Fairness in copyright – or why rates of infringement are so high

Here’s a paragraph from an article I’m writing about free-riding. It distils my argument about the role of fairness in copyright, and why the industry is only harming itself when it does things like make Game of Thrones only available on Foxtel:

In recent decades, the copyright industries have been losing the normative high ground. The rational economic model of the user that underpins consumer markets for creative works captures only the self-interested motivations of audiences, and discussions of ‘fixes’ for copyright law generally focus on deterring infringement through legal penalties. Because legal penalties are rare, most recent law reform attention has focused on increasing the severity of punishments and the regularity of enforcement by pushing responsibility for monitoring and enforcement to private entities. This move towards private enforcement typically entails a significant trade-off to due process, as courts lose oversight of increasingly punitive measures. To make things worse, the increasing strength of copyright tends to disconnect the law from practice and the exploitative way the music industry treats artists has greatly reduced the perceived fairness of copyright business models. The copyright industries have attempted to shift social norms back in their favor, but their attempts have been somewhat clumsy to date (“you would’t steal a car!”).

No wonder, then, that users infringe copyright – as the fairness norm around paying for access weakens, people will more often act as rational actors. Since the likelihood of getting caught is still minuscule, free-riding is often the rational choice.