Economist Explains How Copyright Just Isn't Working
from the the-same-incumbents-still-winning dept
Alex Tabarrock, one of the contributors to Marginal Revolution (and associate professor of Economics at George Mason University) has often dealt with the subject of intellectual property from an economist’s perspective. Recently, he changed things up and posted about his personal experiences with the frustrations inherent to intellectual property laws. Dealing with copyright in practice is much, much more aggravating and ridiculous than dealing with it in theory.
Working with textbook publishers, Tabarrock ran smack into the wall that copyright has constructed around — of all things — the public domain. (via Techdirt reader Marco)
For example, the publisher doesn’t like to use public domain images. Why not? What could be better than free? The problem is that the bundlers insulate a publisher from lawsuits but when we use a public domain image the publisher is open to lawsuit if a mistake has been made and that makes them fearful.
That’s only one way excessive copyright protection negatively affects the public domain. As has been noted here several times, the expanding length of copyright protection has carved a massive hole in the public domain, resulting in fewer older works being made available for public consumption. Our current system grants automatic copyright protection, along with a lifetime + 70 years of keeping it locked up, even if the creator has no desire to exploit the system well into his or her children’s later years. This automatic protection makes the public domain a minefield for almost everyone.
The general lesson is that strong IP shrinks the public domain not just because it keeps things out of the public domain but also because it makes the public domain appear to be uncertain and dangerous. It’s as if clean, mountain spring water were freely available but people bought from the bottlers instead out of fear of contamination.
As Tabarrock points out, this expanded, automatic protection actually does very little for the individual creator. Instead, it rewards “bundlers” like Corbis and Getty, entities that can use their own products without fear of legal reprisal. The more they bundle, the harder it is for others to make their creations available to other creators. Anything outside the mega-bundlers is viewed by other giants in the industry as inherently suspect by those paid small fortunes to protect their clients’ IP and fend off challenges from others.
Worse, even if you secure the rights, you may not have secured the rights.
Here is another example. To illustrate the point that, contrary to what is often argued, a rich person might get more from another dollar than a poor person we have in Modern Principles a movie still of Scrooge McDuck swimming in money. We think the image speaks for itself but apparently that is a problem. The rights to the photo are–we are told–not the same as the rights to the characters shown within the photo. Thus, even though we have bought and paid for the right to print the photo, to ensure that the use of the characters within the photo falls under fair use we must discuss, comment on and critique the content of the photo in the text.
It’s no coincidence that the example given features a Disney character. Many of the excesses in copyright law can be traced directly back to the entertainment giant. As long as it exists, copyright term expansion will always be on the table. Again, this favors the corporations, not the creators, as those creations are made under contract or considered “work for hire.” They retain none of the rights, making any extension of copyright protection solely a win for Disney et al.
This climate has given rise to another powerful group, one equally benefited by each extension and convolution of copyright law: IP lawyers. Someone has to navigate the mess made by those in the copyright industry, and billable hours mount pretty quickly when someone can purchase the rights to a photo but not the content of the photo.
The public domain is dead to most in the industry. It’s there to be occasionally exploited (Disney loves doing this) but the thought of anything of theirs falling into the public domain is inconceivable. It’s a relic of the past as far as they’re concerned, a noble idea that has no relevance in this era of lifetime-plus terms and automatic protection. But this same protection, granted in the name of creators, harms creators. At best, it makes navigating the rights process unnecessarily frustrating. At worst, it makes the public domain unusable and turns independent artists into unsafe, unknown quantities.