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, 15 Jun 2008 @ 1:50am

    Re: Re: Here we go again

    Hi Mike

    "What if the book or DVD gives you an idea that allows you to build a multi-billions dollar business. You've just commercially exploited it.

    Was that illegal?"

    Not at all. But if I make copies of the book and sell them, without being authorized to do so, that's illegal.

    "What if a book gives you an idea that helps you invest in a stock and make a profit. That's a commercial use.

    Was that illegal?"

    Again, not at all. You're talking ideas here. I'm referring to making copies of a physical good and selling them.

    "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?

    Again, if you structure your business model correctly, it will flow to the creator."

    That's handwaving. You haven't answered my question: If I don't have to pay an author to publish his work, his loss is a certainty and gains uncertain. Why would he choose uncertain gains over certain losses?

    "But again, it doesn't strip him of financial incentive. As long as he sets up the right business model."

    And why do you think the existing model is wrong? Especially when it's working fine for authors and publishers.

    "If you look at the historic evidence, there's little evidence that an absence of copyright strips anyone of their financial incentive. Instead, you see other models quickly emerge."

    In what fields is copyright absent? Apart from free software, can you show me an industry without copyright?

    Also, there's plenty of historic evidence that existence of copyright has helped creators gain financial incentive. Why do we even have copyright in place? One of its objectives is to ensure that content creators enjoy control over their work and reap the rewards.

    "I'm not hellbent on anything. And why do you insist that it takes away the author's revenue stream?"

    Because it does. In a world where every work is treated like the Bible, what is the incentive for an author to publish a work? Don't you realize that if there's no copyright, publishers wouldn't pay authors a dime? If that isn't snatching away an author's revenue, I don't know what is.

    "You keep saying that (amusingly, right after you admit that you "get" the model we discuss). If you got the model we discuss then you'd realize we're not taking away anyone's revenue stream."

    I get your model all right, Mike, but that doesn't mean I agree with you that it works for all creative industries. If you look at from the author's point of view, you'd realize absence of copyright will hit them the hardest.

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

    No. I can say that because I chose a business model that is not affected by the absence of copyright. However, that's not true of most companies in our space. But in the absence of copyright, more would shift to other business models as well."


    You could afford to choose a business model that isn't affected by lack of copyright, simply because you are in the digital business. If you were a publisher or a movie maker, you simply cannot afford to ignore the need for copyright.

    Thanks for your thoughts, again.

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