Is AI the death of IP?

Intellectual property accounts for some or all of the wealth of at least half of the world’s fifty richest people and is estimated to account for fifty-two percent of the value of US merchandise exports. IP is the new oil. Nations that have a lot make money by selling to nations that have relatively little. It is therefore in the country’s interest to protect the intellectual property of its businesses.

But every right is also a prohibition. My ownership of a piece of intellectual property prevents everyone else from using that property without my consent. Intellectual property rights have economic value but social costs. Is the cost too high?

Ownership of intellectual property has several legal variants: copyright, patents, design rights, publicity rights and trademarks. And it’s everywhere you look. United Parcel Service has a trademark on the shade of brown it paints its delivery trucks. If you paint your delivery trucks the same color, UPS can ask the court to repaint them. Coca-Cola own rights to Coca Cola bottle design: same deal. Some Apple Watch models were pulled from the market this Christmas after the United States International Trade Commission ruled that Apple infringed on the patent rights of a medical device company called Masimo. (The court subsequently suspended the ban.)

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In 2021, the NCAA began allowing college athletes to sell their name, image and likeness (NIL, the three elements of the right of publicity). University of Iowa women’s basketball star Caitlin Clark has a NIL worth around eight hundred thousand dollars a year. If you think there might be a gender gap here: LeBron James’ son Bronny, who played his first college game on Dec. 10 and scored four points in a losing effort, currently has a NIL worth $5.9 million.

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Bob Dylan, Neil Youngand Stevie Nicks is among a number of artists who have recently sold the rights to some or all of their songs. Virtually every song that Bruce Springsteen when he wrote it is now owned by Sony, who reportedly paid five hundred and fifty million dollars for the catalog. Because the copyright clock doesn’t start ticking until the creator’s demise, Sony could hold the rights until the end of the century. The longer the boss lives, the richer Sony becomes.

David Bellos and Alexandre Montagu use the story of Sony Springsteen’s big buy to guide their lively, hard-hitting and extraordinarily timely book, «Who does this sentence belong to? Copyright and error history” (Norton) because it embodies the trend that led them to write it. The rights to vast amounts of created material—music, movies, books, art, games, computer software, scholarly articles, simply any cultural product that people will pay to consume—are increasingly owned by a small number of large corporations and are not due for long-term expiration.

So what? There is little danger of Sony keeping Bruce Springsteen’s songs under lock and key. On the contrary, it’s likely that there will be no escaping the sound of Springsteen’s voice between now and 2100, as Sony needs to find plenty of ways to recoup its investment. Sony has no benefit from sitting on their land, and it costs next to nothing to distribute music. The company just needs someone to deposit the checks.

Sony will be collecting many of these checks from people like you and me. Our contribution will come from things like the subscription and download fees we pay for our music streaming services. With the amount of music these services give us access to, Springsteen’s entire life costs us pennies. But there are about six hundred and sixteen million subscribers to music streaming services — a number that has more than doubled in the last four years, which is why all these catalog sales are happening now — so the math looks good for Sony.

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There are other lucrative sources of income. Automakers have been trying to buy a license to use «Born to Run» in their ads almost since the song’s release in 1975. Unless Springsteen, who has mostly avoided endorsements until now, has attached conditions to the sale, which seems unlikely. dollars on the table, their day has probably come.

Bellos, a professor of comparative literature at Princeton, and Montagu, an intellectual property lawyer, see this kind of rent-seeking as inappropriate. They complain that corporate copyright owners «stand on the world stage as the new barons of the 21st century» and call copyright «the biggest money machine the world has ever seen». They point out that as corporate ownership of copyrights has proliferated, the incomes of authors, except for a few superstars, have declined. They believe that intellectual property law is not a set of rules protecting the rights of individuals, but rather a regulatory tool for business.

But what ultimately bothers Bellos and Montagu isn’t that companies like Sony are siphoning off big bucks for the right to play music they didn’t create, or that you and I have to pay to listen to it. We always had to pay to listen to it. The problem, as they see it, is that corporate control of cultural capital robs the commons.

In an important sense, when Bruce Springsteen releases a song or Jorie Graham he publishes a poem, it belongs to the whole world. Musical compositions, poems, works of art, books, TikTok videos—every type of cultural product is a public good. Our species draws on them for pleasure, for instruction, for inspiration and motivation, and sometimes for a cheesy simulacrum of such things. Because of the digital revolution, more of these goods are available to more people at a lower price than ever before. And we can do almost anything with them. We can listen to songs or read poems as often as we want and they can inspire us to create our own songs and poems. What we can’t do for a limited time is put copies of these things on the market.

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This period is fixed by Congress under the authority enumerated in Article I of the Constitution: «To promote the progress of science and the useful arts, by securing to authors and inventors, for a limited time, the exclusive right to their respective writings and discoveries.» The first federal copyright law, passed in 1790, fixed the term of copyright at fourteen years from the date the work was submitted for registration, with the possibility of an additional fourteen-year extension.

You no longer need to register a work to hold its copyright. And the duration of these copyrights has been extended several times. Since 1978, seventy years have passed since the death of the creator. For «corporate authors»—that is, companies that pay employees to produce (known as «work for hire»)—it is now ninety-five years from the date of publication or one hundred and twenty years from the date of creation, whichever is shorter. Mickey Mouse, first «released» in 1928, entered the public domain earlier this year – but only in his 1928 form. Updated Mickeys are still protected. In short, by the time the work created today reaches the public, most of us will be dead. Many of us will be very dead.

«What a coincidence – I’m an Aries who also doesn’t want to die alone.»

Drawn by José Arroyo

To you (probably) and to me (definitely), the rights to our creations aren’t worth much money to anyone but ourselves. But if you’re the one who wrote «Born to Run,» it makes sense to assign your rights to an entity that can pay you while you’re alive a significant portion of what your songs will be worth long after you’re gone. Bellos and Montagu argue that copyright law, originally enacted in 18th-century Britain to protect publishers (and to some extent writers) from pirates, has evolved to protect corporate behemoths with a global reach. The law today treats companies as «authors» and classifies things like software source code as «literary works», giving software a much longer term of protection than it would have if it were only classified as an invention and eligible for a patent. (good for twenty years now, with exceptions).


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