Patents and Copyrights: Use ‘Em or Lose ‘Em?
The problems with our current copyright and patent systems have been well documented. In many ways, they boil down to three problems: (1) It is too easy to get a copyright or a patent relative to the level of legal protection it provides; (2) There is no incentive for the owner of the copyright or patent to place commercially worthless rights in the public domain--thus littering the intellectual property landscape with protected stuff which the owner has no interest in selling; and (3) The time of the protection is far longer than reasonable (with some exceptions for things like drug patents, where the FDA approval process can chew up much of the patent life).
The copyright and patent systems are both intended to do pretty much the same thing: provide a way for creative people (either inventors or artists) to get paid for their creative output, and guarantee that a third party can't just steal an idea. This provides an economic incentive for those creative people to actually be creative.
The problem is that, in addition to allowing creative people to get paid, we also have egregious abuses of the system: overly broad patents held by companies which have little business other than suing people who infringe them; vast libraries of creative works which are protected by copyrights but which the rightsholder has no interest in making available; and the near-impossibility of ensuring the patent or copyright status of many ideas.
A Modest Proposal
I propose a simple solution which will fix many (though not all) of these problems: Add a "Use it or lose it" provision to copyright and patent law. In order to maintain a patent or copyright, the owner would be required to somehow make use of the intellectual property. This could include:
Selling it or licensing it to third parties
Actively working to bring the work or invention to market (i.e. developing a product based on a patent, or producing a movie based on a screenplay)
Making it available to third parties under a GPL or Creative Commons-type license
If the owner of a patent or copyright fails to make use of it for some period of time--say, three years--then the patent or copyright lapses into the public domain.
This use-it-or-lose-it mechanism acknowledges that the primary purpose of intellectual property law is not really to make artists and inventors rich, but to encourage the expansion of the universe of creative works. The owner of a patent or copyright would not be permitted to simply lock up those rights until they expire: if the owner can't find a use for it, then it's fair game for someone else to try to exploit.
By making those unused rights public domain, we avoid some of the worst problems with the law as it stands today:
Long out-of-print books, music, and movies which have no commercial value would become public domain and available again. Today, a copyright holder has no incentive to give up (say) the rights to a midlist novel from the 1950's. Even if there's nothing to be lost by placing that work in the public domain, neither is there anything to be gained, so the rights stay locked up until they expire.
Patents which couldn't be exploited when first issued wouldn't resurface a decade later to haunt a completely new technology, one which had never been envisioned by the original patent holder. Today many technology companies get patents on every obscure thing they can, not because those patents are particularly meaningful for what the company is trying to do, but because they might be useful or valuable someday. This doesn't serve to advance the state of the art any, but it does create huge legal landmines for any company trying to develop a new product or technology.
Companies would no longer bother securing rights to inventions or works which they know have little or no commercial value. This would allow them to become public domain immediately, where some other bright artist or inventor might be able to use them for something which does have value.
This Isn't So Radical After All
Creating a use-it-or-lose-it rule for patents and copyrights might sound radical (and I can hear the entertainment industry squealing already), but it isn't really. This provision already exists in a major area of intellectual property law: trademarks. Disuse is one of two ways to legally invalidate a trademark (the other being that the trademark has become so common--like Kleenex or Xerox--that the term is generic rather than a brand name).
Ownership of a trademark has always been predicted on usage, and if a company fails to actually use its trademark for some period of time, the rights go away. In other words, if I own the trademark for "Dispatches from the Frozen North," and I suddenly take down this website (or rename it), after a while it is perfectly legal for someone else to start using the name.
Granted, trademarks work differently than either patents or copyrights, but this use-it-or-lose-it mechanism doesn't seem to wreak any particular havoc on the area of trademark law. In fact, quite the opposite. We don't see ghosts of long-dead companies or brands rising up to haunt new products or companies, the way musty old patents and copyrights create problems today.
So....other than the fact that it would put legions of patent and copyright lawyers out of work, why not?