Debating Intellectual Property Protection

Taken from American Conservative.

A Republican Study Committee policy brief released today to members of the House Conservative Caucus and various think tanks lays out “three myths about copyright law” and s…

  1. Valiuth

    Yes, but many conservatives are slaves to the idea that ideas are inherently property. The people who hold this view begrudge copyright as a form of government taking. Also too many Republicans assume that businesses must be promoting free markets because they benefit from them. Of course businesses are some of the biggest dangers to free markets.

  2. Bye!

    So we’ve gone from “quite a reaping in just the first few months” to “it’s not instantaneous”. Not very compelling.

    You haven’t addressed publishers never purchasing a manuscript as,  in the absence of copyright protection, mere submission for publication amounts to a license to publish without compensation.

    Nor have you addressed other publishers using a submitted manuscript to beat a competing publisher to market with the same material.

    You miss my point re: Corman.  In the absence of copyright laws, films wouldn’t be similar, they would use identical scripts. Your statement about “hack” writers and directors is nonsensical. Writers wouldn’t be competing against  another author’s writing, they’d be competing against themselves. It doesn’t matter how moving or original a work may be; if someone else is giving it away it won’t sell.

    You haven’t even postulated a viable business plan that could operate in the absence of copyright. In fact, despite my explicit warning that

    I’m going to want more substance than “I’m sure it’ll all work out.”

    you’re forced to resort to:

    Valiuth: Markets have a way of sorting themselves out.

  3. Bye!

    On a side note, it’s also not clear that either of the films you cited have earned a profit.

    Mirror Mirror cumed 105m on 85m budget, ~170m with marketing. After allowing for theatrical share, distributors have taken in ~55m and remain about 115m in the hole. Let’s hope they see something in later windows (yay copyright protection).

    Snow White and the Huntsman has performed better, but so far looks to be breaking even at best. They’ve cumed 392m on 170m budget, even assuming a lax 100m marketing budget they still reach ~270m invested. This leaves distributors at -74m.

    We also haven’t factored in back-end participation for AtL talent (hello, Julia!), nor profit distribution to regional and partner distributors.

    The only thing you seem to have unequivocally proven is that you don’t understand the entertainment business.

  4. Bye!

    Copyright doesn’t prevent creation of derivative works. Parody is allowed under fair use, and derivative works need only seek a license during the duration of copyright, which I tentatively agree is probably too long.

    Regardless, in order for derivative works to be created the original has to exist. Enforcement of copyright allows for the creation of more original works by providing an economic incentive for their production.

    Demand is only economically viable insofar as consumers are willing to spend money on a product. Despite universal demand for oxygen it remains difficult to retail “breathing gas” at Wal-Mart. (novelty gags and oxygen bars notwithstanding – whatever market there is certainly isn’t “very strong”)

  5. Bye!

    But you don’t have to take my word for it, Friedman puts it quite succinctly in Capitalism and Freedom.

    “In both patents and copyrights, there is clearly a strong prima facie case for establishing property rights. Unless this is done, the inventor will find it difficult or impossible to collect payment for the contribution his invention makes to output. He will, that is, confer benefits on others for which he cannot be compensated. Hence he will have no incentive to devote the time and effort required to produce the invention. Similar considerations apply to the writer.”

    Chapter VIII: Monopoly and Social Responsibility of Business and Labor page 127, 2nd full paragraph 40th Anniversary Edition, Chicago: University of Chicago Press, 2002

    Simple economics, as you say.

  6. Mark

    Jordan

    I am in agreement with your point.  It reflects a failure of imagination by conservative politicians.  There are a great many thoughtful critiques on both the conservative and libertarian themes about how the current copyright structure has distorted the original purposes.

  7. Bye!

    I don’t consider myself a “slave” to the concept of ideas as property, but I do agree with it – or at least to the concept of Authors’ rights, as does the US Constitution. (Article 1 Section 8 Clause 8)

    I also agree that current copyright law needs reformation. However, we need to make the laws objectively fair to all, including the loony left.

    It’s dangerous to lump all of Hollywood into the “enemy” box. The industry itself isn’t the problem, it’s the people currently in control. There are many conservatives working in the creative fields struggling to improve our culture. Too many conservatives outside of these fields write them off and betray their efforts. They need our support, not our scorn.

