When Markets Outgrow Copyrights

by on June 4, 2007 · 32 comments

I’m planning a paper on how growth in markets affects the efficacy of copyright, and am shopping around an abstract. I welcome your comments. The abstract goes a little something like this:

Does copyright protection offer the best means of stimulating the production of expressive works? Maybe it does now. If so, however, copyright will probably over-protect expressive works in coming years. We should hope that it will, at any rate, given that human progress will render copyright obsolete.


It costs a great deal to produce the first copy of many expressive works, including such notably valuable ones as movies, books, and software. Copyright law helps to reassure would-be authors that they will recover those fixed, up-front costs. Alternative mechanisms—such as tips, patronage, automated rights management, and contracts—risk providing too little protection against unauthorized copying, leading to market failure. Hence the case for copyright.

As the market in expressive works grows, however, it promises to outgrow copyright law. As people join that market, whether by entering by the world or by escaping isolation, they offer authors new sources of revenue. Given the low marginal costs of reproducing and distributing expressive works, those larger audiences will tend to reward authors with larger profits. Holding all else equal, copyright will at some point give more protection than necessary, and its costs will outweigh its benefits.

Perhaps a lightly populated, large, and semi-agricultural nation, with slow and costly communications, required copyright law to encourage an adequate production of expressive works. It seems that those who wrote and ratified the U.S. Constitution thought as much. But however well that justification for copyright worked in years past, it works decreasingly well now. Looking forward, we can easily imagine a world where generosity, technology, and common law rights improve on, and thus replace, copyright law.

[Crossposted to Agoraphilia.]

  • http://www.cato.org/people/harper.html Jim Harper

    If you’re not aware of it, the Cato Policy Analysis Amateur-to-Amateur: The Rise of a New Creative Culture might be helpful. Slightly different dimension than the growth in size and wealth of the content-”consuming” public, but it’s a nice articulation of how technological advances have distributed the means of production for most steps in the content production and distribution process. This, along with the growth in size of the market for copyrighted content, should mean less copyright protection is needed to generate the same reward to creators.

  • http://www.limnthis.com Jim S

    “Given the low marginal costs of reproducing and distributing expressive works, those larger audiences will tend to reward authors with larger profits.”

    I guess I see this as an assumption that isn’t proven yet. Or, it may work in some cases but not in others.

    In any case, I think there are other issues besides simply the profitability associated with a creative work. Many artists are also very interested in controlling how a work is presented and copyright gives that control. Anais Nin didn’t want her journals published until everyone named had passed for example. Or a visual artist may be very interested in the quality of reproduction etc. If I put a thumbnail of one of my photographic works on the web only to find that someone has re-purposed it I would be concerned about that from a control standpoint even if (and this is doubtful) I was somehow being compensated financially for it.

    Focusing only on the economic models ignores the other motivations that an artist may have for exercising copyright.

  • http://www.cato.org/people/harper.html Jim Harper

    If you’re not aware of it, the Cato Policy Analysis Amateur-to-Amateur: The Rise of a New Creative Culture might be helpful. Slightly different dimension than the growth in size and wealth of the content-”consuming” public, but it’s a nice articulation of how technological advances have distributed the means of production for most steps in the content production and distribution process. This, along with the growth in size of the market for copyrighted content, should mean less copyright protection is needed to generate the same reward to creators.

  • Doug Lay

    Artists may have non-economic reasons for wanting greater control over their work, but does it make sense to give them this control? Seems to me that if you put something out there in the culture, you take the chance that the culture will use it in ways you couldn’t forsee. Especially now that technology has made copying and repurposing very easy and protecting works very very hard.

  • http://www.limnthis.com Jim S

    “Given the low marginal costs of reproducing and distributing expressive works, those larger audiences will tend to reward authors with larger profits.”

    I guess I see this as an assumption that isn’t proven yet. Or, it may work in some cases but not in others.

    In any case, I think there are other issues besides simply the profitability associated with a creative work. Many artists are also very interested in controlling how a work is presented and copyright gives that control. Anais Nin didn’t want her journals published until everyone named had passed for example. Or a visual artist may be very interested in the quality of reproduction etc. If I put a thumbnail of one of my photographic works on the web only to find that someone has re-purposed it I would be concerned about that from a control standpoint even if (and this is doubtful) I was somehow being compensated financially for it.

