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Copyright’s creative disincentive

Tucows is participating in the Canadian copyright consultation process. Rather than submitting a comment written in the usual lawyerly prose, Elliot Noss, Tucow’s CEO, asked me to write up something about copyright in my usual imprecise and incoherent prose. I like Elliot a lot, and I care about copyright, so I wrote about the argument that without strong copyright protection, creators won’t have an incentive to create. The piece is now posted… [The next day: I absolutely should have mentioned that this was a commissioned piece. I.e., Elliot paid me to write something, and posted it unaltered.]

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13 Responses to “Copyright’s creative disincentive”

  1. Read Chris Dillow’s take on this here: . Besides the argument of efficiency (“people need to earn money as an incentive to create”), which you wrote about, he also tackles the argument of justice (“creating something creates rights over it”).

  2. David — I am thinking a lot about copyright at the moment, having been invited to participate in the Trans-Atlantic Consumer Dialog on the subject.

    Your Tucows post (how cool of them) is elegant and persuasive to me in many ways.

    I wonder if you can elaborate about the impact of copyright or lack of copy right in two areas not primarily fueled by creative urge:

    1. It costs McClatchy (my former employer) about $2 million per year to keep a bureau open in Baghdad. Should journalism resulting from that be protected, or not?

    2. What about books written primarily to transfer expertise, like computer programming instructions?

    Thanks. I genuinely appreciate your point of view on these issues, which I confess remain murky to me.


  3. Mark, thanks for the Chris D. link. (FWIW, I’ve also written about the fairness argument:



    Howard, too hard too hard! I mean, great questions! I mean, I don’t have answers or even firm opinions.

    One touchstone: This article by Pam Samuelson, which presents a model of what copyright laws should do (page 7ff).

    I’m not against all copyright. E.g., I write copyrighted books. The _length_ of copyright is clearly (i.e., I’m merely asserting this point) crazy out of whack. For the long tail of authors, the curve of remuneration is also a long tail: We make almost all of our money off of our books in the first couple of years. Likewise, the value of news reports from Baghdad must fall off sharply after a day, then again after a week. I somehow doubt that it’s feasible to craft a copyright law that provides different terms based on content (should analysis be covered longer than news flashes?), but that’s what common sense says we should do, doesn’t it? (Note: IANAL.)

    Anyway, I don’t see why journalistic stories shouldn’t be covered by copyright, so long as (a) it’s clear that what’s covered is the actual expression, not the information expressed, and (b) fair use enables us to have lively debates about what the McClatchians are reporting from Baghdad

    I’m not sure what the issue is with #2 (programming books). Is it that you can Google a question and get an answer from a snippet from a programming book, so that you don’t ever have to buy the book? How much of your point am I missing?

    And on a point unrelated to your questions, I’d love to see us go back to requiring some positive action by a creator in order to get a work copyrighted, even if it’s just going to a Web page and pasting in an url. This automatic copyrighting of everything gums up the system something awful.

    Howard, I truly wish I knew how to fix copyright and the newspaper business. Murky indeed :(

  4. Very nice piece, David.
    I actually read it as I sit in my first Copyright Law class of the semester. ( I took it last year, but am sitting in with a different professor)
    Quite apropos, as the Professor asks leading questions about incentive theory, etc.

  5. So how much did they pay you to write this piece? :)

    Seriously, many thanks for helping our cause of creativity up here in the Great White North (errrr…. or is that phrase copyright?…)

    Among the many reversals of the ubiquitously connected and pervasively proximate age is the observation that under UCaPP conditions people do not tend to be paid directly for what they do. Instead, the entire concept of reward and remuneration is becoming rejigged to include a myriad of both direct and indirect, complex payments – a network or “conversation” of remuneration, if you will – that relate to one’s total contribution to the society at large.

    Consequently, the instrumental argument that copyright is required to ensure fair pay for creative production is reversed, as you so eloquently propose. Fundamentally, knowledge is a non-rivalrous commodity; attempts to create an artificial scarcity of knowledge (via strengthening copyright, DMCA, and other similar strategies) seems to be counterproductive in a world that will only survive on innovation.

  6. David, I’m impressed to see your secret limbering up for the paradigm shift has borne fruit already. You’re well on course to join us on the other side. ;-)

    Yes, artists should be paid for their work – their audiences quite agree. But, the market for copies has ended. So, audiences pay the artist for their work, but the copies are free, the people are free, no longer manacled by the monopolies of the publishing corporations.

    In the case of newspapers, you pay the journalists for their work, but restore a free market in the printing of copies – if people still want to pay for large sheets of paper and ink to be printed and delivered to them.

    There was a recent article about 1p2U (A penny for your thoughts…), a very simple example of mine of a web based revenue mechanism that enables a blogger’s audience to exchange its money with the work of the blogger. It’s not charity, it’s a bargain.

    As to rights, yes, rights are at the root of it, but then corruption of the term explains our cultural cancer. There are natural, inalienable rights and there are transferable privileges (aka legal rights). Copyright is a privilege. As Thomas Paine well recognised, privileges are instruments of injustice. You have a natural exclusive right to your intellectual work, but the privilege of excluding others from making copies or derivatives of the work you give to them is an unethical monopoly granted not by the constitution, but by unconstitutional legislation.

  7. Crosbie — Can you elaborate, please, on how you think a $2 million per year Baghdad bureau would be funded?

  8. Howard, many apologies for my impertinence, but I think you’re asking the wrong question.

    I have no idea how a $2 million Baghdad bureau would be funded.

