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
    TtfnJohn (profile), 25 Nov 2010 @ 10:35am


    "It is repeatedly said by those who decry the existence of copyright law that all authors "stand on the shoulders of giants." To that I say that the system of copyright law does likewise. It was not crafted in a vacuum. It was crafted over centuries,.."

    On your first point about the giants past is true but only marginally, as I'll get to in a moment. It applies more to the things covered by patent law as it was originally constructed rather to the mish-mash we have now.

    Nor can you or anyone else lay claim to some ancient heritage of copyright as it simply didn't exist prior to the Statute of Anne in 1710. Three hundred years is a little bit short to claim some ancient heritage as you try to imply.

    "...and in no small part by persons who had given the question of incentivizing authorship serious thought and consideration."

    If you look back at the debates, background and purposes of the Statute you'll find that it wasn't about providing and incentive to authors at all but to protect publishers from one another. Yes, publishers were the "pirates" of the day.

    Authorship was a very minor consideration if a consideration at all.

    I'll go so far as to suggest that the kerfuffle now over copyright has far less to do with the tiny minority of writers who earn a living exclusively from their work than it is to protect the self-same publishers who are now finding it difficult to compete in a world where the Internet has come along and expanded publishing from the cozy little cartel it's been to just about anyone who takes the time and effort to put up a web site.

    In fact it's the publishers (movie studios and major record labels, as well) who hold the vast majority of copyrights not the authors and stand to gain the most from further restrictions and/or extensions.

    Now, and this is vitally important. Human beings are the only creatures on this planet (as far as we know) with the ability to tell stories to one another.

    Among the first things we want as children is for our parents to tell us stories. We, and they, then pass those stories on to others.

    One of the most highly regarded people of ancient times and in pre-history, was the storyteller. Whether around a fire outside or inside some sort of building the people of a tribe of village would gather to listen to the storyteller weave a tale.

    There was no need for an incentive like copyright for the storyteller. They just did it and were held in very high regard by their fellows, sometimes becoming a religious sage or leader in the process.

    In fact, this is so ingrained in us that we still hold storytellers in exceptionally high regard. Where authors, by and large, are very poor storytellers some excel at it.

    Mark Twain's memory, in large part, isn't kept alive by the fiction he wrote as much as by his tours to different parts of North America and to England to tell stories. Not to read from his books. He told stories.

    Similarly I'd far rather hear Margret Atwood lean back in a chair and spin a tale than the rather boring for me (and her from all reports) process of listening to her read a book. She's a hell of a good writer. She's a better story teller.

    We all know storytellers. It may be the old guy down the street, it may be someone at work, it could be someone in our social group and when they start to tell their stories we gather round, often spellbound, by the story even if we've heard it, in one form or another, before. They don't need copyright to sit down and tell a story. They just do.

    If authors stand on the shoulders of "giants" the shoulders they stand on are those of the storyteller whose stories they often retell with a change here and there and call it their own.

    None of this is to denigrate authors or to say they shouldn't be fairly recompensed for their work. What it is to do is to knock some, if not most, of them off the pedestal post-modern society has placed them on.

    As for Macauley, he didn't support copyright as much as he considered it a necessary evil which is what, economically, it is. As the quote above shows, he was prepared to tolerate that evil, which he correctly calls a tax, for a limited term only and certainly would not support the caricature we call copyright today.

    We still have storytellers today. Just flip though the net and you'll find millions telling their stories and others. Damn few of them seem to be relying on copyright to do it or seem interested in making a living off it. To the hoity-toy of the arts community (a 19th Century development who have dug themselves in as post-modernists) this is all very dreary and pointless. To people like me who are interested in human history, the arts be damned, this is and will be a gold mine for historians in the future.

    In short, you're wrong on all counts.

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