Thanks Gordon for helping fleshing out this notion.
--- Gordon Mohr <address@hidden> wrote:
Competitors of LucasArts, for example, might win hundreds of millions
on knockoff Star Wars materials if George Lucas had an "accident", under
a strict lifetime copyright. All it takes is "one bad apple", someone
with nothing to lose or overconfidence in their ability to get away
with a bad act, for creators with large copyright portfolios to be at
risk.
First, to be precise George Lucas is not the best example here since movies are
generally works-for-hire within a corporate construct. And corporations as we
know can theoretically live forever. Any amendment would need to contemplate
this so works-for-hire should also be limited to terms no longer than the
average expected lifespan of people born at the time of a work's creation. But
the point is well taken.
Thomas Jefferson used actuarial tables to compute a proper term when
negotiating a limit to creative monopolies with James Madison. In a September
6, 1789 letter to Madison, TJ proposed a term of 19 years based on an actuarial
calculation:
The question Whether one generation of men has
a right to bind another seems never to have
been started on this [i.e., the European side --
Jefferson was writing from France] or our [American]
side of the water... that no such obligation can
be so transmitted I think very capable of proof. --
I set out on this ground, which I suppose to be
self evident, that the earth belongs in usufruct
to the living; that the dead have neither powers
nor rights over it... A generation coming in and
going out entire... would have a right on the first
year of their self-dominion to contract a debt
for 33 years, in the 10th for 24, in the 20th for
14, in the 30th for 4, whereas generations, changing
daily by daily deaths and births, have one constant
term, beginning at the date of their contract, and
ending when a majority of those of full age at that
date shall be dead. The length of that term may
be estimated from the tables of mortality. Take,
for instance, the tables of M. de Buffon...
[according to which] half of those of 21 years [of
age] and upwards living at any one instant of time will
be dead in 18 years 8 months, or say 19 years as the
nearest integral number. Then 19 years is the term
beyond which neither the representatives of a nation,
nor even the whole nation itself assembled, can validly
extend a debt... This principle that the earth belongs
to the living, and not to the dead, is of very extensive
application... Turn this subject in your mind, my
dear Sir... Your station in the councils of our country
gives you an opportunity for producing it to public
consideration... Establish the principle... in the
new law to be passed for protecting copyrights and new
inventions, by securing the exclusive right for 19
instead of 14 years.
A Jeffersonian computation using life tables from 1992 gives a
Jeffersonian copyright term of 30-35 years. (Vital Statistics of
the United States 1992, Volume II--Mortality, Part A, Public
Health Service, Hyattsville, 1996, Section 6, Table 6-1.)
http://digital.library.upenn.edu/books/bplist/archive/1999-02-11$2.html
So perhaps we remain pure to Jeffersonian concerns and tie an amendment to
actuarial tables; I'm would enjoy hearing discussions on this point.
Keying an individual grant to an individual death, however, feels more natural
to me. Whether any particular creator's life is tragically cut short by an al
Qaeda bomb or she enjoys a full, rich life I start singing (to myself of
course) Dean Kay's "That's Life."
Setting aside the mentally ill Mark David Chapmans of the world, your 'one bad
apple' scenario, Gordon, pertains to music in terminating the songwriter(s) and
/ or performer(s) for economic gain so that another label or broadcaster would
not to have to pay mechanical or performance royalties otherwise due. I
honestly can't imagine anyone from say Clear Channel authorizing or initiating
such a dastardly deed since the economic incentive for everyone falls equally
to marginal cost in the Internet age (near absolute zero). The spoils would
benefit both perpetrator and competitor alike and thus a murder for hire would
result in no competitive advantage.
Which isn't to say that it couldn't happen but again I believe the death
penalty provides sufficient deterrent to any incidental reward.
Indeed, let's flip the argument for the sake of discussion. Jerry Leiber and
Mike Stoller (not to make it personal but as an example) aren't getting any
younger. God Bless them, they have created immortal songs which have enriched
our culture, and yet like each of us they cannot live forever (even though
their works will). But as those esteemed songwriters age and the public domain
becomes ever ominous it creates (no pun intended) every incentive in the here
and now to ensure the good health and longevity of those creators. The world's
best scientific treatments would be employed to extend their lives. A lifespan
term on copy-rights would incent a long-term health care plan especially in the
golden years when it is needed most.
I believe there is something innately spiritual within the creative process.
Frank Davis asked awhile back in my self-imposed month-long purgatory from Pho
why MTV or Grammy award winners thank the execs at labels, to which I ask more
profoundly "why do they thank God?" Why does Dean Kay view creative
inspiration as a divine gift?
Larry Lessig may now be second guessing himself from here to eternity (
http://jrobb.userland.com/2002/10/12.html ) because he could not envision a
definition of 'limited' that SCOTUS seeked. The ball may not be in their
court. I am suggesting that the most natural definition of 'limited' is one
tied to the most real and universal and divinely equal definition available:
our every existence.
JP
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