Mark Kleiman points approvingly to public policy professor Michael O'Hare's rather bizarre proposed solution to the problem of music copyright protection: simply have the government pay musicians to create music. The idea is for music makers to allow anyone to record, play, trade, distribute and otherwise use their music--in return for a government subsidy, which would presumably be in proportion to their music's "popularity".

Let us put aside for a moment the enormous temptations to corruption and politicization that would beset any government effort to compensate artists based on their popularity. What purpose is such a scheme even meant to serve? What is the social value of compensating musicians for their popularity, anyway?

Traditionally, the function of intellectual property is to spur creativity. Patents, for instance, create an incentive for inventors to come up with useful inventions, by granting them a limited-term monopoly on their proceeds. By the same token, compensation for the creation of music would presumably have the goal of spurring the creation of new "good" music. How important is that?

One way to answer that question is to look at forms of music where intellectual property is less prominent a factor. Instrumental jazz, for example, is largely a performance art form, with many accomplished players obtaining little compensation from recordings. Those who earn a living from their music do so largely through performance fees--as they presumably would under the proposed government compensation scheme, since their music has little mass appeal.

Now, one could certainly say that instrumental jazz musicians don't work overly hard at creating wildly popular music. After all, their product is appreciated only by a niche audience. But they work very hard indeed to meet their own, and their audience's, definition of quality. And by that standard, they certainly succeed. Few fans in cities with any significant jazz audience find themselves bereft of good jazz musicians to listen to. And the top musicians tour constantly all over the country, bringing their music to clubs even in relatively obscure locales.

Why, then, would we expect musicians who produce popular music not to do the same? After all, their music isn't any harder to create than jazz. Their concert revenues would almost certainly be larger than that of jazz musicians. And they would have an additional incentive--great fame and widespread adulation--that jazz musicians can never realistically hope for.

Of course, most of the money earned today as a result of intellectual property rights to music goes into music marketing anyway, not music creation. And perhaps music marketers would work less hard under a regime in which music is not granted intellectual property rights. Is that really such a bad thing?