Does Copyright Foster or Hinder Innovation?

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May 302009

The debate continues as to whether copyright, or intellectual property generally, fosters innovation or hinders it. Like many other debates, the split often comes down to self-interest: those who own intellectual property prefer greater protections, while those who use it prefer less. The split is not strictly on the basis of corporate vs. individual interests today, since while some corporations such as Disney may want to extend protections, others like Google benefit from a less restrictive approach.

Misconceptions and misunderstandings abound in this debate. For one, it’s important to remember, and often forgotten, that “IP owner” does not equal “IP creator.” 70 years of copyright protection after the death of an author does not necessarily benefit that author – but it certainly benefits anyone who owns the rights to her IP. In addition, limiting copyright duration does not mean eliminating copyright, or allowing massive infringement without recourse. Similarly, allowing “fair use” exceptions does not eliminate copyright or the protections it provides to owners. And one more: “creative commons,” “open source,” and similar schemes do not threaten copyright. In truth, they leverage copyright, since they are copyright licenses, not copyright replacements. Without the legal protections of copyright, they would not exist. After all, one cannot put license restrictions on public domain materials (the confusion between “public domain” and creative commons/open source is also common).

This Wall Street Journal op-ed by Mark Helprin contains many of these fallacies, and I suspect the book he’s written, Digital Barbarism, does the same:

Their work [writers, artists and other producers of intellectual property] is peculiarly vulnerable in that it is easy to appropriate. If they were farmers, industrialists or surgeons, their problems would be different. It is not possible to copy instantaneously and in virtually unlimited quantities either potatoes, aluminum or gall bladder surgeries, as one might a song or a scanned book.

Were this vulnerability unaddressed, the producers of intellectual property would be put out of business unless they were independently wealthy or worked either as amateurs or drew salaries at the pleasure of, and beholden to, boards, committees and overseers of every type. Always at risk, the independent voice, the guarantor of political freedom and personal dignity, would be dangerously depressed along with the arts that sustain civilization. Amateurs alone are insufficient – unless one believes that the work of Herman Melville, Thomas Eakins and Aaron Copeland does not merit full-time employment.

from Copyright Critics Rationalize Theft – WSJ.com.

Certainly I’ve seen recently in my 15th and 16th-century research that most authors of the time – lacking modern copyright protection – were indeed amateurs, or were forced to rely on patrons on other employment to live on (although playwrights and journalists fell into a different category). Thus, Mr. Helprin’s argument has some degree of rhetorical weight.

That said, most proponents of Creative Commons and open source licensing, as well as those who argue in favor of “fair use” and limited copyright terms, do not oppose copyright itself, whatever Mr. Helprin says:

But copyright, the rampart of the mythical city, is besieged by a widespread movement antagonistic to authorial right and the legitimacy of intellectual property. So-called public interest groups serve the new information super powers, the Standard Oils of our age, whose interests would be advanced if they did not have to bother with permissions and payments for what they call “content.” The Creative Commons organization, for example, is richly financed by Google, Microsoft, Yahoo, Mozilla, Sun, the Hewlett Foundation, and others of type.

Thus, Mr. Helprin is, in many respects, making a straw man argument, or perhaps arguing only against certain, arguably libertarian proponents of eliminating most IP (but then again, these anti-IP writers back up their argument with empirical and historical research, not just rhetoric).

Gary Shapiro, who helped with the fight to keep the VCR legal (it was opposed by Hollywood copyright owners, who eventually came to make as much or more money from home tape sales and rentals), speaks for those opposing the expansion and extension of copyright:

In recent weeks, the chorus of calls for further “protections” for copyright owners has grown louder. . . . Yet these copyright apologists ignore how copyright owners overreach and hurt innovation. Representing more than 2,000 American technology companies, I see it differently – the rapid expansion of copyright laws threatens new and innovative products and services.

via Gary Shapiro: Copyright Needs Limits, As It Restricts Innovation.

Anyone who has studied the legal history of IP in the United States has learned that our legal tradition positions IP as a balance between monopoly protection for IP owners and the public interest in the greatest distribution of innovation. “Fair use” is part of this balance, as it provides a check on the limited monopoly protections under IP law. The result has been an explosion of innovation:

The “fair use” right to manage content has allowed the Internet to grow and new companies to be created. But the content lobby disagrees. They told Congress that copyright should stop an individual from sharing an email without the creator’s permission. They argued that computers copy when storing temporarily and thus that many computer functions are illegal. They kept trying to sell multi-song CDs when consumers wanted only one song. They fought rentals of movies insisting that consumers buy movies. In short, they have tried to restrict, tax or bar every type of recording technology.

Thankfully, politicians said no and courts generally stood by the Sony Betamax principles. For these reasons we have the Internet, camcorders, digital cameras, MP3 players, DVRs, removable computer storage and copy-and-edit functions on computers. And thus we have world-leading companies like Google, Facebook, Microsoft, TiVo and Apple. American innovation is not just about content creation. It is also about inventions that allow society to benefit from the uses of content, for which Congress grants a limited monopoly in the form of a copyright. The right to control this content does not include the right to invention and innovation. This is what the Supreme Court held in 1984, and this is why we have these inventions today.

Mr. Helprin would do well to take note that there are two sides to the balance of intellectual property law: creation and distribution. Both are critical to innovation, creation, and progress, and both deserve protetion. His rhetorical flourishes cheapen the debate, and fail to provide an intellectually rigourous analysis or critique. As Lawrence Lessig says about Mr. Helprin’s book, of which his op-ed is a short summary, “There is no excuse for the careless and uninformed screed that Digital Barbarism is.”

So does copyright foster or hinder innovation? The answer is: it does both.