Copyright: The New Mercantilism

by Stephan Kinsella on October 27, 2012

Yet another law professor who is skeptical of current—and mercantilist—arguments for ratcheting up copyright enforcement, Tulane law professor Glynn Lunney. He argues against increasing copyright protection, and, indeed, that “only a very limited degree of copyright protection – something akin to the fourteen years of protection against mechanical duplication by competing commercial publishers that the 1790 Copyright Act provided” “may” be justified. And consumers should be free to share files. From Mike Masnick at Techdirt:

Copyright: The New Mercantilism

from the it’s-a-protectionist-monopoly-law dept

We’ve argued for a while that copyright is frequently used as a new form of mercantilism, the mostly discredited economic theory that basically said that the government should be heavily involved in “protecting” local industries with monopolies and tariffs. Adam Smith’s seminal works, which more or less created the field of economics were really, in part, a critique of mercantilism, and how it could cause more economic harm than good. When you take a wider view of copyright law and policy (especially in international trade), it’s not difficult to conclude that it’s very similar to classic 17th century mercantilism.

So it’s interesting to see Tulane professor Glynn Lunney publish a paper arguing exactly this: that copyright has become a mercantilist tool, and that’s a problem.

Over the last twenty years, arguments for broader copyright have taken an increasingly mercantilist turn. Rather than argue for broader copyright in terms of more or better original works, proponents have begun arguing for broader copyright on the basis of revenue and jobs. Consumer copying is theft or piracy, proponents insist, depriving copyright owners of revenue and destroying jobs. In this article, I review these arguments and show that they are empty. While the Internet and digital technology has made widespread consumer copying a reality, broader copyright can be justified only if this copying has interfered with the creation and dissemination of new original works. But it has not. Using a hand-coded data set examining the number of new artists and cover songs in the top fifty of the Billboard Hot 100 chart in the first week of each month for the years 1990-2010, I show that while music industry revenue has fallen sharply since Napster opened its virtual doors, output in the music industry, both in terms of quantity and quality, has increased just as sharply. Part of the explanation for this seemingly paradoxical result, is that the digital revolution, while it has made consumer copying trivially easily, has also reduced costs, risks, and barriers to entry in the music industry. Yet, this cannot be a complete explanation.

To account for the rest, I offer a theoretical model and a simple explanation for why the incentives for music creation have remained sufficient in the face of widespread consumer copying: Consumers don’t just love music generally; they love their particular favorite artists and their specific favorite songs. While consumers would like to get music for free, they know that they have to support their favorite artists in order to get and to continue getting the music they want. As a result, self-interest tends to ensure that consumers do not free ride too much. While the resulting market is unlikely to be perfect, legislation from Congress is not likely to improve the situation. Just as product markets fail in predictable circumstances, so too do political markets. When, as in the debate over broader copyright, proposed legislation benefits a concentrated interest group, such as copyright owners, at the expense of a dispersed interest group, such as copyright consumers, Congress is systematically likely to get the answer of how much copyright is optimal wrong, and badly wrong at that. In short, we have far more to fear from government intervention in the markets for original works than we do from leaving these markets alone.

I met Lunney a few months ago, and saw him present some of this research at a conference, and he makes a really compelling case (I had a minor disagreement with him over some of his data, but the overall work is really, really solid). The full paper is totally worth reading. As I read through it, I kept thinking I wanted to quote basically everything, so instead I’ll just repeat: go read the full paper. I will include this bit from near the end, however:

While I recognize the political difficulty, and perhaps futility, of proposing a constitutional amendment limiting Congress’s power in this area, I think it is time, and past time, to put such options on the table. It has been over two hundred years since our Constitution was written, and we have a much better sense today for where representative democracy works and where it fails. Because copyright benefits a concentrated and well-organized interest group at the expense of a dispersed group, establishing an optimal copyright regime is simply not something Congress has done or will do well. We should therefore limit Congress’s power to act on this issue. At the simplest, such a constitutional amendment might follow Jefferson’s suggestion and substitute “for no more than fourteen years” for the phrase “for limited times” in Article I, section 8, clause 8. Taking it a step further, an amendment might specify or limit the nature of the “exclusive rights” that Congress may grant. I fully recognize that such an approach would enshrine a set of rights that, even if optimal today, may not prove optimal for all time. Such an approach would almost certainly impose a set of legal rights that will not fit perfectly the needs of the future, as technology and markets change. Nevertheless, I believe that such an approach remains preferable to our current approach. Any welfare losses that may result from constitutionalizing today’s optimal set of rights and imposing those rights onto the future would be less than the welfare losses that will result, and have resulted, from leaving the issue to Congress. Given how overbroad copyright has become, even an amendment barring Congress (and the states as well) from granting exclusive rights to authors for their writings altogether would be better than where we find ourselves today.

Once again, go read the whole thing… and remember the key points he raises the next time you see copyright maximalists bring up how many “jobs are at stake.” That’s a bogus claim, as Lunney notes elsewhere in the paper:

for the copyright industries to receive more revenue, consumers must pay more for works of authorship. Broader copyright, after all, does not generate revenue from thin air. It has to come from somewhere. If consumers have to pay more for works of authorship, they will have less to spend on everything else. Thus, more revenue for the copyright industries necessarily means less revenue for other sectors of the economy. If more revenue for copyrighted works means more jobs for the copyright industries, presumably less revenue everywhere else means fewer jobs elsewhere in the economy

Copyright is about Congress picking winners and losers in a true mercantilist manner — and Congress has proven especially bad at doing that well — in part because they only seem to listen to the claims of the industry which benefits from such policies.

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Crosbie Fitch October 27, 2012 at 8:49 am

The 1790 Copyright Act was of course the 1709 Statute of Anne with a hasty touch up. http://btlj.org/data/articles/25_3/1427-1474%20Bracha%20050911.pdf

It’s amusing that the Statute of Anne gets to be ‘justified’ in the context of the US Constitution that didn’t even mention it. For all the libertarian bluster of the Declaration of Independence, the new Congress didn’t really hesitate to recreate the illiberal trappings of the old world it pretended to despise.

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