    Focusing only on the economic models ignores the other motivations that an artist may have for exercising copyright.

  • http://www.tomwbell.com Tom W. Bell

    Jim H.: Thanks for the tip!

    Jim S.: Yes, that is an assumption of my model. I don’t think it’s very controversial, but your mileage may vary. I grant that artists have non-economic reasons for wanting to control their works, but that is not the job for copyright law (setting aside s. 106A, natch).

    Doug L. Yep. Just ’cause authors want something doesn’t mean they can or should get it–especially via copyright law.

  • Doug Lay

    Artists may have non-economic reasons for wanting greater control over their work, but does it make sense to give them this control? Seems to me that if you put something out there in the culture, you take the chance that the culture will use it in ways you couldn’t forsee. Especially now that technology has made copying and repurposing very easy and protecting works very very hard.

  • http://www.tomwbell.com Tom W. Bell

    Jim H.: Thanks for the tip!

    Jim S.: Yes, that is an assumption of my model. I don’t think it’s very controversial, but your mileage may vary. I grant that artists have non-economic reasons for wanting to control their works, but that is not the job for copyright law (setting aside s. 106A, natch).

    Doug L. Yep. Just ’cause authors want something doesn’t mean they can or should get it–especially via copyright law.

  • http://www.blogger.com/profile/14019452 Steve R.

    This topic is just ripe for discussion. Laying the foundation for how this topic will analyzed will be subtle since a lot depends on your point of view.

    The second paragraph is easily misread, I would suggest starting it out with something like: “Those who wish to expand the so-called rights of the content creators assert …..”

    “As the market in expressive works grows, however, it promises to outgrow copyright law.” To me there is a strong technological component. Technology gives both the content user and the content creator added power. The content user can make cheap copies and the creator can attempt to frustrate the user through the use of DRM technologies. We have outgrown copyright law as it currently exists as the content producers believe that they can unilaterally segment the rights of the content user into oblivion. Copyright is a temporary privilege to reward the content producer for a limited time so that society can benefit. The content producers are attempting to turn copyright into an entitlement for their sole benefit and eliminate the benefit to society.

    “But however well that justification for copyright worked in years past, it works decreasingly well now.” I think that the quantity of lawsuits could be cited as proof that copyright is breaking down as society has outgrown the old concepts.

  • http://www.blogger.com/profile/14019452 Steve R.

    This topic is just ripe for discussion. Laying the foundation for how this topic will analyzed will be subtle since a lot depends on your point of view.

    The second paragraph is easily misread, I would suggest starting it out with something like: “Those who wish to expand the so-called rights of the content creators assert …..”

    “As the market in expressive works grows, however, it promises to outgrow copyright law.” To me there is a strong technological component. Technology gives both the content user and the content creator added power. The content user can make cheap copies and the creator can attempt to frustrate the user through the use of DRM technologies. We have outgrown copyright law as it currently exists as the content producers believe that they can unilaterally segment the rights of the content user into oblivion. Copyright is a temporary privilege to reward the content producer for a limited time so that society can benefit. The content producers are attempting to turn copyright into an entitlement for their sole benefit and eliminate the benefit to society.

    “But however well that justification for copyright worked in years past, it works decreasingly well now.” I think that the quantity of lawsuits could be cited as proof that copyright is breaking down as society has outgrown the old concepts.

  • http://www.tomwbell.com Tom W. Bell

    Steve R.: Thanks for the suggestions. (My, but you’re a helpful bunch!) I agree with you about how technology is driving down the costs of producing expressive works, as well as the costs of disseminating them. I’d like to try to get the analysis to stand without invoking that factor, however, as I’d like to hold as many variables steady as possible.

  • http://www.tomwbell.com Tom W. Bell

    Steve R.: Thanks for the suggestions. (My, but you’re a helpful bunch!) I agree with you about how technology is driving down the costs of producing expressive works, as well as the costs of disseminating them. I’d like to try to get the analysis to stand without invoking that factor, however, as I’d like to hold as many variables steady as possible.

