Against Intellectual Monopoly

are wildly lobbying the European Parliament and the European Commission to extend
copyright protection in Europe from fifty to ninety-five years - to keep up
with U.S. legislation!

    Forgive the digression, and let us go back to the theoretical argument
saying that works under copyright will be more widely available than those
that are not. We see no reason to limit ourselves to the theory. Edgar Rice
Burroughs, the well-known author of Tarzan, wrote a number of lesserknown pulp fiction series. Depending on the dates, some are still under
copyright, some not, so we can determine which are more widely available.
The data in the subsequent table was gathered on September 3, 2002; it
shows pretty clearly that a work being out of copyright is often more widely
available, and in many more forms.8 In case the very natural suspicion
that we selected the work of Burroughs because it is one of the few that
fits our viewpoint comes to your mind, we invite you to take advantage of
the power of the Internet and repeat the same exercise with your preferred
"on the fence" (of copyright term) author. If you find one for which the
pro-copyright extension theory works, let us know. Contrary to the procopyright lobby, we value facts quite a bit.

    Why is it that old literary and musical works that are out of copyright
are often more widely available than works of roughly the similar quality
and age that are still copyrighted? This is a case study of IP-inefficiency
that explains why we asserted before that the CTEA is the biggest land grab
in history. To understand the underlying economic mechanism, one only
needs to ask, Why did Disney and the big media corporations lobby so
strenuously for the CTEA? The simple answer is this: because the copyright
term of a few very successful titles was due to expire.
    There was obviously no interest in reissuing the tens of thousands of
books, movies, and music pieces produced during the previous fifty years,
which had discrete success at the time, faded away from the top-seller
list, and are now out of print and impossible to purchase. Many of these
products of creativity are valuable artistic pieces that have a discrete but
small demand, too small to be profitable for media giants. They may be
an attractive product for small publishers or music companies, they may
be valuable inputs for new artists and creators who could find in them
inspiration for additional works, but they are not worth the effort or reissue
for the likes of Disney corporation. Worse, reissuing a substantial portion of
these titles would "crowd out" current products that the same media giants
are heavily marketing. Hence, thanks to the CTEA extension, these tens of
thousands of titles will remain copyrighted by the companies that originally
acquired them, but they will not be made available to the public. This effect
will be compounded by the phenomenon of orphan works, that is, works
for which it is difficult or impossible to contact the copyright holder but
that, as a result of the extension, are still legally copyrighted. Monopolists
maximize profits by restricting supply, elementary economics teaches us,
and a simple way to restrict supply of artistic work is to make sure that
not too many equivalent western movies, adventure novels, comic novels,
symphonic pieces, and so on, are available for purchase at any given point
in time.
    There lies IP-inefficiency and the gigantic land grab. Because of the way
in which the law works, copyright extension must apply erga omnes (or "to
everyone"), and not only to the few selected titles Disney cares about. So,
to retain copyright protection on the few eternal hits - three hundred at
most and a few dozen more likely - tens of thousands of works of human
creativity have been kidnapped and will not be released to the public.
    Wait a second, you might say, if a small publisher can make money by
publishing the old classic for the market niche interested in it, why do you
argue that the big publisher will not? Answer: because for the big publisher
the old classic is more valuable unpublished than published! The cheap paperback version of a sixty-year-old spy story would, to some degree,
reduce demand for the expensive hardback version of a brand-new spy
story. So, the private value to, say, Eldred, of the old spy story is less than the
private value of the very same story to, say, Random House. The latter would
ask $100 to sell the