Copyright shapes creation; it doesn’t drive it

Posted on November 27, 2012 by bhaggart

I’m only now getting around to Peter Nowak’s provocative post (and its follow-up) about living in a world without copyright. One of the commentators wonders what this would do for creation:

“Sure, people will create without IP law, but why would they go through the cost and expense of producing and promoting it?”

It’s a good question that gets at the main reason why people support copyright: The comment recognizes that the urge to create is inherent in everyone, but that the market (it seems) would collapse without copyright.

This is a question for economists. And I think the key point to keep in mind is that while copyright and other laws shape creation and the market in creative works, they don’t drive them.

On the necessity of copyright: Economists Michele Boldrin and David K Levine argue in Against Intellectual Monopoly (free [legit] book!) that creators would still have the ability to profit from creation even in the absence of copyright. There are other ways to make money from art than the sale of copies.

Now (and this is a very important point), this isn’t to say that artists would be better off without copyright, only that the way the market worked would be different. Most likely some would be better off; some would be worse off. Some things that get created today would probably become rarer, while new forms of creation would come into existence.

In his recent (fantastic) book How Music Works, David Byrne makes this point with respect to licensing fees for music samples. These high fees mean that it would be way too expensive to create a masterpiece like the Beastie Boys’ Paul’s Boutique today. However, these fees didn’t stamp out creativity: Artists responded by creating their own beats, which they can now sell on sites like Beatport. So the rules governing the music market led to a loss of one art form but also to the birth of another. Are we better or worse off because of this change? It’s in the ear of the listener.

Nowak is right to argue that a world without copyright is possible. Is it likely? Who knows? The market in creative works, like all markets, will always be subject to some form of regulation, by definition. But it doesn’t have to be regulated by copyright.

No matter the type of regulation, it’s certain that creation, for fun and profit, will continue because creativity is shaped by market rules; it isn’t driven by them.

Posted in copyright | Tagged , | Comments Off on Copyright shapes creation; it doesn’t drive it

That Republican copyright critique isn’t conservative: It’s economic

Posted on November 27, 2012 by bhaggart

Nice to see that that that Republican memo proposing that copyright be considerably rethought has been getting a lot of coverage. And I’m particularly interested to read an upcoming book that will apparently make the conservative case for copyright reform (h/t Copyfight).

I am a bit worried about the whole labels thing, though. While the book, judging from the chapter titles, will almost certainly look at copyright through a conservative/libertarian lens, it’s maybe worth noting that the Republican memo, at least, is making an economic argument, not a partisan/conservative/libertarian one.

That’s actually what makes it so so significant: that a U.S. political party released (if only briefly) a document that essentially proposes shifting the copyright debate from the realm of interest-based politics to one in which we start to focus on its actual, measurable effects on society as a whole.

What makes it an economic proposal? Let’s consider the three myths it debunks.

First, it argues that the purpose is not to compensate the creator of the content, but to benefit society as a whole by encouraging the creation and dissemination of knowledge and culture. This should be totally uncontroversial to any economist. Private property is a social institution designed to benefit all of society, not just property owners. Same with copyright. When thinking about whether copyright (or any property regime) makes sense, we have to consider the overall societal benefit, not just the benefit to one group.

Second, it argues that copyright is not “free-market capitalism at work,” but rather a government-supported monopoly right granted to works upon creation. Again, no reputable economist would disagree with this. Every single economic justification of copyright is based on the idea that without this government-granted right you couldn’t have a market in the things covered by copyright, because they are so easily copied.

Third, it argues that “the current copyright legal regime” actually hinders innovation and productivity. This is an argument that appeals to evidence of what’s going on in the real world, which should be the bread and butter of any economic analysis of copyright.

There’s nothing in here that a liberal or Democrat couldn’t agree with. At all. This isn’t a zero-sum argument about the evils of raising taxes; it’s a recognition that the market in creative works is constructed by government, and that the current policy doesn’t seem to be meeting its overall objectives.

In their book, Against Intellectual Monopoly (it’s free – legal – download, kiddies, and a must-read for anyone interested in the economic intellectual-property debate), economists Michele Boldrin and David K. Levine compare the intellectual-property debate to that over free trade in the 19th century. That was another debate that initially was dominated by particular interests arguing for a policy (mercantilism) that benefitted them while hurting society as a whole. It was eventually debunked decisively by David Ricardo’s theory of comparative advantage, and has been accepted by Democrats and Republicans alike.*

Point is, there’s nothing keeping these ideas from being adopted by liberals or conservatives. The real division here isn’t ideological; it’s between those who favour the current interest-based approach to policy and those who want to look at the evidence and consider how we can best regulate the market in creative works to benefit society as a whole.

