Monday, February 05, 2007


Copyrights vs. Public Rights

The inspiration for today's opinion is an article in the New Yorker magazine about Google. Google has undertaken to scan and present on line copies of all books in several large libraries. Some of the material to be presented is protected by copyright law. Some publishers and other owners of copyrights see Google as a "deep pocket" and are threatening to sue Google to stop the practice or to pay for the privilege of copying and displaying material protected by copyright.

Copyrights are or were intended to reward writers and artists for creating and publishing or otherwise distributing their work to the public. Copyright law was an improvement over the previous situation in which authors had to be very careful about how and when they published. During the 1600's great progress was made in celestial mechanics, the mathematics needed to analyze the motions of planets, and in other branches of physics as well. A mathematician would publish his finding or creation in the form of a cryptic message. It would take others some time to decipher the message. In the meantime the discoverer could do other things to establish his claim to priority.

In the 1700's composers had to be careful about when their musical works were published. A composer had to choose a publisher with care, because he had to trust him not to publish his work and ascribe it to a different composer or, worse, publish and keep all proceeds for himself.

I don't know where copyrights and patents were issued for the first time. Our federal constitution grants the government the power to grant patents to inventors, so the concept must have been known before the constitutional convention in 1787.

In the year 2007, 220 years later, we have the problem of the professional or amateur scholar who wishes to do a little research on a little-known subject. For example, I am interested in finding out what's known about extinct languages, such as Etruscan and Sumerian. Books about those subjects are not widely distributed. Many are out of print. I don't have the means to visit several large libraries in remote places, such as the British Museum, the Library of Congress, the large library in Moscow, etc. Besides, I don't want to take the time for such travels. I prefer to use the service provided by Google and read parts of books dealing with those strange languages.

My case does not represent any hardship. But consider a serious scholar who is looking for recent information about the cost of labor world wide. Many of the sources he needs are written by other scholars and are protected by copyrights. He prefers to work at home. However, the model for such studies in the past was that he would spend his time a library. He would read the books in the library. Other books would be available to him on inter library loan. It might take him weeks to accomplish what he can do in one day at home in front of a computer screen. There is a conflict, at least in my thinking, between the right of the author to receive just compensation for his writing and the right of the scholar or other investigator to have convenient access to the original author's work.

An analogous situation exists in patent law. Patent law protects the profit of the pharmaceutical company that invests millions of dollars in developing and testing a new drug. Patent law grants the company a monopoly on the manufacture and sale of the new drug for a number of years. Patients who would be helped by the drug but who can not afford the new drug are denied access to it. We believe that even a sick patient has a right to life. If the drug in question would save the patient's life, there is certainly a conflict between the right of the pharmaceutical company to recoup its investment in the drug and the right of the patient to continue living.

These are conflicts that our society and our courts will have to resolve.

Note Added in Proof

My conservative friends may accuse me of moral relativism. In this post I suggest that the rights of holders of copyrights and patents are not absolute, but must be balanced against the rights of users of the materials protected by copyrights and patents. Certain conservatives argue that the rights of authors, artists, and inventors are absolute, based as they are on the principle of fairness to the author, etc. They argue that we can't have innovation in medicine, technology, literature, art, or music unless the originator is guaranteed a tangible and spendable reward for his or her work. Anyway, that's a subject for another essay.

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I think what Google is doing fits perfectly within the traditional concept of "fair use." It has always been legal to quote pieces of a document in a scholarly work or review without having to seek permission.

Patent law is based on the concept of "natural monopoly", held by the inventor until he chooses to disclose his invention. Drugs cost a billion dollars to develop, and many fail before market.

There is not the slightest theoretical problem in making patented drugs available to poor people. The government can choose to buy them and give them away as it chooses. That puts the financial burden on the public, not the inventor, just as it should be. In many cases there are competing drugs which will patentably distinct, accomplish about the same thing. So there is usually compeetition of some sort.
The problem in making patented drugs available to poor people is practical, not theoretical. This is especially true with the present Bush administration, since it is devoted to low taxes and cutting back on entitlements. Making expensive patented drugs available to poor people at either a nominal charge or free would constitute a new entitlement, something that Bush's conservative bas abhors.
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