Why can't a copyright be more like a patent -- or vice versa?

The IPKat's friend Hugh Wright (Brookes Batchellor LLP) has been stirred by the recent publicity next month's Copyright Debate into posing a question which this member of the Kat team is refraining from answering from a purely historical perspective, since it has been posed in terms of contemporary utility, not legal evolution.  He writes:
"I have never understood the true difference between the reason for patents and copyright (I know that copyright is only infringed by copying and patents can be infringed without copying - a difference without meaning in practice).  It seems that the same principles should apply to both, at least so far as commercial exploitation of copyright is concerned. They are both the work of someone's imagination and brainpower. They wouldn't exist without that.

So why shouldn't patents extend for the lifetime of the inventor plus a number of years?

Or why shouldn't copyright require registering (easy, no examination required) and the payment of annual fees and last for 20 years?

The Treasury would love both those suggestions!"
The Kat has, over the years, spent considerable time (and derived even more pleasure) from speculating on such issues as 'why can't dogs be more like cats?', 'why do holders of domestic passports and foreigners have to go through different channels at the airport when they don't get sent back if they've got into the wrong line?' and 'what's the difference between fruit juice and fruit drink?' But he has always been quietly confident that he knows the reasons for the differences between patents and copyrights.  For this reason he has decided to invite readers to offer their own explanations. What do you think?
Why can't a copyright be more like a patent -- or vice versa? Why can't a copyright be more like a patent -- or vice versa? Reviewed by Jeremy on Thursday, June 16, 2011 Rating: 5


  1. Both systems are installed to accommodate for an investment in intellectual processes with an outcome in uncertainty. To give people incentives to undertake this endeavor without risking other people, or Kats for that matter, taking what one giveth, IP offers both moral as monetary protection.

    Patents are protected with a broad and short protection: broad so it cannot be imitated to mimic the same outcome of the invention (e.g. by just looking at it and trying to get to the same point following a small detour so to say), but also short in order to stimulate follow up invention and to not give the inventor too long a monopoly power that would prevent society to continue to innovate.

    For copyrights, there is a small but long protection system. Copyright protects the expression of an idea, not the idea itself, so it is very small or strict in definition. Otherwise, someone might copyright the Pachelbel Canon (Pachelbel himself for that matter) and deprive community from 75% of love songs for many years to come (from his timeframe at least). To counter this small protection, it is stretched over a longer period to give an incentive and possibility to generate adequate monetary results from it.

    Very short :-)
    Glenn Magerman

  2. Copyright, unlike patents, provides no barrier to manufacture or agriculture or health - one can always read/write a different book, etc. Since it is no barrier, the need for registration or short duration is not present. The two laws cover different things - format and form. As to whether both should last for author's life plus, the proper question is whether they should exist at all since they are privileges which restrain activities of others which do not affect the author's own ability to enjoy the use of her creations.

  3. I think the difference lies in the natures of what are protected. A patent covers an inventive concept, regardless as to how that concept is expressed, the essence of copyright is that very form of expression. The cover provided by a patent is therefore that much broader and far-reaching than is copyright, covering as it does functional equivalents that fall within the inventive concept. Copyright, on the other hand, doesn’t prevent a similar work of literary or artistic merit being produced, provided that it isn’t a blatant total or partial copy. Given these strictures, it therefore seems fair that copyright should have a longer term.

    In addition, technology moves on, and today’s exciting idea becomes tomorrow’s also-ran, which, of course, is part of the purpose of patents, to encourage this very thing to happen. Copyright, on the other hand, freezes the literary or artistic work in a straitjacket for ever and ever. This argues for a patent term that does not seek to monopolise superseded ideas long past their use-by date. A copyrighted item doesn’t actually have a use-by date; as a literary or artistic work, it is forever valid, so a longer term is justified.

  4. I would add that copyright does not hinder independent creation, whereas patents can and do.

    Still, copyright is far too long imho, death/20yrs whichever is the longer should be the maximum.

  5. Patent law is more dangerous that copyright because independent creation is not a defence, but patent law is needed to protect “ideas” that are unprotectable by copyright law. The higher standard of originality in patent law (inventive step rather than originality) and the shorter term of protection mitigate the danger of patent protection. The question then is why are “ideas” not protected by the less dangerous mechanism of copyright? My view is that “ideas” are those aspects of a work for which independent creation is likely but difficult to prove. (This is essentially the position of Lord Scott in Designers Guild Ltd v. Russell Williams (Textiles) Ltd [2001] 1 All E.R. 700 (HL) at [67].) In other words, granting copyright protection to ideas, so defined, would result in a de facto true monopoly, similar to the patent monopoly, but without the safeguards of patent law. See my article A Property Rights Theory of the Limits of Copyright, 51(1) University of Toronto Law Journal 1-61 (2001) http://ssrn.com/abstract=1865875

  6. My favourite question: why is there only one Monopolies Commission?.....

  7. I’m somewhat surprised at this debate, because the policy distinctions between copyright and patents are fairly obvious:
    • It’s easy to create a copyright work, difficult to produce a patentable invention – the thresholds are different
    • Copyright works are too numerous for registration to be compulsory
    • The monopoly given by a patent is so wide by comparison with the protection given by copyright that the former can only be justified for a limited period of time

  8. @Tibor Gold,lol or why can't valid Patents be revoked for non-use.

