Stepping on the Toes of Giants: What Not to Think About Copyright
Progress Snapshot
Release 3.6 May 2007
by Solveig Singleton*
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Isaac Newton's famously remarked about his progress in the sciences, that "If I have seen a little further it is by standing on the shoulders of Giants." This image resonates with many commentators on human progress, scientific and otherwise. Today the argument that knowledge is cumulative has found new life as a point against strengthening copyright or patent law.
But while the observation that each individual creator or inventor owes a great deal to those who came before is certainly true,[1] it is not relevant to policy debates about intellectual property policy. This short paper shows why.
Certainly we all owe one another in a grand sense—authors build on authors and artists on artists, science on science, and authors on artists and artists on science and on and on.[2] The question is, under exactly what set of ground rules are we most likely to do each other the least harm and the most good? It is far from clear that that we get a desirable outcome from a free-for-all, in intellectual property or any other area. And noting that knowledge is cumulative tells us little about the terms on which it is accumulated. Generally, those terms should be set by the market, and markets require a foundation of rights to trade and meaningful enforcement.
Does Strong Copyright Stymie the Growth of Giants?
A survey of recent commentary on copyright law shows a number of pundits have elevated Newton's observation into a policy argument against copyright or patents.[3] A recent essay from Harpers follows the trend.[4] While it is interesting reading to trace the details of literary allusions and "cut and paste" from the days before the mouse (that is, before computers, not before mammals), when the point about the cumulative nature of knowledge tries to become a policy argument against the expansion (or existence) of copyright, it does not work at all.
To see why, let's set out some implication of the argument more formally. It might mean, that it is unfair of x to appropriate gains from a poem or invention, when anyone else might have written the same poem or invented the same device, had he been in the right place at the right time—all the catalysts from past thinkers would be there, and the individual contributes little. This is a weak argument. Building 500 subtle and no-so subtle literary allusions into a work of fiction is still a lot of work. Animating a fairy tale while including feminist modern touches and leaving out the medieval horrors of the Brothers Grimm is no mean feat. Insofar as it understates the contribution of individual creators and the capital they need to go forward, the "giants" argument is a loser.
Another variation of the argument would be stronger: If x devotes resources to a creation, he is inherently being or will be repaid for his efforts by the fact that he has learned and continues to learn from others. In other words, it's all a wash. Or, take it further, we are better off with narrower rights in IP, and fewer of them (or even none) than with broader rights, because if IP law lets an individual "lock up" ideas in proprietary bundles, others' progress will be stymied, because those ideas will not be available as catalysts.
Ultimately, these arguments also fail as attacks on strong IP. It seems unlikely that the gains that a creator (or anyone else) gets as a side effect of other's creative activities will encourage him to continue to create or enable him to eat. That IP law allows some creations or knowledge to be priced higher than zero does not mean that the knowledge will be locked down; it creates a market. To start, the universe of ideas, expressions, and images impacted by copyright law is small compared to the large realm of ideas, images, and information that will never patented or copyrighted.[5] Policy questions in that setting arise concerning exactly what set or sets of ground rules offer the best set incentives to create, and the observation that knowledge is cumulative is far too broad and vague to contribute much.
Why Downstream Users Should Want to Pay
Noting that knowledge is cumulative tells us little or nothing about the process of accumulation. Need all downstream uses be free and unlicensed? No. Benkler tries to make a case for free use by supplementing his observation about the cumulative nature of knowledge with the fallacy[6] that information ought to be priced at marginal cost. This fails to recognize the need for incentives to create going forward, and is an idea that rigorous economists firmly reject.
If a creator inevitably builds on the work of others, he will often want to pay them something concrete, recognizing that they will be more likely to factor his interest into their output—and produce more that he can use. And the creator will make more enthusiastic use of whatever he can to produce if others pay him (or his grandchildren, or his firm, if he is not around). And finally he wants other creators to pay as well, so they do not free ride at his expense. Now, of course, this is not always true under every possible circumstance. Some deals cost more than they are worth to conclude. One wouldn't have to negotiate with the Scientologists for the right to quote and critique their texts in an article. Nor is the game worth the candle if the payment for a $40 game can only be collected through a $40,000 judicial process. By and large, the debate about the scope of IP today is about where to draw the line between negotiated uses and free uses, and sometimes, about the price. The general observation that we all borrow consciously and unconsciously from others as well as buy is true, but it is far too general to help with working out terms.
When buttressed by detailed and specific observations about a problematic economic sector—as in some work on patent thickets and software, for example[7]—arguments from accumulation do matter, but even then they do not help much in selecting among possible solutions. But note that pointing to specific problems—the difficulties of documentarians, for example—does not show that there is a general problem.
What about the observation that many uses have always been free and unlicensed, or that past generational disputes among media have been resolved by compulsory licensing?[8] Given the limitations on the ability of creator and audience to contract freely at low cost in the past, this was quite reasonable in context. But we cannot assume, given the possibility of automated low-cost transactions facilitated by the Internet, that this context is still always relevant. Nor does the past use of compulsory licensing stand as a monument to success in abandoning markets—rather, it reflects perhaps a tendency to resort prematurely to legislative rather than market processes. A better legislative direction today might be to study how to reduce the fragmentation of copyrights into performance, reproduction, copy, and distribution rights in ways that makes licensing more complicated.
