How Do You Measure The 'Benefits' Of Copyright?

from the evidence-based dept

One of the major problems we have with the way copyright law today is developed is how much of it is faith-based -- with supporters insisting that more stringent copyright law is obviously "better," without presenting any evidence to support that. The history of copyright law is filled with examples of this sort of argumentation in favor of stronger copyrights. Thomas Macauley famously (and quite eloquently) argued against such things in the UK House of Commons 160 years ago, and his words still stand today. Here are just some brief excerpts, though the whole thing is worth reading:
I believe, Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Companys monopoly of tea, or by Lord Essexs monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil but the evil ought not to last a day longer than is necessary for the purpose of securing the good....

... consider this; the evil effects of the monopoly are proportioned to the length of its duration. But the good effects for the sake of which we bear with the evil effects are by no means proportioned to the length of its duration. A monopoly of sixty years produces twice as much evil as a monopoly of thirty years, and thrice as much evil as a monopoly of twenty years. But it is by no means the fact that a posthumous monopoly of sixty years gives to an author thrice as much pleasure and thrice as strong a motive as a posthumous monopoly of twenty years. On the contrary, the difference is so small as to be hardly perceptible. We all know how faintly we are affected by the prospect of very distant advantages, even when they are advantages which we may reasonably hope that we shall ourselves enjoy. But an advantage that is to be enjoyed more than half a century after we are dead, by somebody, we know not by whom, perhaps by somebody unborn, by somebody utterly unconnected with us, is really no motive at all to action...

The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that by so doing I should proportionally increase the bounty. My complaint is that my honorable and learned friend doubles, triples, quadruples, the tax and makes scarcely and perceptible addition to the bounty.
But, that, of course leads to the question of just what is the benefit that copyright provides. If you talk to many of today's copyright system supporters, they will claim the benefit (or even the entire purpose) of copyright, is to provide remuneration to creators. That, of course, ignores the basic history of copyright law, but even if we assume this is true, then copyright does not seem to serve that purpose. After all, very few content creators get remuneration for their creations, and among those who do, fewer still get enough remuneration to make a living.

In discussing how copyright law might be rethought, Cory Doctorow does a nice job pointing out the extremes which disprove the common claims of copyright. After all, he notes, if copyright is about helping content creators make a living, then the "best" solution would be to simply award content creators a living wage. So arguing that copyright is designed to serve that purpose is misleading. Similarly, in measuring the overall impact of copyright, you can't simply add up the aggregate amount made from copyright -- as some copyright system defenders love to do with the oft-cited $1.52 trillion dollar number. Doctorow again disproves that as the proper measuring stick, by again taking it to the extreme: if only one person were to make all that money thanks to copyright, no one would think that was a good program.

So, how do you judge the benefits of copyright? Cory's suggestion is the following:
In my world, copyright's purpose is to encourage the widest participation in culture that we can manage -- that is, it should be a system that encourages the most diverse set of creators, creating the most diverse set of works, to reach the most diverse audiences as is practical.
While this sounds nice, I still don't believe this is the proper way to measure copyright, either. After all, one could easily take this to the same extreme and note that if we get the widest participation but, in doing so, it creates disincentives for great artists to create their works, is that the best system? I'm not convinced that's the case either. This is also why I think Cory's piece, which starts out so promising, goes somewhat askew at the end, in proposing a blanket music tax for file sharing -- an idea that I believe is actually quite a bad one due to serious unintended consequences.

So I would posit that the way you judge the "benefit" of copyright is the way economists judge such things: you look at the aggregate marginal benefit across all stake holders. That is, what is the marginal benefit to everyone in society from a specific change to copyright. Does it increase output but decrease consumption? Thus, you should be looking at not just if it makes artists better off, but by how much, and whether or not it makes others better off and by how much. This may not be easy to measure, but it is how to best think about the impact of changes in copyright law. Look at both the increases and decreases in "benefits" to everyone in the ecosystem and see which maximizes the overall societal benefit.

This is also why I disagree with Cory's concept of "balance" -- a concept I have argued against in the past. If you are striving for "balance," you are arguing for what everyone must give up. Yet, if you are looking for the greatest marginal benefit, you are seeking the result where you are maximizing overall social benefit -- meaning, you are increasing opportunities for content creators to create and to make money, while at the same time increasing the social benefit that others can get out of their art by consuming it, by sharing the experience associated with it, by building on it, etc.

The goal should not be to "balance" what needs to be taken away or to just focus on one side of the equation (artists or "participants"), but to seek out what policies would actually maximize the marginal benefit to all.

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  1. icon
    Karl (profile), 26 Nov 2010 @ 1:09pm

    Re: Re: Re: Re: Measuring benefits

    I asked about "additional" because here it is typically used in relation to a single author and the encouragement provided for the author to create still more works.

