Use it or Lose It

As you probably know, Dr. Seuss Enterprises has quit publishing And to Think That I Saw It on Mulberry Street, Dr. Seuss’s first book for children, published in 1937, plus 5 other books. Dr. Seuss Enterprises owns the copyright and so the company has the right to decide whether to publish.

Is that the end of the story? No, I don’t think so.

The government grants copyright protection as a way of giving authors a monopoly in their written work. The argument is that that gives them an incentive to produce. It’s a good argument.

Various economists have contended, with some justification, that copyrights and patents are illegitimate because they are a government-granted monopoly. Let’s say that you reject that argument. There’s still no ethical principle that says how long a copyright should be. The argument for copyrights and patents is a pragmatic argument about costs, benefits, and incentives, not an argument from principle.

It’s hard to argue that present U.S. copyright is reasonable. The copyright law is complex, but here’s one way to see how extreme it is: to be considered in the public domain today, it must have been published before this date in 1926. That’s 95 years of protection.

Moreover, since the argument for copyright and patent protection is an argument for encouraging creative output, it is perverse to give such protection to owners who refuse to produce the item protected by the grant of monopoly.

One could argue that those who refuse to produce a protected item right now might be contending with an optimal timing problem. They might want to wait a few years before producing again.

OK, so a solution would be to say to owners of copyrights or patents: If you don’t use it for 5 years, you lose it. That way, we retain the incentive that the monopoly gives to the creative producer while not creating the perverse effect that output is zero. Those who favor patents and copyrights might object that this is undue government intervention. But they have already accepted the idea that government intervention is legitimate in this area, and so there can’t be a principled argument that (1) government grants of patents and copyrights are legitimate but (2) tweaking the terms of patents and copyrights to avoid some of the downsides is illegitimate.

HT2 Eric Garris for helpful discussion.

Note: Both the first and second editions of The Concise Encyclopedia of Economics have entries on intellectual property. In the first edition, “Patents,” is written by me. In the second edition, the much-more-extensive “Intellectual Property” is by Stan Leibowitz.


UPDATE: Easiest solution that avoids the problem that Josh S points out below: reduce the length of copyright.