  • http://www.copyrightalliance.org Patrick Ross

    Tom, interesting approach. I think a couple of the comments focused on the area that troubled me, that copyright will be outgrown by the “market.” Copyright merely grants (some) rights to the creator; if demand increases, or if a new demand arises, nothing prevents the artist from meeting that demand. Copyright is not a barrier for the rights holder, they’ll go after more money if it’s there!

    As for technology, it does empower both copyright owner and ultimate user, but I think, Steve R., it requires a fair amount of hubris to believe that while all of the revolutionary technological changes of the last three hundred years did not negate copyright, a computer and an Internet connection does. The history of copyright is one of rightsholders adjusting to disruptions from technology; creators are always behind, because naturally there’s no reason to change the business model when it’s working, but they always change, and we’re seeing that change now.

    Tom, I would hope your paper would look at the incredible licensing arrangements and partnerships between copyright holders and technology companies currently occuring on an almost daily basis.

  • http://www.copyrightalliance.org Patrick Ross

    Tom, interesting approach. I think a couple of the comments focused on the area that troubled me, that copyright will be outgrown by the “market.” Copyright merely grants (some) rights to the creator; if demand increases, or if a new demand arises, nothing prevents the artist from meeting that demand. Copyright is not a barrier for the rights holder, they’ll go after more money if it’s there!

    As for technology, it does empower both copyright owner and ultimate user, but I think, Steve R., it requires a fair amount of hubris to believe that while all of the revolutionary technological changes of the last three hundred years did not negate copyright, a computer and an Internet connection does. The history of copyright is one of rightsholders adjusting to disruptions from technology; creators are always behind, because naturally there’s no reason to change the business model when it’s working, but they always change, and we’re seeing that change now.

    Tom, I would hope your paper would look at the incredible licensing arrangements and partnerships between copyright holders and technology companies currently occuring on an almost daily basis.

  • http://www.limnthis.com Jim S

    Doug (almost) said:

    “Developers may have non-economic reasons for wanting greater control over their work, but does it make sense to give them this control? Seems to me that if you put something out there in the culture, you take the chance that the culture will use it in ways you couldn’t forsee. Especially now that technology has made copying and repurposing very easy and protecting works very very hard…”

    Ironic that if an artist uses copyright to maintain control over work to preserve either intent or profit it is bad for society and should be verboten; but if Stallman et al use it to preserve intent in equally copyable and morphable software code it is good.

    Seems to me we should just chuck GPL v2 (and especially v3) because software is 1) easy to copy 2) easy to transmit 3) easy to change with available technology and once it is out there the creator gives up any notion of controlling the intent of the work. If art should be public domain once it is released, why not source code? Sounds like “what is mine is mine, and what is yours is mine.”

  • http://www.limnthis.com Jim S

    Doug (almost) said:

    “Developers may have non-economic reasons for wanting greater control over their work, but does it make sense to give them this control? Seems to me that if you put something out there in the culture, you take the chance that the culture will use it in ways you couldn’t forsee. Especially now that technology has made copying and repurposing very easy and protecting works very very hard…”

    Ironic that if an artist uses copyright to maintain control over work to preserve either intent or profit it is bad for society and should be verboten; but if Stallman et al use it to preserve intent in equally copyable and morphable software code it is good.

    Seems to me we should just chuck GPL v2 (and especially v3) because software is 1) easy to copy 2) easy to transmit 3) easy to change with available technology and once it is out there the creator gives up any notion of controlling the intent of the work. If art should be public domain once it is released, why not source code? Sounds like “what is mine is mine, and what is yours is mine.”

  • Doug Lay

    Jim:

    If all who appropriate GPL software for their own uses concede that their own creations may be appropriated for others’ own uses, then we have a deal. What’s yours or mine is now ours.

  • http://www.limnthis.com Jim S

    Doug, You (choose to) miss the point. Your flippant response willfully ignores that the people mis-appropriating GPL copyright are not likely to be the same people mis-appropriating copyrighted art. The irony remains, in that technologists tend to believe in copyright when it suits their purposes but not when it doesn’t. Sort of part time libertarians.

