Sunday, November 18, 2012

Curtailing Intellectual Monopoly

I never thought I'd see an RSC policy brief referring to mash-ups and mix-tapes, but I was clearly mistaken.

The document deals in an unusually frank manner with the dismal state of US copyright law. Perhaps too frankly: it was quickly disavowed and taken down on the grounds that publication had occurred "without adequate review." Copies continue to circulate, of course (the link above is to one I posted on Scribd). Although lightly peppered with ideological boilerplate, the brief makes a number of timely and sensible points and is worth reading in full.

Aside from extolling the virtues of "a robust culture of DJ’s and remixing" free from the stranglehold of copyright protection, the authors of the report make the following claims. First, the purpose of copyright law, according to the constitution, is to "promote the progress of science and useful arts" and not to "compensate the creator of the content." Copyright law should therefore be evaluated by the degree to which it facilitates innovation and creative expression. Second, unlike conventional tort law, statutory damages for infringement are "vastly disproportionate from the actual damage to the copyright producer." For instance, Limewire was sued for $75 trillion, "more money than the entire music recording industry has made since Edison’s invention of the phonograph in 1877." Third, the duration of coverage has been expanding, seemingly without limit. In 1790 a 14 year term could be renewed once if the the author remained alive; current coverage is for the life of the author plus 70 years. This stifles rather than promotes creative activity.

The economists Michele Boldrin and David Levine have been making these points for years. In their book Against Intellectual Monopoly (reviewed here), they point out that the pace of innovation in industries without patent and copyright protection has historically been extremely rapid. Software could not be patented before 1981, nor financial securities prior to 1998, yet both industries witnessed innovation at a blistering pace. The fashion industry remains largely untouched by intellectual property law, yet new designs keep appearing and enriching their creators. Innovative techniques in professional sports continue to be developed, despite the fact that successful ones are quickly copied and disseminated.

In 19th century publishing, British authors had limited protection in the United States but managed to secure lucrative deals with publishers, allowing the latter to saturate the market at low prices before new entrants could gain a foothold. More recently, commercial publishers have turned a profit selling millions of copies of unprotected government documents. For instance, the 9/11 Commission Report was published by both Norton and Macmillan in 2004, and a third version by Cosimo is now available.

Copyright restrictions for scientific papers are especially illogical, since faculty authors benefit from the widest possible dissemination and citation of their work. Furthermore, in the case of journals owned by commercial publishers, copyright is typically transferred by the author to the publisher. Neither the content creators nor the uncompensated peer-reviewers who evaluate manuscripts for publication benefit from protection in such cases. Fortunately, thanks to the emergence of new high-quality open-source journals sponsored by academic societies, things are starting to change.

It's not clear why the policy brief was taken down, or what motivated it in the first place. Henry Farrell, while agreeing with the positions taken in the report, argues that damage to an industry that has historically supported Democrats may be a factor. In contrast, Jordan Bloom and Alex Tabarrok both believe that pressure on Republicans from the entertainment industry led to the brief being withdrawn. They can't all be right as far as I can see. But less interesting than the motivation for the report is its content, and the long overdue debate on patents and copyrights that could finally be stirred in its wake. 


  1. Rajiv

    Actually, I put up the post before the report was taken down - I suggested that if (which I was somewhat skeptical about) Republicans did take it up, it would be because it damaged Democrat-friendly funders. I have no doubt that pressure from the IP lobby is what led to it being taken down (and feel a bit sorry for the poor bloke who put it up in the first place, and is being hung out to dry).

  2. Henry, thanks for clarifying. Actually I'm not so sure that Bloom and Tabarrok are right about pressure from the entertainment industry having led to the reversal (Bloom refers specifically to the RIAA and MPAA, and Taborrok more vaguely to Mickey Mouse). As I noted in a comment on your post, the arguments in the brief apply also to patent reform and this affects a broad range of industries with bipartisan influence. So pressure could have come from all kinds of different sources.

    I have a feeling this issue will crop up again but maybe that's just wishful thinking.

  3. Rajiv,

    While we are on the topic of copyright - this is something you might have heard about - recently, Taylor&Francis,Oxford and Cambridge University press filed a case against DSchool's photocopy shop citing copyright infringement. This caused a huge uproar in the Delhi university, with protests staged every day. Copyright poses such a huge cost barrier to the students here, and some of the authors whose works have been published by the firms under question, have come out in support of the protests, citing the same reasons you touch upon in the post, and that it is seldom the author who benefits from the copyright itself. This has more -

    Thank you, for this excellent post!

  4. Deepak, I was a visitor at the Delhi School of Economics last month and saw the protests first-hand. This is a case in which the publishers are not really damaged by the copying since these students are extremely unlikely to purchase the books and journals in question. If denied course packs they will find less convenient ways to access the material, through physical sharing, individual copying, and long hours at the library. Any financial gains to publishers are probably swamped by the bad publicity. Still, I'm a bit ambivalent about flagrant violations of copyright since the publishers are operating within the framework of the current system. It's the law that needs to be changed so that they can suitably adjust their pricing and contracts. Until then, they are within their rights to demand compliance, even if the strategy is unwise and unprofitable.

  5. Agreed, Rajiv. The movement is now addressing the larger issue of the nature of the law itself.

  6. As you've likely seen, the unfortunate guy has been fired in the meantime. A sad story.

  7. Yes, I noticed... I think we'll be hearing from him again at some point though.