Copyright and Inequality

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Citation: Lea Shaver (2014/02/18) Copyright and Inequality. Washington University Law Review (RSS)


Tagged: copyright (RSS)


Copyright scholarship and activism has been largely silent on distributive justice, cf patent scholarship and activism recognizing problem of access to medicine and development of generics industry in India and Brazil in response.

"Book famine" illustrates concern. South Africa used as case study due to data availability and author's experience:

  • Books sell for 2x price as US and UK
  • Wealth much less in South Africa, and for masses not in elite or small middle class, books are beyond reach
  • Vast majority of books published in SA are English, most of remainder in Afrikaans, very few in Zulu, Xhosa, other indigenous languages
  • Publishers/distributors/bookstores cater to very small segment of population with high prices; 5000 copies a best-seller
  • All populations in SA want to read books, but lack of availability means they can't; cf large sales of cheap Zulu language newspapers
  • Lack of availability/affordability of books in first language constitute a bottleneck for education
  • All of above reinforce large economic, social, political inequalities

Author hopes to inspire more such case studies: many countries are poorer and w/more linguistic diversity than South Africa. Analysis also applies to relatively poor and marginalized populations in wealthy countries.

Copyright is a barrier to fixing above:

  • Translations require permission; even negotiation of a gratis waiver is too much for neglected langauges
  • Copyright substantially raises prices, studies of paper books under copyright and not in UK and US showed 40% to over 100% increase. Digital distribution ought make gap even greater.
  • Monopoly pricing incentive of copyright encourages production for wealthy, large audience: flood of production for English, marginal if any incentive for production in neglected languages

Author doesn't push for a single solution, but for copyright scholarship to engage with distributive justice. Some possible policies congruent with this:

  • No copyright term extension (author says reduction is "politically impossible")
  • Exceptions for translation into neglected languages
  • Public libraries played an important role in providing access in wealthy countries (but still skewed; wealthy communities have better libraries) but are an expensive mechanism; in poor countries additional, cheaper mechanisms directly aimed at increasing access may be needed
  • Alternative funding for production, eg direct government funding, especially for educational materials, rather than relying on monopoly pricing incentive

Excerpts (CC-BY-4.0):

