Tuesday, July 22, 2003

Copyright, the secondary market, and the real scum

Australian intellectual property academic Kim Weatherall is back blogging (and now Melbourne-based), after a semi-hiatus.

Her hefty posting on IP academics being perceived as being excessively anti-IP, while IP practitioners are perceived as being excessively pro-IP, got me thinking. Key quote (on why any attempt to separate “bad”, corporate copyright from “good”, creator copyright is doomed:

If the basic model of private rights in creative works is to achieve the aim of ensuring creators can profit, then the rights must be alienable.

Of course. It’s a shame, however, that Kim’s argument then rapidly peters out into stuff about moral rights, etc (which, in case you don’t know anything about them, can be succinctly described as copyright’s consolation prizes).

As a sometime intellectual property academic myself, I’ve long been interested in the (albeit not particularly legal) area that Kim leaves her argument at the gates of – the secondary market for copyright interests. As anyone with even a slight knowledge of, say, the modern music industry would know, this “market” is strongly asymmetrical. In fact, muso’s (and writers too) hawking their wares don’t generally have access to anything that remotely works like a fresh produce market, even a wholesale one. Whether this reflects an oversupply of “growers”, or a shortage of wholesalers (/distributors, aka music labels and print publishers) is a moot point.

Making this secondary market more symmetrical would seem to be the key to giving everyone affair slice of the copyright cake. As to how this might happen, I don’t really know. I do know, however, that another recent post of Kim’s – saying, ease up on the connection between copyright piracy and terrorism – is wrong, IMO. It is wrong because she conflates small-scale, “home” piracy (which has been ubiquitous since the early 70’s gave us the mass-market cassette tape and photocopier) with commercial piracy. Legally, I acknowledge that there isn’t a distinction drawn along these lines. Nor would it be easy to draft one.

Nonetheless, commercial piracy has features that make it plainly abhorrent. By creating a retail market that is without limit, copyright pirates shaft and silence creators. And I’m not just talking about zero royalties, dodgy product quality, etc. The intrinsic subterfuge of retailing a stolen product, combined with its “money growing on trees” profitability* logically mean that the only way such a market can be ordered (in other words, work) is by crime – and Big Crime at that.

* This hyper-profitability is relatively recent, as only digitisation has moved the unit cost of producing pirate copies to near zero. Even today, commercially pirating a hardcopy book (not a common thing, of course) would probably cost about 25% of its RRP per unit – compared to digital piracy’s 5% of RRP unit cost, at most.

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