Equality: The Forgotten Player in the Red Queen Race of Copyright Policy

Introducing the Red Queen:

I was told by my teachers to always start with a story, and what’s better than one from my favourite childhood novel? Most of you might have read ‘Alice through the Looking Glass’ by Lewis Carroll; it includes a scene where Alice, in the strange land that’s designed like a giant chessboard, notices that everyone keeps running but never reach their destination. Why? Because when people ran there, everything else ran with them: the landscape, the competitors, and even the destination. When she asks the Red Queen about this, she gets this reply: “Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!” And needless to say, the mythical ‘twice as fast’ speed is practically impossible because when you start running twice as fast, everything else does the same – thereby nullifying the effect of your acceleration.

This particular scene is really popular among researchers and academicians across disciplines, s0 much so that it got a name – ‘Red Queen Race’. Why is the Red Queen race so popular a concept? Because of its practical relevance. A Red Queen race is the epitome of the existence of life, biological evolution, human society, market economies, game-theoretic situations, inter-firm competition, and so on. This article, too, is an attempt to explore a Red Queen race that goes on between Copyright protection and market efficiency – one where Copyright law and policy runs restless behind the mythical goal of market efficiency, only to find that the goal runs as fast. This article, however, focuses not on the runners but the one that got left behind – Equality.

Copyright Protection and Market Efficiency: the part where equality was forgotten

Before we begin, it is important to understand a concept that is fundamental to all policy discussions: the concept of ‘trade-offs’. In human societies, we always come across trade-offs while making a decision. Let’s say, for example, you want a pack of peanuts that’s priced at 200 rupees per Kilogram. Here, you face a trade-off between 200 rupees and one KG peanuts; to have one, you have to let go of the other – you cannot have both. Societies and governments often face such trade-offs while making laws and policies. One such familiar trade-off is that of the guns and butter, guns signifying the budget spent on defence and butter signifying the budget spent on domestic needs. One of the biggest and most confusing trade-offs that policymakers face is that of efficiency and equality. Steps that ensure economic efficiency often ignore social equality, and vice versa, and the real challenge for a policy is to strike a balance between these two.

Now, equipped with the understanding of trade-offs, let’s turn our discussion back to copyright protection. Although the initial instances of Copyright protection were the result of political lobbying, the latter half of the 20th century saw the emergence of economic justifications for copyright protection. Albeit many, they can be classified under two broad approaches: one being the access-incentive model, and other being the property-right model. The access-incentive model visualises the notion of copyright protection as being a trade-off between incentivising creativity and protecting the creative commons from monopoly, with copyright policy negotiating a bargain between these two. The property right model, on the other hand, argues that creative works are public goods and hence vulnerable to freeriding – the only way to prevent that is by internalising the positive externality, by assigning property rights to creative works.

Examining the economic justifications for copyright protection, one consistently glaring trend comes to notice: the excessive focus on efficiency with total neglect to equality. Copyright protection has been excessively focused on making the creative market efficient, ensuring timely delivery of work, incentivising the creators enough etc, but when it comes to distributional equality of the created works, it is largely silent with the noted exception of a few fair use provisions. And the result has been particularly disastrous for the marginalised classes of the society. A book hunger was persistent, but copyright protection has brought with it a ‘book famine’ for the underprivileged. While copyright undoubtedly has enhanced the possibility of choosing for the minority of the English-speaking and financially well-off population, it also has made the book-hungry realise that the buffet isn’t for them. The much-quoted slogan “Half the world suffers from hunger. The other half wants to lose weight…” has come to be strikingly true for the book market as well. And as with world hunger, the solution doesn’t lie in producing more, but in distributing better!

A story of the Copyright-induced inequality

The stories of inequalities created by copyright are many and spread across the spectrum, but it helps to bring them under a few umbrellas. Prof. Lea Shaver from Indiana University does the job of classifying them under two broad categories: inequality across classes, and inequality across cultures.

Inequality across classes owe it to the cost barriers created by copyright protection. Copyright protection raises the price of a book well beyond the marginal cost of producing one. Although there’s indeed a certain fixed-cost to creative works which makes the average total cost of the works greater than the marginal cost, the prices are often well beyond any perceivable cost curve. In a 2014 research conducted by Xing Li, Megan MacGarvie, and Petra Moser, the historical data from the United Kingdom alone proves that copyright protection causes the price of books to be skyrocketed by 150%. In a society that is already suffering from high degrees of economic inequality, such high prices of books lead to a socio-political inequality that superimposes itself with the existing economic inequality. Access is denied to already marginalised classes, and inequality deepens.

Inequality across cultures owe it to the language barriers created by copyright protection. Market-centred copyright policies mean that the production of a creative work will directly depend on its market demand. Works that cater to the linguistic/cultural minority are thence underserved by this model of copyright incentivisation. A mere look at the existing number of books and periodicals in English versus those in various indigenous languages should give the reader an idea about the point being referred to. Works are not only underproduced but also under-translated to minority languages. Languages with little socio-political presence are often ignored by publishers when granting translation licenses.

The language and cost barriers created by copyright protection make way for inter-cultural and inter-class inequalities, deepen the existing divides and sometimes create new ones. In the words of Prof. Lea Shaver, copyright policies focus so much on formal equality that they lose out on the substantial equality front.

A ray of hope

In 1996, the US lawmakers decided to loosen the copyright law a little bit to allow non-profits to make and distribute books for print-disabled persons without a license. The slightest change in law brought about a significant change: non-profits came forward to fill in the gap created by copyright law and soon print-disabled persons could access many books without much hassle. This brings us hope. With this experience, we are now positive that we do not need to significantly change the copyright legislation to effect a significant change. A little change here and there should do.

One possible approach is, of course, making amendments to copyright law. Loosening licensing provisions, lobbying for substantial equality, providing for easy and affordable translation licenses, government intervention for addressing underproduction in certain key areas etc. are some of the possible measures.

The much more powerful approach, however, lies beyond the black letters of the law. They come from business and economics. The business-approach would be to come up with models of incentivisation other than copyright. Contemporary socio-economic researchers agree that copyright is not and should not be the only incentive model for creative works; alternative models can very well be built upon to replace or remedy copyright. The economic approach would be in recognising the market power of the big book publishers and letting the Competition authorities keep an eye on them.

A combination of the legal, business, and economic approach may yield a more egalitarian model for copyright protection, and that indeed is our only ray of hope.

This article was first published here.

3 responses to “Equality: The Forgotten Player in the Red Queen Race of Copyright Policy”

  1. Thanks for sharing the information, Looking for the best blogs that accept guest posts on legal topics? Toplegalfirm.org accepts Guest posts of wide range of legal topics, please contact us for guest posting on Find an Attorney.


  2. The issues you’ve raised in this blog are very real. People usually hesitate to write on such topics but you did wonderful work. Keep it up!


  3. The article is very engaging, especially for a topic like IP


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