There are many Types of Intellectual Property, and all of them are bad, and most of them are getting worse and expanding.1 The worst two by far are patent and copyright. Some say the patent system is worse than copyright, because most innovations are inevitable anyway and there is no independent inventor defense, whereas it’s unlikely someone else would independently write Romeo and Juliet (of course, Shakespeare had no copyright and he borrowed freely from previous stories, but let’s not let facts get in the way of the romanticized notion of copyright). This argument overlooks the fact that copyright prohibits not only literal copying but non-literal copying of “similar” aspects of the copyrighted work and also the making of derivative works.
Others think copyright is worse because it lasts longer, for example.
Over the years I have vacillated on this issue. But I am becoming convinced that copyright is worse than patent, for the following reasons:
Length. The patent term is about 17 years, while copyright usually lasts over 100 years (life of author plus 70 years).
Trends. Copyright law keeps getting worse,2 while patent law has been basically the same for a while now, and in fact has slightly improved–in recent years it’s more difficult to get injunctions; and the recent patent reform law, the America Invents Act, actually added a general prior commercial user defense, the first significant legislative improvement to patent law … ever.3
Taxation versus Censorship, the Police State, and Regulation of the Internet. The patent system imposes costs of at least $100 billion a year, by reducing innovation and competition.4 So it basically acts like a tax. It’s bad, it impoverishes us, it slows things down. But it’s just another tax.
The copyright system, by contrast, besides imposing untold billions of cost on the economy, consumers, and artistic creation, and distorting the entire domain of creative works, is also being used as an excuse by the state to increase its surveillance, warrantless searches and seizures, punitive bans of people from the Internet without due process, censorship, cutting off websites accused of piracy, and control and regulation of the Internet and related technologies. As the Internet is one of the most significant tools ever to emerge to help people battle the state and communicate and learn and spread ideas, this is very chilling. In the name of stopping copyright piracy, the state is trying to squash mankind’s greatest anti-state weapon.5 Taxes are bad, but killing or restricting the Internet is just horrible. Copyright is worse.
Update/Related post: Where does IP Rank Among the Worst State Laws?
See also Stephen Breyer, “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs,” Harv. L. Rev 84, no.2 (1970): 281–355:
Copyright … poses a far less serious threat to competition than patents. While a copyright restricts only the use of an author’s “expression,” a patent provides its owner with a monopoly of an “idea”—a fact that limits the marketing of competing products that might hold down the patented product’s price. Of course, patents are more difficult to obtain than copyrights, requiring “novelty,” not simply “originality.” … Still, because of their widespread commercial application, the power to accumulate patents is likely to prove more harmful to competition than the power to accumulate copyrights.
Citing P. Areeda, Antitrust Analysis (1967): pp. 376–87 [more recent edition: Areeda, Kaplow, Edlin, and Hemphill, Antitrust Analysis: Problems, Text, and Cases, 7th ed. (2013)]; Fritz Machlup, U.S. Senate Subcommittee On Patents, Trademarks & Copyrights, An Economic Review of the Patent System (85th Cong., 2nd Session, 1958, Study No. 15).
- The Mountain of IP Legislation. [↩]
- The Ominous PROTECT IP Act and the End of Internet Freedom; Masnick on the Horrible PROTECT IP Act: The Coming IPolice State; ACTA, Executive Agreements, and the Bricker Amendment; As Countries Sign ACTA, Many Finally Admit Their Copyright Laws Will Need To Change; US, EU, Canada, Japan, Australia & Others To Sign ACTA This Weekend, Despite Legal Concerns; SOPA and Section 1201: A Frightening Combination. [↩]
- The American Invents Act and Patent Reform: The Good, the Meh, and the Ugly. [↩]
- Costs of the Patent System Revisited. [↩]
- Copyright bill revives Internet ‘death penalty’; The Ominous PROTECT IP Act and the End of Internet Freedom; Masnick on the Horrible PROTECT IP Act: The Coming IPolice State; ACTA, Executive Agreements, and the Bricker Amendment; As Countries Sign ACTA, Many Finally Admit Their Copyright Laws Will Need To Change; US, EU, Canada, Japan, Australia & Others To Sign ACTA This Weekend, Despite Legal Concerns; SOPA and Section 1201: A Frightening Combination. [↩]