Music on tickets: on the protection of the public interest in copyright
I did not plan to open a broad debate, but a post (http://habrahabr.ru/post/175115/) on the right of copyright holders to choose remedies, written as an answer to my post (http://habrahabr.ru/post/175115/) , and the comments on both prompted a few more thoughts that I would like to share.
Anyone who, for one reason or another, is confronted with information about copyright protection, has to hear about the following: “an intellectual product is a product”, “consumers are a market”. This is written in the license agreements, user disclaimers and other documents that the user sees. Thoroughly mixing these theses with various turns “forbidden” or “impossible”, the copyright holder sets his own rules in dealing with what will later be called cultural heritage. However, recognizing themselves as market participants, copyright holders in every possible way avoid market mechanisms for protecting the public interest. The author has the right to indicate to the society the conditions under which he is ready to distribute his product, and can the society demand anything from the author?
In this post, I propose to look at the balance of public and private interests in intellectual property law. This subtle and delicate category gave impetus to many fundamental studies in the field of economics, forcing the economic doctrines of countries to stagger from Keynesianism to a night watchman state. The author is not an economist and does not set himself the task of conducting basic research. The objective of this post is to outline the problem itself in three questions.
Question No. 1: Why does the antimonopoly committee torture suppliers of oil products and not touch the musicians?
Society has long developed many ways to legally defend itself against the dictates of the manufacturer. Including monopolies. The Antimonopoly Committee has long been a thunderstorm for large businesses. 3 of the 5 largest fines of the antimonopoly committee relate to the oil products market. Do we have many antitrust investigations in the field of copyright in our country? I would venture to suggest that a little more than zero. However, it is difficult to argue that the reason for this is the lack of applicants for the title of a monopoly in the market, for example, software or music. With regard to music, it is worth mentioning that this is not about performers, but about labels , four of which control the bulk of the rights to music in the world.
It is important to understand that virtually any author is to a certain extent a monopolist. Indeed, the condition for the protection of a copyrighted object is its uniqueness. Modern copyright law does not even recognize that the same idea can be visited by several authors at the same time, as I wrote in one of the previous posts (http://habrahabr.ru/post/145481/).
Question No. 2: Why can I take away the land, but not the song?
Poetic question turned out. However, behind it lies the fact that the second aspect, where copyright does not follow the laws of the market for tangible objects, is the category of exemptions for public use. So, for example, the state can simply take away the land for laying the state railway from a private person, paying him compensation. You can talk a lot about the shortcomings of this category, but it exists. And it is difficult to understand how in a society where expropriation of land for public needs is possible, the state cannot limit the copyright holder. Moreover, the land cannot be produced in duplicate or duplicated. Why, then, can a state take away something unique and cannot stamp stamp copies of a film or software?
This thesis can cause skepticism: land is taken to build a road, and why choose the right to intellectual property. First, we live in an era when information is already a core value. The most banal example of social needs may be the patents mentioned by the Pope in 2009 for medicines, the retention of which by private corporations in the pursuit of profit leads to the extinction of a huge number of people. People get sick, the prescription for the medicine is open, but it is impossible to produce it in sufficient quantities, because the company that bought the patent said. Secondly, copyright objects are also of great value. They become part of the culture, the basis of social transformation. For example, the film “Braveheart”, according to many, played a key role in modernScotland's independence movement . It is also worth remembering war films and songs that helped people relive the horrors of World War II in order to see the evidence of the absurdity of banning veterans from performing these songs now because they have not yet become public domain .
As an example of social justice, one can imagine a picture of how valiant employees of the domestic executive service come to the office of some foreign software giant with a court order. They enter right in the middle of a meeting of the board of directors, demand to provide data on the cost of some program, and state that the amount calculated by an independent domestic expert of $ 3025 and 30 cents will be paid to the company by the state. When - do not specify. But the program has already passed into state ownership. Voila! Legalization is completed - boxes with disks are being delivered to schools, national television broadcasts optimistic stories that now all software in the country is legal. But something similar happens when families are evicted.
Question No. 3: Why does the minibus ride children for free, but the software manufacturer doesn’t?
The third aspect where copyright evades obligations to society is social protection. Virtually every state declares concern for socially vulnerable sections of the population - this is how politicians tread their electoral path. At the same time, a significant part of their promises is subsequently due to the business. But according to what logic do carriers of passengers are obliged to carry out transportation of privileged categories of passengers with the right to transport along the route, and do not impose any obligations on copyright holders? Or is it more important to save two hryvnias when driving around the city than the opportunity to get acquainted with the latest cultural achievements? And if, with regard to books, law still contains rules on the existence of libraries, then for other objects of copyright such legislative restrictions in the public interest does not exist at all. It is important to note that many copyright holders support educational initiatives: they transfer their products to schools, but do so on a voluntary basis. The law system is silent here, and this fundamentally changes the social assessment of their actions.
I described these areas of imbalance in copyright protection not to justify Sharikov’s character’s position to “take everything and share it.” It is important to understand that violation of the basic rules of logic in the formation of the copyright system leads to the impossibility of its normal functioning. Today, the emphasis on the prohibition right has led to the worldwide spread of piracy. The shift in the balance of interests towards the right holders did not lead to a positive effect for them. A system devoid of logic will not work. In other words, in order for the society to more respect the interests of copyright holders, copyright holders must take steps to meet the interests of society. Which - this is a topic for discussion.
