Copyright Is About Incentives, Not Protection

from the net-benefits dept

Mon, Sep 24th 2007 6:31pm — Mike Masnick

Whenever we discuss the issue of copyrights and bring up the fact that copyright is not a welfare system to protect creators, people get upset with us. There seems to be this false assumption that copyrights (and patents) are designed for the sake of protecting the creator of content. That's not true and it's never been true. From the very earliest debates about the concept of intellectual property in the US, it has always been about creating incentives for innovation -- or, as the Constitution so eloquently puts it: "to promote the progress of science and useful arts." In thinking over the various debates over copyright, it seems to come down to this particular issue over and over again. Those who are focused on the original purpose of copyrights recognize the problems with the copyright system and are interested in fixing them. Those who believe that the purpose of copyrights is to "protect" don't have a problem with the way things are, or with the idea of strengthening copyrights, even if they weaken the actual market and are a net negative on society.

This is quite clearly indicated in a great article by Julian Sanchez arguing against extending copyright protections to the fashion industry (found via Tim Lee). The question of extending copyrights to the fashion industry has been discussed at length before, but a few key points in Sanchez's piece highlight this split in thinking about the issue. He notes, as many others have, that the industry is constantly innovating and is quite healthy -- which is why the idea that new "incentives" are needed seems laughable. However, if you view things from the position that copyright is about protecting, then it's a different story. Sanchez notes that while individual designers may be harmed, it's only helped the overall industry. From that standpoint, if you believe in protectionism, then you say these new laws are needed to "protect" those who are harmed -- ignoring the greater harm caused to the rest of the industry.

The history of economics is littered with examples of why protectionism is rarely, if ever, a reasonable policy. It tends to backfire badly, in part because it takes away many of the incentives for competition and innovation. In protecting one area, you are inevitably harming another. Indeed, studies have shown that innovation in the fashion industry is often because of the rampant copying, rather than in spite of it. That's the way you want markets to work -- where competition drives innovation by forcing companies to keep innovating to leapfrog each other. Sanchez quotes legal scholar Kal Raustiala to make the point: "When a successful restaurant opens up on a street that's never had a restaurant before, there's a way in which the second business is parasitic on the first. But in the United States, we call that capitalism and competition."

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Filed Under: copyright, fashion industry, incentives, protections

13 Comments

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Kuroshi, 24 Sep 2007 @ 7:39pm

Spelling mistake that screws the sentence for the
Shouldn't "In protecting one are, you are inevitably harming another." be "In protecting one area, you are inevitably harming another?" I agree completely though, people who want to strengthen it always seem to be the detail kind of people, whereas people against it seem to be people who look at the "big picture". Flame all you want, I'm probably wrong, but I can nearly guarantee that I won't be back on this post. Sorry.
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Mike (profile), 24 Sep 2007 @ 8:00pm

Re: Spelling mistake that screws the sentence for
Shouldn't "In protecting one are, you are inevitably harming another." be "In protecting one area, you are inevitably harming another?"

Yup. Fixed. Thanks for pointing it out.
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Danny, 24 Sep 2007 @ 8:57pm

This may not be so bad...
Think about it like this. We all know that the fashion industry has flourished for years without the "aid" of copyright protection. If copyright protection is extended to the fashion industry this may serve as a shinning example of how damaged the copyright (and trademark and patent) system is damaged.

Those systems aren't perfect but the need to exist...if only they could be fixed and run properly
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Travis, 25 Sep 2007 @ 12:05am

Re: This may not be so bad...
So run with this idea. We extend the protections, and fashion suffers. But who's going to be left to repeal it? The people with power or money(inevitably made rich by the protection) are the main people who could do something about it--and exactly the people that would do anything to keep it from going back to the way it is now.

Sure, it might make a great sidenote in the econ textbooks, and as far as I'm concerned it might as well be the fashion industry that suffers this fate, but I don't think that the situation would play out quite as ideally as you imagine. It's far more likely that it'd set a precedent toward more unneeded protections than it would make the world realize that we should have a huge shift in our thinking about copyrights. But perhaps I'm just a cynic and a closet fashion zealot :-)
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Rob Blatt, 25 Sep 2007 @ 6:15am

fashion and handbags
As someone who's accompanied his wife in attempting to purchase a handbag, the important selling point on fashion is the workmanship. She's willing to pay $10 for a knockoff, but it ain't because she really wanted the $800 bag and figured that the cheapo's just as good. She won't buy the cheap bag because it'll fall apart in a few months.

