This diagram (HT Rebecca Giblin) shows the distribution of 2500 newly printed fiction books selected at random from Amazon’s warehouses.
The reason that you can’t get many books back to the 1920s and then suddenly can? Copyright. Someone owns the copyright in the US if the book came out after 1923.
Economics 101 teaches that the existence of the property right should enhance the availability of books. After all, there’s some money to be made – if not very much – so the IP owners would be out there circulating the material and picking up some pennies here and there. But it doesn’t happen. The books disappear into the valley of death – or more precisely, the valley of slumber.
It shows how dramatically dysfunctional long copyright terms are, how increasingly dysfunctional they are in the age of the internet – the age of the long tail, and how much we could benefit from improving our arrangements here. The move from regarding copyright and patents as ‘monopoly privilege’ to considering them ‘intellectual property’ was a disastrous one rhetorically speaking. We need the institution of private property in physical things owing to their rivalrous nature. One can argue that giving someone a monopoly interest in their creation has net benefits in certain circumstances, but the arguments are much more context specific.
Alas, once we started calling it ‘intellectual property’ there was a kind of gravitational pull of the idea that stronger is better. We’re slowly having to unlearn that idea. In a lot of areas – software and business methods patents, term length, particularly retroactively imposed, DCMA and SOPA type regulation – stronger is a lot worse.
Intriguingly however, we have got the worst of both worlds.
Because the world of real property is much older and much more concrete than the world of ‘intellectual’ property, it has sorted out a lot of commonsensical things that remain to be sorted in IP. Thus for instance, the institutions of real property have understood that land has multiple uses and that the law must facilitate this. Thus we have easements, mineral rights below the ground, airspace rights above and native title rights coexisting with the title and right to quiet possession being owned by someone else. And we have the law of adverse possession. If we had something like that in IP we could make serious inroads into the valley of slumber at absolutely minimal costs to anyone.
If you don’t assert your rights to real property for 21 years you lose the property under the rule of ‘adverse possession’. Not so IP. I once attended a copyright conference where about two hours was devoted to problems like the ‘orphan works’ problem. Orphan works are works where the IP rights holder cannot be found. You’d think that wouldn’t be a problem. Especially given today’s IT possibilities, the ease with which one can make oneself findable on Google it’s ridiculous that we don’t have a policy that if you haven’t made yourself reasonably discoverable as the copyright owner, you forfeit any rights you have against someone wishing to use your material.