Moral-rights justifications of copyright: It’s always about the money

One of the most fascinating things I found in my study of copyright policy in Mexico was the odd way in which Mexico’s traditional approach to copyright as an author’s human right (in the Continental European “moral rights” tradition) supported its current view of copyright as a copyright owner’s economic right. Basically, it seemed that arguments to maximize copyright as an author’s human right (dealing with things like attribution and right to publish; and who would argue against maximizing human rights?) had morphed into arguments to maximize owners’ economic rights. This, even though the two spheres (economic and moral rights) don’t really overlap, and even though maximizing economic rights in copyright doesn’t make a lot of sense for copyright importers or, say, countries where almost half of the population lives below the poverty line and can’t, as a rule, afford stronger copyrights.

Well, it’s interesting to note that Mexico isn’t the only place where this type of cognitive dissonance happens. As Joe Karagains notes (h/t Glyn Moody), the European Union, of all places, has a net deficit in audiovisual (motion picture) trade. What’s more, copyright infringement may hurt the European motion-picture industry (although Karaganis shows that this probably isn’t the case), but it does not represent a drain on the European economy as a whole. Money that would have moved outside the country in the form of royalty payments (mostly to the U.S.) actually stays in the EU, where it can be spent on domestic goods and services, which can then be taxed by EU governments.

Karaganis argues (correctly, I think) that the EU isn’t following their own economic interest on IP protection, and he has a few explanations why this is so (and what they should do instead). One of the reasons fits with what I heard in Mexico: that it’s all about the author’s dignity. He quotes French President Nicholas Sarkozy:

I know and understand that our french conception of author’s rights isn’t the same as in the United States or other countries.  I simply want to say that we hold to the universal principles proclaimed in the American constitution as much as in the Declaration of the Rights of Man in 1789: that no one should have the product of their ideas, work, imagination–their intellectual property–expropriated with impunity.

Each of you understands what I say here because each of you is also a creator, and it is in virtue of these creator’s rights that you have founded businesses that today have become empires.  The algorithms that give you your strength; this constant innovation that is your force; this technology that changes the world is your property, and nobody contests it.  Each of you, each of us, can thus understand that the writer, the director, or the performer can have the same rights.

Karaganis comments:

With this fulsome praise of tech and media CEOs at the e-G8, Sarkozy expressed the basic European cognitive dissonance on IP: the embrace of universal rights as a way of pretending equality with the real powers in the room. More cynically, it is the embrace of the foreign agenda as a way of rewarding the local junior partners. Indigenous elites used to play this game with the French back when they had the empire.

My deep-thought takeaway: Treating economic issues like copyright in moralistic terms is like leaving money on the table. It can’t be good for business. Imagine how far the EU could go with some hard-headed economic thinking.

Final word to Karaganis (seriously, read the whole thing; it’s excellent):

De-moralizing the IP debate is also an important step. At the Americans’ insistence, it’s a trade policy debate now, and nothing should be freely conceded by the lesser partner in those trades. What, in other words, do the French get in return for enforcing Hollywood’s copyrights? The answer should not be limited to: the dignity of the French auteur. Don’t bring a knife to a gun fight.

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1 Response to Moral-rights justifications of copyright: It’s always about the money

  1. pjdorrell says:

    I will disagree: copyright can never be separated from morality. What we can do is recognise two distinct and often contradictory moral justifications for copyright. The first justification is that creators deserve to “own” their content, in such a manner that they legally “control” all attempts to make copies of that content, even after they have published it. The second justification is that of public benefit.

    As for the money, why hasn’t the general public pushed more strongly for copyright law based on public benefit? Are they happy to spend $20 for every music CD? Maybe the general public really care about authors’ rights, or, maybe they are just too lazy. The public doesn’t need to make an effort to change copyright law to get what they want, i.e. lots of content for free, or at least very cheaply, because they can get as much free content as they want, just by breaking the law and not getting caught.

    And for those members of the public who are too lazy to change the law and also too lazy to pirate, they still get free or very cheap content, because the ubiquity of piracy forces “legitimate” content distributors to provide more and more content in exchange for less and less money.

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