The "copyright" of the fashion industry is durability. Things are expensive because they are made well. They are made well because the manufacturer wants them to last because of the name and design and what it means to that brand.

This isn't an issue until the coach knockoff that you buy on the corner is ACTUALLY cutting into Coach's bottom line, and knock off bags that even I can spot nowadays aren't doing that. Furthermore, if the knockoffs are being built to last, then they would be selling for hundreds of dollars and suddenly making them doesn't prove so profitable anymore.

I wish that these industries would figure out says of thinking about longevity that doesn't include the word "copyright". That seems to be the only strategy that they can think of.
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RandomThoughts, 25 Sep 2007 @ 6:30am

I find it hard to believe that the fashion industry could move to copyright protection because according to the article, "new" things are pretty much recycled from past things. Kind of hard to claim a copyright when you are copying other creations.

As for fashion suffering? Who would do the suffering? Consumers?

I find it hard to believe that that stuff could get any more expensive.

Sometimes, its great to be a guy.
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mscsrrr.com/website-traffics, (On Copyright Is Abo, 25 Sep 2007 @ 7:04am

Copyright Is About Incentives, Not Protection
Okay, let us assume that you are right that copyrights is about incentives and not protection, then I say to you that copyrights SHOULD be about protecting peoples' inventions and intellectual properties from being stolen and taken advantage.
There is no need to play semantic word games here.
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Chris Brand, 25 Sep 2007 @ 9:26am

It's all in how you describe it
That's why I describe copyright as "a (government-granted) monopoly on expression".

That at least sometimes gets people to realise that they're not necessarily an absolute good thing that should be extended and expanded ad nauseum.
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RandomThoughts, 25 Sep 2007 @ 10:03am

Chris, a government granted monopoly on one's own creation. Maybe not an absolute good, but not a absolute bad, either.
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4-80-sicks, 25 Sep 2007 @ 10:34am

Re: #8
It's the terms of the monopoly that are an issue, not the "monopoly" itself. Copyright's purpose is to grant the creator exclusive rights for a limited period of time. This way, a creator may reap the rewards of his idea for 17 years (or whatever it is now) after which that idea should fall into the public domain so that anybody may use it. This is a benefit to society, not a detriment to the original creator.
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Dann, 25 Sep 2007 @ 1:42pm

Now that I think about it...
I'm afraid you may be right. I wonder what would be open game if copyright were suddenly introduced?

A specific patter of material?
A certain style of stitching?
Or would it become a free-for-all like the tech industry is these days?
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Anthony Kuhn, 25 Sep 2007 @ 5:40pm

Patents mean different things to different people
Just as small inventors what they think about the Patent Reform Act of 2007, then go visit Big Blue or Cisco and see what they think. The one-size-fits-all shoe doesn't and there is a need for some kind of moderation of the current laws to encompass a greater realm of circumstances and intended outcomes. Your post is right on target for my audience, so I cross-posted on your piece, along with some of my own comments, at http://blog.innovators-network.org The Innovators Network is a non-profit dedicated to bringing technology to startups, small businesses, non-profits, venture capitalists and intellectual property experts. Please visit us and help grown our community! Best wishes for continued success, Anthony Kuhn Innovators Network
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Karl Fogel, 28 Sep 2007 @ 3:31pm

Yes, but incentives for whom?
Copyright was indeed invented to provide an incentive, but for printers, much more than for authors.

In the age of the printing press, printers needed (and indeed asked for) regulations that would remove incentives for them to undercut each other with cheap run-offs, which tended to be unreliable copies that often didn't reflect the author's intent accurately. Copyright law was quite openly designed to solve this and other problems related to making printing -- that is, publishing -- an economically viable activity that would still serve the public good by creating highly reliable copies.

That made a lot of sense in the age of centralized distribution. But the Internet is a different beast altogether: perfect duplication is the norm and costs nothing, and the use medium (printed copies) is decoupled from the distribution medium (formerly also printed copies, now bits on a wire).

The fertile innovation and cross-pollination that happens in fashion today could be happening in all fields of intellectual production... if we let it.

-Karl Fogel
http://QuestionCopyright.org/
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