  9. Patents provide a short term monopoly as a reward for disclosing an invention to the public. After expiry anyone interested can copy and exploit the invention.

    Copyright protects the work of an author from copying for lifetime and too long a time post mortem. It has a negative effect publically.

  10. I seen no problem with having a broad, short-term protection mechanism for technical matters, and a long-term narrow form of protection for literary and artistic works.

    The real problem surely is software protection by copyright. Can there be any doubt that software is an industrial product? Even the industry concerned refers to itself as "software industry"? And yet, software programs are protected as literary works! I personally have never yet succeeded in having Dicken's Tale of Two Cities perform any calculations for me or provide the interface for my WLAN at home ...

    Protection of life of author + 70 years for software is absurd. Not even my children in their old age (about 60 years from now) will be able freely to copy Microsoft's MS-DOS (remember that?) or Windows 1, created in the latter part of last century, while there will be nothing to stop them copying the smallest details of those early PCs of the same vintage, on which those programs ran ...

    I genuinely believe that many objections to the long copyright term would vanish if copyright didn't also cover software.

  11. Unlike books or songs, would there be much demand for copying ancient software? And would the copyright holder really have an interest in pursuing infringements?

  12. Snobbery and class.

    Patents are to protect the work of rude mechanicals who must be kept down and limited in the ability to earn from the sweat of their brow. As such, patents should be granted grudgingly and for as short a term as possible.

    Copyrights are to protect inspired and deathless prose etcetera from the "creative" and as such should not be subject to evaluation of "worth" and certainly should not expire with their owner. A typical term of >100 years from origination [given current demographic trends] seems quite reasonable.

  13. "Copyright works are too numerous for registration to be compulsory"

    You better not check too closely then into the U.S. Copyright Office requirements of 17 U.S.C. Section 47(a)

  14. Many good points above, but the fact remains that if one were designing IP laws from scratch, copyright and patent laws would not be so different to one another as they are now. One would start with a master template for all IP laws then design variations to suit particular IP types.

    In the area of IP transactions, UK IP laws are a horrible jumble of inconsistencies between IP types. For example, what good policy reason is there for using different language in section 90 CDPA and section 30 PA:

    90(1) Copyright is transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property.

    (2) An assignment or other transmission of copyright may be partial, that is, limited so as to apply-

    (a) to one or more, but not all, of the things the copyright owner has the exclusive right to do;

    (b) to part, but not the whole, of the period for which the copyright is to subsist.

    (3) An assignment of copyright is not effective unless it is in writing signed by or on behalf of the assignor.

    (4) A licence granted by a copyright owner is binding on every successor in title to his interest in the copyright, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser; and references in this Part to doing anything with, or without, the licence of the copyright owner shall be construed accordingly.

    30.- (1) Any patent or application for a patent is personal property (without being a thing in action), and any patent or any such application and rights in or under it may be transferred, created or granted in accordance with subsections (2) to (7) below.

    (2) Subject to section 36 (3) below, any patent or any such application, or any right in it, may be assigned or mortgaged.

    (3) Any patent or any such application or right shall vest by operation of law in the same way as any other personal property and may be vested by an assent of personal representatives.

    (4) Subject to section 36 (3) below, a licence may be granted under any patent or any such application for working the invention which is the subject of the patent or the application; and -

    (a) to the extent that the licence so provides, a sub-licence may be granted under any such licence and any such licence or sub-licence may be assigned or mortgaged; and
    (b) any such licence or sub-licence shall vest by operation of law in the same way as any other personal property and may be vested by an assent of personal representatives.

    (5) Subsections (2) to (4) above shall have effect subject to the following provisions of this Act.

    (6) Any of the following transactions, that is to say -

    (a) any assignment or mortgage of a patent or any such application, or any right in a patent or any such application;
    (b) any assent relating to any patent or any such application or right; shall be void unless it is in writing and is signed by or on behalf of the assignor or mortgagor

    (or, in the case of an assent or other transaction by a personal representative, by or on behalf of the personal representative).

    (6A) If a transaction mentioned in subsection (6) above is by a body corporate, references in that subsection to such a transaction being signed by or on behalf of the assignor or mortgagor shall be taken to include references to its being under the seal of the body corporate.

    (7) An assignment of a patent or any such application or a share in it, and an exclusive licence granted under any patent or any such application, may confer on the assignee or licensee the right of the assignor or licensor to bring proceedings by virtue of section 61 or 69 below for a previous infringement or to bring proceedings under section 58 below for a previous act.

  15. "(I know that copyright is only infringed by copying and patents can be infringed without copying - a difference without meaning in practice)"

    There is a real difference here: independent recreation of a copyrighted work is (in practice) not possible, while independent reinvention of a patented invention is quite common.

    "I genuinely believe that many objections to the long copyright term would vanish if copyright didn't also cover software."

    I agree that life of the author plus 70 years doesn't make much sense for copyrighted software, but the only people affected seem to be those active in the emulation scene. The emulation scene does not seem to be the focus at all of any current copyright debate.


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