Imbalanced 'Incentives' Hurt Creativity More Than They Help

from the copyright-and-creativitiy dept

Are lawyers the driving force behind artistic freedom? Astonishingly, that’s the impression you get when you read the Copyright Alliance’s account of a recent panel on music copyright hosted at George Mason University. To be clear, they note the importance of creators, in the sense that:

Intellectual property drives economic and artistic freedom, thereby supporting a professional class of musicians and innovations that continue to fuel the creation of music.

But this emphasis aims to privilege the copyright lawyers, as if copyright enforcement were the primary source of artistic creativity. Certainly, copyright plays an important role in securing incentives for creators. But it’s absurd to suggest that regulatory monopolies are the only source of artistic creation and freedom or that stronger intellectual-property laws are always in the best interest of artists. Rather, the history of intellectual-property laws have often been a double-edged sword for creators.

There are numerous examples of overly broad intellectual-property laws being used to limit free expression. Just take a look at EFF’s Takedown Hall of Shame. Or, in the music industry, the recent judgment against Pharrell and Robin Thicke (presumably, to provide further incentive for the creativity of the late, lamented Marvin Gaye). Or the video game maker who was sued for using the likeness of Gen. George S. Patton. The absurdities go on and on.

While intellectual property is an important legal protection that helps encourage creation, it has its limits. Where intellectual-property laws are too weak, there may be insufficient incentive to create. But where they are too strong, they impose costly restrictions on other creative freedoms and distort the market to transfer unearned wealth from consumers to rights holders. The latter, it should be noted, aren’t always artists. This is especially true in the music industry, where entrenched middlemen armed with large legal teams extract most of the revenues.

Our nation’s founders took steps to achieve the proper balance. Indeed, we must not forget that the constitutional basis of our intellectual property system is a utilitarian one. The Progress Clause grants Congress power 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.” The clause doesn’t create a “property right,” as such, any more than Article I’s grant of war-declaration powers to Congress creates a property right in declarations of war. The Progress Clause creates a legislative power, with instructions to use it as an incentive for creation. Where such exercises of power provide appropriate incentives — or, worse, undermine other incentives — they ought to be constrained.

Human nature being what it is, it’s not surprising that the copyright industries have succeeded, over the years, in ratcheting up copyright protections with less attention to the underlying theory of the Progress Clause. Thus, copyright terms today are nearly 580 percent longer than at the time of the founders, and extend to works far beyond the maps, charts and books that originally were covered.

But why should we think copyright that lasts decades after an author’s death serves to promote creation, particularly for all those retroactive term extensions?

Chart lifted from Tom W. Bell’s blog. Check out his excellent book on copyright, published by the Mercatus Center.

Even Ayn Rand (who otherwise strongly supported intellectual property) expressed great concern about excessively long terms:

If [intellectual property] were held in perpetuity, it would lead to the opposite of the very principle on which it is based: it would lead, not to the earned reward of achievement, but to the unearned support of parasitism. It would become a cumulative lien on the production of unborn generations, which would ultimately paralyze them.

That doesn’t stop advocates of “more is better” copyright maximalism from pushing the myth that stronger intellectual property promotes free markets. Remember, we are talking about regulatory monopolies. Just because something has property-like qualities doesn’t mean it’s equivalent to tangible property. As my former Cato colleague Brink Lindsey writes:

Many people might find it puzzling to see copyright and patent laws listed as examples of growth-inhibiting regulatory excess?[But] the case of taxi medallions should make clear that regulatory policies don’t necessarily support free markets simply because they feature tradable property rights.

Artists ought to be able to make a living where there’s a robust market for their work. But just because you produce something doesn’t guarantee people want to buy it. You don’t have a right to ask the government come guarantee you a living wage. Another fine excerpt from the Copyright Alliance blog:

Marc Beeson, staff songwriter at Downtown Music Publishing, gave the final presentation. For his presentation, Beeson gave a sobering look at the state of songwriting, both as an industry and an art, due to the loss in physical album sales. For instance, while physical sales used to account for 50 percent of his income as a songwriter, streaming, which has almost completely replaced physical sales, has failed to pay even a basic living wage.

