Is Balance The Right Standard For Judging Copyright Law?

from the balancing-what? dept

For many years, I've pointed out that I tend to disagree with many folks -- who I otherwise agree with -- in copyright debates, who argue that we should be looking for the "right balance" of copyright holder rights vs. user rights. I've long thought that balance is the wrong way to look at it. The purpose of copyright law is to incentivize the creation of new content, and thus the standard on which copyright law should be judged is one where the creation of content is maximized. As such, there shouldn't be a question of balance, because the ideal situation where content is maximized should make everyone better off. Talking about balance is figuring out how both sides should compromise to meet in the middle. Talking about maximizing content creation, on the other hand, is talking about ways to improve the marketplace of options for everyone.

Still -- especially among so called "copyfighters" -- the concept of "balance" is quite commonly used. However, it appears that at least some others are also concerned about this use of "balance." Copycense alerts us to a paper that was published recently by Abraham Drassinower, of the University of Toronto Law School, which also argues that balance is the wrong way to view copyright policy. Unfortunately, the paper is not the most... lucid thing out there. It's quite academic and, tragically, does not do a particularly good job clearly and concisely making its point. It's not what I would call an easy read. Instead, it rambles at times, and uses overly complex (and at times circular) language, rather than just coming out and stating a clear and concise thesis. This is unfortunate, because if you can get through the language used in the paper, it does make some very valuable points.

The argument is, effectively, that "balance" as a concept in copyright law really only makes sense if you believe that copyright law is designed to reward a content creator for their labor -- in legal terms, the "sweat of the brow" argument. However, courts in both the US and Canada have rejected a "sweat of the brow" standard for copyright law, as being separate from the purpose of copyright law. If you believe that "sweat of the brow" is appropriate, then you are starting from a position that a content creator naturally deserves rewards from all benefits that result from his or her work. And, thus, the "balance" is in slowly removing some of those rewards and giving them to the public, until things are seen as "fair" for both sides.

The sweat of the brow standard affirms a view of copyright law on the basis of what we might call a misappropriation paradigm--that is, a paradigm that grants copyright in the products of a person's mental effort so as to preclude others from reaping where they have not sown. The mischief copyright law aims at in this paradigm is the misappropriation of value through copying. Copying a phone directory gives rise to copyright liability because such copying amounts to an unauthorized transfer of value from the author to the copyist, the plaintiff to the defendant. It is to correct this "grievous injustice"--to use the words of a classic House of Lords judgment in this tradition--that copyright law operates. Its target is the injustice of misappropriation.

But, without a "sweat of the brow" standard, then the whole concept of balance makes a lot less sense. Instead, Drassinower notes that copyright is actually based on a "skill and judgment or creativity" standard, which focuses just on the creative elements of the work, rather than the effort put into the work. In other words, the standard we have set for copyright focuses on the value of creativity rather than the value of effort. Drassinower argues that balance, as a concept, does not, and cannot take that difference into account.

Again, while I agree that balance is the wrong way to look at things, I was quite disappointed by the way Drassinower sets out to make this case. It's interesting, but not presented in a compelling way. There are times when it makes good points (though, again, using overly dense language in most cases), but never seems to fully come out and just state the clear conclusion of focusing too much on balance: that it falsely implies that when one loses the other wins. That it falsely implies that this is a zero sum game. At times, he gets close, as in the following passage:

[Once] the metaphor of balance is assumed as the integrating mechanism holding authors and users together, integration properly so-called can never occur. And that is because once value-balancing is the ordering mechanism, then the relation between authors and users is but a perennial struggle for value, such that claims of authors are but minimizations of the value-entitlements of users, and similarly, the claims of users are but minimizations of the value-entitlements of authors. The upshot is that successful haggling about price masquerades as the foundation of a truly public domain. The failure to elucidate authorship as anything other than value-origination generates an impoverished vision of the public domain as nothing other than a lower or lowered price.

But he fails to take that final step of pointing out that it's not a zero sum game, and the goal of copyright should be maximizing the creation of content overall, such that everyone is better off. Still, if you can get through the rather dense language, the paper does raise some good points, even if I felt it misses the true problems over "balance" in the copyright debate.

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Could Evidence-Based Copyright Law Ever Be Put In Place?

from the perhaps-not dept

Recently, we were discussing how copyright law seems to only get worse and worse, and it got me thinking how likely it is that "better" copyright laws could ever be put in place. Michael Geist recently put up a post on how to design copyright law that would last, emphasizing "balance" as being essential for durability. I have to admit, I tend to wince when people talk about a "balanced" copyright law, because it usually means a copyright law where everyone is worse off. A balanced copyright sets up the argument as if there's a real give-and-take, where what's good for some is bad for others.

I don't think copyright law needs to be that way. If the real purpose of copyright law is to "promote the progress," then why not make sure it's doing so? In other words, why not have actual evidence-based copyright law? There's a lot of historical evidence that can be looked at, and different ideas around copyright law can be empirically tested. If it doesn't promote the progress, get rid of it. If it does, then shouldn't that make almost everyone better off?

The real problem, though, is that there is a very small group of companies who disproportionately benefit from today's copyright laws -- at the expense of the public. And they have a ridiculously powerful lobby who aren't about to give up their monopoly rights, no matter how much evidence there is that it harms the public and does not promote the progress at all. So we're left with a bad system that continually gets worse. And no evidence-based system will ever be allowed, because it would almost certainly strip that small, but powerful, group of their monopoly rents.

People often assume that I'm in favor of just tossing out all copyright law. I'd argue that I'm more agnostic on the subject than anything else. I don't care about "copyright law" per se. I care about what's going to best promote the progress. If someone can show me that copyright actually can do that, I'm willing to understand how. But if we can't present the evidence of how, or actually defend what good copyright does, the I'm left wondering why it's there at all.

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The Myth Of Finding A 'Balance' In Copyright Laws

from the no-balance-needed dept

It never fails. During various battles over copyright laws, someone will come along and present themselves as wanting to be the "moderate" provider between the warring parties of "users" on one side and "copyright holders" on the other side, declaring that what's really needed is a good "balance" in copyright law that is fair to both sides. News.com has just such an article about the ridiculous new Pro-IP bill. However, as we've discussed before, that's the wrong way to look at it. The more you focus on balance, the more useless your recommendations are. That's because the whole idea is based on a faulty premise that the interests of copyright holders and users are not aligned.

In fact, if structured properly there's no reason that the interests of both sides can't be perfectly aligned, making both sides happy without either having to "give up" something. If you can create a bigger market where both sides come out of the situation better, then there's no balance necessary at all. Balance is only needed when both sides come out slightly worse off. This is even more true these days when the entire dichotomy between "content creators" and "content consumers" has blurred. These days, most people are both content creators and content users. In fact, one of the great things about the internet is that it's completely knocked down the barrier between the two, and helped make it easier than ever to create content the same way content has always been built: by building on other ideas that are out there.

So rather than trying to look for "balanced" solutions that make both parties somewhat worse off, isn't it time we recognized that copyright doesn't have to be a zero-sum game with winners and losers? If you get rid of the restrictions that copyrights artificially impose, you create a non-zero-sum game, where everyone can be better off. It may seem a little trickier for copyright holders, as their business models change, but it expands the overall market for their products while opening up tons of new business models that allow them to profit at a greater rate without pissing off users. Meanwhile, users aren't restricted. So, let's toss out the idea of creating a lose-lose situation around "balance" and focus on building win-win situations that get rid of artificial restrictions and focus on bigger opportunities for everyone.

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