May 18, 2008

 The bare necessities of copyright

Item 7 on Mark's good policy wish list:

Reversing the "Mickey Mouse Bill" extension of copyright to 99 years.
This excellent proposal needs a catchy name. My suggestion:
The Baloo "bare necessities" rollback.

Baloo is a character in the 1967 Disney animated film The Jungle Book, which is under copyright for another 74 years - or is it 79? But Kipling's book, published in 1893-1995, is securely in the public domain. Disney's Baloo is different from Kipling's; he's a wise mentor in both, but a goofy comedian only in Disney. Although the Disney Corporation is renowned for its copyright maximalism, it curiously doesn't sell merchandise based on the successful and attractive Jungle Book characters. I assume this is because a ripoff vendor could easily claim that her T-shirt or cuddly toy was based on Kipling's BalooPD not Disney's Baloo. There's only a niche college market for Rosencrantz & Guildenstern T-shirts, but Tom Stoppard would be on thin ice in claiming copyright in Shakespeare's characters.

The catchy "bare necessities" song that Disney gave Baloo is solidly copyrighted. But we can quote it under the fair use doctrine, and it nicely makes the essential point: the 21-year limit of Queen Anne's Act (footnote) provided adequate incentives for authors; the 95 years or life-plus-75 years of contemporary IP law is a giveaway to a clever lobby of wealthy engrossers of the commons. If you don't believe me, check out Justice Breyer's dissent in Eldred v. Ashcroft and the amici brief in the case of 17 eminent economists. The SCOTUS majority didn't pretend that the Mickey Mouse extension law was defensible policy, it just held that Congress was constitutionally entitled to its mistake.

BTW, this particular piece of bad policy was imported from Europe. The European model for IP extravagance was the French Revolutionary legislation making "moral rights" in a work eternal and heritable : the scriveners had become the new nobility. So Shakespeare's heirs could sue Tom Stoppard, or Kipling's Disney, for traducing the sacred essence of the author's work. In practice this doesn't happen rarely happens even in France, but the principle created a sentimental fog over IP in progressive minds which has played into the hands of the lobby.

Footnote

Technically Queen Anne gave a skimpy 14 years for new works and 21 only to old ones. I'll generously let Disney keep 21 - a year more than Intel gets for its patents. When I last looked Intel was doing all right.

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