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, 13 Jun 2008 @ 5:05am

    Thanks Blaise

    Hi Blaise

    Thanks for your take.

    "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?"

    As I said, Google doesn't create content, nor does it claim ownership over the content. I don't think Google not paying web site owners is the same as a publisher not paying an author. As for ideas, I think execution matters more and people should be able to profit from that execution.

    "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."

    I disagree. Are you saying all software should be free? That there should be no proprietary software?

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

    Google merely directs users to content. Why should they be required to pay site owners anything?

    "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."

    What is the incentive to try another business model when the current one works fine?

    "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.)."

    MAY be able! That's the operative word. If the author signs up with a publisher, he WILL derive benefit. And all the other options you mention are nothing new. I don't see any compelling need to do away with copyright, from the author's point of view.

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

    I'm sure authors would appreciate "direct, monetary" benefit more than anything else.

    "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."

    I don't have a problem with abundance; what I'm asking is how it will benefit an author if copyright goes. I see more harm than gain.

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