IP.)
Much of real property theory arose from the assumption that the government should recognize and encourage the "highest and best use" of real property. Traditionally, the highest and best use of land is the use that can most profit from the land's resources; often mining, grazing, farming, logging.
This is problematic.
- This view justifies colonization, and taking land from original inhabitants who don't use the land to extract resource value.
- This view does not recognize preservation of an ecosystem as a valuable use.
- This view does not account for externalities from use of the land's resources.
I think it's worth noting that you can calculate an estimate of the externalities and remove that from the profit to achieve a more balanced justification. Though unfortunately, unless you counted the loss of culture as an externality then you could still trivially justify the removal of land from those less productive/ technologically advanced than you.
Furthermore, even though I'm not personally supportive of the removal of land at the individual's loss I do have to ask if the removal could account for a net gain overall; improving many people's lives. Perhaps profit isn't the best measure of improvement to the collective but it is at least indicative.
> - Intellectual property (particularly copyright) is not a scarce or limited resource. (Create your own copyrightable work if you wish to own the rights.)
It isn't scarce for those seeking rent from it; it absolutely is for those seeking to use the works under copyright. In case of books, music, movies, games, etc., the works are not substitute goods. If I need a particular book for my research, there's a good chance I can't just take a different book instead. So there is acute scarcity involved for a subset of parties interested in a copyrighted work.
I like the analogy between real estate and copyright.
I think a simpler* solution would be to return to limited terms on copyright (say, 14 years), and require periodic renewal by the rights-holder to extend that term. As part of the renewal process, you'd either need to demonstrate active use of the copyright, or pay a fee (or both?).
* Simpler from a process point of view. I understand it's probably not simple politically.
Exponentially increasing fee, set in a way that past two-three such renewals, even the biggest and richest corporations would think twice before paying up.
Right. And orphan works legislation has tended to be opposed by individual creators or at least the organizations that purport to represent them. The (not totally unreasonable) theory is that individuals or their estates--let's leave aside the fact that copyright terms are almost certainly too long--may well inadvertently not keep on top of what's needed to keep works non-orphaned. But "Disney" (or whoever) will most certainly be ready to pounce on anything they can acquire for free for whatever technical reason.
It's also a fundamental problem with our current copyright law where material remains in copyright for many decades after it has stopped being printed and sold through primary channels.
Copyright should automatically expire 10 or 15 years after the last printing IMHO. If nobody cares enough to put it up for sale or even make a tiny print run just to renew the copyright, why should the government continue to enforce it?
Of course this scheme falls apart a bit in the digital age, except that even ebooks get pulled from the shelves for no apparent reason. Maybe we should just go back to having to explicitly renew copyright after 15 years or so, with a fee just large enough to convince people to drop dormant works. Maybe a couple hundred bucks every 5 years.
The best part would be having some easily accessed online system where you could check the copyright status of any work, including current contact information for the rightsholders if you want to arrange payment.
Expiring copyright after 15 years no matter the printing might even be a better solution. That would allow other people to build and extend works, movies and software.
Yup. The way I see it, a lot of IP problems are caused by people who want to take the law intended for promoting new works, and turn it into a source of passive income.
But people wouldn't be encouraged to make original works if their great grandchildren would be robbed of the opportunity to squabble over the rights to it in the courts.
