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 canâ€™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 CDâ€™s or $1 MP3â€™s. (The point applies a fortiori in less developed countries.) And yet their enjoyment of the music would come at the expense of no oneâ€”consumption is entirely nonrivalrous in our digital age, and arguably increases the popularity (and thus value) of the consumed item.
Nobodyâ€™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 Fisherâ€™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 HMOâ€™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 â€œability to payâ€ 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 donâ€™t welcome that world, but if itâ€™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.