    Open source communities use copyright to enforce their intent with their creation. So do artists. The same group of people that think it’s ok for developers think it isn’t ok for artists. That is intellectually dishonest. Meanwhile the FSF isn’t just sitting around idle when GPL copyright is abused (calling it copyleft doesn’t change the law it uses as its foundation).

    By the way, this has all happened before. Now it’s IP, in the cultural revolution (as one example) it was real property. It is useful to keep in mind unintended consequences.

  • Doug Lay

    Jim:

    You have no idea what “technologists” in general think about these issues. Neither do I, but I don’t pretend to. You sound like Lee Hollaar.

    I completely reject the red-baiting analogy between “IP” and physical property. Physical property is scarce in a way that “IP” simply is not. Property is a poor analogy for products of the mind like art or inventions. Sorry if some inventors and artists have been led to believe otherwise. They’ve been duped.

    If the best you can offer is red-baiting and unsubstantiated generalizations about the beliefs of a whole class of people, I’m going to decline to engage you any further. You’re boring.

  • Doug Lay

    Jim:

    If all who appropriate GPL software for their own uses concede that their own creations may be appropriated for others’ own uses, then we have a deal. What’s yours or mine is now ours.

  • http://www.limnthis.com Jim S

    Doug, You (choose to) miss the point. Your flippant response willfully ignores that the people mis-appropriating GPL copyright are not likely to be the same people mis-appropriating copyrighted art. The irony remains, in that technologists tend to believe in copyright when it suits their purposes but not when it doesn’t. Sort of part time libertarians.

    Open source communities use copyright to enforce their intent with their creation. So do artists. The same group of people that think it’s ok for developers think it isn’t ok for artists. That is intellectually dishonest. Meanwhile the FSF isn’t just sitting around idle when GPL copyright is abused (calling it copyleft doesn’t change the law it uses as its foundation).

    By the way, this has all happened before. Now it’s IP, in the cultural revolution (as one example) it was real property. It is useful to keep in mind unintended consequences.

  • Doug Lay

    Jim:

    You have no idea what “technologists” in general think about these issues. Neither do I, but I don’t pretend to. You sound like Lee Hollaar.

    I completely reject the red-baiting analogy between “IP” and physical property. Physical property is scarce in a way that “IP” simply is not. Property is a poor analogy for products of the mind like art or inventions. Sorry if some inventors and artists have been led to believe otherwise. They’ve been duped.

    If the best you can offer is red-baiting and unsubstantiated generalizations about the beliefs of a whole class of people, I’m going to decline to engage you any further. You’re boring.

  • http://www.limnthis.com Jim S

    Doug,

    You really think I’m boring? Strikes me as a bit of a sweeping generalization considering you don’t really even know me. A little hurtful even maybe? Well, onward and upward…

    IP and RP are similar in that when you fixate on one problem (the big media company that “doesn’t get the Internet”) you open up the likelihood of unintended consequences for all sorts of other people that rely on copyright. Which is why I have an interest in this topic in the first place (and seems like a good reason why the law often changes slowly).

    With that as context my comment about IP vs. real property isn’t red baiting, it is analogy (quite sensitive on this point are we?). I’m not saying that real property and intellectual property are the same, I’m saying that there once was a time when people became angry with big industriaIists and as a consequence took the extreme step of eliminating real property; but not just for those industrialists. Plus they made them wear funny hats when they took their stuff.

    I am concerned that in your quest to force the media companies to change their model of doing business you are going to impact all sorts of other people who rely on copyright in unintended ways too. And since I produce copyrighted materials (and don’t much care for hats funny or otherwise) it matters to me personally.

    You claim that artists have been duped; I claim that a statement like that is born of un-earned arrogance and not from the least concept of what an artist thinks about his or her work.

    The fact is that many technologists leverage copyright to enforce their intent over the open source code they write; they rarely release it into the public domain. I don’t know what all technologists think about these issues, but the people that write for this blog (and claim to be technologists in the about the authors page) are generally pretty consistent in their contention that artists should no longer be able to rely on copyright to the degree that they do today. At least some of those authors have contributed to open source projects, presumably under licenses based on copyright. I think that is an irony.

