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Content © 2004 Laurence Garfield, Nathan C. Hampton, and Jeromy Stark.
Imagine, a small company created a road. It set up a tollbooth and controlled who had access to the road. People liked the road and were willing to pay the toll to travel on it. After a while, the company created several more of these toll roads, and more people traveled on them. One day, the company purchased somebody else's road and added it to it's own collection. As the company grew, it created more roads and acquired even more. Eventually, it became a transportation empire. People could no longer travel as freely as before. The company would decide which roads were available to you, and how much you would pay to travel upon them. Then these tollbooths were made permanent, so the roads would no longer become freely available like their ancestors.
Essentially, this is how the copyright system has developed. Under present law, copyrights are treated like personal property. They are subject to the normal laws of ownership and thus can be bought, sold, transferred, inherited, and leased just like land. [14]
A number of corporations have taken advantage of this status to create what are often called "copyright empires." Through aggressive competition and acquisitions, a relatively small number of companies exert significant control of the distribution network for these works. For the creator of a work to take advantage of his limited monopoly, distribution of the work is necessary. The corporate empires controlling the distribution networks, however, insist that the creator sign over his copyright to the company before allowing that author to utilize its distribution network. As a result, the creator of a work is unable to control the use and distribution of his work because it is, legally, no longer his to control; it is the property of the corporation. The result has been a vast accumulation of "intellectual property" in the hands of a few organizations, with creators retaining little or no right to control or profit from their work.
Not only have these corporations squeezed creators, they have also squeezed consumers. By forming trade associations like the Recording Industry Association of America (better known as the RIAA) and Motion Picture Association of America (MPAA), the 'empires' have gained nearly monopolistic power over the market, complete with the price increases one expects to see in that situation. This power has continued to increase, leading some to describe the trade associations as "copyright cartels." The situation which has developed has clearly defeated the central purpose of copyright: benefit to society.
However, there are changes that can be made to copyright laws to impair the feasibility of such tactics. First, the aforementioned limits on the terms of copyright protection will limit the length of time the distribution can be tightly controlled by incestuous oligarchies. Another is to limit the transferability of copyright ownership. Rather than permitting copyrights to be bought and sold, the creator of a work (or, in the case of works-for-hire, the employer) would be the only person entitled to copyright protection. This would not, of course, prohibit the creator from relinquishing his copyright, placing the work in the public domain, thus promoting the public benefit.
Many creators prefer to leave the details of managing the production and marketing of their work, in addition to monitoring for and litigating against copyright violations. Given the potential size and complexity of these tasks in modern society, this preference is both completely understandable and unquestionably reasonable. The prohibition against transfer of copyright would not exclude such contractual relationships, nor would it prevent exclusivity in such arrangements. However, the right of the creator to terminate such arrangements would need to be protected by law to prevent a rather significant loophole.
By ensuring that copyright protection cannot be separated from the creator of a work, we will guarantee that the incentives to create will go to those for whom it is intended: the creators.
Content © 2004 Laurence Garfield, Nathan C. Hampton, and Jeromy Stark.