* FTR, I’m aware of and sympathetic to the limitations of free trade and comparative in a world of unequal power, but I think the critique of mercantilism as an overall policy still stands.

Posted in copyright, U.S. copyright | Tagged , , | Comments Off on That Republican copyright critique isn’t conservative: It’s economic

Interested in balanced, user-friendly copyright law? Get ready to start voting Republican [updated below]

Posted on November 17, 2012 by bhaggart

One of the most fascinating things about copyright is how it has largely been a non-partisan issue, particularly in the United States. Unlike pretty much every other public-policy issue in existence, you can’t predict how an American politician will vote on copyright based on party affiliation.

While that’s been the story up to now, I wonder if we’re on the verge of copyright becoming a partisan issue, with Democrats defending the content industries and pushing for increasingly stronger copyright (a.k.a. the status quo) and Republicans representing the interests of individual users and (this might be a bit of a stretch) tech companies.

The Republicans are (or should be) desperate for ideas and policies that actual American voters actually support. The 2012 election showed that they’re on the wrong side of pretty much every ideological and demographic issue. As Bloomberg’s Josh Barro puts it:

Any conceivable agenda that is likely to be effective in getting health care, jobs and higher wages in the hands of the American masses will be unconservative, at least on the terms by which most American conservatives define conservatism.

(h/t Ed Kilgore)

So it’s adapt or die time for the Republicans. (Take a moment to savor the irony.) What’s a Grand Old Party to do?

Well, there’s an issue out there that’s ripe for the taking that just happens to line up with key conservative principles such as the importance of well-defined property rights, individual liberty and economic prosperity. As Russell McOrmond has been saying for years, conservative should be very concerned about the way that copyright interferes with individuals’ property rights in goods they’ve legitimately acquired.

Here’s the conservative pitch: In every other area of private property, if you purchase something, you can do what you want with it. Copyright, and especially digital locks, keeps you from enjoying these property rights and allow others to control what you can do with your property. It is a monopoly power granted to creators but exercised by corporations who reap the majority of its benefits. The result? Less innovation, lower prosperity, and Amazon can delete books you’ve purchased with the flick of a switch.

And how about privacy? Digital technology has made everything easier to trace and control, and to tell who’s been downloading what. This is how you enforce copyright on the Internet. Conservative pitch: Why should the government allow a business monopoly to track what consumers read and watch, especially when it’s not clear that file sharing actually hurts the overall economy (see below)? Bonus points: Hollywood ain’t exactly overflowing with Republicans.

Heck, coming out for moderate copyright reform, or even reductions in the scope of protection (think: no special protection for digital locks, legal non-commercial file sharing) would place Republicans smack dab in the middle of the “reality-based community.” That’s not been an overly familiar place for them these past several years. Well, it turns out there’s a lot of empirical support for reigning in copyright protection. Pretty much every serious, non-industry-sponsored economic study of copyright protection going back at least to Arnold Plant’s key 1934 study of the book industry is at least skeptical about whether extending copyright protection provides society with any net economic benefits. Several studies confirm that file sharers (i.e., those who illegally download stuff) actually spend more on books, music and so on than non-file sharers. We even have a couple of good economists making a sound case that you don’t need intellectual property at all to spur the creation and dissemination of knowledge and culture.

From a partisan point of view, it won’t hurt that the Democrats can be easily tarred as supporting out-of-touch special interests in the entertainment industry that have spent the past decade suing the pants off of ordinary Americans. Vice President Joe Biden has been the Recording Industry Association of America and Motion Picture Association of America’s most prominent advocate in the Obama administration. (That said, a couple of the most prominent advocates for balanced copyright are Representative Zoe Lofgren and Senator Ron Wyden, both Democrats.)

It seems that at least some Republicans have recognized that a refocused copyright policy is either good policy or good politics. (Republican) Representative Darrell Issa, himself a tech millionaire, has emerged as the champion of this type of copyright policy and has positioned himself as a defender of an open Internet.

The biggest piece of evidence that Republicans are starting to catch on to the policy and political benefits of user-focused copyright comes courtesy of Mike Masnick at Techdirt, who reports that “the Republican Study Committee, which is the caucus for the House Republicans, [has] released an amazing document debunking various myths about copyright law and suggesting key reforms.” How good is the report? Manick’s article makes it seem like, after decades in the wilderness, he has finally glimpsed the promised land:

This document really is a watershed moment. Even if it does not lead to any actual legislation, just the fact that some in Congress are discussing how copyright has gone way too far and even looking at suggestions that focus on what benefits the public the most is a huge step forward from what we’ve come to expect.

