Copyright’s Path

by on December 27, 2007 · 15 comments

Works of authorship originate in private, safely kept under common law protections. Once published, however, expressive works become data ferae naturae—wild and natural information. As such, expressive works roam and reproduce freely. They may get captured in fixed copies, caged in atoms or bits. But the public, once it has absorbed an expressive work, generally retains relatively cheap access to it—unless and until copyright intervenes.

Copyright law limits public access to expressive works, herding them off the commons and into private hands. The Copyright Act offers a sort of ranch to authors, giving them a place to birth, raise, and sell their expressive works safe from the deprivations of grasping strangers. Authors enjoy those special privileges against the public not as a natural right, but rather solely thanks to a policy authorized by the U.S. Constitution and implemented through the Copyright Act. [The figure below] illustrates the path that copyright, together with some of its legal next-of-kin, takes from its origins towards its goals.

The Paths of IP


Expressive works begin as toll goods, excludable but non-rivalrous in consumption. In other words, an author can at first keep others from consuming her expressions thanks merely to her common law tort, property, and contract rights. She can keep her works in private, under lock and key, releasing them only upon solemn promises of secrecy. Those with whom she shares her work can enjoy it without at all decreasing her enjoyment of the same work; she can sing her song or study her painting just as well if others listen to or gaze on their own copies. That marks her work, like other works of authorship, as non-rivalrous in consumption. It retains that characteristic if and when she publishes the work, but then loses its excludability. Unless she were to somehow form and enforce a contract with everyone who encounters her published work—an unlikely prospect—only through copyright law could she protect her work from unauthorized access. Copyright steers published works back into toll good territory, empowering authors to assess fees and impose other limits on those who would use their works.

The Copyright Act’s privileges, because they restrict non-authors from freely copying a copyrighted work, defy natural and common law rights. That statutory negation of erstwhile public goods, however, arguably serves the public good. Though copyright restricts access to existing works of authorship, it encourages new ones.

[NB: The above text comes from chapter 1, § A of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. I will soon upload a PDF of the entire chapter, including footnotes. I welcome your comments.]

[Crossposted to Intellectual Privilege and Agoraphilia]

  • Greg Touchton

    Perhaps I missed repeated use of the term “rivalrous” in another chapter, but if you could replace the term rivalrous with a more commonly used, the chart would be easier to understand.

    Thanks for posting these; I have been enjoying them.

  • Greg Touchton

    Perhaps I missed repeated use of the term “rivalrous” in another chapter, but if you could replace the term rivalrous with a more commonly used, the chart would be easier to understand.

    Thanks for posting these; I have been enjoying them.

  • http://www.mcps-prs-alliance.co.uk/economics will page

    Nice post, well done.

    …This is not a corner kick away from a paper I published in late 2006, titled “is the price of recorded music heading for zero?” and available here:

    http://www.mcps-prs-alliance.co.uk/economics

    My paper neatly sets up the 2×2 matrix and walks the reader through where the physical cd used to belong (private good) and where its contents now appear (public good) to many torrent tracking teens and upwards.

    What I try to do is to get people thinking about an effecient toll, in the economic sense, as opposed to an enforceable toll in the legal sense.

    Since publishing the paper, much of my work has been on the secondary ‘black’ market, and I would refer you to a second short paper titled ‘Album Base’ which I co-wrote with Paul Sanders, (one of the best brains I’ve ever met when dealing with these complex issues). This will offer a useful tool for understanding the options that might exist when thinking about an effective and effecient toll, which allows creators to be compensated.

    Given its a tech audience, I’d warn that your book risks talking to the converted, but ignoring those you need to understand. Copyright and Tech work in different environments, at different tempos and often have assymetric objectives. To prevent your book from becoming another “also ran” (there are many) you really need to bridge that divide. MTV is a classic example, as they built a massive ad funded business on ‘free music’ without comensating the creators who’s works arguabley drove the business. That should help let the penny drop… Its a supply chain issue. Again, I’d highlight the work of Paul Sander’s Play Louder project as one such example – but it aint been easy.

    Lastly, don’t let music dominate your thinking. I’m biased, for obvious reasons, but you will find that the problems the music bizniz has been grappling with for the past decade are already begining to filter into television (check http://www.tioti.com for a very interesting development), film and printed press.

    Happy to offer comments on your first draft if it helps, best of luck!

    WP

    Ps: believe me, the term rivalrous is a night mare, why not opt with “scarce/ non scarce” and apply a healthy footnote.

  • http://www.mcps-prs-alliance.co.uk/economics will page

    Nice post, well done.

    …This is not a corner kick away from a paper I published in late 2006, titled “is the price of recorded music heading for zero?” and available here:

    http://www.mcps-prs-alliance.co.uk/economics

    My paper neatly sets up the 2×2 matrix and walks the reader through where the physical cd used to belong (private good) and where its contents now appear (public good) to many torrent tracking teens and upwards.

    What I try to do is to get people thinking about an effecient toll, in the economic sense, as opposed to an enforceable toll in the legal sense.

