There are two broad arguments for copyright. The first is rights-based: Copyright constitutes a form of “intellectual property” that must be protected like tangible property. The second argument is utilitarian: Copyright generates a net benefit for society.
In reviewing the copyright debate, I find the utilitarian argument can be reduced thusly: Copyright benefits society because it protects jobs and cultural identity. Copyright advocates almost always point to short-term economic impact as justification for restricting the public domain. In their minds, copyright is first and foremost about protecting existing jobs in copyright-dependent industries, notably large entertainment companies. This goes hand-in-hand with “protecting cultural identity,” which is the belief that inadequate copyright protection will ultimately lead to a reduction in future cultural “output,” reducing the morale of society as a whole.
There is a related, non-copyright example of this argument — and its fallacy — in the form of taxpayer-subsidized sports stadiums. Whenever a local government is called on to “invest” in such a facility, the argument almost perfectly mirrors the utilitarian case for copyright noted above. First, it’s about jobs. A stadium creates hundreds of short-term construction jobs, advocates say, while supporting thousands of low-wage service jobs during the lifespan of the facility. Second, stadiums are about a city’s cultural identity. I remember years ago when the mayor of the District of Columbia successfully fleeced his city council into spending several hundred million dollars on a stadium to lure a Major League Baseball team. Many analysts noted the mayor’s claims of expected financial benefits form the stadium were exaggerated if not downright false. But that didn’t matter. One prominent newspaper columnist openly derided any attempt at fiscal analysis and said this was about protecting the “soul” of DC and resolving its “identity crisis.”
When you make that type of argument, it’s not about constructing a useful building, but erecting a monument. And when one city has such a monument, other cities want their own. This devolves into a business model that ignores customers and long-term growth completely in favour of maximizing present-day consumption.
Which is exactly what has happened with copyright. Instead of building stadiums, however, legislatures erect monuments in the form of further restrictions on free speech and the public domain. It’s not enough to maintain the existing scope of copyright, just as no respectable sports team would play in a small, outdated facility. The government must show its devotion to preserving these business models by thwarting the market’s efforts to dictate otherwise. It doesn’t matter that the beneficiaries are wealthy franchise owners and multinational entertainment conglomerates. When it comes to protecting a city or society’s “cultural identity,” government intervention isn’t just desirable but mandatory.
All this is fallacy. Taxpayer-subsidized stadiums, like copyright, diminishes rather than protects culture. Copyright diminishes culture by restricting the public domain — which is the culture — and subsidizing a non-productive enterprise in the form of intellectual property law. Similarly, stadium funding schemes don’t generate wealth; they simply redistribute capital that a free market would otherwise allocate to potentially thousands of different uses, including other cultural products. Rather than the government spending $400 million to build one cultural product, millions of individual consumers would spend those funds on other sports, concerts, books, etc. All subsidies do is guarantee more of the subsidized product than would otherwise exist in the marketplace.
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