[Update: The report has been withdrawn following pressure from the music and movie industries; see below.]

Copyright is no longer a special-interest-based issue, where the only players are big companies. The January 18, 2012, Internet blackout proved, there are tens of millions of voters who are very interested in copyright reform. Oh, and you can bet lots of them are young, too.

With that many votes up for grabs and their very existence on the line, the Republicans have everything to gain and nothing to lose by coming out strong in favour of user-focused copyright law. Don’t be surprised if, in four years, Republicans have re-branded themselves as the party of copyright sanity and digital freedom. Consider your vote accordingly.

[Update: Nov. 18, 7:30 a.m.: Well, it looks like the Republicans do have something to lose: The financial backing of the movie and music industries. As Techdirt and others have reported, that “watershed” Republican caucus report has been scrubbed out of existence after the MPAA and RIAA went “ballistic.” (Not completely: Here’s a copy of the report for your eternal viewing pleasure. Thanks, Dwayne Winseck!)

So what does this mean? First, it’s a reminder to me that I should never forget about the importance of money in U.S. politics, and that the music and movie industries have very, very important lobbies on Capitol Hill. The “user rights” lobby is nowhere near as well organized, and potential allies like the tech industries have their own agendas.

But the attempt to shove this report down the memory hole doesn’t change the underlying politics. The Republicans need a winning conservative issue and there are tens of millions of copyright votes potentially up for grabs. This voter interest is a new reality in U.S. copyright, and I don’t think it’s going away. I’m very curious to see what happens next.]

Posted in U.S. copyright, U.S. election | Tagged , , | Comments Off on Interested in balanced, user-friendly copyright law? Get ready to start voting Republican [updated below]

Why it’s a dumb idea to interfere in another country’s election (hint: it has nothing to do with abortion)

Posted on November 4, 2012 by bhaggart

I see that people are up in arms over the cancellation of a field trip by students from my old neighbourhood in Ottawa. Students were supposed to go to Ohio – the state that will likely deliver Tuesday’s U.S. presidential election to the Democrats or Republicans – in part to participate in U.S. President Barack Obama’s get-out-the-vote campaign.

The trip, reports CTV and others, was cancelled

after a number of negative comments on anti-abortion site Life Site News, which published an article quoting a parent saying it was a partisan effort to support U.S. president Barack Obama and his pro-abortion agenda.

“This trip is wrong because we have a Catholic school sending Catholic students to campaign on behalf of the most radical, pro-abortion president in U.S. history,” said John Jalsevac, who wrote the article.

Distasteful? Sure. Once again, the Catholic Church has made another good argument for getting rid of Ontario’s unfairly privileged Catholic school system. (Disclosure: I attended Catholic school until Grade 10. One of the reasons I switched was because we were required to take a useless religion credit every year, time I could’ve spent taking useful classes and earning credits that would count toward university admission.)

But here’s the thing. These anti-abortion activists are right: the trip was an incredibly stupid idea, but not because Obama is some kind of baby-killing monster.

Nope, it’s because you don’t get involved in foreign elections. Period.

Seriously: what kind of civics teacher – which is what Scott Searle is reported to be – would assume that it would be a good idea to get Canadian students to actively participate, in a partisan manner in a foreign election? And, for the love of (St.) Pete(r): why, why, why would you bring your foreign students to Ohio, which will likely be where the U.S. presidential election will be won or lost?

Just imagine the outcry if American students were bussed into a critical riding in to get out the vote in a tight Canadian riding? We Canadians, ever-sensitive to perceptions of American influence, would be freaking out. Just imagine the anger if it turned out that that seat meant the difference between a majority or a minority government. That’s not a far-fetched scenario: in 2004 the NDP missed holding the balance of power by one seat.

Or imagine if, during a federal election, an enterprising civics teacher decided to get his students involved in getting out the vote for the Liberals (or whoever – bonus points if he were to bus them across the river to Gatineau to help the Bloc Québécois). You think partisans would be up in arms? Damn straight, and they’d be 100% in the right.

