Mickey Mouse: Nemesis of Creativity

This is not just about Mickey Mouse, but Mickey Mouse has played a major role in the limitation and downfall of creativity in the U.S..  Long ago, a collection of men wrote an incredibly important document, through a collaborative process that involved constant debate, argument, and compromise.  This document was intended to define how the new government of the American colonies would govern its people.  One section of this Constitution was intended to enumerate the powers  of the Federal government, and after the first 7 powers were decided upon, the discussion turned to patent and copyright.  The British government, which played the role of abusive parent to the colonies, had a patent and copyright system, but most of the governments of the world did not.  Those in favor of such a system argued that protection of ideas would motivate people to come up with more and without such protection, people would not bother creating, because there would be nothing of value in it for this.  Some also argued that invention is expensive, and inventors needed some way to recover their costs.  There may have also been an idea that protection of ideas would help increase immigration from countries without such protections.  And thus, the Article 1, Section 8, Clause 8 of the U.S. Constitution was written, giving Congress the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

This clause was not accepted unanimously though.  Many opposed it, including Thomas Jefferson who described any government enforce monopoly as a travesty and said the following with respect to the idea of ownership of ideas:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.

 And Jefferson was not the only person present who felt this way.  It was widely accepted that ideas cannot be literally owned and had no natural owner associated with them, for more reasons than stated by Jefferson.  Ideas cannot be stolen, because taking an idea away does not deny the creator the use or value of the idea, like the theft of physical property does.  Ideas can be shared freely without the loss of any amount of the idea for those sharing it.  An idea, once taken, cannot be confiscated from the taker and returned to the creator.  In addition, multiple people can create the same idea, without interfering with each other.  The use of physical property is exclusive.  Only one or a limited number of people can use it at the same time.  Ideas can be used by any number of people, without any sort of crowding or interference.  As Jefferson wrote, "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea..."  And the majority agreed with him.  The reason the Federal government was given the power to create patents and copyrights is clear from the wording in the Constitution: “To promote the progress of science and useful arts...”  While some clearly argued that ideas should naturally belong to their creators, otherwise Jefferson would not have had cause to write what he did, the majority agreed that patents and copyrights should be granted for the progress of society.  Thus, the power granted to the Federal government only allowed for temporary copyrights and patents, not permanent ones.

Unfortunately, the evidence suggests that even the argument ultimately used to justify this power was wrong.  Elsewhere Jefferson pointed out that at the time, Britain was the only nation known to grant patents and copyrights, and yet Britain was no more advanced than any other developed nation.  Patents and copyrights had done nothing for Britain to "promote progress of science and the useful arts".  In fact, the evidence suggested that patents had hobbled Britain, as the exclusive ownership of ideas had prevented those ideas from being improved upon by others.  Giving inventors exclusive rights to their ideas did not and thus far has not proven useful in encouraging invention.  And now days, we are actually seeing substantially more innovation in the realm of open source invention, where inventors and creations deliberately give up exclusive rights to their ideas, than we have ever seen in proprietary invention.

This is not all though.  As Jefferson and others saw with Britain, we have also seen our own share of copyright and patent actually retarding the progress of science and the useful arts.  In the early '90s a technique dubbed patent trolling became a major source of profits for some companies.  These companies would hoard patents, doing their best to obscure what patents they held, and then they would wait for someone to infringe.  Infringement of a patent gives the patent owner the upper hand.  This allowed patent trolls to extract excessive sums of money from honest companies who did not realize they were infringing on a patent, because the patent trolls had deliberately made that information hard to find.  Companies like Apple and Microsoft objected to this highly dishonest practice, and they were the ones to give companies like this the title of patent trolls.  Of course, over the next 10 years, Microsoft developed into one of the worst patent trolls our society has ever seen.  Since then things have improved, as patent searcher are now much easier with the internet and Microsoft has finally begun to prioritize ethics, but patent trolls still severely hinder innovation.  Many companies carefully avoid innovation, staying safely within the public domain, to avoid the threat of patent trolls.  Many small businesses and startups have been destroyed completely by patent trolls, when they could not afford legal fees to fight, and they could not afford the demanded settlement.  In addition, patents and copyright deny the ability to make derivative works without permission.  This mean that new ideas cannot be built on top of patented ideas until the patents expire.  In the U.S. patents have a term of 20 years.  This means that an idea which could be iteratively improved or built upon at a rate of some major new innovation every 2 years will progress at a rate 10 times slower, because of patents.  And in many cases, innovation will never occur, because after 20 years, many ideas are no longer in the public eye and are buried under 20 years worth of newer ideas.  Ideas which could have turned into something incredible are frequently forgotten in less time than that.

It is not clear whether patents and copyrights had a significant impact on immigration, but it seems unlikely.  We currently have many times more people wanting to immigrate than we are allowing.  Even if this was a legitimate thing when this power was granted, it has not been for well over a century.  Most people immigrated to the U.S. for economic and religious freedom and still do, not because of the promise of exclusive ownership of ideas.  If patents and copyright ever did have an impact on immigration, it was hardly significant.

