Making copyright markets work for creators, consumers and the public interest

Abstract

Copyright is an important part of marketplace framework policies that support creative industries. Copyright is also increasingly relevant to broader economic and industrial policy. Market-oriented justifications for copyright, therefore, factor heavily in debates about copyright law and policy reform. In this context, discourse often revolves around copyright as a property right, which underpins market transactions. This chapter endorses market-oriented approaches towards copyright as a means to promote creators’ interests, consumers’ interests, and the public interest. The conception of copyright as a property right is consistent with the basis of general policymaking in free market economies. Two caveats are, however, important to understand how proprietary rights for creators can and do promote the public interest. First, like all property rights, copyrights are not absolute but appropriately limited by other individual rights and social values. Second, in order to function effectively, copyright entitlements should be structured to facilitate, not frustrate, free market transactions. This chapter explains why and how copyright’s currently layered and fragmented bundles of rights inhibit the public interest in developing efficient copyright markets. An appropriately limited and structurally simplified bundle of rights, as suggested in this chapter, would increase the efficiency of copyright markets and grow the size of creative industries. More efficient markets will lead to more choices and lower prices for consumers, as well as increased economic opportunities for creators to reach a larger market. However, such market-oriented approaches may also concentrate power, increase inequality, and marginalise individual creators. This chapter mentions three practical mechanisms to address such concerns: collective bargaining to achieve fairer contracting in creative industries; class action litigation to enforce common rights of individual creators; and certified branding schemes to promote fair trade and equitable consumption of creative content. The purpose of presenting such mechanisms in this chapter is not to exhaustively debate their merits or resolve doctrinal implementation issues. Rather, these mechanisms merely illustrate the range of options available to mitigate certain adverse impacts that a market-oriented copyright policy might have. This chapter focuses on examples from Canada that other countries, or the international policymaking community, may find informative. Importantly, regulatory policy mechanisms to achieve fairer market transactions need not be embedded directly into copyright statutes or the common law. Copyright should not be expected to shoulder the entire load of protecting the public interest in creative industries. It can and should be assessed and reformed as part of a broader package of marketplace framework policies. With better integrated framework policies both protecting and regulating copyright, markets can work better for creators, consumers, and the public interest.