Crampton on Copyright

April 20th, 2010 at 1:00 pm by David Farrar

Peter Cresswell discusses and says copying without permission of the owner is theft:

Make no mis­take, copy­ing with­out the per­mis­sion of the owner is theft–-no mat­ter how many sappy sugar-coated dit­ties you hear to the contrary.

I don’t think theft is the best word for it, but I agree it is illegal. PC notes however:

The way ACTA proposes protecting intellectual property–by going through people’s bags, laptops and MP3 players at airports; by holding ISPs responsible for what their customers do; etc.–-is hardly in accordance with the principle of property rights they purport to be upholding.

He says this violates the very principles they want to protect.

What I found most interesting is this comment by Eric Crampton on the post:

Strength of copyright protection has never been an absolute: it’s varied in duration and scope over the years. There’s a Laffer curve that operates in copyright as well: zero protection and fewer things will be produced, but too strong of protection and nothing is produced either.

Eric is right. Copyright is not an absolute right. It is a manufactured right that is about a balance of rights. Eric explains:

Let’s take the extreme case over on the right tail of the distribution. Every musician using a chord must pay a royalty to whomever invented that chord, then must pay another royalty to whomever came up with the chord sequence they’re using. Think much music gets produced under that regime? Nope. It’s too costly to produce anything new.

Another example is the right of a newspaper to quote something. If a politician writes on their Facebook page “I think the top tax rate should be 90%” they own the copyright to that statement. Would anyone want a society where it is illegal for a newspaper to report that statement, as they do not have permission of the owner?

Take it to blogs. Suppose copyright didn’t just protect the expression of an idea, but also the idea itself. Would you ever post anything, given fear of being sued by someone who’d previously come up with some idea you’d thought was original to you? Would Landes and Posner sue me for basically restating their argument in the first paragraph?

Spot on.

If you grant those two cases, then the optimal degree of copyright isn’t infinite. The optimal degree isn’t zero either. I’m reasonably convinced that we’ve pushed too far to the right on this curve: the costs of copyright in impeding new creation, at current legal levels of protection, exceeds the benefit of higher returns for those things that are created. And, I’d argue this is mostly due to Disney who earns more off its back catalogue than out of new production. The period of protection is too long, harm is done by excessive protection on orphaned works, and insufficient scope is given to fair use.

Copyright is for a specific term. If it was not, then every school in the western world would probably have to pay royalties to the great great great great great great great great grand nephew of William Shakespeare.

Eric makes a fair point that copyright protection is for too long a period. In the UK protection is for 50 years after making a sound recording, while in the US it is 120 years after creation.

Personally, I’d sooner see copyright abolished in favour of a solution through private contract where folks use creative commons to designate the strength of protection they’d like applied to their own works, but where also we’d deem the extant corpus of common culture (Grimm fairy tales, etc) only being available for commercial use if the folks making the film, book or whatever applied a duration of protection no greater than 20 years or so, helping to rejuvenate the commons from which they drew.

I am a big fan of Creative Commons which makes it easy for creators of works, to set their own terms and conditions of use.

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16 Responses to “Crampton on Copyright”

  1. kaya (1,360 comments) says:

    Common sense, it is all most of us ever want to see. We’ve been writing rules and regulations for years, we are still writing them through bureaucrats. Rules and regulations are the oxygen that sustain these (mostly) parasites and productivity anchors.
    Wasn’t it Lion who wanted to sue a small independent brewery a decade or so for using the word “red” in their brand? On one of those rare occasions the judge got it right and pointed out you can’t copyright a colour.

    Sure if someone is taking your original song/scribblings and making a commercial gain from it then you deserve to be paid some compensation. It has been pointed out before though that much of this desire to protect copyright is pushed by the middlemen who all clip the ticket on the way through. Yet again, the non productive parasitical bureaucrats.

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  2. krazykiwi (9,186 comments) says:

    kaya – I believe Cadbury have been successful in trademarking the colour purple in respect of chocolate products. Not strictly copyright but similar principle.

    IMO copyright is a desperate attempt by last millennia businesses to protect their last millennia business models. The players that thrive will be the [predominately new] ones that help create the new rules. The rest will go the way of the Dodo.

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  3. kevin_mcm (152 comments) says:

    Then on the other side you had the artist who created the sculptures at the top of Williamson Ave in Grey Lynn. A T-shirt manufacturer did a straight photo & print on shirts, but scupltues are not covered by copyright so no liability.

    I like the idea of differing between use for commercial gain and use for non-profit being differentiated, with the originator having a common law right to protect their creation for a limited period.

