There was a recent discussion at Mobile Read on the concept of ’eminent domain’ as it may or may not apply to copyright. Eminent domain is a legal loophole whereby the government can appropriate something that belongs to you if their having it is somehow part of the greater good. For example, there was a recent case in my area where a subway station had to be upgraded with a wheelchair-accessible exit. There was only one area where the exit could safely be built, and unfortunately three homes were in the way. The government was allowed to appropriate these houses (for fair market value) should the owners be unwilling to sell them voluntarily.
So, the question came up: could ’eminent domain’ ever apply to intellectual property? Obviously, the copyright of a novel is hardly a life or death situation. My personal feeling is that the author *should* have exclusive control over it for the duration of the copyright term, after which it should revert to the public domain where others can use it just as its author used other works which came before. It is, of course, debatable just what constitutes a fair term, of course. But I do support the idea of copyright in the theoretical sense.
So, does that mean ’eminent domain’ is never applicable to intellectual property? The original poser of the question quickly disqualified himself from what could have been a productive dialogue thanks to a bunch of ‘information wants to be free!’ quackery. But, after giving the question some thought, I came up with two examples where yes, I did think ’eminent domain’ both has, and could, apply.
1) The Peter Pan Copyright
Author J.M. Barrie bequeathed the copyright to ‘Peter Pan’ to a children’s hospital, who has been using the funds to help finance their operation ever since. The copyright ‘expired’ in 1987. But, in the interests of the nobler goal of helping a hospital treat sick children, a special parliamentary bill was passed in 1988 giving the hospital limited perpetual rights: they don’t get the full monty of creative control, but they do have the right to a royalty from any commercial uses.
This is eminent domain, in my opinion. The government is stepping in and saying that something will happen with this property, on their say-so. In this particular case, it is a noble goal. However, the idea of the public domain as a repository of our human culture is a noble goal too, and I would be wary of allowing this one case to set a precedent whereby authors could try and keep a work out of the public domain deliberately by using such a tactic.
2) Copyright and Medical Patents
I’ve read several media stories involving a company who isolated and developed a test for two of the genes which cause hereditary breast cancer. This specific company now owns the patent to this gene sequence and has made some ethical waves in the medical community. Not only are the sole provider of testing for women who want to see if they have these genes, but, being the sole provider, they have a captive audience to whom they can charge as high a price as they want. Furthermore, anyone who wants to do research on these genes, to develop medical treatments for illnesses where the genes come into play, requires permission of this company and must pay them a royalty.
According to several media articles I checked, the company in question is being challenged on this patent. Critics argue that genes are part of nature and therefore cannot be owned. The company, however, states that they have spent billions researching the genes and developing the tests to identify them.
I think this case is an instance where eminent domain might apply to intellectual property. Yes, the company did do costly research. Yes, they certainly are entitled to want compensation. However, there is a greater good here that is more important. To me, the red flag is not so much that they can get away with charging a lot of money for the test. That is an issue, yes. But the greater issue is that they can restrict or control research other people might want to do that could help save people’s lives. If somebody wanted to swoop in and say ‘no, you cannot own this’ I would support that wholeheartedly.
So, what are your thoughts on ’eminent domain’ and intellectual property? Could this be a more complicated topic than it might at first seem?
In regard to the genes, I think the genes themselves can’t be “owned” (unless they were actually lab created), but the tests for those genes certainly can. Other companies should be more than welcome to develop their own tests. Just because it’s a gene for breast cancer doesn’t make it any more important than any other medical thing, all of which require payment to access.
With regard to the gene thing, I can only point out that American patent law is a screwy morass of nonsensicalness, and that many patents which are challenged (by means of something called an “ex parte request for re-examination”) are either narrowed in scope or invalidated entirely. The nature of how patent law works in this country is such that there’s an economic incentive to file questionable patent applications early and often, and to build up vast”portfolios” of these patents.
The US Patent and Trademark Office has neither the staff nor the expertise to fully vet every patent that’s filed. So, often It’s only when the companies that hold them try to assert their rights and collect royalties from someone, and an ex parte request for re-examination is filed, that the actual content of the patent gets close scrutiny. There’s been much pressure lately to change this system, with the big patent players strongly resistant. But, Microsoft just got handed an expensive defeat (today, in fact) in a lawsuit involving a much smaller company that wanted it to pay them royalties related to MS Office. If the big guys get nailed a few more times, there may be some movement toward more sanity in the patent system.