    If you choose to engage in a discussion of that irony, I have an open mind; with a good argument (snippy peevishness doesn’t count) you very well might change it. If you choose not to discuss it that’s fine too, I should probably be working anyway. But if you are going to take your ball and go home everytime someone breaks one of your secret debate club rules, you should probably post them somewhere. You’ll never change anyone’s mind if your two modes of discussion are standing on dogma or walking off in a huff.

  • http://www.limnthis.com Jim S

    Doug,

    You really think I’m boring? Strikes me as a bit of a sweeping generalization considering you don’t really even know me. A little hurtful even maybe? Well, onward and upward…

    IP and RP are similar in that when you fixate on one problem (the big media company that “doesn’t get the Internet”) you open up the likelihood of unintended consequences for all sorts of other people that rely on copyright. Which is why I have an interest in this topic in the first place (and seems like a good reason why the law often changes slowly).

    With that as context my comment about IP vs. real property isn’t red baiting, it is analogy (quite sensitive on this point are we?). I’m not saying that real property and intellectual property are the same, I’m saying that there once was a time when people became angry with big industriaIists and as a consequence took the extreme step of eliminating real property; but not just for those industrialists. Plus they made them wear funny hats when they took their stuff.

    I am concerned that in your quest to force the media companies to change their model of doing business you are going to impact all sorts of other people who rely on copyright in unintended ways too. And since I produce copyrighted materials (and don’t much care for hats funny or otherwise) it matters to me personally.

    You claim that artists have been duped; I claim that a statement like that is born of un-earned arrogance and not from the least concept of what an artist thinks about his or her work.

    The fact is that many technologists leverage copyright to enforce their intent over the open source code they write; they rarely release it into the public domain. I don’t know what all technologists think about these issues, but the people that write for this blog (and claim to be technologists in the about the authors page) are generally pretty consistent in their contention that artists should no longer be able to rely on copyright to the degree that they do today. At least some of those authors have contributed to open source projects, presumably under licenses based on copyright. I think that is an irony.

    If you choose to engage in a discussion of that irony, I have an open mind; with a good argument (snippy peevishness doesn’t count) you very well might change it. If you choose not to discuss it that’s fine too, I should probably be working anyway. But if you are going to take your ball and go home everytime someone breaks one of your secret debate club rules, you should probably post them somewhere. You’ll never change anyone’s mind if your two modes of discussion are standing on dogma or walking off in a huff.

  • pete k

    I completely agree with Jim S.

    Also, I comment that copyright law in the US today
    is really an umbrella which is used to cover
    several types of creative works (music, art,
    books, software etc.) My primary interest happens
    to be software, where I’m concerned that certain
    open source and GPL enthusiasts call for the
    demise of all “proprietary” software. My belief is
    that both forms of software have their place and
    are desirable. As pointed out by Jim S., both forms are critically protected by copyright via
    licenses.

    For software, and alternative stronger and even
    more controversial means of legal protection is
    software patent, which seems to have serious flaws.

    However, my comment about the abstract is that
    it seems to me a mistake to try to address all
    the various copyright protected works at the same
    time because they are all so different. Because
    of the great differences, it is difficult to make
    sweeping generalizations about copyright law that
    are valid for all the types.

  • pete k

    I completely agree with Jim S.

    Also, I comment that copyright law in the US today
    is really an umbrella which is used to cover
    several types of creative works (music, art,
    books, software etc.) My primary interest happens
    to be software, where I’m concerned that certain
    open source and GPL enthusiasts call for the
    demise of all “proprietary” software. My belief is
    that both forms of software have their place and
    are desirable. As pointed out by Jim S., both forms are critically protected by copyright via
    licenses.

    For software, and alternative stronger and even
    more controversial means of legal protection is
    software patent, which seems to have serious flaws.

    However, my comment about the abstract is that
    it seems to me a mistake to try to address all
    the various copyright protected works at the same
    time because they are all so different. Because
    of the great differences, it is difficult to make
    sweeping generalizations about copyright law that
    are valid for all the types.

