Copyright and invention

You often see discussions saying "copyright law is stifling innovation". Well, first, that mixes up innovation (when something is taken to market and takes off) and invention (which is when you create something new).

One reason (which is rarely cited in the discussion) for the American copyright law update (which was what it was, not a random change) was to align it with the copyright legislation in the rest of the world. In most countries, the rights to works extend seventy years after the death of the author; and no registration is necessary (you may remember that in the old US system, you actually had to register copyright, in the same way as patents).

This means that, among other things, derivative works are allowed. Copying is, of course, not. But backup is - as long as you are demonstratably only keeping one active copy. And this is the problem with the case cited: How do you really, beyond any shred of doubt, demonstrate that you have one and only one copy? Of course, it seems the American copyright-dependent industries are very good at bending their legislation to the best of the industry rather than the best of consumers, using the legal system, as usual. The problem is not with the legislation, however, it is with the American legislative system. The laws work well in other countries.

That said, what about the core question: What effect does copyright overall have on invention? Well, there are two types of invention concerned here: Those which are creating derivative works (i.e. taking a copyrighted work and spinning off a new work from it); and those which copy copyrighted works.

If we want to find out what unauthorized copying means to an industry, and why the record executives are appearing so scared that they invest billions of dollars in suing people, we just need to look at the countries where copyright law is not really implemented: India, or Bangladesh, or most African countries. Here, the record company and the artist get nothing from their music being played (and by the way, not the movie producers either). The record is copied, and sold in street stalls. There is a booming market for this, because music is popular. And the cost of making copies is close to zero (just like on the Internet), so what people pay for is the inventory and that the vendor keeps it current.

If everyone in Africa had a device that let them copy content at will, without regard for any copyright constraints, would they pay? Hardly likely. Now they pay the vendor for the convenience of getting access to that music; but if they had a more convenient way, would they? No, and nobody on Pirate Bay will either (pity the poor fools who try to buy it). At the same time, the record industry can not introduce the economics of mass production into a zero-cost market. And once something is perceived as free, there is no going back.

The other thing that is permitted is derivative works and parodies. One type of derivative work is sampling - take a piece of music and use it in yours. Sampling is such an enormous part of the music industry today that there are artists who release records just to make sure they are sampled. And here, the economics seem to work - the artists do get paid. Well, not in the US, but that is another quirk of the system due to the way the legal system is set up, and the way American collection societies (those who get the money from the record companies, radio stations, etc) work. Ultimately, creating a derivative work is all about licensing, and here you have to respect the right of the author as well as the performer, since it is usually a specific performance you are copying. Since most artists are really bad at license negotiatons, the collection societies handle that for them - unless the artist has been screwed by the record company, signing away their rights. In that case, the money goes to the record company, and it is the record company who negotiates with the collection society. If you still do not follow the analogy, think about licensing a software library. Even open source libraries have conditions attached (GPL and such). But nobody talks about the software industry not being inventive.

I say the problem is not with copyright, or even copyright legislation. It is with the American legal system, and the fact that you can get ridiculous damages from people who may have been guilty of copyright infringement, but did not make any money from their (alleged) crime. Since there is a slight chance of payback, the record industry - at least parts of it, there are other forces too - spend their money on lawyers, instead of education. If people were more aware of copyright as a property, they would be much less inclined to infringe it. But payback for education is much harder to show than lawyers working for "free" for a share of the damages.

If we make the thought experiment that we did not change copyright law at all, but the industry spent their time and effort on educating people on what it means, how it works, and how content can legally be used, would anyone have the same complaints as now? Probably not. And the educators would have to be inventive to get their message through - that is for sure. It seems to me that "copyright is stifling innovation" is a canard, and the real issue is not with copyright or even copyright legislation.