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  4. voice of reason (490 comments) says:

    krazykiwi (4815) Says …IMO copyright is a desperate attempt by last millennia businesses to protect their last millennia business models”

    So Kk if you wrote a poem or story and published on this blog, and subsequently someone else saw it, copied it and published it as their own work and somehow made thousands and became famous, then you would be OK with that?

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  5. krazykiwi (9,186 comments) says:

    @voice of reason – yes

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  6. voice of reason (490 comments) says:

    @KK – hence your name of course

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  7. JiveKitty (777 comments) says:

    @voice of reason: perhaps krazykiwi means the current interpretation and application of copyright is being used by said businesses to protect their last millenia business models, rather than the concept of copyright itself?

    I am of the opinion that many such businesses did not follow the dictates of the market – priced themselves out of a significant share of it, alienated their consumers in the process and failed to change their business structures in a significant manner – and have been scrambling ever since and further alienating their consumers in the process. Please don’t assume from this statement, however, that I don’t consume media legally.

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  8. krazykiwi (9,186 comments) says:

    @voice of reason – no. The history of human endeavour is one of create/copy/improve/copy/re-create etc. Excessive proprietorship just stunts progress IMO. I’m just glad the stupidity of copy protection didn’t exist when the first wheel was invented.

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  9. MT_Tinman (3,108 comments) says:

    Copyright needs to be addressed and reassigned to cover original creations only, if only to stop the recording industry from ripping off people and then for no longer than 10 years.

    The creation of new music (or noise purporting to be music) should be covered but me-too type stuff including noise that is nothing but imitation of the original (the majority of recorded music) should be copyright protected for commercial purposes only.

    So too moving pictures where an original picture gets full cover, the same picture re-jigged five years later partial cover.

    Written works the same although some form of attribution should be compulsory.

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  10. voice of reason (490 comments) says:

    KK – I think you are to some extent confusing Copyright, Patents and Trademarks.
    Would the Beatles have continued producing and recording if they didnt have copyright protection?

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  11. krazykiwi (9,186 comments) says:

    @VoR- Yes perhaps, but they’re all mechanisms for protecting stuff. Not sure about the Beatles. Plenty of bands start and some succeed today without the technology void that provided the Beatles with no small measure of ‘natural’ copy protection.

    I have no issue with people trying to protect things they own. I have a lock on my front door for example. My point really is that the rules are changing. Those businesses that fight to ring-fence and protect value that may be lost because of new paradigms will be the ones that fall the hardest. There are plenty of examples of this throughout the history of commerce.

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  12. voice of reason (490 comments) says:

    “MT_Tinman (749) Says:
    April 20th, 2010 at 2:23 pm
    Copyright needs to be addressed and reassigned to cover original creations only”

    It does only protect the original creator now. What you are thinking of is where the copyright holder has subsequently given another party rights to reproduce their work.

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  13. voice of reason (490 comments) says:

    KK – to some extent I understand your point, however it is my contention that copyright doesnt stifle creativity, in fact it may just be the mechanism that forces creativity rather than plagiarism.
    There is a case for commercial gain / activity to be opened up in some manner but I still believe that copyright must be available to the creator of the work, whereas you seem to think otherwise??

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  14. MT_Tinman (3,108 comments) says:

    Voice of Reason, no, it doesn’t.

    In fact anyone can use the same noise (for instance), altered slightly to give the pretence of originality (99.999999999% of recorded music for instance is exactly that – same racket made with the basically the same instruments that is either licensed from originators -called, I believe “covers”- or a very minor variation of the original) and get copyright protection for their imitation.

    I have no problem with the people who originated “pop” music, for instance, to get copyright protection but a big problem with all those producing stuff that is simply a variation on a theme also doing so.

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  15. voice of reason (490 comments) says:

    MT_Tinman (751) Says:
    April 20th, 2010 at 4:14 pm

    Yes it does you are wrong. If you blantantly copy someones song you will more than likely have action taken against you. Particularly if its a hit, but at the end of the day the law is only as effective as someone is willing to take it.
    George Harrison could attest to the effectiveness of that law however, He was sued for copyright by the writers of “He’s so Fine” by the Chiffons over his song “My Sweet lord” from memory he was ordered to pay a substantial portion of his royalties to them. In my view the songs have a similar chorus – the melody shares maybe 4 notes.
    “Cover versions” refers usually to when a band plays someones elses song in a pub or club, they can not nor are they claiming copyright for that.

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  16. Banana Llama (1,043 comments) says:

    “Make no mistake, copying with out the per mission of the owner is theft–-no matter how many sappy sugar-coated ditties you hear to the contrary”

    And this is why we have stupid laws passed.

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