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), 20 Jun 2008 @ 3:59am

    Re: Re: Re: Thanks Blaise

    Hi cram,

    It's taken me a while to respond, but better late than never!

    I don't see how sticking with copyright will diminish an author's chances of gaining long-run benefit.

    In the long-run, don't you think electronic books will become more popular? Holding onto copyright has put publishers in the music and movie business in direct conflict with their consumers as digital audio and video have risen in popularity. What makes you think copyright and digital books will magically get along?

    One compelling reason to look beyond copyright for a business model is simply in anticipation of that.

    And the digital landscape isn't posing any threat to their existing model. People are still buying books.

    Yet. There haven't been many compelling offerings, most are hindered by some sort of DRM. But yes, there is something about books that is less replaceable by a screen, maybe, which makes them the perfect scarce good to complement a digital offering.

    But even if there isn't a serious threat now, that doesn't mean there isn't an opportunity for authors to grow their market by leveraging digital goods.

    And what about the publishing companies? How would they benefit if copyright goes?

    The provision for intellectual property laws in the U.S. constitution is to promote the progress of science and the useful arts, not to benefit publishing companies. The key goal is to provide an incentive to produce art. If publishing companies aren't needed, why would that be problematic?

    But publishing companies will still have an important role to play, in the same way that there's still a role for record labels in the music business. Not every author can or would want to manage their own distribution, whether digital or physical.

    It seems like another case of a company needing to define their market based on the benefit they provide, rather than the product. Publishing companies are in the business of providing distribution for authors (or something along those lines), rather than simply selling books. If publishing companies look to the benefits they provide, there would definitely be business opportunities in the absence of an author's dependence on copyright.

    Take movies, for instance: Why would a company produce a film if they cannot exercise control over it? The movie hall experience that you tout as a scarce good is dependent on copyright, as are television revenues, international rights revenues, DVD sales income, etc. I just don't see the copyright-free model working for the film industry.

    First of all, the motivation for most artists to produce art isn't their ability to exercise control over it, but a desire to produce art. Art was produced before copyright existed as an incentive.

    I don't think the movie experience is necessarily dependent on copyright. There are lots of reasons a movie theatre would want to maintain a good relationship with a movie company. Even if digital video might be an infinite good, high-quality video (i.e. the kind you might want for a giant screen in a theatre) isn't as abundant. What about other high-quality movie experiences, like an IMAX theatre for example? There are some things that can't be copied, or can't be copied easily, and it would be much easier for a movie theatre to get them from the source, which would require a good relationship.

    I agree the dynamics of consumption are very different between movies, music, books, etc. I don't think it follows that simply because you or I can't imagine how it might work that it wouldn't work. If there is a demand for a certain type of movie and companies/filmmakers interested in producing it, there is a market that can be monetized with the right business models, even if it takes some experimentation on the part of companies to figure that out.

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