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Copyright, Property Rights, and the Free Market

Over at Cato Unbound, there has been a discussion this past month on copyright and copyright reform.  In his recent contribution to this discussion, Mark Schultz posted an excellent essay today, Where are the Creators? Consider Creators in Copyright Reform, that calls out the cramped, reductionist view of copyright policy that leads some libertarians and conservatives to castigate this property right as “regulation” or as “monopoly.”  Here’s a small taste from his essay:

I am genuinely puzzled when copyright discussions treat creative works if they are a pre-existing resource that the government arbitrarily allocates. They are not. They aren’t an imaginary regulatory entitlement, such as pollution credits. They aren’t leases or mineral rights on public land handed out to political cronies. Creative works are, instead, the productive intellectual labor of private parties. Real people make this stuff.

At this point in the discussion, a common rhetorical move is to reject what some scholars describe as the romantic myth of authorship. Copyright skeptics point out that authors build on the work of others and that many creative works are the work of corporations, not individuals. This argument was provoked by many decades—a couple centuries, really—of rhetoric that put the individual author on a pedestal. Even if one concedes that authors have, perhaps, been idealized, taking them for granted goes too far.

The absence of creators from the critique of copyright is one of many reasons I doubt the political (and moral) appeal of much of the case for copyright reform we have heard from a few libertarians and conservatives. At the risk of dredging up tiresome memories from the recent presidential election, the argument over “you didn’t build that” was very familiar to me as a scholar of copyright. In both instances, there is a divide between those who value (or, even, romanticize) individual achievement and those who emphasize how much that achievement depends on a social context.

This follows Mark’s earlier and equally excellent essay, Copyright Reform through Private Ordering, in which he identifies how defining and securing copyright as a property right is consistent with and advances the private-ordering regimes embraced by advocates of the free market.  Again, here’s a small taste:

Like other forms of property, copyright thus represents an invitation to a transaction and an opportunity to bargain. This opportunity for parties to transact and bargain is one of the key differences between property and regulation. A regulator has a duty to enforce the law—and if a regulator chooses not to enforce, then a court may order him to do so. Copyright owners need not enforce their rights, of course. Moreover, it is perfectly legitimate to offer a property owner money to forgo their right to enforce their copyrights; such commercial transactions are really the whole point of copyright. Make the same offer to a regulator, and you go to jail.

Read these essays in their entirety—both of them are here and here—as Mark is doing a great job in what is very brief and limited blogging space in providing both the important data and the principled arguments for how copyright is fundamentally consistent with and advances the aspirations of the free market and limited government.  This follows on his earlier, excellent blog posting at the Copyright Alliance that touched on similar themes, Copyright, Economic Freedom, and the RSC Policy Brief.

DISCLOSURE: Mark and I are both on the Academic Advisory Board of the Copyright Alliance.

Filed under: blogging, copyright, intellectual property, law and economics, technology