    I agree wholeheartedly. I merely used "additional" to distinguish it from "novel," to make a point about "derivative works."
    There's this idea that copyright is supposed to prevent prevent authors from "stealing" each others' works, and that works must be created sui generis to be legitimate. That's wrong. Prior art is the foundation of future art, so without "stealing," new art isn't possible. Discouraging the production of derivative works, discourages the production of all works, to a degree. It thus runs counter to the intent of copyright law, and is ultimately a detriment to the public.

    In fact, the creation of "derivative works" could be considered the ultimate intent of coyright law. Encouraging authors to create is only half the equation; the other half is publishing these works. It is not about artistic creation per se, but about making these artistic creations available for public use.

    Perhpas the more appropriate question to have asked was "Does the law encourage the production of more works than would other wise be the case in the absence of the law?"

    It's not just about the "absense of the law," but the absense of specific laws, and about whether the same end can be achieved with a different set of statutes. You can't just argue for or against copyright's existence; you must also argue for or against the specific laws under which copyright is defined and enforced.

    And there is also a complimentary question: "Does the law discourage the publication of works that would have been produced in the absence of the law?" That answer is also "yes." I can name a slew of artworks that were banned from publication due to copyright law; and I can name cases where the artwork was ultimatel produced, but only in spite of the fact that copyright hindered their efforts. But let's take a single example: Would J.D. Salinger have produced more works, if he was not allowed to perpetually earn royalties from Catcher In The Rye? I'd say the answer is "yes." So, the public has been robbed of additional works by a great author.

    In regard to public use, as I now understand how you use the term the necessary consequence is that the quantum of rights now secured by law would essentially be reduced to zero. Once a work is published there would be no residuum of rights remaining since it would reduce copyright law to simply the right of being the first to publish.

    You've ignored my caveat: "except when that use infringes on the author's monopoly [...] on commercial use of his works."

    That hardly translates to merely a "first publishing" right. It means that any commercial use must be reimbursed, or permission must be attained. But copyright is a commercial monopoly; it should not prevent uses that do not generate profit.

    As an aside: Don't be so quick to knock "first publishing" rights. That's essentially the only advantage Apple has in the marketplace. Last I heard, Apple was doing pretty well. It might also be better if copyright were these "first-to-the-gate" rights - it forces you to continually produce more works, to stay ahead of the curve. "Publish or perish" is a damn good motivation for artistic production, so it might satisfy the Constitutional purpose of copyright better than our current laws.

    I'm not convinced by this argument personally, but I'm not going to pretend it's without merit.

    via a "license" arrangement (most typically an assignment of rights to a third party) where they trade possible renumeration in the future for definite renumeration in the present.

    Just so you know, that's not how publishers work (at least, not in music). As an artist, you "assign" your rights to the publisher; but the publisher doesn't renumerate you - it loans you money to cover the costs of production. You are still dependent upon future sales in order to be renumerated; only now, you're not paid until you pay back both the cost of production, and the expenses encurred by the publisher. The only thing you gain is the ability to create works without paying production costs up front. What you lose is your rights to your work, and the vast majority of any future profits. Publishers are like credit cards, except if you bought a toaster, the credit card company would own the toaster after you paid them off.

    I know, that's an objection to contracts, not copyright law. Still, it shows that copyright is not designed to protect artists from exploitation, which is another common misconception.

    As for the "public's inalienable rights", it cannot be said as a matter of law that copyright and the First Amendment are incompatible. It is one thing to have something to say and to be precluded from doing so. It is quite another to do nothing more than regurgitate verbatim the totality of someone else's speech without even the slightest effort to add anything more.

    You are making exactly the same, incorrect, argument that I was trying to avoid by using the word "additional" earlier. Firstly, nothing in the First Amendment requires that speech be "novel" in order to be protected (indeed, it cannot). Secondly, I can't think of a single case where it's possible to "regurgitate" someone else's speech, and not add anything more - both the speaker and the context have changed, which changes (however slightly) the speech itself. In fact, that's how parody works, and parody is explicitly protected speech. Thirdly, copyright doesn't just prohibit the "regurgitation" of existing works, but any expression that uses parts of those works - that is, derivative works. So, yes, copyright and free expression are inherently in conflict.

    That doesn't mean we must abolish copyright as being unconstitutional. There are plenty of cases where the government can suspend civil rights - hell, we have prisons, and prisons are the very definition of the suspension of civil rights.

    So, coyright and free speech must be balanced. Note, however, that I'm not talking about a "balance" between copyright holders and the public. I'm talking about a balance between competing public interests. On the one hand, there's a strong public interest in unlimited free expression; on the other hand, there's a public interest in growing the body of public domain works. Those are the interests that must be balanced. The interests of rights holders may be relevant, but they're not decisive; they should be considered strictly in terms of public benefit. (To make a legal metaphor, the public is both plaintiff and defendant, and rights holders are only amici curiae.)

    And under our current laws, that balance is way off. The very fact that people think speech must be "novel" to be protected is a symptom of that imbalance.

    Which do you think hurts the public more: the loss of free expression, or the loss of the next Avatar?

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