[conspire] Copyrights and patents

Rick Moen rick at linuxmafia.com
Sat Mar 26 16:05:55 PDT 2011

Quoting Paul Zander (paulz at ieee.org):

> To the non-legally trained, copyrights and patents would appear to be
> similar.  So why is it that copyrights should last for several
> centuries while patents expire in less than 2 decades?

Be careful what you ask for.  Often, in online discussion, people hear
you ask 'why' something is, and they somehow bizarrely see that as an
invitation for them to harague you about how they'd rearrange the world
if they were philosopher-kings.  This seems to be the insidious
influence of the blogger culture at work.

I'll get to the subject of the rationale behind widely different terms for
patents and copyrights in a moment.  First, I should distinguish them.

The difference is rooted in a legal concept called the 'idea-expression
dichotomy'.  The fundamental idea is that creative works and useful
inventions are such very different things that they require entirely
different _kinds_ of limited monopolies with vastly different
characteristics, if the two types of activity are to be encouraged with
appropriate balance between private and public benefit.  Therefore,
creative works (expressions) can never quality for patents, only
copyrights.  Useful ideas can never be copyrighted, only patented.

A copyright recognises your original work in creating a _particular
expression_, and gives you a limited monopoly over it, but gives you
absolutely no power to prevent others from making similar things.
Mark Twain's authorship of _Huckleberry Finn_ in no way legally inhibited
subsequent authors from writing novels about young boys running away
with escaped slaves.  That's an _idea_, and Twain's copyright covered
only the creative _expression_ elements in his novel, e.g., the names he
invented, his particular prose, etc.

When Edison invented the improved carbon-filament light bulb in 1879, 
his patent covered the _idea_ of a light bulb thus constructed.  You 
could manufacture light bulbs that exactly duplicated the _appearance_
(thus, creative expression) of Edison's bulbs all day long, as long as
they didn't use his patented _principle of operation_.

In US law, the distinction between these two sorts of invention was
first properly settled in an early 1800s case, where the author of a
book on accounting sued for copyright infringement a third party that 
was carrying out in business (creating forms based on the book's system, 
that had not themselves been between the covers) the system of
accounting the author had invented.  The court said 'No, sorry, Mr.
Author.  The particular creative expression you included in your book
cannot be freely copied by others until your copyright expires, but you
have absolutely no right to claim monopoly over the ideas you

It's important to note that a patent, once validly established, conveys
a limited monopoly over _all_ 'making' uses of that method, including
ones behind closed doors.  You cannot even develop a private prototype
of something using a patented method without owing royalties.  The
patent applies to all types of uses in any form.  By contrast,  if
you're madly in love with the novel _Gone with the Wind_, you can buy
yourself a photocopier and a liftime supply of paper, and crank out as
many copies of the novel as you like as long as you don't redistribute
them, and the Margaret Mitchell estate can raise no objection.

More important, you can make as many lurid romantic novels about doomed
love in Confederate Atlanta as you want, too, as long as the expression 
is original -- because the _idea_ is not covered by copyright.

Thus, we finally get to the rationale for widely different terms:  A
patent by its nature is very broad in the scope of other people's
creative work that it may inhibit.  You as an inventor may be making
every effort to be utterly original but, if you're working in a field
that's heavily patent-infested, such as video compression, you might
bring your fantastic new video codec to market after ten years of
slaving away in solitary thought, only to be slammed with a huge patent
lawsuit from the MPEG Licensing Association for re-using a patented
method that _you_ thought, in all good faith, was entirely your own
original invention.  Even if you'd hired patent attorneys to do a very
careful patent search before coming to market, you might have missed

By contrast, as a novelist (or painter, etc.) seeking to create
copyright-eligible work, all you need to do is, well... be original.
Although it sometimes happens that (say) the author of a novel gets
hauled into court on a charge of excessive borrowing of creative 
expressive elements from another novel, it's much rarer and much less
often successful:   Claiming innocent and accidental infringement is no
defence whatsoever with a patent, but is with copyrights.

Last, owning a patent prevents others (during its runtime) from 
_doing something useful_ without paying you royalties, even if those
others work entirely using their own resources except for exactly one
thing, your patented useful idea.  By contrast, the existence of a
copyright doesn't preclude anyone else from doing anything creative 
and useful.  All it does is encumber the copying and redistribution
of a creative expression some third party already created separately.

For all of those reasons, patents are so much more serious an obstacle
to real life, as opposed to merely duplication and recycling of other
people's artistic creations, that it's vital to keep them _short_.
Current US law has them run 20 years from first patent application date,
and only if granted following an (in theory) review to ensure that
they're 'useful and industrially applicable', innovative, and 'non-obvious
to a person skilled in the art'.

I say 'in theory' because, ever since the Reagan administration, USPTO
patent examiners have been hired/fired/promoted on the basis of
'productivity', i.e., how many applications they churn through a year
rather than how well they do their jobs.

The same criteria (useful, innovative, non-obvious) don't apply, and 
needn't apply, to copyrightable arts:  Society doesn't suffer if
Michael Bay is allowed to make useless, derivative, obvious movies.

...Well, it suffers, but the public is also free to just not watch them.

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