So, Where's The Crisis?
The idea that we are engaged in fine tuning of substantive rules rather than a grand philosophical inquiry into the nature of information threatens to take the wind out of the sails of some IP skeptics. Fine tuning is not very fun. Crisis sells more copy. But much of the "expansion" of copyright over the last decades—while genuinely troubling in some respects—simply does not amount to a cultural or consumer crisis of the sort that Lessigians bemoan.
As even a theoretical barrier to access to downstream users, the expansion of copyright has been somewhat exaggerated. The usual example is the lengthening of copyright terms (often attributed to Disney's influence, but in fact most vigorously supported by the heirs of music composers such as Gershwin and Berstein). But it is very hard to think of other examples that amount to anything more than tinkering at the margins.
Furthermore any expansion rarely amounts to real barrier to access in practice; isolated cases aside, the net result is expansion of access as markets grow. Copyright owners want to reach an audience. The case law supporting transformative uses or parody is alive and well. And, finally, the Internet and digital technology supports an enormous array of modes of access—legal or otherwise—many of which cut against the rights of the copyright owner. DRM is still in its infancy and markets for snippets and bits are not yet fully formed—not surprising, given limited demand. Problematic, yes, but there are some problems that are not all that bad to have—the question of exactly what format the $1.00 songs we load onto our $600 iPod phones is one of them. From a downstream users' viewpoint, there simply is no crisis.
For small players in the music industry, like songwriters, it is another story. There is a crisis in IP enforcement that affects their livelihood. From this problem stems the troubling trend of criminalizing copyright offenses. The law is trying to adjust for its inability to catch the majority of perpetrators because there are just too darn many trivial offenders. The legislative response is to increase the penalties. Studies show this not effective as a deterrent.[9] Nor is it fair to the occasional perpetrator who is actually caught. Copyright owners have largely been left to deal with the enforcement crisis on their own. But free riding threatens the viability of entire markets and thus affects consumers as well. It is a public problem, like the maintenance of police and court functions generally, and will take some hard work to fix.
Conclusion
Sustaining creativity over time still takes hard work and, often, considerable resources. Exactly what rules generally produce the best outcome is always controversial, especially as technology changes. But for downstream users of the knowledge, it is ridiculous to pretend that markets and technology are doing more harm than good. Even the sometimes clumsy efforts of policymakers to fix a badly broken copyright enforcement system do not favor the content production side—those efforts are not yet particularly effective. Knowledge and creativity is indeed cumulative. Exactly none of the arguments as to whether intellectual property should be maintained, strengthened, or reformed today attempt to deny this. Noting that we stand on the "shoulders of giants" is a fine sentiment, but markets supported by clearly defined rights will best help us up there.
*Solveig Singleton is a lawyer and senior adjunct fellow with The Progress and Freedom Foundation, as well as an amateur ceramist and painter. The views expressed here are her own, and are not necessarily the views of the PFF board, fellows or staff.
- Nietzche's objections notwithstanding.
- This point might be expanded into an observation on the interdependence of economic enterprise more generally; farmers and manufacturers, doctors and steelworkers, also benefit one another; some of these benefits are free (externalities), and some are explicitly arranged and paid for. There are externalized and internalized costs as well. Because physical property is different from intellectual property, the cumulative nature of wealth in the economy does not tempt many scholars today to embrace the abolition of physical property. Further comparison is beyond the scope of this paper. But note that differences between physical and intellectual property should not always predominate in policy thinking; there are similarities, as well, especially as to the incentives for creation.
- See, e.g. Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, Penguin Press HC (2004), pp. 28-29 ("Creators here and everywhere are always and at all times building upon the creativity that went before and that surrounds them now. That building is always and everywhere at least partially done without permission and without compensating the original creator."); see also Ibid., p 53, p. 61 (on new media pirating old media); see also Yochai Benkler, the Wealth of Networks: How Social Production Transforms Markets and Freedom, Yale University Press (2006), available at
- Jonathan Lethem, "The Ecstasy of Influence," Harper's, February, 2007, available at
http://harpers.org/archive/2007/02/0081387.
- See Robert Merges, A New Dynamism in the Public Domain, 71 University of Chicago Law Review 183-203 (2004).
- Benkler at 37-38.
- See, e.g., Mark Lemley and Julie Cohen, Patent Scope and Innovation in the Software Industry, 89 California Law Review 1 (2001) and Robert Merges and Richard M. Nelson, "On the Complex Economics of Patent Scope," 90 Colum. L. Rev. 839, 868-907 (1990) (where innovation is cumulative, narrower IP protection is suitable).
- See Lessig, at 53, 61.
- See Criminal Law And Its Processes 117 (Sanford H. Kalish & Stephen J. Schulhofer, eds., 6th ed. 1995); Anne D. Witte, "Economic Theories," 1983 (in S. H. Kalish (ed.) Encyclopedia of crime and Justice, New York Free Press); see also, Dick J. Hessing et al., "Does Deterrence Deter? Measuring the Effect of Deterrence on Tax Compliance in Field Studies and Experimental Studies," in Why People Pay Taxes: Tax Compliance and Enforcement 291-92 (Joel Slemrod ed., 1992); Brian Erard, "The Influence of Tax Audits on Reporting Behavior," in Why People Pay Taxes, at 95, 113-14.
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