Copyright as an instrument of industrial policy

As Russell McOrmond says, “A great post by David Eaves about the myth that Bill C-32 supports market forces.” I’d go farther: Eaves is actually pointing out that copyright itself doesn’t support market forces:

I too believe that consumers should choose what they want. But if the Minister were a true free market advocate he wouldn’t believe in copyright reform. Indeed, he wouldn’t believe in copyright at all. In a true free market, there’d be no copyright legislation because the market would decide how to deal with intellectual property.

Eaves correctly points out that: “Copyright law exists in order to regulate and shape a market because we don’t think market forces work. In short, the Minister’s legislation is creating the marketplace.”

Digressing from the debate over C-32 to look at the bigger picture:

One of the overlooked realities of this debate is that copyright (or, rather, the regulation of the creative marketplace) is the last bastion of respectable industrial policy. In a world in which governments have given up trying to “pick winners” and shape the marketplace, this is the one area in which governments continue explicitly to shape the market to favour certain businesses and business models over others.

(Why this is so is a topic for another time; in my dissertation, I’m focusing largely on the role of path dependence in the development of copyright.)

To a surprising extent, the copyright debate isn’t even about ends or means; it’s a debate that has focused on one particular means. When we talk, we talk about copyright (a tool) rather than the creative marketplace (the thing that the tool is regulating). Instead of having a debate over the best way to improve the production and dissemination of creative works, we have a debate over whether people are pro- or anti-copyright. Debating copyright is kind of like construction workers debating whether they’re pro- or anti-hammer, when they should be talking about the best way to build a house.

In my more policy-wonk-y moments, I wonder how the copyright debate would unfold if copyright were treated as a form of commercial regulation, and as as one possible means to an end, rather than as an end (the end?) unto itself.

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