Economist Explains How Copyright Just Isn't Working
from the the-same-incumbents-still-winning dept
Alex Tabarrock, one of the contributors to Marginal Revolution (and associate professor of Economics at George Mason University) has often dealt with the subject of intellectual property from an economist's perspective. Recently, he changed things up and posted about his personal experiences with the frustrations inherent to intellectual property laws. Dealing with copyright in practice is much, much more aggravating and ridiculous than dealing with it in theory.
Working with textbook publishers, Tabarrock ran smack into the wall that copyright has constructed around -- of all things -- the public domain. (via Techdirt reader Marco)
For example, the publisher doesn't like to use public domain images. Why not? What could be better than free? The problem is that the bundlers insulate a publisher from lawsuits but when we use a public domain image the publisher is open to lawsuit if a mistake has been made and that makes them fearful.That's only one way excessive copyright protection negatively affects the public domain. As has been noted here several times, the expanding length of copyright protection has carved a massive hole in the public domain, resulting in fewer older works being made available for public consumption. Our current system grants automatic copyright protection, along with a lifetime + 70 years of keeping it locked up, even if the creator has no desire to exploit the system well into his or her children's later years. This automatic protection makes the public domain a minefield for almost everyone.
The general lesson is that strong IP shrinks the public domain not just because it keeps things out of the public domain but also because it makes the public domain appear to be uncertain and dangerous. It's as if clean, mountain spring water were freely available but people bought from the bottlers instead out of fear of contamination.As Tabarrock points out, this expanded, automatic protection actually does very little for the individual creator. Instead, it rewards "bundlers" like Corbis and Getty, entities that can use their own products without fear of legal reprisal. The more they bundle, the harder it is for others to make their creations available to other creators. Anything outside the mega-bundlers is viewed by other giants in the industry as inherently suspect by those paid small fortunes to protect their clients' IP and fend off challenges from others.
Worse, even if you secure the rights, you may not have secured the rights.
Here is another example. To illustrate the point that, contrary to what is often argued, a rich person might get more from another dollar than a poor person we have in Modern Principles a movie still of Scrooge McDuck swimming in money. We think the image speaks for itself but apparently that is a problem. The rights to the photo are–we are told–not the same as the rights to the characters shown within the photo. Thus, even though we have bought and paid for the right to print the photo, to ensure that the use of the characters within the photo falls under fair use we must discuss, comment on and critique the content of the photo in the text.It's no coincidence that the example given features a Disney character. Many of the excesses in copyright law can be traced directly back to the entertainment giant. As long as it exists, copyright term expansion will always be on the table. Again, this favors the corporations, not the creators, as those creations are made under contract or considered "work for hire." They retain none of the rights, making any extension of copyright protection solely a win for Disney et al.
This climate has given rise to another powerful group, one equally benefited by each extension and convolution of copyright law: IP lawyers. Someone has to navigate the mess made by those in the copyright industry, and billable hours mount pretty quickly when someone can purchase the rights to a photo but not the content of the photo.
The public domain is dead to most in the industry. It's there to be occasionally exploited (Disney loves doing this) but the thought of anything of theirs falling into the public domain is inconceivable. It's a relic of the past as far as they're concerned, a noble idea that has no relevance in this era of lifetime-plus terms and automatic protection. But this same protection, granted in the name of creators, harms creators. At best, it makes navigating the rights process unnecessarily frustrating. At worst, it makes the public domain unusable and turns independent artists into unsafe, unknown quantities.
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Filed Under: academic publishing, alex tabarrock, books, copyright, culture, public domain, publishers, risk
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Citizen gets screw somehow, does not really matter now.
Uproar happens and Legislators get involved.
Businesses buy legislators off and makes a regulation that looks like it protects or benefits the poor screwed Citizen, but through legal jargon and legerdemain only protects the 'Business' more!
Idiot Citizen(s) goes home feeling proud that they made a difference!
Businesses laugh and keep screwing people.
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Since this is his personal opinion and his profession is irrelevant to the article, it seems misleading to begin the title of the article here with "Economists".
