Three days ago, on May 5, the Economist started a week-long public debate under the headline “Copyright and wrongs: this house believes that existing copyright laws do more harm than good.” In his opening remarks, Kenneth Cukier gives the following rationale for hosting the debate:

Copyright strangles creativity. Copyright rewards originality. It is a nuisance to the public that unduly enriches a few people. It is the backbone of our knowledge economy that fuels progress. Hate it, love it, break it, protect it; few people lack strong opinions about copyright and its place in society.

As debaters, the Economist invited Harvard’s copyright critic William Fisher and Justin Hughes from Yeshiva University as an advocat of the prevalent copyright regime. While both present utilitarian arguments rooted in standard neoclassical economics for their oppositional claims – which, by the way, demonstrates how arbitrary mainstream economic reasoning can be -, the former also gives a short explanation for the, in his view, distorted development of copyright legislation in his first statement:

How did we get into this pickle? At least three intertwined causes seem to be at work. First, most recent adjustments in the copyright system have been spurred and shaped by interest groups that have stakes in expansion of copyright protection and that fail to take into account the interests of the public as a whole. Second, the multilateral intellectual-property treaties that now govern most countries establish floors, not ceilings. The result has been a ratchet: it is easy to increase the levels of legal protection, but hard to decrease them. Third, lawmakers are afflicted with the local maximum problem; they seek to alleviate problems by making modest improvements in the existing regime, unable to see across the valley to radically different approaches that would be much better.

Hughes, in turn, at least implicitly seems to acknowledge in his second statement that the recent developments in copyright regulation had been somehow biased towards special interests:

“Copyright protection lasts too long.” I agree. The term of copyright in the United States has expanded greatly since the 14+14 year system inaugurated in 1790. […] Economists are unanimous on what business people see as obvious: that the present life+70 copyright term cannot be justified in relation to the economic incentives needed for creation of new works.

Similarly, he admits that “too many creations are protected”. In his view, however, excesses in both length and breadth of protection is not very harmful. As I see it, this is a rather bold claim as it is very difficult (impossible?) to estimate or even measure the innovative dynamics and production that are not realized due to overly restrictive copyright regulation.

The most interesting issue spared out by both “gladiators” so far is the question of alternative forms of regulation on both sides of the aisle. Only moderator Cukier referred to a commentator “from the floor” that mentioned Creative Commons licenses as an alternative:

Paul West lauds Creative Commons, in which authors can craft the sorts of rights they wish to retain and people can reuse material. But he sees difficulties. It helps “overcome the limitations in the existing environment, but [is] not yet sufficiently understood by either author or user of the materials,” he writes.

Maybe in the remaining days of the debate, we will learn more about alternatives as Fisher announced looking at them in his second statement on Friday:

But if one believes (as my opponent seems to) that each of these industries serves important social values, then we need either to alter radically the copyright system or to find something to take its place. (In my final contribution to this debate, I will suggest what those reforms or alternatives might look like.)