Club Troppo this morning points to the ridiculous Australian case where Men at Work now owe compensation (to be determined) to the copyright troll, Larrikin Music, who bought the rights to an old Australian folk song. "Down Under" includes an 11 note flute sequence from the folk song, substantially transformed (change of key and timing), as homage to Australiana. Think of it as having a tilt of the hat to "Yankee Doodle" somewhere in another piece of Americana music.
We're rapidly hitting the point where no copyright at all is preferable to the copyright we've got. There is an optimal level of copyright. If we want to maximize the number of new works created, we want to maximize the distance between the curve tracing the costs of creating new works and the curve tracing the returns from having a newly-created work: the first increases at an increasing rate with protection while the second increases at a decreasing rate with protection. If we want to maximize social returns, we choose a level of copyright at a level slightly lower than that to decrease monopoly deadweight losses on the stock of existing works.
We're well past the point where the marginal social benefit of increased copyright protection is negative. How much longer before the integral is negative too?
Very nice analysis throughout the Club Troppo piece, which also points me to this bit of awesomeness which I'll be using in subsequent iterations of my Econ 224 class in lieu of my humming the tunes...
How much of the classical canon would be banned for lilting references to the works of other composers had the 17th and 18th centuries had our asinine levels of copyright protection? As Club Troppo notes:
If Justice Johnson’s decision is used as a precedent to set standards of similarity then it will lead to every composer who writes in the key of D Minor paying a royalty to Beethoven’s family estate. Luckily though, Beethoven’s music is not copyrighted so Billy Joel was able to take the second movement of hisCopyright is broken, broken, broken....
ninth symphonySonata Pathetique and turn it into a great song. He may not have bothered, if it had involved copyright infringement. Nor perhaps would With or Without You by U2 and about 35 other well known hits that use the standard 1-5-6-4 chord progression be commercially viable.
If the unknown slave who first played 12-bar blues had only known a lawyer his descendants would be richer than Bill Gates. Or, more likely, 12 bar would have died completely because the bar performers of New Orleans would avoid the cost and play something else. The artististic conversation between musicians which generates musical movements would become impossible.
Which brings us to the question of where the net public benefit lies with copyright for music at all. Personally I think there is none and that their is a huge cost in the free exchange of musical ideas. And I think that this case reveals the double edged sword of music as property. Many musicians have supported the music industry’s campaign to outlaw downloads of their songs. They may find themselves on the wrong side of the same property laws that they champion – when they discover the painful truth that their songs are not really so original after all.