A balanced approach to copyright

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Categories Digital Lunacy, Music, Politics

Following my article yesterday on the legacy of Labour’s approach to copyright, Ed Vaizey was kind enough to compliment it via Twitter:

@MarkGoodge Another useful post. My position simple. Balance between enforcement and rights holders adapting to new environment

I agree that balance is important. And I’m not arguing for a complete erosion of intellectual property rights; I entirely agree that content creators do have the right to exploit their work and the right to benefit financially when others exploit them. So where does the balance lie?

If we’re going to ever reach a situation where all sides can agree, then I think there are a few things that have to be accepted in the meantime. These are my suggestions:

Content creators and distributors have to accept that

  • Sharing isn’t stealing, and using theft as an analogy for non-commercial copyright infringement is generally inappropriate.
  • Not every download is a lost sale. Many of those downloading would simply go without, rather than purchase it, if the free download was not available.
  • On the other hand, many of those who would buy are choosing not to buy because the product on sale does not meet their needs. If suitable legitimate alternatives were available, they would buy them.
  • It is not the role of the state to protect a particular business model for the creative industries, any more than it is for any other industry.
  • No industry or business has a fundamental right to exist. Technological change has always made, and will continue to make, some industries obsolete while at the same time opening up opportunities for new ones.

Pro-download campaigners have to accept that

  • Intellectual property rights do have a solid justification for their existence. It’s their implementation which is the issue.
  • The cost of creating the material is a factor in determining the value of a download, not just the marginal cost of delivering it.
  • Content creators and distributors have the right to use whatever technological methods they choose to try to maintain control of their material, just as consumers have the right to use the technological methods of their choice to obtain it. Ultimately, the market will decide which methods win.
  • Most people are neither law nerds nor gadget geeks, and just want to be able to get at their stuff.
  • Most content consumers want the content created by the major commercial creators. Open source and Creative Commons material from independent producers doesn’t meet that need, and it isn’t the fault of the majors that it doesn’t.

The government has to accept that

  • It is not the role of the state to either protect or destroy a particular industry.
  • It is the role of the state to facilitate both the development of new technology and the operation of the free market, such that the success or failure of any business rests on their ability to innovate and compete.
  • Unlike, say, offences against the person, law related to intellectual property cannot be derived from a concept of moral absolutes independently of public opinion. If a majority of people believe that a particular use of intellectual property is acceptable, then it is acceptable.
  • Intellectual property law should not be used as a means to enforce unilaterally imposed contracts which would otherwise be unenforceable, or to place consumers of electronically distributed material at a disadvantage compared to those who obtain it in physical form.

This isn’t an exhaustive list, by any means, but I think it represents a good start. And, since it’s Saturday morning, what better way to finish than with this appropriate item of copyright infringement:


  • “Intellectual property rights do have a solid justification for their existence.”

    I’d be interested to know what you believe the solid justification to be, as it isn’t explicitly stated in your article.

    • The short answer is that I agree with the original intentions behind the concept of intellectual property, which is to incentivise creators and treat the work of the mind as being equal to the work of the hands. The long answer will have to wait for a separate article.

      • gerv

        You are mistaken as to the original intentions behind the concept of “intellectual property”. http://en.wikipedia.org/wiki/Statute_of_anne , whose original subtitle was: “An Act for the Encouragement of Learning, by vesting the Copies of
        Printed Books in the Authors or purchasers of such Copies, during the
        Times therein mentioned”. The encouragement of _Learning_ – not the encouragement of creation.

  • You make some excellent points. I particularly agree with the last bullet point. It must never be a crime for a person to examine any work which comes into his possession. If you find a CD on the sidewalk and load it into your computer, that can not be a criminal act. If you read an e-mail that was sent to you, that can not be seen as a criminal act. Any law which makes it so is fundamentally flawed and needs to be rescinded.

    I disagree with the assertion of there being solid justification for “intellectual property rights” but I would venture so far as accepting that there could be sufficient societal benefit to offset the public cost were legislation properly directed towards the goal of providing some degree of subsidy for the generation of  creative works (their distribution, in this modern world, no longer needs or deserves subsidy).

    However, such a government-granted subsidy should not be founded on the illusory notion of there being any manifest entitlement to rights of property on published knowledge. Employment of the very term “intellectual property rights” is an impediment to the discussion ever addressing the issue in a manner which accurately reflects its essence.