Did you know the poems of Emily Dickinson - she died one hundred and twenty four years ago - will continue to be owned by Harvard University Press until 2050? That during the 2008 presidential campaign Fox News forced John McCain to remove a commercial from YouTube featuring unauthorized footage from a Fox-moderated debate? That the RIAA filed over 20,000 lawsuits against illegal downloaders, often teenagers, for claims in excess of $9,000 a track? These are the problems with contemporary intellectual property law that Lewis Hyde seeks to solve with his new book, Common as Air: Revolution, Art, and Ownership. Relying heavily on the American founders, Hyde argues forcefully that we have moved away from the vision of the commons held by the founders and towards an increasing "market triumphalist" enclosure on the commons. This enclosure, it is argued, is stifling American arts and sciences.
The dominating theme of this book is what Hyde calls the commons. The commons is a type of property wherein multiple parties exercise rights. For Hyde, we should strive for a more robust commons and cultural output should be managed as a "collectively owned resource" where diverse individuals possess a right of action. To support this idea, Hyde relies almost exclusively upon the writings of the American founders to support this assertion. Indeed, the Constitution itself supports this view. According to that document, the project of copyright in this country is "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Hyde here quite correctly states that the primary goal of copyright in our constitutional system is to enlarge and invigorate the commons. This is to be achieved by assigning limited monopolies to individuals so as to properly incentivize creators and therefore "promote the Progress of Science and useful Arts."
For Hyde and the founders, the expansion and strengthening of the commons is important for many reasons. To begin with, a robust commons is necessary to nurture the collective civic, creative, and spiritual dimensions of society. The devolution of power here serves to enrich the whole rather than the elite because the rights of action in the intellectual property belong to all rather than a few. The ability of the masses to draw freely upon their cultural past empowers them to improve their future. Beyond this, a more lively circulation of knowledge builds the foundation for democratic self-governance. For these reasons it is argued that the proper understanding of copyright law is that it serves to protect the commons rather than an individual's private property rights in cultural produce.
While Common as Air outlines some good policy prescriptions, such as imposing shorter limits on the exclusive rights granted to creators, it fails in its objective of setting out a coherent and desirable framework for intellectual property law. To begin with, the majority of the book is dedicated to explaining the commons with copious reference to the past. This could have been done in one chapter. Further, there is simply too much page space in this book detailing anecdotes of Benjamin Franklin's life. This space would better have been served by policy discussion on how a functioning commons would operate. Instead, the only concrete policy discussion takes place within the last half of the final chapter.
Throughout the book, Hyde rails against free markets and market privatizers. Early in the book he is so bold as to proclaim that "[a]lmost by definition, the commons needs to stint the market, for if the 'free market' is free to convert everything it meets into an exchangeable good, no commons will survive." However, perhaps Hyde has identified the wrong culprit. For Hyde, the commons is to be governed by a "public or collective being." Necessarily the "collective being" that will govern the commons will be government. It is government, if we look closely, that has caused most of the problems commonly associated with the ills of contemporary intellectual property law.
The most obvious governmental dictate that has contributed to the current intellectual property mess is the Copyright Act of 1976. This act extended copyright protection to the author's life plus seventy-five years after her death. The act also extended copyright in works made for hire and works copyrighted before 1978 to ninety-five years. This was no market production. This was a congressional act. Congress is also the author of the Digital Millennium Copyright Act, a piece of legislation that is rightly and roundly criticized in Mr. Hyde's book. Finally, it was the government that decided the Federal Circuit would have exclusive jurisdiction to hear patent law cases. This decision robbed patent law of an important competitive function. In most other cases and controversies the federal District and Circuit courts produce superior law through jurisdictional competition. Circuit splits signal to the Supreme Court of the United States that an issue needs to be addressed. Mr. Hyde's socialistic vision always leads to a monopolistic government. Adopting this model will only serve to exacerbate the problems of intellectual property law by universalizing system error.
Contrary to Mr. Hyde's conclusions, it is the decentralizing and liberating nature of markets that needs to be implemented in order to save intellectual property law from itself and resurrect the original understanding of the Copyright Clause that Mr. Hyde is so fond of.