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. icon
    Blaise Alleyne (profile), 13 Jun 2008 @ 3:06am

    Re: Here we go again

    Hi cram,

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

    Not true. What if a non-profit is selling a CD? They're making a profit in the activity, even though the purpose of the organization isn't to make a profit. Is that commercial use? Isn't that at least a little blurry?

    Also, most copying takes place through digital technology anyways, so new media isn't some niche, it's the focus of the whole debate.

    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?

    What if the book or DVD is an instructional piece related to your career? Watching the DVD could be out of personal interest, or for commercial gain. What if you share it with a co-worker, who's also a friend and in the same business. Personal use or commercial gain?

    Also, who can you share it with before it becomes an unauthorized exhibition? A spouse or family member? Living in the same house, or another house? What if you live with a friend? What about friends you don't live with? How does the law distinguish between your friends and a stranger? What if you're simply listening within earshot of others?

    The distinctions of public versus private and non-commercial versus commercial don't seem at all clear cut to me.

    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?

    Going back to the post, should Google owe website owners cash because it does something commercially valuable with their content? Do you think the same should apply to ideas in general, or just to content?

    I think someone should be allowed to do something commercially valuable with content without having to compensate the creators because everyone would be better off for it -- creators included -- because of the freedom and positive externalities and overall benefit to society of being able to make use of creative works. The free software community is a microcosmic example of this working in practice.

    Google merely directs to content; it doesn't produce any original content.

    That's the point. Google uses other people's content and it doesn't pay them. Should it be required to?

    "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.


    I'd say it depends whether you've got a business model in place to take advantage of those positive externalities or not. If you're ignoring them, sure, it may not be likely.

    If I don't have to pay an author to publish his work, why would I bother to send some benefit his way?

    You don't need to do it directly. If you don't pay to publish his work, but you and others publish it, the author may be able to derive benefit from the work being more widely published (e.g. speaking engagements, in store appearances, more sales based on higher interest, more interest in funding future works, etc.).

    The benefit doesn't have to be direct or monetary. It doesn't need to be actively "sent."

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

    The problem would likely a business model problem in a case such as that, hence all the talk about the economics of abundance around here.

    A less efficient process that assures the creator his reward, or a more efficient processs that strips him of financial incentive?

    How effective is copyright as a financial incentive? Works were produced before copyright, and works are produced despite copyright. Is the value of the incentive at all worth the inefficiencies created? I'd argue it's quite an unbalanced trade off.

    When there's no copyright, where's the question of counterfeiting? I don't understand.

    Counterfeiting isn't about producing copies of an original work, it's about passing off some other work as the original. It's about deception. Copyright isn't necessary for counterfeiting to occur, and I'm not sure that it even has anything to do with counterfeiting to begin with.

    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.

    Wait five or ten years ish. And, it's not like there isn't controversy over copyright with books. Look at the lawsuits J. K. Rowling has been fighting. I'm sure there are some other examples.

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

    His line of business or his business model? What line of business would you say Techdirt is in? There are lots of tech companies clamouring for increased copyright protections (e.g. Business Software Alliance) and lots of journalists lamenting the "devaluation" of their work.

    Techdirt has a business model that isn't predicated on copyright by choice. It's not because of the line of business, it's because of smart business models.

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