Creative thinking required

Good business models are more likely to solve copyright problems than bad laws

Laws are not the answer to all problems. In fact, laws are useful only for solving the problems laws can solve. If there is a non-legislative way to solve a problem, the last thing we should want is for lawyers, courts or governments to get involved.

I say this not out of disrespect for law, courts or governments – I have been practising law for some 30 years and have found it immensely challenging – but it is important to note that laws are not an end in themselves: they are, instead, a means to an end.

Of course, means are important, and the use of improper means can poison the whole enterprise when people lose respect.

We have repeatedly lost sight of this common-sense approach in calls for ever-stronger copyright laws. Without public participation in the law-making process and without the case being empirically made for new and stronger laws, they will simply not be obeyed.

Much like God handed Moses the tablets on Mount Sinai with instructions to take the laws written on them down to the Israelites, copyright owners believe they can go to legislatures, get them to enact laws and the public will simply obey their commandments. Well, this approach did not work for God and Moses, so why copyright owners believe a top-down approach will work for them is something of a mystery.

The belief that legislatures can force people to obey copyright laws they disagree with is a fundamental error. Good business models are the solution to bad business models, not laws.

Professor Ian Hargreaves’ recent ’Digital Opportunity’ IP review states: “Where enforcement and education have so far struggled to make an impact on levels of copyright infringement, there has been more evidence of success where creative businesses have responded to illegal services by making available lower priced legal products in a form consumers want.” 

There is only one way to get people to obey copyright laws, and that is to have copyright laws that support good business models. Our current laws do not do this, and thus it is not surprising that many people do not believe in them. Laws that people fail to believe in lack deterrent force.

Copyright laws may, in some cases, be able to stop some of the people from doing some of the things copyright owners do not want some of the time, but there is one thing they can never do – force people to buy things they don’t want.

Copyright owners have the tools they need to go after the bad guys, and we should support them in those efforts. However, copyright owners should also support the good guys by providing reasonably priced and convenient, authorised goods.

If they do not do this, no copyright law can help them.