Without patents or copyrights, “idea space” would be a commons. “Idea space” is the realm of potential ideas. A patent and a copyright both permit their owner to declare a region of “idea space” his own private property for a period of time, but under different terms. A copyright encloses a particular expression of an idea and was originally intended to prevent, well, copying during the duration of the copyright. A patent encloses not just one particular expression of an idea, but the idea itself, declaring all other expressions of the same idea, whether they’re copies or not, off-limits for the duration of the patent. A patent is thus a much broader right than a copyright, enclosing a far larger region of the intellectual commons than does a copyright; consequently, a patent inhibits others’ right to stake their own claim in idea space much more than a copyright does.
Copyrights have been expanding. Complaints about the increasing length of the copyright period are common. More problematic, though, is copyrights’ increasing breadth. As a copyright expands to inhibit expressions which aren’t fairly obviously copies, it becomes more like a patent in its scope, enabling rent-seeking and inhibiting creativity. This appears to be happening in the music industry. In March 2015, the creators of the hit “Blurred Lines” were convicted of infringing the copyright on Marvin Gaye’s “Got to Give it Up.” This is a blow to unoriginal songwriters everywhere. Worse, it does a lot of collateral damage in the process. As a “Blurred Lines” defense attorney put it, “This ruling elevates ‘groove’ and ‘feel’ to the level of copyright infringement.” Forensic musicologists and lawyers can expect to profit from such expansion, but artists – and listeners – can expect to suffer.More