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
    Sailor Ripley, 13 Jun 2008 @ 12:21pm

    Re: Here we go again

    Why should someone be allowed to do something commercially valuable with my content without compensating me financially?

    First off, the principle in any democratic society is (yes, I know reality does not always or in all aspects adhere to the principle) that all members are allowed to do anything, except when limited by laws which are put in place for the greater good (of its members and society as a whole). That's why there are laws against murder, running a red light,...

    Your question demonstrates a departure from that principle and hence is simply the wrong question. If you want to argue and be victorious as to why a content creator should get something, the burden of proof is on you. Nobody has to provide an answer (satisfying or otherwise) to your "why shouldn't..." question, it is you who has to answer the question: "Why shouldn't someone be allowed to do something commercially valuable with my content without compensating me financially?". And only when somebody can provide an answer to that question that is satisfactory, society should start considering putting limitations in place.

    Now for the practical aspect. I assume your question is inspired by scenarios where somebody reproduces and sells the content without giving anything to the content creator (or as is more often the case, content creator's production/distribution company). However that is only one example of "commercial use" of somebody else's content (Let's call this "direct commercial use")

    Say I have a bar and I play music (and of course I have to pay for that "privilege"): unless I would play the music of a local band (who I could instead hire to perform), what "loss" would there be for a content creator because I play his music? U2 will never perform in my bar, nor will anybody bootleg the music I play, nor will anybody ever say: nah, I'm not buying that U2 CD, I'll just go to Bar X and listen to it...

    My playing music clearly is commercial use and playing the music is commercially valuable to me since it adds to the atmosphere of my bar and I will attract more people and sell more drinks/food. But there's no loss to the content creator, nor do I see any reason why he/she should be entitled to anything for my use of their music.
    In fact, if anything, some of my customers might come in contact with music they don't know, like it and go out and buy CDs, concert tickets,...(so this is also an example of flow back which you consider highly unlikely, but I'll go into that later)

    So tell me, why should someone compensate you for doing something commercially valuable with your content in pretty much any scenario (like the one above) where the commercial activity is not duplicating your content and selling those duplicats? (Let's call all these scenarios an "indirect commercial use")

    I know analogies are crippled by definition, but:

    no matter how many patents the John Deere company might have on a revolutionary new lawnmower, once I buy it, they have no right to a cut of any commercial use I choose to engage in with their product, like starting my own landscaping/yard maintenance business...although John Deere is more likely to generate less revenue (because the people whose lawn I mow will likely not buy a lawnmower) as a direct result of my commercial use of their "content" than any content creator (or again, the production companies) would because I play their music in my bar.

    Most likely you feel John Deere is not entitled to a slice of my pie even though you do feel I should pay for the right to play music in my bar...if so, you should ask yourself why you are plagued with that inconsistency...

    Btw, I would have no problem if your opinion would be that John Deere should be entitled to a cut as well, I wouldn't agree with it, but I would have no problem with it. I do have a problem with inconsistent opinions (or, when the inconsistency is pointed out to someone, the stubborn insistence to cling to the inconsistencies)

    "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.


    Here's just one (actually two, but same difference) examples: currently, one has to pay (for the right) to use music in a movie, commercial,...
    Let's say they didn't have to, so there would be no direct flow back to the original creator.
    However:
    1) the obligation (or lack thereof) to pay for the use in the movie would have no influence whatsoever on the sale of OST CDs (which do have a flow back to the content creator (or more likely the creator's production company))
    2) I remember plenty of songs being used in commercials (for example Levi's/Coca Cola in the 90's) that, because they were used in the commercial and people got exposed to them and liked them so much, were re-released as singles and did extremely well (with the appropriate flow back to the original content creator, or rather the company holding the copyright)

    Those are just 2 examples that clearly refute your "highly unlikely" opinion/statement that if one doesn't have to pay for commercial use of your content, there will not be a flow back to you.

    I don't refute "direct commercial use" does "cost" the content creator (or again, more accurately: whoever "publishes" the creator's content).

    And I am not dead set against some restrictions (if they would be necessary which, with the models/mechanisms Mike writes about, is not clear to me at this point), when those restrictions target "direct commercial use".

    However, so far I have never read or heard any sufficient justification as to why a content creator (or the creator's production company) should be entitled to any (direct) flow back for the "indirect commercial use" of his content...

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