Is Balance The Right Standard For Judging Copyright Law?

from the balancing-what? dept

For many years, I've pointed out that I tend to disagree with many folks -- who I otherwise agree with -- in copyright debates, who argue that we should be looking for the "right balance" of copyright holder rights vs. user rights. I've long thought that balance is the wrong way to look at it. The purpose of copyright law is to incentivize the creation of new content, and thus the standard on which copyright law should be judged is one where the creation of content is maximized. As such, there shouldn't be a question of balance, because the ideal situation where content is maximized should make everyone better off. Talking about balance is figuring out how both sides should compromise to meet in the middle. Talking about maximizing content creation, on the other hand, is talking about ways to improve the marketplace of options for everyone.

Still -- especially among so called "copyfighters" -- the concept of "balance" is quite commonly used. However, it appears that at least some others are also concerned about this use of "balance." Copycense alerts us to a paper that was published recently by Abraham Drassinower, of the University of Toronto Law School, which also argues that balance is the wrong way to view copyright policy. Unfortunately, the paper is not the most... lucid thing out there. It's quite academic and, tragically, does not do a particularly good job clearly and concisely making its point. It's not what I would call an easy read. Instead, it rambles at times, and uses overly complex (and at times circular) language, rather than just coming out and stating a clear and concise thesis. This is unfortunate, because if you can get through the language used in the paper, it does make some very valuable points.

The argument is, effectively, that "balance" as a concept in copyright law really only makes sense if you believe that copyright law is designed to reward a content creator for their labor -- in legal terms, the "sweat of the brow" argument. However, courts in both the US and Canada have rejected a "sweat of the brow" standard for copyright law, as being separate from the purpose of copyright law. If you believe that "sweat of the brow" is appropriate, then you are starting from a position that a content creator naturally deserves rewards from all benefits that result from his or her work. And, thus, the "balance" is in slowly removing some of those rewards and giving them to the public, until things are seen as "fair" for both sides.

The sweat of the brow standard affirms a view of copyright law on the basis of what we might call a misappropriation paradigm--that is, a paradigm that grants copyright in the products of a person's mental effort so as to preclude others from reaping where they have not sown. The mischief copyright law aims at in this paradigm is the misappropriation of value through copying. Copying a phone directory gives rise to copyright liability because such copying amounts to an unauthorized transfer of value from the author to the copyist, the plaintiff to the defendant. It is to correct this "grievous injustice"--to use the words of a classic House of Lords judgment in this tradition--that copyright law operates. Its target is the injustice of misappropriation.

But, without a "sweat of the brow" standard, then the whole concept of balance makes a lot less sense. Instead, Drassinower notes that copyright is actually based on a "skill and judgment or creativity" standard, which focuses just on the creative elements of the work, rather than the effort put into the work. In other words, the standard we have set for copyright focuses on the value of creativity rather than the value of effort. Drassinower argues that balance, as a concept, does not, and cannot take that difference into account.

Again, while I agree that balance is the wrong way to look at things, I was quite disappointed by the way Drassinower sets out to make this case. It's interesting, but not presented in a compelling way. There are times when it makes good points (though, again, using overly dense language in most cases), but never seems to fully come out and just state the clear conclusion of focusing too much on balance: that it falsely implies that when one loses the other wins. That it falsely implies that this is a zero sum game. At times, he gets close, as in the following passage:

[Once] the metaphor of balance is assumed as the integrating mechanism holding authors and users together, integration properly so-called can never occur. And that is because once value-balancing is the ordering mechanism, then the relation between authors and users is but a perennial struggle for value, such that claims of authors are but minimizations of the value-entitlements of users, and similarly, the claims of users are but minimizations of the value-entitlements of authors. The upshot is that successful haggling about price masquerades as the foundation of a truly public domain. The failure to elucidate authorship as anything other than value-origination generates an impoverished vision of the public domain as nothing other than a lower or lowered price.

But he fails to take that final step of pointing out that it's not a zero sum game, and the goal of copyright should be maximizing the creation of content overall, such that everyone is better off. Still, if you can get through the rather dense language, the paper does raise some good points, even if I felt it misses the true problems over "balance" in the copyright debate.

Filed Under: abraham drassinower, balance, copyright, incentives