What If Copyright Only Applied To Commercial Use?

from the a-step-forward dept

Earlier this week, we wrote about the Cato Institute's new series on the Future of Copyright, with a wonderful first post about just how broken copyright has become, written by Rasmus Fleischer. Our own Timothy Lee has now penned the second piece in the series, wondering if a middle ground would be to just focus copyright laws on commercial use, and allow people to make use of copyrighted content for personal use. As he notes, throughout most of history, copyright laws really only did apply to commercial use, in part because personal use wasn't even an issue.

Lee notes the inevitable trend towards having the music industry embrace things like file sharing in one way or another, suggesting that having copyright laws just forbid commercial exploitation wouldn't hurt the industry at all -- since most of the business models they're finally embracing route around the personal copying issue -- and would stop criminalizing people who are going to get access to content anyway. As per usual with Lee's writing, it's a great, well-reasoned, thought-provoking write up. Go read the whole thing.

However, while I agree that limiting copyright just to commercial use would be a step in the right direction, I'm still not convinced that the restrictions are necessary even for commercial use. Part of the problem is that the distinction between "personal use" and "commercial use" is extremely blurry. Is my personal blog "personal" or "commercial" if I put Google ads on it? What if I don't have ads, but use it to get a job or promote my company? Commercial use and personal use are not clear cut.

On top of that, if someone else is able to do something commercially valuable with my content, why should that be a problem? If anything, that should be encouraged -- and the end result will often be that it makes the original content more valuable. Google uses fair use defenses to protect itself from copyright infringement charges, but it's ridiculous to think that anyone is even complaining, since Google makes their content easier to find. And Google is most certainly a commercial entity. Having someone else do something commercial with content is a good way to help increase the value of that content, which is likely to flow back to the original creator anyway. Yes, some of the benefit will flow to the commercial entity, and some of the benefit may flow to others -- but these are positive externalities, as plenty of benefit will flow back to the original creator as well. Once you realize that these commercial uses are likely to expand the overall market, you want to get any obstacles out of the way, even if some others might benefit as well. Sticking an artificial construct like copyright in the middle just doesn't seem necessary, and actually makes the process less efficient. Imagine if Google needed to get permission from everyone before indexing their sites?

Lee suggests that without copyright law on commercial use, you would have a free rider problem, but that's not necessarily true. Companies that pick up business models that turn the free rider problem into a benefit won't have much of an issue. Issues about "counterfeiting" can be taken care of by anti-fraud laws, rather than copyright, and there will still be plenty of value in "authentic" versions of content and other forms of scarce goods connected to the content creator (access, live performance, new content creation, etc.). So, I agree that legalizing personal use is a sensible step, but I'm still not convinced that copyright even makes sense for commercial reasons.
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Filed Under: commercial use, copyright, personal use


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  1. identicon
    cram, 12 Jun 2008 @ 9:50pm

    Here we go again

    Hi Mike

    "Part of the problem is that the distinction between "personal use" and "commercial use" is extremely blurry. Is my personal blog "personal" or "commercial" if I put Google ads on it?"

    Blurry only in the case of new age media like blogs. Not in the case of traditional media like music, movies, books, etc.

    "Commercial use and personal use are not clear cut."

    Seems pretty clear to me. If I buy a book or DVD, I clearly have every right to read or watch it or share it, but I have no right to exploit it for commercial gain, as in make copies for resale or make money through unauthorized public exhibition. What's so "not clear cut" about that?

    "On top of that, if someone else is able to do something commercially valuable with my content, why should that be a problem?"

    Simply because the creator won't get paid. Why should someone be allowed to do something commercially valuable with my content without compensating me financially?

    "Google uses fair use defenses to protect itself from copyright infringement charges, but it's ridiculous to think that anyone is even complaining, since Google makes their content easier to find. And Google is most certainly a commercial entity."

    Google is most certainly a commercial entity, but how many commercial entities operate on the same model? Google merely directs to content; it doesn't produce any original content.

    "Having someone else do something commercial with content is a good way to help increase the value of that content, which is likely to flow back to the original creator anyway."

    Likely? I would say highly unlikely.

    " Yes, some of the benefit will flow to the commercial entity, and some of the benefit may flow to others -- but these are positive externalities, as plenty of benefit will flow back to the original creator as well."

    I don't see how you can confidently say benefit "will flow" to the creator. If I don't have to pay an author to publish his work, why would I bother to send some benefit his way?

    "Once you realize that these commercial uses are likely to expand the overall market, you want to get any obstacles out of the way, even if some others might benefit as well."

    Even if some others benefit? No problem with that, but there is a big problem when everyone else benefits except the creator.

    "Sticking an artificial construct like copyright in the middle just doesn't seem necessary, and actually makes the process less efficient."

    Maybe to you, but the creators wouldn't be inclined to agree. And which is better? A less efficient process that assures the creator his reward, or a more efficient processs that strips him of financial incentive?

    "Imagine if Google needed to get permission from everyone before indexing their sites? "

    Again, Google. Can you cite some other example?

    "Issues about "counterfeiting" can be taken care of by anti-fraud laws, rather than copyright, and there will still be plenty of value in "authentic" versions of content and other forms of scarce goods connected to the content creator (access, live performance, new content creation, etc.)."

    When there's no copyright, where's the question of counterfeiting? I don't understand. Take books, for instance. Why are you hell-bent on snatching away an author's revenue stream simply because it doesn't fit into your theory? It's all very well to say market expands, author can actualy make more money, etc...but right now the system works fine. And unlike musicians, authors are not under any threat of falling book sales, which means the free model is only an option, not a compulsion.

    "So, I agree that legalizing personal use is a sensible step, but I'm still not convinced that copyright even makes sense for commercial reasons."

    You can afford to say that because your line of business is not affected by the absence of copyright.

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