Yesterday, Tom Bell posted a piece on the Technology Liberation Front blog entitled, "Unconstitutional Copyrights?". Mr. Bell provided a passage from his upcoming book, Intellectual Privilege: A Libertarian View of Copyright, in which he argues that copyright protection for songs, novels, movies, paintings and sculptures, is unconstitutional because these are merely expressive arts and not "useful arts".
Bells logical analysis is as follows: The Constitution requires copyright protection when it promotes the progress of science and useful arts. The first copyright law, enacted in 1790, provided protection for only maps, charts, and books. Because music, plays, and paintings were not included in the 1790 Act, they must not have been deemed "useful" and therefore specifically excluded from copyright protection.
But, Mr. Bell provides no evidence of any debate over whether to grant these arts protection. He simply concludes that they weren't deemed "useful" based on their not being included. Having worked on drafting legislation for several years for the House Judiciary Committee, I can tell you that not including something into the coverage of legislation does NOT mean it was specifically excluded. More often than not, it simply means that not enough information was available or there wasn't a perceived need at the time.
Given the recent report by the International Intellectual Property Alliance (IIPA), which concluded that the core copyright industries accounted for 5.6 million jobs and $889 billion in contributions to the gross domestic product between 2003-2007, I doubt the founding fathers would have determined these arts not to be "useful" beyond just diversionary enjoyment.
Even opponents of stronger copyright protection claim that industries that use fair use exemptions and other limitations in copyright law contribute even more to the economy that the copyright creators themselves.
To treat these industries as providing merely something to entertain audiences is to ignore the research, innovation, technological advances, and jobs involved in each. These industries reinvest profits into researching and developing new technologies- scientific technologies. And, these very innovations are often used by scientists, doctors, engineers, and governments to improve their ability to do their jobs. I argue that this more than satisfies the Constitution's requirement that copyrights DO PROMOTE the progress of both science and useful arts.
I'm certain the authors of the Constitution would agree.