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    “Developers may have non-economic reasons for wanting greater control over their work, but does it make sense to give them this control? Seems to me that if you put something out there in the culture, you take the chance that the culture will use it in ways you couldn’t forsee. Especially now that technology has made copying and repurposing very easy and protecting works very very hard…”

    Ironic that if an artist uses copyright to maintain control over work

    Well there are three issues here that should be unbundled, and, in keeping with the start of this thread, I am only discussing ‘non-economic’ motivations.

    1. Reputation of the artist: If an artist produces something and it is presented in a different way, it could damage the artists reputation. I agree with that being a potential problem, and believe that there should be some control the creator of a work has over it, and if someone else modifies it, they should not be able to present that derivative work as that of the original author. I do believe, in the USA, at present copyright laws does somewhat protect this right. But not for all types of work!

    (For example, in some European countries an Architect wishing to design an addition or alteration to another Architect’s design, he or she has to get permission from the original Architect, for that modification. The original Architect is not supposed to ‘unreasonably’ with-hold that approval. In practice, the approval is almost always given as a formality.)

    2. Credit for work: If I produce a work , I don’t want someone else to be able to take credit for it. In a derivative work this can easily get quite complex, esp. with remixed music.

    3. Larger cultural context: The example I have brought up above about architecture rules in some European countries raises the issue that art plays a cultural role in the larger society, and some art is, in a sense, the property of society at large, in that all would be much poorer without it. So, even if someone owned a van Gogh, nearly everyone would agree that it would be profoundly immoral for him or her to burn it, obviously. So we can’t neglect the role and importance of art in society.

  • http://enigmafoundry.wordpress.com eee_eff

    “Developers may have non-economic reasons for wanting greater control over their work, but does it make sense to give them this control? Seems to me that if you put something out there in the culture, you take the chance that the culture will use it in ways you couldn’t forsee. Especially now that technology has made copying and repurposing very easy and protecting works very very hard…”

    Ironic that if an artist uses copyright to maintain control over work

    Well there are three issues here that should be unbundled, and, in keeping with the start of this thread, I am only discussing ‘non-economic’ motivations.

    1. Reputation of the artist: If an artist produces something and it is presented in a different way, it could damage the artists reputation. I agree with that being a potential problem, and believe that there should be some control the creator of a work has over it, and if someone else modifies it, they should not be able to present that derivative work as that of the original author. I do believe, in the USA, at present copyright laws does somewhat protect this right. But not for all types of work!

    (For example, in some European countries an Architect wishing to design an addition or alteration to another Architect’s design, he or she has to get permission from the original Architect, for that modification. The original Architect is not supposed to ‘unreasonably’ with-hold that approval. In practice, the approval is almost always given as a formality.)

    2. Credit for work: If I produce a work , I don’t want someone else to be able to take credit for it. In a derivative work this can easily get quite complex, esp. with remixed music.

    3. Larger cultural context: The example I have brought up above about architecture rules in some European countries raises the issue that art plays a cultural role in the larger society, and some art is, in a sense, the property of society at large, in that all would be much poorer without it. So, even if someone owned a van Gogh, nearly everyone would agree that it would be profoundly immoral for him or her to burn it, obviously. So we can’t neglect the role and importance of art in society.

  • http://www.limnthis.com JIm S

    Enigma, regarding your #3 above, it often lives at an interesting intersection between real property and expressive work. Here in Philadelphia for many years the Barnes Foundation refused gallery admission to almost anyone and everyone. One of the greatest collections of early 20th century modernist paintings, yet they often couldn’t even be viewed by the artists who created them. To this day access is severely restricted and few of the paintings not on display in the gallery, or any of the purchase records, are made available to art scholars. This case was particularly troublesome given the non-profit status of the foundation.

  • http://www.limnthis.com JIm S

    Enigma, regarding your #3 above, it often lives at an interesting intersection between real property and expressive work. Here in Philadelphia for many years the Barnes Foundation refused gallery admission to almost anyone and everyone. One of the greatest collections of early 20th century modernist paintings, yet they often couldn’t even be viewed by the artists who created them. To this day access is severely restricted and few of the paintings not on display in the gallery, or any of the purchase records, are made available to art scholars. This case was particularly troublesome given the non-profit status of the foundation.

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