    Hollywood used to be a great ambassador of individual liberty and the American way throughout the world. Many dark regions of the globe first experience the light of freedom reflected off the silver screen, or an improvised bed-sheet as the case may be. We can restore that jewel in our crown.

    We need to fix Hollywood, not destroy it.

  8. Jordan Wiegand

    I didn’t intend my argument to suggest that Hollywood is totally irredeemable, but, practical speaking, it seems mostly irredeemable at this point.

    I fully believe a revision of our copyright laws in the direction of those suggested in the paper (basically back to the Constitutional definition of copyright) would be just to all parties involved. 

    What I see as propping up Hollywood’s absurd grip are ever-lengthening copyright laws which never seem to expire, and a very well-established lobbying group who seem to be able to write their own laws to protect their business model, which resembles more a cartel than an actual business.  Revising the laws would facilitate a better media market.  I don’t think all Hollywood is the enemy, I think Hollywood, the institution, is the enemy.

    And, by extension, there are other absurd business models propped up by arcane legislation, like cable television, for instance.  The GOP would do well to get in front of these types of issues, since they present structural weaknesses in the Left.

  9. Valiuth
    NoWayerMan: I don’t consider myself a “slave” to the concept of ideas as property, but I do agree with it – or at least to the concept of Authors’ rights, as does the US Constitution. (Article 1 Section 8 Clause 8)

    So what are the rights of authors? To me it seems much of it is focused on the idea of artistic control . But, this of course is nonsense. As the author’s right to write what he chooses does not come from the ideas of copyright, but rather free speech. What authors want is to restrict the use of fictional creations to just themselves. This of course negates the rights of free speech of others, and therefore need justification. The reason is given in the sited part of the Constitution. Thus all our creative rights are limited for the benefit of promoting Art and Science. This limit is only legitimate to the extent in promotes invention and creation. 

  10. Bye!
    Valiuth So what are the rights of authors? To me it seems much of it is focused on the idea of artistic control . But, this of course is nonsense… This of course negates the rights of free speech of others, and therefore need justification… Thus all our creative rights are limited for the benefit of promoting Art and Science.

    Art and science are promoted by allowing authors to profit from their endeavor, that is the point of copyright. It’s not solely about artistic control (though artistic control is a legitimate concern, not nonsense), it’s also about the right to produce and sell material based on the work.

    If I write a song or story I own the rights to use that creative work, to sell that creative work, and to control how others use it for a limited duration. Denying that right would require all creatives to donate their lives to society without any expectation of return. As a result, there would be far less creative output; only the independently wealthy would be able to devote the time and effort required for quality product. Creative work is very real, very hard and takes a long time.

  11. Bye!

    It’s not just fictional ideas, there are also concrete ideas, such as the design of a mousetrap or other invention. The physical property are the mousetraps themselves, but the design is an idea – an intellectual property. Limiting property rights to solely the physical would allow any manufacturer to use competitors’ designs without limit.

    There are established but somewhat legally murky rights to use others’ works based on Fair Use in certain circumstances. Free speech allows you to say what you will, but doesn’t protect all the ways you wish to say it. Free speech certainly doesn’t give you rights to my speech. Recognizing copyright doesn’t endanger Free Speech at all; some current applications of copyright law might.

    The Constitution and its founders recognized this and protect these rights as fundamental, along with all the other rights.

  12. Bye!
    Jordan Wiegand: I didn’t intend my argument to suggest that Hollywood is totally irredeemable, but, practical speaking, it seems mostly irredeemable at this point.

    Modern culture is in a bad state, but it’s not irredeemable. If it were, we’d as well abandon the country entirely (which some are prepared to do).

    There is some language you’ve used in your post which I find overly broad, throwing out the baby with the bathwater, as it were.

    i.e. I disagree that “Hollywood the institution” is the enemy. Many (most) in Hollywood are the enemy of conservatives, but the institution used to be a vanguard of conservatism. It can be again.

    When people speak ill of Hollywood in general, they are speaking ill of me as much as they are speaking ill of the left. I would ask that you be more careful with your language.