    Others might refer you to the ways in which such things have been funded in the past, but as you know, we are no longer living in the past.

    However, are you really sure you want a Baghdad bureau instead of that which you’d expect it to produce?

    Instead of the luxury of marble floors, you might be interested in facilitating the sponsorship of investigative reporters, journalists, and other operatives on location by those who are interested in receiving their work. Put them all in touch with their audiences. And don’t forget, it’s turtles all the way down. There will also be audiences of those who collect, collate, edit, and interpret the work of field operatives. And audiences of members of each of those audiences.

    All you need to do is to facilitate the exchange of intellectual work between those who produce it and those who want it, and can and want to provide money in exchange.

    A monopoly is lucrative if you can get it, but you need a powerful state to quash the millions of people whose liberty has been suspended in order to provide it. That is a surmountable problem. What takes a little more effort is overcoming the instantaneous diffusion of the Internet.

    You don’t need a monopoly.
    It isn’t the business model you’re looking for.
    You can go about your business – freely.

  9. Your impertinence is welcome, your snide assertions less so.

    “Marble floors”? What kind of cheap shit is that? McClatchy’s Baghdad bureau is one fulltime reporter, a second who rotates in from one of the newspapers and a dozen Iraqis working out of a sandbagged hotel outside the green zone. All risk their lives so people who care can read about what our country is doing there.

    Most of the money goes to pay for security to keep those people alive. I do hope enough pennies will accumulate to sustain that, but I doubt it. We will be more ignorant then, and governments will have more power, not less.

  10. (Howard posted while I was writing this.)

    Crosbie, I’m not as sanguine as you are about the ending of the old system. I’m not convinced we’re going to have something that works as well, even given all the faults of the old system. Maybe something better will emerge, but that’s not guaranteed. For example, it’s not at all certain that what people will pay for (even a penny) is what will move forward democracy, science, and culture. Is your optimism evidence-based? I’m ok with hope — I love hope — but it’d be good to know what’s driving your convictions so that we know how to respond.

    And I’m puzzled by your “marble floors” crack. Do you really think newspapers waste money on lavish perqs? The journalists I’ve known didn’t go into it for the money, any more than do librarians, teachers, and other everyday heroes.

  11. If people are going to risk their lives simply so people who care can read about what their country is doing there, then it doesn’t sound like they need any money from their audience, only their care and appreciation.

    However, I suspect that money comes into it somewhere. That’s why, unlike many, I do believe that audiences are prepared to reach into their pockets in order to fund the production of news concerning that which they care about.

    This is after all, when you step back, the fundamental market. Those who collect the news for good money and those who will pay good money to get it.

    If by “$2 million Baghdad bureau” what is meant is that the market demand for news from Baghdad and environs amounts to $2m, then no doubt this will be balanced by the expense of meeting this demand (including the overheads of security, etc.). There’s no problem. That’s your answer. There is this amount of demand from the audience. It will be met by the audience’s money and the costs of those who will exchange their work for it.

    If on the other hand what is meant is that a news corporation is currently spending $2m in maintaining its bureau, cross-subsidised, and well in excess of market demand or competing suppliers (journalists who’ll work for less), then that is what I mean by ‘marble floors’. If you have difficulty figuring out where $2m is going to come from if the newspaper can no longer afford it, then that’s probably a big clue that $2m is a tad profligate.

    You don’t need to justify the costs to me, but to the market.

    Getting back to my previous comment, my point was that with greatly reduced communication costs it’s likely that the traditional more centralised news collection and processing infrastructure is simply no longer competitive with the decentralised equivalent. There is no magic revenue model that will prevent improvements in efficiency such that the old ways of doing things are still competitive and worth funding. Well, there is one piece of magic that does that, and that’s the monopoly of copyright, but it only creates the illusion of prosperity by rewarding its beneficiaries (at an exorbitant hidden cost). The AP is addicted to it and even now believes it should be able to prevent others copying its headlines (aka preventing the communication of news).

    The upheaval is being caused by the end of copyright, it is not being caused by a collapse in the market for news. Three centuries have passed in which businesses have neglected the development of mechanisms for the exchange of intellectual work that don’t depend upon a reproduction monopoly. Until these are developed, readers will stare at journalists, and journalists will stare at their readers, and though both have something the other wants, they will remain unable to do a deal.

    The market for copies has ended. You now have a choice of taxation (a la BBC) or a free market (audience subscription).

    What did I say here 5 years ago? Art for money, money for art.

  12. David, in case you’re still puzzled, my marble floors ‘crack’ referred to publishing corporations’ expenditure upon infrastructure, rather than their staff.

    But, ‘puzzle’, ‘marble’, ‘flaws’, and ‘crack’ are fun to bring together.

  13. Oh, and on whether pennies can pay for news, I’ll observe that $2m could represent a cent from each of 500,000 readers for one article per day. That could be 50,000 readers for each of 10 journalists, or 5,000 for each of 100.

    If, unlike me, you don’t think people will voluntarily pay a penny for an article of news on a subject that they are strongly interested in, then yes, you’re going to have to extract it from them by force (tax), or by threatening them with $2m fines if they infringe your monopoly (Jammie Thomas).

    When corporations and the state they fund descend into forcible extraction of revenue from the citizenry then there’s something rotten in the state of Denmark. Why don’t you join me in making an ethical incentive: money for art, liberty for people?

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