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"Corbis and Getty, entities that can use their own products without fear of legal reprisal."
But that's not to say IP favors bundling. Bundling your own works together (or the works of a few agreeing party) isn't really bundling as a result of more IP.
Less IP favors bundling (and that's a good thing) being that now everyone can bundle more works together without the need for permission and expensive licensing.
The only thing stricter and longer IP really favors are distributors and publishers that don't want competition. Expanding the length makes less works easily and freely available which reduces competition. That's the whole point of public domain theft. The public domain is seen as competition against protected works and intermediaries can't have that.
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Which pretty much decribes how a lot of people have come to feel about copyright.
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No, the whole point of copyright was to benefit the public by incentivising the creation of works. The means of incentivisation (granting a (*cough cough*) limited monopoly on the reproduction and distribution) is a detail of how, not why.
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That was the spin put on copyright that successfully got the first copyright law passed. It was also the ideal put in the constitution, but it has always been about protecting publishers rather than incentivising work. All publishers have more works submitted than they can actually publish, so incentive to create is not that dependent on copyright.
If an incentive to create was needed, the publishers would pay creators a better rate, to attract enough works to keep their business afloat.
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Not what they want, what they ask for.
The end result is most likely the rope with which they will hang themselves.
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Spring water...
Most of the locals refuse to drink it, claiming that it may be contaminated with heavy metals and/or bacteria (giardia), but I'm not sure I've ever seen any proof of this.
On the other hand, whenever I drive by there, I see people with pickup trucks and huge plastic containers in the back filling them up at this spring. At one point, I asked a guy where he was from, and he said he drives over an hour each week to fill up his jugs as the water at this spring is cleaner and tastes better than the municipal water he drinks every day.
Go figure.
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I always found it amusing - I used to drive by it daily as I lived nearby.
In any case, I only brought it up as it was used in the article as an analogy, and I think it's pretty close to true. Most people don't trust something unless they've paid for it, I guess.
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Isn't it Un-Constitutional?
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Re: Isn't it Un-Constitutional?
That is the exception, rather than the rule with long copyrights. Long copyrights primarily act as destroyers of old works, because the publishers do not produce new copies, and existing copies are destroyed by accident and time, or lost in a trunk in some attic. This is no accident, as the publishers do not wish a public domain to compete with their new works.
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Re: Isn't it Un-Constitutional?
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Well, yes but no.
Let's start with the “Yes.” When I first read TasMot's comment, I was three-quarters of the way inclined to just point him to the Wikipedia article on Eldred v Ashcroft (2003). Along with maybe a remark like, “You're obviously new here.”
Now for the “No” part: Going from memory, during oral argument in Eldred, one of the justices asked Lessig whether the entire 1976 Copyright Act was unconstitutional.
I don't exactly remember Lessig's answer to the justice, but he punted. The 1976 Copyright Act wasn't the issue in Eldred. The case was just about Sonny Bono.
Anyhow, my memory gets worse the older I get, so take a look at the transcript of the oral argument to check my facts.
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Oral argument of Lawrence Lessig on behalf of the petitioners.
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Ah the government in action...
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I ain't never going to be President. But suppose I was?
I get up one morning, grab the wife and get on Air Force One. We're headed to Geneva! Geneva, Switzerland, honey. It's a long flight. So we land and everything and get checked into the hotel, and then do some hobnobbing. Eventually, it's time for business.
I'm in Geneva to give a speech to the WIPO General Assembly. Guess what I'm gonna tell those boys down at WIPO?
Then I get back on Air Force One, and we fly back home.
You know why I'm never gonna be President?
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Either that, or "that's not the outcome we want, so we have to find a way to make the decision go some other direction, regardless of what the Constitution actually directs us to do."
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I thought of an even worse implication. Breyer is saying he's unwilling to entertain a decision that would lead to chaos. So all the entrenched powers have to do is get some f-ed up law passed that would be hard to undo. By the time it gets to the SC, invalidating the law would "cause chaos", so it's not an option. Bingo, the industry gets to permanently keep whatever antisocietal regulation they bought.
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Eldred v Ashcroft (2003)
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