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GUEST,Okiemockbird 3/17 quote on value of public domain-sports (16) RE: 3/17 quote on value of public domain 17 Mar 00

Parish, as long as the life of a patent is very short, then your "necessity is the mother of invention" argument has some strength. Some inventions are, indeed, attempts to achieve the same result by a far different process. But other inventions are improvements on prior inventions, as Mary in Kentucky points out. If A has the patent on the process X forever (I judge from your support for the Bono Act that you think the term of copyright and patent should ideally last for centuries or millenia), B may never have a chance to make his brilliant improvement. Mr. A. will simply let the X process stagnate in a fixed form until the end of time, and rake in the cash. Still other inventions involve using some prior invention (such as the transistor, or the wheel) as a building block for something that could not have been thought of at the time the building-block invention was created. Even if re-inventing the wheel were possible, I don't see how the re-invented wheel would not infringe the original one.

Once the patent expires and everyone has the same advantage, then the "motivation for change" is to find some improvement that will lower one's costs or that will achieve an even better result.

Besides this, there is the matter of drug patents. In the U.S. drug patents cover the drug itself, not, as in some other countries, the process by which it is made. No generic equivalent can enter the market (thereby lowering the price) until the patent expires. The short-term lock-out may inspire some well-off competitors to do research into other, non-infringing drugs, but less well off competetors will be shut out, those who can improve the patented drug (or the process by which it is made) will be shut out of the market, and those whose genius is in marketing will be unable to try their talents on the patented drug.

In the case of music, the art cannot progress well without certain agreed-on assumtions. If someone had an eternal patent on the 12-tone equal tempered scale, only those who the patent-holder deigned to favor could make music using this scale. That might lead to useful experiments in alternatives, but I think we get the best of both worlds if the 12-equal scale is free for all to use (developing common musical idioms) as well as to create new variations and alternatives.

Popular music has not evolved "without restriction". If an amateur theater group can't afford to produce a musical because the grand rights are simply too expensive, that is a restriction. If an orchestra can't afford to give a concert of a popular copyrighted piece, that is a restriction. If they pay the royalties instead of hiring a guest conductor that they wished to hire, or instead of hiring more players, that is a restriction. If I can sing one melody at the local fair but not another, that is a restriction. Some artists write melodies by absorbing the existing examples of a particular musical genre (e.g. Irish jigs) and then producing a new melody based on those absorbed melodies, motifs, and conventions. If all Irish jigs were under copyright, would it be possible to write a new Irish jig in this way without being accused of unconscious infringement ? I have my doubts. And even doubts can be a restriction.

Then there is the question: how did I learn music in the first place ? I learned it from teachers and from books. The teachers themselves learned from books. Many of those books might not have existed, or might have been much more expensive, if all the musical examples in them had been under copyright.


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