A couple things to note:
First just so people are aware: the peter pan perpetual copyright thing really only applies in the UK and only to the play, not the original novel. The hospital has acknowledged that the copyright for the book has definitely passed in the US. The play’s copyright status is more questionable, but apparently Disney has begun completely ignoring royalties for Peter pan at this point. For publishing or performance in the UK the hospital is pretty much guaranteed royalties. Anywhere else… it’s rather come down to court cases.
Patent and copyright are similar but in actuality not at ALL the same thing. Copyright is given to the specific expression of an idea. It’s generally reserved for works of artistic or informational content. Copyright these days is either the life of the author plus 70ish years, or the length of time it’s been since steamboat willie was created (if you’re cynical.) In the case of Peter Pan the hospital doesn’t really have copyright. They simply have the right to receive royalties from whoever uses the work. They have no control over the work itself. They can’t really tell someone NOT to print it or perform it. Since copyright only covers the unique expression of an idea if the Govt decided that the information in a work was important enough they could simply rewrite it and release it to the public. It’s a lot easier than trying to take copyright away from an author. I can’t actually conceive of a time when the govt would consider a work of fiction necessary to disseminate to the entire public. (Unless you count the political lies they come up with to hide their perfidies. But they’re usually not staling those lies from an author. They hire people to write them. It’s called a spin doctor.)
Patent is awarded to specific implementations of a process or mechanism. They are also SIGNIFICANTLY shorter, generally maxing out at about twenty years. Patent is granted to a company as a way of acknowledging that they have spent time and money developing something new and for that investment they’re given legal time to be the sole producers of the innovation (or license it to other people as they choose.) Genes can technically be patented, and courts have upheld artificially altered gene patents. They are mixed on the patentability of natural genetic sequences and I doubt there will be an actual final decision on that unless the supreme court weighs in. (although the ability to TEST for that natural sequence is totally patentable.)
As far as Eminent domain in Patenting goes… generally it would either be one of two cases:
Someone filing a suit and claiming that there was no right to the patent at all (which would trigger a review process or a lawsuit, depending on the issue at hand.) If they decided that the patent was invalid then it would simply be taken away, and basically say “You never should have been given this in the first place. Our bad. Everybody else go nuts!”
Or the government would simply use the patent. Note that eminent domain doesn’t just let the government steal land or whatever from a person. they still have to pay fair value for it. So the worst that would happen in the case of an eminent domain patent would be that the patent holder told the Govt “No way you don’t get a license” and the Govt says “yes we do here’s your money” (Most patent holders wouldn’t be stupid enough to do this. they WANT to be paid for the patent.) OR “Fine you can use it, but we want LOTS of money” and the Govt says “You’re insane. you only charged X amount to that company. That’s what we’re paying you. Take your money and suck it up.” (Trying to extort money from the Govt is a bad idea.)
(For those who are curious Trademark is a highly restricted rigorous process. But once you get a mark approved for Trademark it’s yours for as long as you continue to use and protect it. There’s no term limit on a trademark, but the kinds of things that can be trademarked are very limited. You can’t trademark your whole book. Sorry.)
To echo Tammy: Tort law in general in America is completely screwed up and insane. But the patent process and to a lesser extent the copyright process are spectacularly broken. It’s a morass that no one really wants to deal with. Still, Eminent domain isn’t really something particularly worrying. at least for authors.
Personally, I think that Adverse Possession is more relevant to copyright than Eminent Domain.
It would seem, in fact, to offer a neat solution to the problem of orphan works. If the rightsholder can’t be arsed to defend their copyright then do they really deserve to have it?
The current patent law terms (7 years extensible to 14 and maybe 21) are the result of rational debate between parties that both have power and influence over the legislature. Current copyright law is the result of a rich and powerful party steamrollering a weaker and divided one. All the arguments that make patent terms reasonable — including the obligation to officially register and re-register them — are equally reasonable when applied to copyright. Let’s acknowledge that and renegotiate copyright law based on ethical issues and not financial status.
Jon: Yeah, “rich and powerful parties” like that bastard Victor Hugo, who came up with the notion of “automatic perpectual copyright” because he thought that authors were too dumb to handle registering and renewing their copyrights…