Then there is the Berne convention, an international treaty on copyright, which the U.S. joined in 1988.  The Berne convention treats copyright as a natural right of the creator.  It holds the U.S. to the copyright laws of whatever country an item is copyrighted under.  It also requires copyright to be enforced even without registration.  Every single point here violates the Constitutional power granted to the Federal government.  The Federal government is only authorized to treat copyright and patent as existing for the "progress of science and the useful arts".  And given the well documented opposition to treating ideas as natural property by a majority of those who drafted the document, any honest judge must interpret the Constitution as denying any form of natural right associated with copyright and patent.  The mandate to enforce the copyright laws of the country of origin is only Constitutional when there as a guarantee that those countries' copyright laws adhere to the same requirement that they exist for the exclusive purpose of "progress of science and the useful arts".  Enforcing copyright law without registration is a bit more ambiguous in its legality.  If it was clear that copyright promotes "the progress of science and the useful arts", then automatic copyright without registration would definitely be Constitutional.  This is not clear at all though.  Unlike patents, copyright has less potential for hindering progress.  At the same time though, of the vast quantities of materials that are copyrighted due to automatic copyright, only the barest fraction benefit anyone by being copyrighted.  And while only the tiniest faction of copyrighted would could benefit anyone if derivative works were allowed, there is enormous value in being able to obtain copies of materials that are no longer considered valuable enough to continue publishing.  This includes the enormous amounts of books that publishers do not consider profitable enough to prioritize over newer books, old newspaper articles, and old magazines.  We cannot even legally learn about our own history, because copyright prohibits us from copying (even digitally) newspaper and magazines that are not substantially older than a vast majority of us are.  This is certainly not promoting "progress of science and the useful arts".  In short, the Berne Convention is directly opposed to the Constitution.  Congress should never have ratified it, and if it was brought to the Supreme Court, they would either have to rule it unconstitutional or violate their integrity (which sadly is not an uncommon occurrence in that court now days).

How does this have anything to do with Mickey Mouse?  It has everything to do with Mickey Mouse, because Mickey Mouse is a copyrighted character and has almost had his copyright expire at least three times.  We are approaching the fourth time rapidly.  Mickey Mouse's current copyright expires in under 5 years.  Under current copyright law, it expires in 2023.  Don't start getting your hopes up about making derivative work or otherwise using the character.  Mickey Mouse has almost expired three times already.  Each time, Disney lobbied Congress to extend the length of copyright to maintain control over this character, and Congress gave in.  The legality of this is questionable.

Thus far, I have focused exclusively on the purpose of copyright.  Now it is time to pay attention to the mechanics.  Specifically the part of clause 8 that says, "...by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."  Note that it says "for limited times".  By periodically extending copyright, Congress is violating the Constitution deliberately.  But because each extension has a time limit, Congress can avoid scrutiny.  Disney is not the only company behind this, but it is very obviously the main one.  Every significant increase in copyright term has happened right before the copyright on Mickey Mouse expired.  Within the next few years, we are due for another unconstitutional increase in copyright term, and it is unlikely to matter which party is in control.  Both are more under the control of large businesses than anything else, and the music industry, the movie industry, the writing industry, and the journalism industry, all of which are massive, are going to be right there with Disney pushing for another extension so they can maintain control of what they think should be theirs forever.

At this rate, nothing will ever expire from copyright, and our history, science, and everything else will be under lock and key forever, only available to those wealthy enough to pay for licenses.  And some may eventually go out of publication and disappear from public access forever, ultimately being permanently lost as storage devices fail and no backups are made, because the "owners" don't consider the content worth the cost of saving.

Congress needs to tell Disney and the media industries "no".  The term of 70 years after the death of the author, and the term of 95 to 120 years for corporate creations is already excessive.  They practically guarantee that nothing created during our own lifetimes will ever be available for our own use, even if the creators make many times what they spent back in profits.  Maybe it is time for us to tell Congress, "No, Mickey Mouse is ours now.  We have already paid Disney many times what he is worth.  He is rightfully ours, because he has been bought and paid for by multiple generations.  Disney can keep using him, but he can no longer belong exclusively to Disney, because we have paid every bit what he is worth many times over."  And this applies to every other media company as well.  If they have not managed to make their money back after a lifetime of exclusive ownership, either they are not competent enough to do so ever, or they were never valuable enough to worth the copyright in the first place.  In either case, it is time for someone else to have a try.

Right now, Mickey Mouse is toxic to progress in society, because he is the excuse for a harmful and unconstitutional system of copyright.  Mickey Mouse is the nemesis of creativity.  The only way this can be fixed is for Mickey Mouse to be allowed to gracefully enter the public domain in 2023, when his copyright will finally expire, unless of course, Disney colludes with Congress yet again to violate our Constitutional rights, to withhold what was rightfully ours many decades ago.