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Boymal and Davidson on copyright

January 18th, 2005

Although I don’t shy away from it, I’m not a fan of conflict for its own sake. So when I’ve been critical of work written by someone, it’s nice to find something by the same person with which I can agree wholeheartedly. In the course of some work on the FTA, I found a nice piece on copyright by Jonathan Boymal and Sinclair Davidson[1] in Agenda (vol 10, no 2, 2003). Agenda itself protects its copyright, so I’ll give a summary and extract rather than a link

Boymal and Davidson do a good critique of arguments for longer copyright, focusing on the fact that any benefits more than 50 years beyond the death of today’s authors will be discounted to (virtually) zero using private risk-adjusted discount rates. By contrast, the costs of copyright extension start immediately, and are subject to lower social discount rates.

Another issue relates to ways in which copyrighted characters may be appropriated by other writers, and some very interesting points are raised. (mildly non-PG content over page).

fn1. Davidson and I have crossed swords on tax quite a few times.

Boymal and Davidson write

Landes and Posner (2002: 13-16) … argue that while, for example, a cartoon character’s name or likeness has a public good characteristic, unlimited reproduction of the name or likeness could prematurely exhaust the character’s commercial value, just as over-fishing a lake would deplete the lake prematurely.

Liebowitz and Margolis (2003) provide a similar argument: What would the value of The Grinch be if immediately prior to the successful 2000 movie the character suddenly appeared in a pornographic film? Liebowitz and Margolis probably lead sheltered lives.
We would be surprised if the Grinch (or an extremely similar character) had not already appeared in a pornographic context. Many successful films and story lines have pornographic versions. Anne Rice, for example, has written a pornographic version of the Sleeping Beauty story with no apparent impact on the children’s market.

The most startling instance of this, at least for me, is slash fiction I don’t find any great appeal from this in any of its variants, but the original (MM slash fiction for straight women) is the strangest. OTOH, I’m not in the target audience, so what would I know. Supporting Boymal and Davidson, it seems pretty clear that Star Trek-based slash fiction, the original instance, has helped to sustain the whole Trekkie cult, which has turned a short-lived TV series into an enduring money machine for the producers.

More generally, having had a mildly successful non-career as a parodist, I’m all for freedom to satirise and parody. The legal situation on this remains a bit unclear. The leading recent case on this, concerning The Wind Done Gone was settled out of court, but the book, a version of Gone With the Wind from the slave viewpoint, was published.

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  1. January 18th, 2005 at 12:46 | #1

    I think this is connected with a wider area, grandfather and sunset clauses and transition arrangements generally.

    While there are times – all the way back to Solon – when abrupt change is the best approach, it appears to me that usually a suitable transition is the best way, provided we don’t fool ourselves by ending up with things like never ending feel good “peace processes” instead of peace. It’s certainly easier to get turkeys to vote to kick away the ladder to save them and us from later turkeys than to get turkeys to vote for Christmas (see the good nation building the USA did to end dictatorship in Paraguay).

    Above all, transitions involve costs which must be taken into account, but the desirability of an objective shouldn’t mean that the right thing to do is always “do it now”. Quite apart from the costs of their civil war itself, just look how much better the British and Brazilian ways of ending slavery were than the ones in the USA (I’m talking now about what happened to the people from the ending of slavery, not from the fact of war and reconstruction).

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