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Egalitarian Copyright (Part 1): A New Control/Access Tradeoff

I’ve been exploring egalitarian themes for some time, and hope to tie them up into a draft entitled “Egalitarian Principles for Copyright” sometime this fall. To get some arguments on the table, I’ll be doing a series of posts on the idea here. Today’s topic is a new control/access tradeoff…

To an egalitarian, the fundamental injustice arising out of the current copyright system is the denial of access to works to people who can’t afford the licensing fee. For example, somebody in the U.S. who makes $15,000 a year, and does not own their home or other sizable assets, simply cannot (or should not) be buying too many $18 CD’s or $1 MP3’s. (The point applies a fortiori in less developed countries.) And yet their enjoyment of the music would come at the expense of no one—consumption is entirely nonrivalrous in our digital age, and arguably increases the popularity (and thus value) of the consumed item.

Nobody’s helped by their exclusion. Yet excluded they remain, denied the right to enjoy a large part of our cultural heritage by industries too often uninterested in expanding access. William Fisher’s Promises to Keep provides an ingeniously developed way around this problem for entertainment, but the RIAA and MPAA appear about as enthusiastic for single-payer entertainment as the AMA and HMO’s have been about single-payer health care.

Given content owners’ formidable resistance to the expansion of PRO-like schemes, the egalitarian challenge raises some difficult questions for critics of the current copyright regime. Perhaps the strongest industry argument against expanding access on the basis of “ability to pay” is arbitrage: they imagine the disadvantaged granted access to, say, a collection of 100 or 1000 songs, will just turn around and sell their songs to someone else. But advances in DRM, watermarking, and surveillance make such a prospect much less likely. Like the TM plaintiff in Davidoff, copyright owners might soon be able to easily trace back any given copy of a song to its original owner, deterring would be arbitrageurs.

Like Julie Cohen, I don’t welcome that world, but if it’s inevitable, egalitarians should take advantage of the access-enhancing opportunities it brings. They should insist that each advance in monitoring and control in copyrighted content, afforded by law or technology, should be accompanied by commensurate advances in (now-less-dangerous) accessibility. The progress of the arts and sciences demands no less.