Why Copyright Law Lets Britney Spears Sell Dolls that Look Like Her (and Why This is OK for Our Economy)
Why Copyright Law Lets Britney Spears Sell Dolls that Look Like Her
(and Why This is OK for Our Economy)
Where do we go from your last paper?
In my last paper, linked here, I discussed the history of copyright law and briefly introduced the concept of fair use. Fair use proved to be complex, and which uses of copyrighted material are ‘fair’ remain undefined in current United States Copyright Law. But before I can delve into the flaws associated with fair use, I want to explore a broader question: does copyright law have a place in our increasingly technological society? In the Internet age, where artistic material can be disseminated with the click of a digital ‘upload’ button, the original intention of copyright law – to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their [works]” (US Constitution) – has, in the eyes of many critics, been rendered archaic by technological development. In my Q&A-style exploration of copyright’s relevance in our present digital age, I will consider the economic aspects of copyright law and conclude that although copyright law is in need of a twenty-first century facelift, it remains a viable way of creating a greater public intellect.
Aren’t there other arguments surrounding copyright? Why are you not addressing those?
Copyright law is inextricably woven into the United States’ economy, and thus by evaluating its economic implications, it is possible to quantify copyright’s value in our high-tech society. I do not deny that there are psychological and moral arguments for and against copyright, all of which have impact on the greater debate about the law, but from my own research it has become apparent that the economic aspects of copyright fuel many of the psychological and moral viewpoints on the law. Further, it is impossible to measure the effectiveness of copyright law from psychological and moral perspectives. For the purpose of this discussion, I will address the economic arguments for and against copyright law so as to gain a measure of its effectiveness, while acknowledging the psychological and moral arguments surrounding the law as connected (but not pragmatically useful for evaluative purposes) to the economic arguments.
How much of a role do copyright-holding companies play in U.S. economy?
Citing Samuel Clemens, Martin T. Buinicki highlights “the business of authorship . . . the need to secure [rights] to [one’s] literary property in order to profit from it, and the need to make sure that the public is exposed to [one’s] work in order to heighten [one’s] popularity” (60). The word ‘business’ implies a network of individuals, which today is reflected in publishing houses, recording companies, and other media production agencies that aid the dissemination of artistic works. These agencies are massive powers in our economy. According to Colin Day in “Why Copyright Serves a Useful and Continuing Purpose,” from 1977-1991, industries owning copyrights “accounted for $325 billion of U.S. GNP or 5.6% of GNP and 4.8% of employment” (129). And these industries thrive on copyright. Their revenues come from their law-given right to promote, duplicate, and manage artistic works. Thus, the removal of copyright law would severely diminish the revenue of these companies, resulting in the loss of jobs and gross national product.
However, In “The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology,” Raymond Shih Ray Ku notes that the public forum of gathering information has, in recent years, shifted from being contained in concrete materials (i.e. the pages of books, CDs, etc.) to being contained on the Internet (i.e. iTunes, Google Books, Pandora, JSTOR, etc.). Because of this shift, he argues, economic importance is slowly shifting away from the copyright-owning companies and is finding a home in the digital dissemination companies that do not own the copyrights themselves, but that instead distribute original materials. Ku sees copyright law as unnecessary in the face of these dissemination companies. If the works can be protected by digital encryption, and if they are still available to the public, why is there a need for copyright law? If online dissemination can contribute both economically and culturally in a similar way to copyright law, has copyright become outmoded?
How do copyright-holding companies contribute to the greater good? Why can’t we abolish them along with the copyright law?
Companies that hold copyrights are given the constitutional responsibility of furthering the arts and sciences – of disseminating ideas. In “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs,” Stephen Breyer outlines the cost of spreading original works. According to Breyer, the first publisher of a book spends two-thirds more than subsequent publishers in editing, promoting, manufacturing, and selling the text (295). Original materials selected for dissemination by copyright-holding companies represent an investment in the “national conversation”. Publishers want to further new works, so they put thousands of dollars into finding the right venues and advertising for the works. The economic investment of the copyright-holding companies allows for ideas to be contributed to the national conversation in a broader way than if the materials were not supported financially by a company focused on disseminating the materials.
But in our present technological era, it has been argued that works no longer need the financial support of companies, and that the laws giving those companies financial rights over works are not relevant to current society. Ku states that “in cyberspace, copying and distribution costs are virtually nonexistent” (300), indicating that the job of the copyright-owning companies has been replaced by the ability of technology to “spread the word” via the Internet. Though in theory it is true that materials could potentially reach every computer in the world in a short amount of time (think of the viral Internet videos, like the Numa Numa Kid), in practice it would be even more difficult for a work to gain popularity amongst millions of other unsorted works. Think about a Google search. You type in a key phrase and hope that relevant articles will pop up – and sometimes they do. But more than often, you sift through piles of peripherally related information before you find something useful. That is what new works would face. Without promotion, without careful graphic designs, without direction toward an appropriate audience – all fueled by the financial investment of a company – their best chance at success would be the hit-or-miss chance of becoming a viral “trending topic” on websites like Twitter. In order to get new ideas out (so they do not get lost in the shuffle of the millions of other uploaded works, like this kid did), it is necessary to have companies to whom the rights of works are entrusted in the interest of adding to our collective knowledge.