    Since publishing the paper, much of my work has been on the secondary ‘black’ market, and I would refer you to a second short paper titled ‘Album Base’ which I co-wrote with Paul Sanders, (one of the best brains I’ve ever met when dealing with these complex issues). This will offer a useful tool for understanding the options that might exist when thinking about an effective and effecient toll, which allows creators to be compensated.

    Given its a tech audience, I’d warn that your book risks talking to the converted, but ignoring those you need to understand. Copyright and Tech work in different environments, at different tempos and often have assymetric objectives. To prevent your book from becoming another “also ran” (there are many) you really need to bridge that divide. MTV is a classic example, as they built a massive ad funded business on ‘free music’ without comensating the creators who’s works arguabley drove the business. That should help let the penny drop… Its a supply chain issue. Again, I’d highlight the work of Paul Sander’s Play Louder project as one such example – but it aint been easy.

    Lastly, don’t let music dominate your thinking. I’m biased, for obvious reasons, but you will find that the problems the music bizniz has been grappling with for the past decade are already begining to filter into television (check http://www.tioti.com for a very interesting development), film and printed press.

    Happy to offer comments on your first draft if it helps, best of luck!

    WP

    Ps: believe me, the term rivalrous is a night mare, why not opt with “scarce/ non scarce” and apply a healthy footnote.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    In reviewing the recently posted articles, a thought occurred to me; copyright only benefits a segment of those creating expressive works, specifically those who have established a demand for their products.

    In reading the posts on copyright on this forum and others, it is often pointed out that the major problem faced by many aspiring authors is creating name recognition, not the protection of their work. Hence to create name recognition and product demand, the authors give their work away and depend on other merchandising tactics to generate their income.

    Additionally, there is the issue that for many artistic producers there may simply be no public demand for their work: poor quality, socially unacceptable, etc.

    Copyright, for those who have not yet achieved a certain critical mass of public acceptance is irrelevant (“Why to Call Copyright “Privilege””). Common law, though I am not a lawyer, may hold a greater degree of relevance for those in the process of establishing themselves.

    I hope that you may be able to incorporate the concept that copyright is not meaningful for the segment of creative producers who have yet established a public demand for their creative work.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    In reviewing the recently posted articles, a thought occurred to me; copyright only benefits a segment of those creating expressive works, specifically those who have established a demand for their products.

    In reading the posts on copyright on this forum and others, it is often pointed out that the major problem faced by many aspiring authors is creating name recognition, not the protection of their work. Hence to create name recognition and product demand, the authors give their work away and depend on other merchandising tactics to generate their income.

    Additionally, there is the issue that for many artistic producers there may simply be no public demand for their work: poor quality, socially unacceptable, etc.

    Copyright, for those who have not yet achieved a certain critical mass of public acceptance is irrelevant (“Why to Call Copyright “Privilege””). Common law, though I am not a lawyer, may hold a greater degree of relevance for those in the process of establishing themselves.

    I hope that you may be able to incorporate the concept that copyright is not meaningful for the segment of creative producers who have yet established a public demand for their creative work.

  • Anonymous

    Greg: I didn’t define “non-rivalrous” earlier, but rather tried to explain it in the paragraph following the graphic. I guess it didn’t exactly pop out, so maybe I should work on that. Thanks for the feedback.

    Will: I’ve never before heard the expression, “This is not a corner kick away,” but I think I understand you! Thanks for the tip to your interesting paper, which touts some very nice graphics. I’ll have to think about your suggestion that I relegate “non-rivalrous” to a footnote. You are surely right that it would trip up some readers. At the same time, though, I don’t want to miss the chance to communicate clearly with folks more used to the technical term.

    Steve: Thanks for that suggestion. This chapter will elsewhere include some discussion of what common law can (and cannot) do for authors. With luck, that will help to cover some of the points you raise.

  • Anonymous

    Greg: I didn’t define “non-rivalrous” earlier, but rather tried to explain it in the paragraph following the graphic. I guess it didn’t exactly pop out, so maybe I should work on that. Thanks for the feedback.

    Will: I’ve never before heard the expression, “This is not a corner kick away,” but I think I understand you! Thanks for the tip to your interesting paper, which touts some very nice graphics. I’ll have to think about your suggestion that I relegate “non-rivalrous” to a footnote. You are surely right that it would trip up some readers. At the same time, though, I don’t want to miss the chance to communicate clearly with folks more used to the technical term.

    Steve: Thanks for that suggestion. This chapter will elsewhere include some discussion of what common law can (and cannot) do for authors. With luck, that will help to cover some of the points you raise.

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    It is a good observation. Thanks to everyone for the information :)

  • http://www.antidote.com.sg 50psi

    I like to agree with Steve. The way i see it, the only people who enforce Copyrights are the ones who can afford it.

  • http://www.antidote.com.sg 50psi

    I like to agree with Steve. The way i see it, the only people who enforce Copyrights are the ones who can afford it.

  • http://www.antidote.com.sg 50psi

    I like to agree with Steve. The way i see it, the only people who enforce Copyrights are the ones who can afford it.

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