The relative silence of copyright scholarship on questions of distributive justice ought to strike us as odd. It is well recognized that property law generally has significant implications for the distribution of wealth and social advantage, which may be critiqued from a variety of social justice perspectives.
The distributive justice implications of IP protection are also well recognized in the context of pharmaceutical patents, where the affordability of medicines is a focus of significant scholarly and policy concern. Yet copyright scholars have been slow to draw the logical parallel to express concern for the poor’s ability to access copyrighted works. Even less attention has been dedicated to the problem of language. Membership in certain linguistic groups profoundly limits the world of materials that an individual can effectively utilize. Yet the copyright literature has largely overlooked this problem.
Copyright protection also significantly drives up the price of books. This burden falls hardest on the poor, while the benefit of greater selection is enjoyed primarily by wealthier consumers.
Copyright’s system of market-based incentives premised on exclusive control over copies works very poorly to support the creation and distribution of works that are relevant and accessible to the poor.
Paul Heald has documented that popular American novels still under copyright are on average 40-80% more expensive, available in half as many editions, and more than ten times as likely to be out of print, compared to similar titles in which copyright has now expired. Using historical data from the United Kingdom, Xing Li, Megan MacGarvie, and Petra Moser found that an extension in the term of copyright protection increased the prices of books to which it applied by more than 100%. Both of these studies looked at the prices of paper copies of books. In the era of the eBook, the potential for price reductions through digital delivery surely goes even further.
Publishers typically pay authors a royalty of only 15% of the sale price in exchange for their copyright. So what explains these substantially more dramatic price impacts? The answer is that the price of books is not determined primarily by the cost of producing them, because the market for books is less competitive than for other goods. Economic theory suggests that industries will naturally gravitate to the lowest profitable price point for their goods, given the prevailing demand curve and the costs of production. An assumption of this theory is that the market is perfectly competitive. In the context of copyright protection, however, this assumption simply does not hold. A book publisher is guaranteed not to have competition in the supply of a particular title. The publisher can thus set the price of a particular title at whatever level it chooses, rather than responding to competitive pressure to lower prices as far as economically feasible.
In the context of great inequality of wealth, it may be economically rational to target the 10% of the population that holds 90% of the wealth, while bypassing the rest of consumers.
To the extent that copyright makes reading a privilege of those who can afford to pay, it limits opportunities for education, personal development, and self-advancement. Borrowing the framework and terminology of legal and political theorist Joseph Fishkin, I suggest that we need to be attentive to the ways in which copyright’s impact on book affordability creates a “bottleneck” to other life opportunities. In the context of formal education, children from wealthier or poorer families arrive at their first day of school at vastly different starting points in respect to their exposure to books and the development of reading skills. And long after formal education has ended, adults who can easily afford to purchase books offering guidance on career advancement, health practices, and personal finance topics continue to enjoy advantages denied to individuals of more meager resources. Making it difficult for the poor and middle classes to read thus has far-reaching consequences.
In sum, copyright’s restrictions on reproduction create an artificial scarcity, resulting in higher prices. In the context of income inequality, these higher prices have a much greater impact on some consumers than on other. The wealthiest consumers are able to pay top dollar to fully satisfy their information and entertainment desires. For people of modest incomes, higher prices significantly limit access to cultural works. The truly poor are priced out altogether; worldwide, a billion people currently live on incomes of less than $1.25 per day, or less than $500 per year.
The advantages of copyright protection are reaped primarily by those already privileged: affluent consumers, the most successful creators, and major publishing houses and other copyright holders located in industrialized countries. Meanwhile the burdens of copyright protection, in the form of higher prices, fall hardest on the already disadvantaged.
Meanwhile copyright law creates a barrier to the flow of works from dominant languages to disadvantaged ones. Copyright law requires anyone who would translate a work into another language to seek a license from the copyright holder. This imposes significant transaction costs, even if the copyright holder were willing to waive the customary licensing fee. In some language markets, these transaction costs are bearable and many foreign works are in fact translated and made available to readers beyond the author’s own language community. In languages with small but affluent populations—such as Dutch or Korean—a substantial portion of literature is available because it has been translated from an original in another language, often English. But in language communities where there are simply very few consumers who can afford to purchase books at the prevailing high prices, the economics are not as favorable for producing translations. This is the situation of Zulu in South Africa. It is also the situation of some languages spoken within the United States, such as Navajo (the most-spoken Native American language of North America) and Tagalog (spoken by more than one million Filipinos living in the U.S. as well as millions more still living in the Philippines).
Overall, copyright law works quite well for copyright scholars at leading universities. Its protections give us control over our own writings, which we can choose to invoke or to waive, as we believe best suits our own interests. Its incentives help to stimulate the production of an ever-greater variety of informative and entertaining works for our professional and personal development. Its limitations on access and use of copyrighted works only rarely pose significant problems for us. From this perspective, it is easy to miss the more profound problems posed for the 99% of the world that does not enjoy the same privileged position of access.
From this privileged perspective, creative production resembles a constantly expanding buffet of choice laid before us, among which we may select the most appealing options until we are full. Perhaps some of these offerings are being produced in languages we do not speak. No matter, more than enough choices remain. In our affluence of resources and opportunities, we might even choose to acquire fluency in a second language to further expand our choices. Copyright protection promises to raise the quality, the diversity, at the very least the sheer number of offerings placed upon the table. How could this be a bad thing? But can your peripheral vision stretch farther still? If so, you might see, standing back behind you, a hungry crowd. They are the poor. They are a majority of the world. They too admire the buffet. But they realize it is not laid for them. For some of us, the proliferation of new works is a bounty, opening up new worlds of consumer choice, new horizons of creativity to explore. For most of the world’s population, however, the expanding universe of new cultural works is yet another site of social privilege from which they are effectively excluded.
What is needed is a system of rights, privileges, and immunities in cultural works that advances distributive justice and substantive equality by accomplishing two goals. First, it should respect and promote a disadvantaged community’s ability to access, enjoy, perform, reinvent, and share cultural works, despite disadvantages such as poverty, language, or lack of the human and social capital needed to navigate complex legal rules. Second, it should protect and advance the interests of individual creators within disadvantaged communities in realizing the livelihood opportunities from their creations and protect the works from unfair commercial exploitation by others. The twin goals of advancing the interests of disadvantaged communities as both creators and users of culture can pull in somewhat counter directions. On the one hand the interest in access and freedom to create implies a need to lower the property aspects of cultural creativity. On the other hand, the interest in protection and livelihood implies a need to extend and enhance the property features of cultural works. This tension, however, can be a creative one. Embracing it challenges us to think beyond what Aoki framed as the “on/off-either/or” trap of conventional IP thinking.

Theoretical and practical relevance:

Blog discussion.