Copyright Is Only Half the Answer
As the Consumer Electronics Association joins 25 other companies & organizations in expressing their support for the Digital Media Consumers Rights Act, I'm reminded of a reader feedback complaining that fair use was just a cover for theft & piracy. The comment begs an important question which I attempted to address in my seminar talk at FORUM (Paris X): What is the fundamental role of rights such as copyright & fair use?
While the concept of rights, particularly human & civil, are generally perceived as a relatively recent post-revolutionary phenomena, led ironically by the then newly formed American & French republics, other fundamental rights such as property have been a permanent fixture of human civilization. They, in fact, are what have allowed for two individuals, groups, governments,... to enter into transactions and trade goods. It's rights, not money, that makes the world go round.
Rights provide each party, the buyer as well as the seller, with a reasonable expectation that they will derive the anticipated benefits from the transaction. If I cannot defend my most basic property rights, have no recourse to a judicial remedy or confidence in the enforcement of those rights, I am much less likely to enter into transactions to acquire additional property. In kind, if I cannot reasonably expect compensation for the sell/trade/use of my property, I am more likely to hoard it. Economist would describe this as a market working sub-optimally, or at worst foreclosed.
In the music industry, we understand property rights all to well as our very livelihood depends on our ability to receive just compensation for the use of our works. In fact, the industry's primary argument in defense of copyright enforcement is the foreclosure of the market as creators and their representatives pull out. But as a music consumer, I also understand the importance of fair use rights.
For example, if I cannot have a reasonable expectation of being able to rip and encode a song from a legitimately purchased CD for use on my digital music player, I will have a greater reticence to purchasing the CD. I'll certainly balk at the obligation to pay for that digital track, especially if offered exclusively in a format not compatible with my chosen digital player. Nor am I likely to buy an e-book for which I am unable to make a back-up copy.
While the major labels have addressed many of these issues in the latest versions of MusicNet & pressplay, as well as licensing terms with other providers such as Listen & FullAudio, this was done reluctantly over a period of nearly 2 years and business decisions can be fickle. A major legal victory by the industry knocking-out p2p would most probably result in a quick retreat to the labels' original position of restrictive usage rules.
Legislation such as that introduced by Reps. Rick Boucher (D-VA) and John Doolittle (R-CA) is thus essential to provide consumers with the confidence to purchase digital music. Fair use is not a question of kids getting away with theft, but building the balanced rules necessary to build a market.
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