It’s true: people don’t buy physical records anymore. The issue extends far beyond Downtown Music. The whole industry has seen sharp declines in mechanical royalties, as analog-era business models continue to decline. But the music industry as a whole has been adjusting and will continue to adjust its business model in response to those changes. According to a study by Midia Research, global music-publisher revenue has shown strong growth thanks to diversified revenue streams.

Even if the music industry were tanking because of falling record sales, or if people started listening to podcasts instead of music, or whatever other market shift you could imagine, it wouldn’t be a problem our legal system needs to fix. If millennials stop buying cars, the proper role of the government isn’t to come in and make Uber more expensive so General Motors can get a subsidy. We don’t need to protect buggy-whip manufacturers any more than we need to protect people selling physical records (despite protestations from Bushwick hipsters).

As I’ve discussed, there’s great merit to having a system that provides legal protection for their creative products. But this must be carefully balanced against the limitations that system inevitably imposes on other forms of creative expression, as well as other uses of tangible property.

The Copyright Alliance is a nonprofit organization which claims to represent “artists, creators and innovators” (despite being run by a mix of trade associations, mega-corporations and labor unions). Is that really what they’re doing by pushing copyright maximalism? Or, as with taxi medallion owners, are they protecting the rents they receive off the ones doing the real work, while doing their best to put up barriers to keep everyone else out of the market?

Republished from R Street Institute

Filed Under: , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Imbalanced 'Incentives' Hurt Creativity More Than They Help”

Subscribe: RSS Leave a comment
Zgaidin (profile) says:

Re: Laywers... (Wrong)

I’m sorry, but this is just patently untrue. While it may be true of large firm lawyers, lobbyists (many of whom are lawyers) and congress-critters (who are overwhelmingly lawyers by percentage), for every one of them there are tens of lawyers who work in small firms or private practice making $75k a year or less who do work for individuals because they believe it’s valuable.

My father is one such. He spends all his lawyer time helping people craft wills to meet their wishes, set up trusts, living wills, powers of attorney, and the purchase of small properties for residential or commercial purposes. He also spends a great deal of time as an ad litem attorney appointed by a court for people who cannot obtain representation for one reason or another (children in custody disputes, relatives who cannot be located in estate probates, etc.) and he pursues those cases with the same vigor and attention as his paying clients. Through him, I have met many lawyers like him. He does not lobby for laws, even though he knows several state representatives. He is not part of any associations except the state and federal bar, the rotary club, and the local community college where he teaches classes (again for pennies on the dollar compared to his hourly billing).

Are there money-grubbing, rent-seeking, asshole lawyers out there? Yes, absolutely. They are the ones you see most often in the news, on TV dramas, etc. But please don’t tar lawyers like my dad, lawyers who work at the EFF, the Innocence Project, or similar smaller groups not because it pays well but because they think the work is important and derive a sense of professional satisfaction from doing it, with the same brush. One of these days you’re going to need a lawyer (hopefully for something small and routine) and to your delight you’ll find a local one who will do what you need promptly, courteously, professionally, and at a reasonable price.

When that day comes, remember what you said here and be thankful you were wrong.

ltlw0lf (profile) says:

Re: Re: Laywers... (Wrong)

When that day comes, remember what you said here and be thankful you were wrong.

I agree wholeheartedly with your statement.

As much as I hate the system, which tends to require lawyers and lots of money for what justice you can afford, most of those I’ve actually dealt with have been decent, hardworking, and for the most part, interested in doing whatever necessary to help/protect the interests of their client.

There are lawyers like Carrion, Duffy, Steele, Hansmeier, Lipscome, Jack Thompson, etc., but those tend to be the vocal exception to the rule, and it seems like there are places within the law where the pricks and DB lawyers gravitate to, they tend to be highly visible and yet the minority when it comes to lawyers.

