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, 16 Jun 2008 @ 9:16pm

    Off the mark

    Hi Sailor

    A late response to your totally off-the-mark comments.

    "First off, the principle in any democratic society is 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,... "

    You can add "copyright infringement" to that list, because when I last checked, there were laws in place to check copyright infringement. So, your statement that people are allowed to do anything in a democracy is rubbish.

    "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."

    I don't know what world do you live in, but in my planet people have already thought over these questions and put in place laws to protect content creators. In your utopian world the burden of proof may be on the creator, but not in the real world. That's why civil society ALREADY HAS limitations on who can do what with someone's content.

    "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."

    This analogy makes no sense. That would be as absurd as stating that all photographers should pay Canon or Nikon royalty for every picture they take. See, lawnmowers are tools; once you buy one you don't owe the company anything anymore. However, you don't have the right to commercially exploit their technology or brand name for profit by making knockoffs.

    "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..."

    I'm not plagued with any inconsistency; you're mixing up issues and arriving at a conclusion. I was talking with reference to the book publishing industry. You avoided talking about the issue and instead dragged in a musical analogy.

    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.

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

    Phew! Finally, a point of agreement. And it's too huge a cost to be ignored.

    "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..."

    Now, aren't you being inconsistent here? Initially you said the burden of proof is on the content creators, but in the end you do agree that unrestricted direct commercial use hurts the creator. Actually your last statement contains a kernel of truth: copyright concerns are more to do with direct commercial use than indirect use because of the greater potential loss to the creator.

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