Attacking Freedom Part Two

“We accept without question that new drugs should be evaluated for their effects on human health; so too, new technologies should be evaluated for their effects on human flourishing.” 

 

To me this is a better starting point than looking back to the liberal tradition of property rights for standards in copyright (I, like Ryan, do think of patents differently).   So, what to do?  I’ll start with some sub-goals.

 

Sub-goal 1: Jessica’s points are well taken.  In the framework Cohen endorses, the current makeup of the technological elite will need to diversify.  I prefer to focus on class. Given that priority (with which I understand you may disagree), how do we go about that diversification?

 

Sub-goal 2: As Cohen suggests I believe we need to create varied copyright rules based on the medium of a particular creation.  Folding some elements of the 1909 Copyright Act back into our copyright quilt, we should evaluate a particular medium’s effect on human flourishing (of which I believe tax revenue and GDP factors, though not the only factors) and create particular copyright rules for that medium.  I think Jen has little reason to fear a certain arbitrariness here; outside of some lobbying considerations, this particularizing process is no less dangerous than putting all medium under one umbrella.  So I add to the question: how do we decide copyright policy in a particularized world?

 

Possible Solution: Bear with me, because I need to temporarily reaccept the creator-consumer distinction for the purposes of this argument.  Consider three forms of media, in which consumers and creators need differing forms of preparation to participate.  Movies (except The Artist) necessitate the ability to use language, books necessitate literacy of a more developed kind, and the enjoyment of modern painting requires money and maybe a pretentious degree in art.

 

Input needed to create or enjoy certain media:

 

Media Type: Party:	Movies	Literature	High-end Painting
Producer	Wealth, time, effort, arguably strong copyright	Time, effort, arguably copyright	Time, effort, arguably (see Angus) no copyright
Consumer	Basic language skills, baseline disposable income	Substantial literacy, baseline disposable income	Extreme artistic literacy, quasi-decadent wealth

 

From a Lockean standpoint, we might be tempted (it seems like we do?) to reward the film industry with the greatest government investment in the protection of copyright; reward should match labor.  This makes economic sense, too: we should invest in protecting the copyright of the revenue-generating giant, the film industry.  Great paintings sell for a lot as well, but they are mobile in creation and sale—I can’t even imagine how sales tax at those auctions plays out—and the consumers are wealthy and sophisticated enough to develop systems of copyright protection themselves.  This, I take it, is Angus’s point: consumers will reward originality on their own accord.  I generally vehemently disagree with that idea, but in the context of haute peinture it might hold.

 

What about starting from Cohen’s primer, though?  Our concern being human flourishing, we want to encourage play.  Furthermore, I think we should encourage the proximity or potential fusion between producers and consumers.  Why?

1. The easier it is to move from consumer to producers, the more incentive consumers will have to try their hands at production (keeping monopoly rewards for the output aside).
2. The easier it is to move between consumer and producer, the more incentive producers have to maintain quality work.
3. Most important: because a fluid movement between creators and users keeps producers on their toes and consumers active and engaged, the overall body will be better at discerning the quality of outputs.  If you want a very efficient market to reward quality, incentivize the consumers to be educated and active.

With these ideas in mind, let’s tinker with copyright.

 

If we reduce copyright protection by statute, we’ll get different results in all three mediums.  This is absolute and pure speculation:

 

Three forms of media in a world with shorter copyright / Effects on producers, consumers

 

Media Type:     Party Affected:	Movies	Literature	High-end Painting
Producer	Substantially smaller investment into movies and/or much higher prices	Somewhat smaller investment into books and/or higher prices	Less certain effects on investment and price
Consumer	Less movie attendance, arguably more play,	Arguably more play, arguably people buy fewer books, unclear	People take more pictures at museums? Unclear effects

 

A lot of conjecture. Forgive me.  My essential point is this: if our goal is human flourishing rather than a rights-based liberal theory of rewarding and incentivizing creation on the front end, we are going to need to treat different mediums differently.  This is because copyright has varied effects on different mediums, and different mediums enable or discourage human flourishing.  You may debate the content of the above charts, but I hope you’ll at least work through filling them in yourselves.

 

Thanks for reading, friends.  It’s been a fun blog.

 

Comments

[Conor Shaw]

I know you were probably trying to keep things simple, but I think the tables may leave out an important interest. I'd propose three groups: creators, investors/producers, and consumers. I think this captures the fact that the creator might not be the one funding a project (especially with movies) and also that the owner of a piece of art (also an investor) might not be the ultimate consumer (think art galleries, collections, etc.).

[Aaron Benson]

I tend to agree that copyright should try to treat different types of work differently. But the lines between different media aren't always clear. For example, what makes a movie? It's a combination of literary screenplay, visual photography, musical accompaniment, live performance, etc. Does that mean that each category of copyright applies to the movie? Does a combination of media get more protection than a single medium? For example, does a Brahms concerto get less protection than a Bob Dylan song because the latter uses poetry as well?