Perhaps the concept of Copyright Needs to be Rebranded? Creativeright?

This article is one of the best discussions on copyright i’ve read in a while.  It talks about the true purpose of copyright….to ensure the creation of content – specificaly in “science and the useful arts”. It would seem that at this point we have too MUCH in the “useful arts category” what with all the TONS of UGC out there….but this article is a great reminder of why we need SOME sort of system.

Thanks to Nate Anderson at ars technica.

Contextualizing the copyright debate: reward vs. creativity

In a post on the declining revenues of the record business, progressive blogger Matt Yglesias wrote last week, “It is, of course, possible that at some point the digital music situation will start imperiling the ability of consumers to enjoy music. The purpose of intellectual property law is to prevent that from happening, and if it does come to pass we’ll need to think seriously about rejiggering things.”Is that the purpose of copyright law? Sonny Bunch at America’s Future Foundation didn’t think so, but his debate with Yglesias turned out to be much more than one of the numerous daily spats that make up life in the blogosphere. Instead, it went to very nature of a crucial institution like copyright—and it asks whether that institution exists to help the creators or society at large.

It’s worth thinking about the answers.

It’s my God-given right… or is it?

When you title a post “Piracy. Is. Stealing.” and then devote a mere five paragraphs to the topic, no reader who has fought for even a day on the battlefields of the Copyright Wars is going to expect much… and Bunch’s post delivers on those low expectations.

Bunch has little patience for Yglesias’s view of copyright and insists instead that “the purpose of intellectual property law is to protect the intellectual property created by artists so they are rewarded for their efforts. The purpose of intellectual property law is to punish people who steal that which isn’t theirs.”

So—the basic purpose is “protection” in order to “reward” creators. Bunch does hand-wave vaguely in the direction of the Constitution by adding, “Yes, copyright was created in part because there were concerns that authors wouldn’t bother creating new work if they were consistently stolen from.” But this is immediately undercut with the next sentence, which says, “More importantly, copyright law evolved because we think that artists, writers, musicians, and others have a right to profit from their labors.”

Bunch asserts a basic right to profit from creative work; think of this as a “strong property rights” approach to copyright. It sounds good, but the Constitution knows nothing of this theory. Bunch is correct that the secondary purpose of copyright is to reward creators for their work, but only insofar as to encourage the primary purpose of copyright, the continued creation of new work.

In the US Constitution, Congress may use copyright to “promote the Progress of Science and useful Arts.” Note that nothing about author’s rights appears here; if Congress decided that such promotion could in fact be achieved with a copyright term of a single day, it would be free to do so—and creators could not complain on the grounds that they have a property right in those works. “Progress” is the only criterion allowed.

“Monopoly is an evil”

This wasn’t a radical new idea, but one that emerged from English copyright law. The Statute of Anne (1709) was one of the world’s first real copyright laws, and it provided protection to authors “for the Encouragement of Learning,” not because authors had a full property right in their work.

In 1841, Thomas Macaulay gave one of the world’s most famous speeches about copyright, and he explained the principle in more detail. He told his fellow members of the House of Commons, “It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.”

But why should authors be paid—was it because they had the inalienable right to control their own work in perpetuity? No. “It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright.”

Again, the goal is society-wide progress, but copyright should not last “a day longer than is necessary” to secure it.

One does not have to like this. As an author, there are many times when I don’t like this. That’s because, taking this policy to its limit, copyright law only needs to help creators earn a single penny more than the smallest amount of money they need to keep creating. That sounds like a pretty miserable existence, one in which creators might never make much of a living even as they keep a culture vibrant and entertained.

Not that Congress has any intention of doing this, though; in fact, it seems as if legislatures around the world can move copyright in only one direction, toward longer terms—and this despite the tremendous outpouring of worldwide creativity we continue to see. The process is even more bizarre when applied retroactively, since the incentive to create was already enough to produce the works being given additional protection.

Still, this is how US law works (or is supposed to work). Copyright exists for society, and only secondarily for the creator. Complaining about that is one thing; denying that it’s the point of the law is another.

Bunch’s post inspired the obvious retort from Yglesias: “The point of intellectual property law is to benefit consumers, not producers.” And he called in his defense Tim Lee and Julian Sanchez, both frequent contributors to Ars over the last few years.

Pricing songs

One quibble with Yglesias comes in his original post, when he claims that “under conditions of perfect competition, the price of a song ought to be equal to the marginal cost of distributing a new copy of a song. Which is to say that the marginal cost ought to be $0. That’s not a question of habit, you can look it up in all the leading textbooks.”

This is clearly not true; the price of a good in a perfect world would be some fraction of its upfront cost plus its marginal cost. If I write a novel, and it takes me a year of full-time work, but it can be distributed digitally at a marginal cost of $0, that hardly implies that I should price it at $0. I may price it that way, especially if I make money in other ways—through speaking fees, perhaps, or other paper editions of the book. But a year of my time is a fixed cost that needs to be considered when setting the price.

In any event, what’s almost more interesting than the debate itself is what it says about copyright. That is, even once-arcane battles over the meaning of copyright now appear on hugely popular political blogs. People can argue about this stuff with passion and interest, drawing in history, philosophy, law, and economics.

The public fascination with copyright looks like a terrific development, one that forces unrepentant file-sharers to think through the ethical and legal implications of their position but also prevents corporate copyright counsel from simply rewriting the law in a back room with a few Congressmen. One suspects that, if the Mickey Mouse Protection Act were put up in Congress in this climate, it couldn’t pass.


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