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.

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Comments on “Economist Explains How Copyright Just Isn't Working”

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John Fenderson (profile) says:

Re: Re:

I doubt it. When there are major players in a market, they tend to like hurdles, particularly regulatory hurdles, that are costly. It may cost them more, but they can afford it more easily than smaller companies. It makes it much more difficult for some upstart to be able to compete with them. They consider that a good investment.

Anonymous Coward says:

Re: Re: Re:

Yep, how it works.

Citizen gets screw somehow, does not really matter now.

Uproar happens and Legislators get involved.
Businesses buy legislators off and makes a regulation that looks like it protects or benefits the poor screwed Citizen, but through legal jargon and legerdemain only protects the ‘Business’ more!

Idiot Citizen(s) goes home feeling proud that they made a difference!

Businesses laugh and keep screwing people.

Anonymous Coward says:

By the title I expected to read an economics paper. Instead I read a personal observation article by a person who happens to be an economics professor.

Since this is his personal opinion and his profession is irrelevant to the article, it seems misleading to begin the title of the article here with “Economists”.

CK20XX (profile) says:

Re: Re:

That’s a pretty bad criticism. Does who we are not affect our outlook on life? Might even the personal opinion of an economist be valuable since the years he’s dedicated to his field of specialty cause him to see everything in terms of economics? Do such tinted perspectives not provide valuable insight to those who don’t have them?

Anonymous Coward says:

Re: Re:

I kinda agree. At the same time a reduced public domain does reduce the amount of ‘goods and services’ or ‘product’ publicly available. Consumers have less. Expanding the public domain allows consumers to have more (works) which is kinda the whole point of having an economy (to increase aggregate output). So the article does involve economics though the economic aspect of it may not be the focus.

Anonymous Coward says:

I don’t know how IP favors bundlers. It doesn’t favor creative mixing as now everyone has to get permission to do so which is a detriment.

“Corbis and Getty, entities that can use their own products without fear of legal reprisal.”

But that’s not to say IP favors bundling. Bundling your own works together (or the works of a few agreeing party) isn’t really bundling as a result of more IP.

Less IP favors bundling (and that’s a good thing) being that now everyone can bundle more works together without the need for permission and expensive licensing.

The only thing stricter and longer IP really favors are distributors and publishers that don’t want competition. Expanding the length makes less works easily and freely available which reduces competition. That’s the whole point of public domain theft. The public domain is seen as competition against protected works and intermediaries can’t have that.

any moose cow word says:

Re: Re:

Exactly. The whole point of copyright was really about protecting a publisher’s investment in a work and its publication from other publishers. That made sense in world with high cost of publication, relatively few works and fewer competitors. But now publication cost so little, there’s so many competitors, and there’s more works than you can fathom. The entire core of copyright in its current form is broken and out of touch today’s digital world. Copyright’s focus on publication is no longer the primary issue, it’s the cost of the original production of the work itself, which copyright is only exacerbating.

beltorak (profile) says:

Re: Re: Re:

The whole point of copyright was really about protecting a publisher’s investment in a work and its publication from other publishers.

No, the whole point of copyright was to benefit the public by incentivising the creation of works. The means of incentivisation (granting a (cough cough) limited monopoly on the reproduction and distribution) is a detail of how, not why.

Anonymous Coward says:

Re: Re: Re: Re:

No, the whole point of copyright was to benefit the public by incentivising the creation of works.

That was the spin put on copyright that successfully got the first copyright law passed. It was also the ideal put in the constitution, but it has always been about protecting publishers rather than incentivising work. All publishers have more works submitted than they can actually publish, so incentive to create is not that dependent on copyright.
If an incentive to create was needed, the publishers would pay creators a better rate, to attract enough works to keep their business afloat.

Anonymous Coward says:

Spring water...

Amusingly, we have a very famous (in our area) Artesian spring that is on the side of a county road where I live. It is free for anyone to stop and fill up from, if they wish.

Most of the locals refuse to drink it, claiming that it may be contaminated with heavy metals and/or bacteria (giardia), but I’m not sure I’ve ever seen any proof of this.

On the other hand, whenever I drive by there, I see people with pickup trucks and huge plastic containers in the back filling them up at this spring. At one point, I asked a guy where he was from, and he said he drives over an hour each week to fill up his jugs as the water at this spring is cleaner and tastes better than the municipal water he drinks every day.

Go figure.

Anonymous Coward says:

Re: Re: Spring water...

Just as well as anywhere else. Like I said, the locals mostly don’t drink it (or don’t know about it, I don’t know).

I always found it amusing – I used to drive by it daily as I lived nearby.

In any case, I only brought it up as it was used in the article as an analogy, and I think it’s pretty close to true. Most people don’t trust something unless they’ve paid for it, I guess.

TasMot (profile) says:

Isn't it Un-Constitutional?