IP Lawyer says:

Re: Laywers...

I’d have to respectfully disagree with that one. I’m a lawyer whose primary focus is helping businesses navigate this insane bullshit and try to spend as little as possible on items other than product dev and SGA.

Many of us are actually copyleftists and anti-IP. Even IP lawyers.

Grouping all lawyers together in this way puts in the ones who believe in your cause with the people you are actually complaining about. Not terribly productive.

Anonymous Coward says:

A researchers opinion on copyright.

Copyright: promoting the Progress of Science and useful Arts by preventing access to 105-year-old quarry maps

and the conclusion

It’s Sunday afternoon. I could be watching Ireland play France in the Rugby World Cup. I could be out at Staverton, seeing (and hearing) the world’s last flying Avro Vulcan overfly Gloucester Airport for the last time. I could be watching Return of the Jedi with the boys, in preparation for the forthcoming Episode VII. Instead, here I am, wrestling with copyright.

How absolutely pointless. What a terrible waste of my life.

Is this what we want researchers to be spending their time on?

ltlw0lf (profile) says:

Re: A researchers opinion on copyright.

Is this what we want researchers to be spending their time on?


It may not be what your bosses in the copyright maximalism industry want, but I’d prefer someone spending some honest time looking into the facts instead of coming up with out-of-the-netherregions opinions based on pixie-dust and fairy-tail as to how their control of the universe should be strengthened because of the artists they like to pretend they help and protect (at the very time screwing said artists with unconscionable “deals” that make the industry far richer and the artist poorer (because they can’t afford the lawyer to look out for their best interests.)

I’d love to see far more research in this field. I may be wrong in my beliefs about copyright, but we are never going to figure out the better way without people doing real science.

ltlw0lf (profile) says:

Re: Re: Re: A researchers opinion on copyright.

Try reading the post, he knew which map he wanted to use, he knew who held the copyright, but trying to get permission to use the map was competitive with Vogon style bureaucracy.

The “post” has nothing to do with maps or vogon style bureaucracy…the link to Tom Bell’s blog doesn’t contain anything to do with maps or vogon style bureaucracy.

I suspect the problem is that the link you provided to the “post” was stripped somehow and I cannot access it. Which means I got caught thinking you were “whatever” doing his normal tirade against the evils of the internet and missed this link. Oops.

Rich Kulawiec (profile) says:

Intellectual property drives economic and artistic freedom, thereby supporting a professional class of musicians and innovations that continue to fuel the creation of music.

That’s absolutely right. When it’s 2 AM and I’m still trying to figure out if I should use Ab or Fm7 as the lead-in chord for the bridge, I think to myself “If only I had an IP attorney with me right now to explain how the royalties from this will flow to my great-grandchildren…that would really fuel the creation of my music.”

Anonymous Coward says:

The idea that artists need incentive to create is wrong. Artistic expression is instinctive, some more than others, but the ones who should rise to the top are driven to create. The idea that there’s a scarcity is false. They enjoy playing music, painting, writing, woodworking, weaving and creating. They would do it anyway, paid or not.

This idea that talent is “rare” stops a lot of people from trying. I am constantly amazed at the creativity of average people and believe everyone is good at something they enjoy with practice.

They can lock up content but they can’t lock up the creative spirit. Sites like Bandcamp will emerge in response. Remixing will create what audiences want to hear. Homemade videos will become more entertaining than over priced and inaccessable cable.

Yes it’s important to reward those that excell, but that’s not what happens. Usually the creator is removed and copyright owners are the ones rewarded. An artist is paid for a doodle and twenty years later when it’s resold, the current owner gets paid for a piece of fine art that’s esculated in value a hundred times over as an “investment”. This is what they are trying to do with all creations. I’m sorry, but cashing a dividend check is not hard work. Instead of a thousand “creating”, there will be ten. That’s stupid.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...