    Punitive legislation against an industry hurts members of all political stripes. Denying the rights of people whom you regard as an enemy is wrong, just as denying the rights of people you regard as friends is wrong. Bad law is bad law, no matter what perceived tactical advantage you may gain.

  13. Valiuth
    NoWayerMan

    If I write a song or story I own the rights to use that creative work, to sell that creative work, and to control how others use it for a limited duration. Denying that right would require all creatives to donate their lives to society without any expectation of return. As a result, there would be far less creative output; only the independently wealthy would be able to devote the time and effort required for quality product. Creative work is very real, very hard and takes a long time.

    … · 5 minutes ago

    The market for original works of art (books, music, movies etc.) is very strong and mostly predicated on peoples disposable income. Since most art is only profitable in a very short time period being the first to market alone probably will guarantee a decent rate of return. Enough to make a living out of it especially for those with talent. I mean look at classical music none of it is copyright protected, yet orchestra musicians make quite a good living.  

    Even with copyright most artists don’t make much money of their art. The artists that benefit the most would probably still be making millions without it. 

  14. Bye!

    I don’t have a problem with examining modern copyright law and reforming it to protect all people’s rights.

    I have a big problem with associating these efforts with a strategic effort to “get” the left. If the law needs reformation, it wouldn’t matter which ideology controls Hollywood. Argue the law on its own merit. If you would back the change if conservatives still controlled Hollywood, the conversation will be much more fruitful. If you’re only doing it out of vengeful motivation I find it abhorrent and myopic.

    Tactically, efforts to take revenge on perceived cultural enemies through legislation will expose you to legitimate critique and make you look petty. Justice is blind, not necessarily right-wing.

  15. Bye!
    Valiuth

    The market for original works of art (books, music, movies etc.) is very strong and mostly predicated on peoples disposable income. Since most art is only profitable in a very short time period being the first to market alone probably will guarantee a decent rate of return.

    Without copyright protection I have no guarantee I will be first to market, larger institutions and publishing houses would be able to take an unpublished manuscript and print it, or release it digitally and poof – any potential profit for the author is gone.

    Especially considering digital authorship, there would be no protection from a customer simply copying the text of a novel and never paying for the book. There’s plenty of illegal downloads while copyright still exists. If the law says it’s not stealing, nobody would ever buy. The market would disappear because people won’t buy what they can get for free in short time – especially if it’s legal.

    … classical music none of it is copyright protected, yet orchestra musicians make quite a good living. 

    They make money from live performance and the sale of recordings of their performances, which do have copyright protection.

  16. Bye!
    Valiuth

    Even with copyright most artists don’t make much money of their art. The artists that benefit the most would probably still be making millions without it.

    This would be irrelevant, even if it were true.

  17. Bye!
    Valiuth

    Since most art is only profitable in a very short time period being the first to market alone probably will guarantee a decent rate of return.

    Many artists work in obscurity, creating a large body of work, in the hopes that some day they will be discovered. When they do have a breakout work, suddenly all of their previous work becomes marketable, even if it’s decades old. Then their work pays off.

    Unless, of course, copyright is abolished an all of their old work is freely distributed without compensation, and all the publishing houses copy the content of their breakout work and sell (or give away) their own versions  without any recognition to the author.

  18. Bye!

    Television shows are often unprofitable in their original runs, it’s only through syndication rights and ancillaries that they ever see profit – usually years after they were first to market.

    Ask Rob if he’s still getting royalties from Cheers. Many actors live off these royalty checks, not wealthy, but comfortably. Don’t begrudge them their due.

  19. Bye!

    Movies usually take years to see profit. They’re lucky if they break even from box office receipts, much like television shows. Profit comes from ancillary rights: television play, rental, home video. Theatrical release is a commercial for these ancillary sales.

    Due to the modern rate of piracy the length of time between box office release and tertiary markets has shortened, but it still can be months or years before profit is realized. Abolishing copyright laws will eradicate any incentive to make movies unless they can be profitable within the theatre. This leaves more power in the hands of the big boys, not less.

  20. Mark

    I don’t think anyone on this thread is advocating abolishing copyright laws.  As Jordan notes it is the increasing duration of copyright and the ability of the entertainment complex to protect itself to the detriment of others that is the issue.

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