The constitutional clause “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;”. How will postmortem rights “promote the progress”? Unfortunately, I don’t have the means to mount a challenge, but this “life plus 70” regime seems to do the opposite, heirs and the heirs of heirs just sit around and collect money for something they didn’t do. There is no promotion of the useful arts and sciences there. Who can start the ball rolling to prepare a constitutional challenge to the “un-limited”, at least in my lifetime, life of copyright?

Anonymous Coward says:

Re: Isn't it Un-Constitutional?

heirs and the heirs of heirs just sit around and collect money for something they didn’t do.

That is the exception, rather than the rule with long copyrights. Long copyrights primarily act as destroyers of old works, because the publishers do not produce new copies, and existing copies are destroyed by accident and time, or lost in a trunk in some attic. This is no accident, as the publishers do not wish a public domain to compete with their new works.

any moose cow word says:

Re: Isn't it Un-Constitutional?

I totally agree. Unfortunately, there have been challenges and they failed. Apparently, having copyright on a work that last longer than everyone seen or heard it is somehow not effectively unlimited and promising an inheritance to creators, even retroactively after they are dead, is “promote the progress”. I know, it sounds like something from an alternate reality where logic doesn’t exist–which is Washington in a nutshell.

Anonymous Coward says:

Re: Re: Isn't it Un-Constitutional?

Unfortunately, there have been challenges and they failed.

Well, yes but no.

Let’s start with the ?Yes.? When I first read TasMot’s comment, I was three-quarters of the way inclined to just point him to the Wikipedia article on Eldred v Ashcroft (2003). Along with maybe a remark like, ?You’re obviously new here.?

Now for the ?No? part: ? Going from memory, during oral argument in Eldred, one of the justices asked Lessig whether the entire 1976 Copyright Act was unconstitutional.

I don’t exactly remember Lessig’s answer to the justice, but he punted. The 1976 Copyright Act wasn’t the issue in Eldred. The case was just about Sonny Bono.

Anyhow, my memory gets worse the older I get, so take a look at the transcript of the oral argument to check my facts.

Anonymous Coward says:

Re: Re: Re: Isn't it Un-Constitutional?

Transcript of Eldred v Ashcroft oral argument, Oct 9, 2002 [courtesy aaronsw].

Oral argument of Lawrence Lessig on behalf of the petitioners.


JUSTICE BREYER: Could we then go back to Justice O’Connor’s question? To make that very specific, if we agree with you, does that mean that we would, in principle, have to hold the 1976 extension unconstitutional? I mean, in 1976, Congress extended the term from 28 years. renewable once, to life of the author plus 50 years. Now they’re extending it life of the author plus 70. If the latter is unconstitutional on your theory, how could the former not be? And if the former is, the chaos that would ensue would be horrendous.

MR. LESSIG: Justice Breyer, under our theory as we’ve advanced it, you’re right; the 1976 act would be unconstitutional. Whether this Court would apply such a holding in this case to that act is a question that would have to be resolved under the retrospective —

JUSTICE BREYER: Maybe we ought to find another theory, then. Is there any —



Anonymous Coward says:

Re: Re: Re:3 Isn't it Un-Constitutional?

Ah the government in action…

I ain’t never going to be President. But suppose I was?

I get up one morning, grab the wife and get on Air Force One. We’re headed to Geneva! Geneva, Switzerland, honey. It’s a long flight. So we land and everything and get checked into the hotel, and then do some hobnobbing. Eventually, it’s time for business.

I’m in Geneva to give a speech to the WIPO General Assembly. Guess what I’m gonna tell those boys down at WIPO?

Look. This Berne Convention treaty. It just isn’t working out for us. In fact, this Berne Convention is downright incompatible with our constitution. So the United States is gonna split up with you. We’re withdrawing from the convention. Sayonara. It’s been real.

Then I get back on Air Force One, and we fly back home.

You know why I’m never gonna be President?

nasch (profile) says:

Re: Re: Re:2 Isn't it Un-Constitutional?

If the latter is unconstitutional on your theory, how could the former not be? And if the former is, the chaos that would ensue would be horrendous.

I thought of an even worse implication. Breyer is saying he’s unwilling to entertain a decision that would lead to chaos. So all the entrenched powers have to do is get some f-ed up law passed that would be hard to undo. By the time it gets to the SC, invalidating the law would “cause chaos”, so it’s not an option. Bingo, the industry gets to permanently keep whatever antisocietal regulation they bought.

Anonymous Coward says:

Re: Re: Re:3 Isn't it Un-Constitutional?

Breyer is saying?

Eldred v Ashcroft (2003)

GINSBURG, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O’CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. STEVENS, J., and BREYER, J., filed dissenting opinions.


JUSTICE BREYER, dissenting.

The Constitution’s Copyright Clause grants Congress the power to “promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their respective Writings.” Art. I, ? 8, cl. 8 (emphasis added). The statute before us, the 1998 Sonny Bono Copyright Term Extension Act?.?.?.?.

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