Anyone who, for one reason or another, is confronted with information about copyright protection, has to hear about the following: “an intellectual product is a product”, “consumers are a market”. This is written in the license agreements, user disclaimers and other documents that the user sees. Thoroughly mixing these theses with various turns “forbidden” or “impossible”, the copyright holder sets his own rules in dealing with what will later be called cultural heritage. However, recognizing themselves as market participants, copyright holders in every possible way avoid market mechanisms for protecting the public interest. The author has the right to indicate to the society the conditions under which he is ready to distribute his product, and can the society demand anything from the author?
In this post, I propose to look at the balance of public and private interests in intellectual property law. This subtle and delicate category gave impetus to many fundamental studies in the field of economics, forcing the economic doctrines of countries to stagger from Keynesianism to a night watchman state. The author is not an economist and does not set himself the task of conducting basic research. The objective of this post is to outline the problem itself in three questions.
Question No. 1: Why does the antimonopoly committee torture suppliers of oil products and not touch the musicians?
Society has long developed many ways to legally defend itself against the dictates of the manufacturer. Including monopolies. The Antimonopoly Committee has long been a thunderstorm for large businesses. 3 of the 5 largest fines of the antimonopoly committee relate to the oil products market. Do we have many antitrust investigations in the field of copyright in our country? I would venture to suggest that a little more than zero. However, it is difficult to argue that the reason for this is the lack of applicants for the title of a monopoly in the market, for example, software or music. With regard to music, it is worth mentioning that this is not about performers, but about labels , four of which control the bulk of the rights to music in the world.
It is important to understand that virtually any author is to a certain extent a monopolist. Indeed, the condition for the protection of a copyrighted object is its uniqueness. Modern copyright law does not even recognize that the same idea can be visited by several authors at the same time, as I wrote in one of the previous posts (http://habrahabr.ru/post/145481/).
Question No. 2: Why can I take away the land, but not the song?
Poetic question turned out. However, behind it lies the fact that the second aspect, where copyright does not follow the laws of the market for tangible objects, is the category of exemptions for public use. So, for example, the state can simply take away the land for laying the state railway from a private person, paying him compensation. You can talk a lot about the shortcomings of this category, but it exists. And it is difficult to understand how in a society where expropriation of land for public needs is possible, the state cannot limit the copyright holder. Moreover, the land cannot be produced in duplicate or duplicated. Why, then, can a state take away something unique and cannot stamp stamp copies of a film or software?
This thesis can cause skepticism: land is taken to build a road, and why choose the right to intellectual property. First, we live in an era when information is already a core value. The most banal example of social needs may be the patents mentioned by the Pope in 2009 for medicines, the retention of which by private corporations in the pursuit of profit leads to the extinction of a huge number of people. People get sick, the prescription for the medicine is open, but it is impossible to produce it in sufficient quantities, because the company that bought the patent said. Secondly, copyright objects are also of great value. They become part of the culture, the basis of social transformation. For example, the film “Braveheart”, according to many, played a key role in modernScotland's independence movement . It is also worth remembering war films and songs that helped people relive the horrors of World War II in order to see the evidence of the absurdity of banning veterans from performing these songs now because they have not yet become public domain .
As an example of social justice, one can imagine a picture of how valiant employees of the domestic executive service come to the office of some foreign software giant with a court order. They enter right in the middle of a meeting of the board of directors, demand to provide data on the cost of some program, and state that the amount calculated by an independent domestic expert of $ 3025 and 30 cents will be paid to the company by the state. When - do not specify. But the program has already passed into state ownership. Voila! Legalization is completed - boxes with disks are being delivered to schools, national television broadcasts optimistic stories that now all software in the country is legal. But something similar happens when families are evicted.
Question No. 3: Why does the minibus ride children for free, but the software manufacturer doesn’t?
The third aspect where copyright evades obligations to society is social protection. Virtually every state declares concern for socially vulnerable sections of the population - this is how politicians tread their electoral path. At the same time, a significant part of their promises is subsequently due to the business. But according to what logic do carriers of passengers are obliged to carry out transportation of privileged categories of passengers with the right to transport along the route, and do not impose any obligations on copyright holders? Or is it more important to save two hryvnias when driving around the city than the opportunity to get acquainted with the latest cultural achievements? And if, with regard to books, law still contains rules on the existence of libraries, then for other objects of copyright such legislative restrictions in the public interest does not exist at all. It is important to note that many copyright holders support educational initiatives: they transfer their products to schools, but do so on a voluntary basis. The law system is silent here, and this fundamentally changes the social assessment of their actions.
I described these areas of imbalance in copyright protection not to justify Sharikov’s character’s position to “take everything and share it.” It is important to understand that violation of the basic rules of logic in the formation of the copyright system leads to the impossibility of its normal functioning. Today, the emphasis on the prohibition right has led to the worldwide spread of piracy. The shift in the balance of interests towards the right holders did not lead to a positive effect for them. A system devoid of logic will not work. In other words, in order for the society to more respect the interests of copyright holders, copyright holders must take steps to meet the interests of society. Which - this is a topic for discussion.