Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.

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Economist Debate on Copyright

My comments to the debate...

Professors Fischer and Hughes each identify the rationale for the system of copyright as its capacity to encourage creative effort, as well as promote respect for creative people. Both are laudable goals, but a dispassionate analysis should note the oddity of the situation we find ourselves in - copyright laws focus more upon the distribution of creative works, and less upon the creation of those works.

Guest speaker John Kennedy made perhaps the most trenchant observation, "Copyright influences behaviour." This has manifested in two equally undesirable ways. The speakers and various individuals have spoken of the challenges caused by those who engage in unauthorized distribution of copyrighted content. At the other end of the spectrum is the self-censoring of creative effort that occurs when individuals believe that copyright is a grant of absolute property.

Copyright is not, and has never been, a measure of complete control. Since its emergence into Western law, it has remained a limited right; limited not only in time, but also in its reach. Eighteenth century English courts recognized fair dealing (rooted in the doctrine of fair abridgement); likewise, early American courts recognized the practice of fair use to varying degrees. While there are differences between the two exceptions, each allows for the unauthorized reproduction of copyrighted material for certain uses (i.e. private study, research, criticism, review and news reporting). Conditions apply to any exercise of fair dealing or fair use; neither exception is an invitation to copy without restriction.

Fair use has made a brief appearance in this debate. Professor Fischer describes the doctrine as helpful, but ambiguous and unpredictable. Professor Hughes states, "... to historians, novelists, archivists and documentary filmmakers... the fair use doctrine provides substantial protection against infringement claims." Fair use and fair dealing apply to all individuals engaged in creative effort. Yet, individuals who exercise these rights risk a charge of infringement, a litigation few people can afford. However, financial expense is not the worst of the difficulty; the real problem is that many people do not understand the limits of copyright and shape their behaviour accordingly. They are unaware that, in lay-man's terms, a good-faith productive use of copyrighted material is very likely to be legitimate. Granted, my position is shaped by a very progressive Canadian Supreme Court.

Guest speaker Ms. Dale Cendali writes, "Yet despite the overwhelming evidence of the success of the current incentive system, there have been calls to revise dramatically copyright law, including drastically shortening the current copyright term and greatly expanding fair use." From this, it appears that she finds expanding fair use a threat to the success of copyright, a threat to the promotion of creativity. If we believe that copyright is all about creativity, both encouraging it and respecting creators, then it would be prudent to pay more attention to the only measure within the law that directly addresses creativity.

Read the whole debate here


Guest speaker John Kennedy made perhaps the most trenchant observation, "Copyright influences behaviour."

"Economist Debate on Copyright"? Isn't the real headline here "Economist hires medium, channels spirit of dead president"?

First, I am troubled by this "debate" having two back-to-back guests advocating a strong copyright regime. If this were a true debate, the slot used by Dale Cendali would have been used by a "copy-left" person rebutting John Kennedy's assertions. Will the Economist offer "equal time" to both sides on this debate?

Second, Dale Cendali reiterates the "BIG LIE". Her article disingenuously asserts that copyright is somehow under attack and that the content producers need to protect themselves. Seems to me, that all the copyright laws that have been recently passed have all strengthened copyright to the detriment of the content users. Has there been any recent law that has restored a right of the content user? Ms. Cendali has notmentioned one.

Also, if the content producers can lobby for stronger laws, how can Dale Cendali condemn the copy-left if they lobby for weaker copyright laws?

There is a gap between the law and the reality of copyright. The law is ever more expansive and strict. The reality is that copyright exists less and less in practice. So in a sense it is true both that copyright is under attack and that is is becoming every more stringent. Sadly I expect the gap to continue to grow - copyright will be honored entirely in the breach, but the law will become ever more strict.

By the way, there isn't "overwhelming evidence of the success of the current incentive system" although there is weak evidence of its failure.

This does sound more like a debate among copyright lobbyists than a real debate. But the Economist presumably knows which side of the debate it is on.

David, you wrote: "There is a gap between the law and the reality of copyright." Excellent point.

This raises an important aspect concerning the law and society. When laws are out-of-step with society, they will be ignored. Also, when an out-of-step law is applied it will be in an arbitrary and capricious manner. If we are to be a nation ruled by law (where the law is to be respected and evenly applied) we need to have reasonable laws that serve society as a whole. Copyright law today seems to serve special interests, not society.

I agree. However, the "war on drugs" does not give me much hope that copyright law will be changed to reflect the underlying reality. For reasons that are to me unclear we seem to have moved to a society where we pass laws to "send a message" however ineffective they might be in practice. This gives enormous discretionary power to the police, who routinely abuse that power, and leads to widespread disrespect for the law. There do not seem to be many politicians who view this as a social issue worthy of discussion, let alone worthy of campaigning on. I guess the special interest groups that want to "send the message" greatly outweigh the many.
This so-called "debate" is one-sided. SAL-e wrote: "...the debate shifted from the "Copyrights vs. Copywrongs" to "How we can save the copyrights"."

In fact, I was amazed that Mr. Fisher, who in theory is advocating that current copyright is doing more harm than good, has apparently been "lazy" in making the case that copyright is doing more harm than good. For example, he seems to buy into the faulty concept that piracy is causing a decline in music sales. He makes no attempt to evaluate the legitimacy of this proposition. I guess Mr. Fisher would blindly accept the premise that the current decline in housing prices and housing sales is caused by housing piracy! Mr. Fisher could have easily sited studies that document that piracy does not affect music sales. In a paper titled "The Effect of File Sharing on Record Sales An Empirical Analysis", Koleman Strumpf and Felix Oberholzer-Gee conclude that: "Downloads have an effect on sales which is statistically indistinguishable from zero".

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