If Copyright Is About Incentive, Should It Allow Total Control Over The Work?

from the questions-being-asked dept

William Patry points us to an interesting draft of an article by Prof. Shyamkrishna Balganesh (of University of Chicago Law School) for the Harvard Law Review concerning how the courts rarely take into account the real purpose of copyrights in deciding what copyrights allow people to do. The basic premise is that copyright is designed solely to be an incentive to get people to create new works — and, as such, some of the powers that the courts and Congress have added to copyright seem to go well beyond that core purpose. Specifically, Balganesh suggests that copyright shouldn’t prevent others from using the content in ways that the original author never foresaw, as those uses clearly should not have influenced the original incentive to create, since they were never even thought about. While Patry gives some compelling reasons why Balganesh’s current argument is a bit flawed, it does bring up a variety of interesting and important questions concerning what copyright really should be doing.

Most specifically, this argument is going to become more and more important as content creation increasingly moves away from a “broadcast” model to a many-to-many “communications” model. In such a world, things like fair use, derivative works and whether someone should “own” all downstream uses become much more important:

None of copyright’s current doctrinal devices enable courts to circumscribe a creator’s entitlement by reference to the incentive structure that the institution is premised on. As a direct consequence, creators (and their assignees) are often thought to be ‘rightfully entitled’ to any revenue stream associated with their creation, whether or not it owes its existence solely to the creator and regardless of it having been developed well after the creation of the work…. Individuals will (and can) not factor the unforeseeable consequences of their actions into their ex ante reasons for acting. Consequently, limiting copyright’s grant of exclusivity to uses of the creative work that were foreseeable to a creator at the time of creation is likely to better align creators’ creative decision-making with their incentives.

In other words, just because your work is used in part by another to create something new and different, it often doesn’t make sense to give the original creator control over that work — especially if it has nothing to do with the original incentive to create. Somehow, I’d imagine that JK Rowling would disagree.

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Comments on “If Copyright Is About Incentive, Should It Allow Total Control Over The Work?”

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Steve R. (profile) says:

Total Control => NO

The purpose of copyright is to provide a limited time for the creator to obtain revenue as an incentive to create. Dr. Balganesh raises a point that I have failed to consider, that the courts seldom take into account the purpose of copyright when making a decision. Nevertheless, Dr. Balganesh conclusion (limiting copyright’s grant of exclusivity), while a step in the right direction fails to address the increasing claims of content creators that they have an entitlement to control how content (post sale) is used. (I have read only the abstract, not the full draft paper.)

What I am getting at is that when a product is sold, the purchaser acquires certain property rights to the use of that product. Rationally, at least to me, this means that if you buy a music CD you should have a right to keep a copy on your PC, to make your own mix, etc. Dr. Balganesh has apparently not considered this issue as a copyright “limit”.

Copyright holders are mercilessly destroying the concept that a purchaser even acquires a property right a product when it is sold and are bolstering that they can impose a transaction fee if a user simply does “something” (copy a song from on CD to another CD) to the product.

So the question really becomes: a content creator is entitled to some compensation when their work is sold, but they should not be entitled to endless revenue stream resulting from endless “toll fees” for the use of the product. The user has property rights that also need to be respected.

bshock (profile) says:

I respectfully disagree with some of your assertions

You wrote:

“Most specifically, this argument is going to become more and more important as content creation increasingly moves away from a “broadcast” model to a many-to-many “communications” model. In such a world, things like fair use, derivative works and whether someone should “own” all downstream uses become much more important”

While I am sympathetic to the direction of Dr. Balganesh’s premise, I question the need for any copyright at all. As you suggest, we are moving from a one-to-many model to a many-to-many model. In such a case, where creative expression becomes relatively common, how can we continue to insist that it is a rare condition that must be nurtured with a special government-granted monopoly? That’s a bit like putting house cats on the Endangered Species List.

Still, there are those such as Bruce Stirling who might say that the explosion in content quantity does not translate into good content quality. That may very well be true. However, can you really say that the ability of a content producer under the previous system to reach a distribution channels necessarily indicated good content quality? In novels there are the likes of Barbara Cartland or Danielle Steele. In film there are directors like McG or Michael Bay. In music there is… just about any band you want to name these days. Somebody apparently enjoys all of this dreck — why not at least acknowledge that it’s worthless, and welcome a broader field of dreck for every taste?

(I, for one, enjoy Bruce Stirling’s novels, but that’s obviously not the case for everyone. Am I right about his work, or is everyone else?)

Of course, one may compromise on some degree of copyright for many reasons — greed, comfort, lack of imagination, or perhaps a need to appear more mainstream by appeasing the establishment. But it seems odd to me that a writer on TechDirt continues to argue in favor of any level of copyright. Other regular contributors to this site frequently point out the fallacy of business models that treat infinite goods as though they were finite.

oregonnerd (user link) says:


My stand remains the same. That is, in point of fact copyrght is there to protect a published work; that is, as part of an economic consideration. If creativity is foistered solely by economics we’re in trouble. I personally have written much more than I’ve submitted much less had published. The writer truly convinced of the worth of the ideas employed might actually condone ‘infringement’.
http://writing.borngraphics.com/voices.pdf is a manuscript that’s an example–poetry in fact, which most readers of this forum probably don’t read. Point is: ‘publication is not the business of poets’ [E. Dickinson]–writing poetry is.

Crosbie Fitch (profile) says:

Purposeful revisionism

There is a difference between the commercial privilege that publishers sought for their lucrative purpose (permission to enforce exclusive reproduction), and a ‘higher purpose’ that was pulled from someone’s hat as a more populist spin to retrospectively sanction this unethical gift to publishers (incentive to publish for cultural benefit via suspension of the public’s cultural liberty).

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