I get it: U.S. presidential elections are exciting. The outcome will (as the cliché goes) have an effect on Canada. And more Canadians should be aware of the differences between our two systems of government. If they were, maybe John Baird and Stephen Harper would not have been able to blackmail former Governor General Michaëlle Jean into proroguing Parliament in December 2008, robbing Canadians of the right to decide for themselves in an election whether or not the Dion-Layton-Duceppe coalition was legitimate.*

But you can study the U.S. political process as easily from a classroom in Ottawa – teh Internets are a wonderful thing – as you can by bringing a bunch of foreign students into a battleground state to interfere in another country’s election.

Obama’s (or Mitt Romney’s) fight is not our fight, and for all the big talk about how U.S. elections matter for the whole world, they matter a hell of a lot more to actual Americans.

Teaching students that it’s OK to get involved in an election campaign in another country (or province, for that matter) sends a counterproductive message that fundamentally disrespects the very foundations of a democracy: that people have the right to decide their own fate without outsiders telling them what to do.

Too bad this message will be drowned out by the anti-abortion din: it would’ve made for a heck of a teachable moment.

 

 

* Why I use the word “blackmail”: Constitutional lawyer Peter Russell:

“People hate me for saying this but a ‘no’ to Mr. Harper would also have got the publicity machine of the government saying there had been a coup d’état. Mr. (John) Baird said that’s what they would do — that the (coalition) government would be illegitimate — and we would have had people around the world saying ‘holy smoke’ [they’re] talking about a coup in Canada.”

Posted in U.S. election | Tagged , , , , | Comments Off on Why it’s a dumb idea to interfere in another country’s election (hint: it has nothing to do with abortion)

Notes on a plagiarism scandal: Erasing the “thin grey line”

Posted on October 1, 2012 by bhaggart

A few quick hits about the Wente plagiarism scandal, mostly for my own reference as it relates to social media.

  • All of the actual reporting on Margaret Wente’s serial plagiarism (sordid summary; timeline) has been undertaken not by professional reporters but by independent bloggers, primarily Ottawa artist and professor Carol Wainio. Even now, our old-school media outlets have confined themselves to reporting or commenting on the accusations, not actually looking for instances of plagiarism. The result: A week after the tweets hit the fan, Wainio, not reporters or columnists, gets Wente dead to rights on an even-more clear-cut example of plagiarism.
  • I think it’s telling that the first two journalists to comment on Wente’s plagiarism were the National Post’s Chris Selley and Macleans’ Colby Cosh, both former independent bloggers. Do bloggers have a different set of ethics than traditional journalists? Is this a generational thing?
  • Much has been made of how Canada’s professional journalists have been silent about plagiarism, and rightly so. We shouldn’t be surprised by this silence. All professions tend to protect their own: the police have their “Thin blue line”; call journalism’s equivalent “The thin grey line.” It’s why we have civilian oversight over the police, and anonymous academic peer-review, for that matter.
  • This incident proves decisively that independent bloggers can do media criticism much better than professional reporters, precisely because they’re outside the media bubble. Paid journalists should humbly take to heart the many implications of this reality. (Matthew Ingram makes a similar point.)
  • There’s been much hand-wringing about how journalists now have to do their job with bloggers looking over their shoulder. This is the wrong way to look at it. Journalism, for the first time, is now subject to effective oversight that requires reporters and columnists to live up to the standards they should have been following all along. As Ingram notes:

Like every other traditional media outlet, they [the Globe and Mail] are going to have to get used to the idea of no longer being on a pedestal, no longer being the default choice for content — and no longer able to get away with simply rewriting what others have said and passing it off as original thought.

  • The problem for Canadian journalists is not that people now think that all journalists are plagiarists, as Jim Brown suggested on The Current last week. It’s about trust: Media outlets’ slow take-up of (and continued non-investigation into) the issue, even after extensive documentation of the problem, raises big questions. As Vice magazine comments, “Canadians are nice people, sort of, and in the country’s tiny media bubble anyone and everyone is afraid of pissing off someone they might run into at the next cocktail party.” If journalists cannot be trusted to investigate a story that’s handed to them on a silver platter, what does this say about their tenacity regarding, say, the Ottawa politicians they cover day-in and day-out? The Wente scandal sows the seeds of doubt. Not good.
  • Kathy English, the Toronto Star‘s public editor, had the most honest assessment of the whole debacle and its significance.
  • Oversight is better than no oversight. If we can get past the self-pity stage, embracing independent bloggers like Wainio as allies and not trespassers will improve the quality of Canadian journalism. That would be a win-win situation, for journalists and the readers who depend on them.
Posted in oh the humanity, Plagiarism | Tagged , | Comments Off on Notes on a plagiarism scandal: Erasing the “thin grey line”