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Is the ratchet really only one-way?

By Georgia Harper

I discovered a couple of papers recently that focused my attention on the public domain, as what's left when copyright gets through with "protecting" a work from, from, well, from what I am not sure any longer, but Bill Patry's piece seemed to pull things together in a way that compelled me to write about it all. In The Patry Copyright Blog: The Global Garrotting of the Public Domain, Patry recounts how we got where we are today, with respect to the length of our terms, and how, in Korea, the longer terms are actually threatening to harm the Korean publishing industry (which translates many foreign language works into Korean). As always, Patry's posts are eloquent and powerful, so I recommend you read them for yourself. But I also want to draw you attention to two papers published recently on the subject of the one-way ratchet, the continual lengthening of the term, the continual heightening of the walls of protection: Rufus Pollock's, Forever Minus a Day? Some Theory and Empirics of Optimal Copyright, and Neil Netanel's, Why has Copyright Expanded? Analysis and Critique. Both of these articles raise the question in my mind of whether the assumption that the ratchet can only go one way is really accurate. If we begin to see more evidence such as Pollock's, empirical evidence that the length of term is counter-productive, that a copyright can be so strong that it harms productivity, why couldn't we assume that at some point, law makers would have to respond and not only stop piling on the protection, but actually scale it back? If law makers cannot respond, then our law truly will become irrelevant. It would be like legislating that balls thrown in the air must not come down. You can legislate all you want in the face of the fact of gravity, but it won't change the laws of gravity. People will just ignore the silly law, right? Why should we think that copyright law should be any different, that we could legislate against economic realities, flout those realities, and still be respectable?

Full post as published by ©ollectanea on December 19, 2007 (boomark / email).