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), 14 Jun 2008 @ 8:48am

    Re: Thanks Blaise

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

    The point of my comment was to reference the free software / open source community as an example of these ideas working in practice. Namely, free software licenses put no restrictions on commercial reuse. The non-commercial restriction makes software non-free. The success of copyleft culture isn't predicated on restricting people from doing things which are commercially valuable without paying the creators, rather it's based on freedom.

    If free (libre) software is better for developers and better for users, why make non-free software? I believe it's better, but that's a longer conversation I'm sure. I think it makes more sense to convince companies and developers to use/produce free software, rather than forcing them too, however. Same goes with artists and free licenses. Change people's hearts and minds, show them everyone is better off, show them the opportunity to grow their market, etc.

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

    Sometimes Google reproduces some of that content, and it certain profits off it. (Have you been following the Belgium newspaper story?) I don't think Google should owe website owners money, but you asked, "why should someone be allowed to do something commercially valuable with my content without compensating me financially?" Isn't that exactly what Google does? We both think this should be allowed.

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

    Because business models based on copyright aren't working fine in the face of digital technology. If a business isn't yet heavily impacted by digital technology, then it may be alright in the short turn to rely on copyright. However, growing your market and preparing for the future both seem like good arguments for trying business models based on the economics of abundance.

    A good business always tries to improve, no?

    MAY be able! That's the operative word.

    I used the word "may" because the author also needs a business model and a plan in place to capitalize on the benefit. With the proper business model and a good product, an author will derive benefit.

    What I'm asking is how it will benefit an author if copyright goes. I see more harm than gain.

    If copyright goes, or becomes less excessive, an author would benefit in the big picture. It's not necessary about short financial gains ("direct, monetary"), but in the long-run. Sure, cash helps. But building a name and reputation is more valuable, because you can monetize that and build a career on that. If an author writes good books, he/she would benefit from having them widely read. The difference is that monetization would come through content creation (e.g. commissioned works, fund-and-release model) or other scarcities (the book signings, speaker engagements, etc), rather than necessarily through the distribution of copies (though, that's still a possibility for some income).

    Ultimately, authors would benefit from having a wider market to monetize. I see more opportunities than harm. I only see harm for those who rely on copyright when it fails and ceases to make sense (e.g. RIAA/MPAA).

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