Is there economic incentive for creation? Does this affect the argument surrounding copyright?
Ku argues that there is little, if any, economic incentive to create, stating that “the vast majority of musical artists do not earn any income in the form of royalties from the sale of music” (306) because “record companies deduct the costs of production, marketing, promotion, and other expenses from the musician’s royalties” (307). In the case of musicians, an artist makes money by selling concert tickets and merchandise. This is true in other areas as well. Publishing houses mainly profit from an author’s work, and film giants like MGM reap most of the profits from movies. However, artists are compensated for their work based upon the work’s popularity (and a work is more likely to be popular if it is promoted by a managing company). So when Britney Spears sold 22 million copies of her first album, …Baby One More Time, Jive Records did profit from the sales, but so did Britney (Britney.com). Because Jive had the exclusive right to promote Britney’s music, Britney was able to sell not only albums (thus profiting directly, if not substantially, from her work) but also concert tickets and Britney Barbie dolls. In a contrast to Ku’s assumption that an artist aims to profit from her work, the case of Britney shows that artists profit from the promotion of copyright-owning companies, whose financial investments must be secured by copyright law in order to make the financial risk worthwhile. The economic incentive for creation is that of reaping the potential profits brought on by the promotion efforts of the copyright-owning company.
Of course, an artist could arguably self-promote online. Theoretically, self-promotion could be successful and the artist could make money. But think of a novelist. Is it practical to say that a novelist could promote her own work online by releasing her manuscript and asking the public to then support her? Stephen King has already tried this method by “[requesting] that individuals who download[ed] installments of his latest story pay him $1 per installment” (Ku 310). However, even if this kind of self-promotion has been effective with Stephen King, it must be admitted that King had the fan base to effectively exercise self-promotion because he was already established as an author, largely through the efforts of his publishing company. It is unlikely that his experiment in self-promotion would have profited as much had the book he posted been his debut.
Couldn’t companies disseminate works online without having the exclusive right to those works?
Programs like iTunes, Google Books, and Pandora Radio allow new works to be disseminated digitally without much of the overhead that traditional disseminating companies have. For example, Apple does not have to pay for the cost of producing a hard copy of a CD with its iTunes software, and Google does not have to pay for the printing costs of its pages on Google Books. Some question why companies like Google and Apple cannot take the place of copyright-owning companies, thus lowering the costs of dissemination and eliminating the need for copyright. If the copyright-owning companies were replaced and disseminating companies instead stood in their place and charged for online access to artistic works, eventually the works would become devalued. Think of the Napster case of 2000. On college campuses where Napster was heavily used, CD sales “dropped by 12-13 percent” (Ku 289). And every year, the Motion Picture Association of America estimates that “its members lose approximately $3 billion . . . to analog piracy” (297). Because the technology to copy media in all its forms exists in every laptop, scanner, and webcam, if companies distributing works had no rights to those works, copies would compete with the works sold by the companies and the companies would lose revenue. If that revenue loss was great enough (as it could well be with the ability to upload and download works in moments), the companies would be forced to shut down, thus limiting the promotion of new works and shrinking the national conversation. When companies hold no right to their investments, they risk losing those investments and, in turn, risk not being able to further our collective knowledge.
If we keep copyright, it’s obvious that the law must evolve to fit our changing technology. What work needs to be done?
It is obvious that copyright law is challenged by our constantly evolving technology. The mediums by which original works are distributed are changing – newspapers, magazines, books, music are all online –, which forces us to reevaluate the concepts of infringement and piracy. Even though copyright law currently lags behind technology, it is still economically embedded in our society, and its removal would be detrimental not only to the thousands of people employed by copyright-owning companies, the artists themselves, and the GNP, but to the Constitution’s original aim – to further the arts and sciences. Instead of scrapping the law and upsetting the economy, it makes more sense to reevaluate the fair use policy in order to define where copyright law stands in the digital age.
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Day, Colin. "Why Copyright Serves a Useful and Continuing Purpose." Indiana University Press
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Ku, Raymond Shih Ray. "The Creative Destruction of Copyright: Napster and the New
Economics of Digital Technology." The University of Chicago Law Review 69.1 (2002): 263-
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Marion, James. "Pokemon Theme Song." YouTube. Web. 29 Oct. 2010.
Spears, Britney, perf. "Bio." The Britney Music Destination. Jive Records, 2010. Web. 29 Oct.