Copyright critics, particularly those voices murmuring in the halls of academia and legal scholarship, seem to question the purpose of copyright as though the law itself has generative properties. While it is true that copyright imposes one kind of constraint, and that constraints in general tend to be generative in the creative process, copyright’s critics focus a great deal of attention on the productive implication in the language of the Copyright Clause itself, meaning its purpose “to promote the progress of science and the useful arts.” A popular viewpoint asks a reasonable-sounding question: Does copyright produce the public benefits conditionally implicit in the clause; and if not, has copyright worn out its usefulness? This question boils down to skepticism about copyright’s presumed role as an incentive for the creation of works but fails to account for a misunderstanding of creators and their many motives.
We can no more ask copyright to produce creative works than we can ask civil rights laws to eradicate prejudice from the hearts of all mankind. And even if critics do not mean literally to suggest that the law itself is generative, the language often used does covey this connotation. For instance, one common argument made begins with the irrefutable statement that people created works before copyright, followed by the reasonable prediction that they will still create without copyright; and this premise then serves as the basis for skepticism about copyright as an incentive for the creator. But this view of the creative worker choosing to engage in his or her process is both naive and cynical, in part because it begs that mercurial question about the role of money.
Artists create work because they are driven to do so, and the extent to which profit is on the mind of any particular artist during the production of a work is first, nobody’s business; and second, too complexly variegated among creators to use as a basis for examining incentive. A traditional rap artist, for example, produces his brand of poetry out of real experiences from the streets and simultaneously hopes that his works are a path out of those streets. There is no point in trying to parse these overlapping motives in a futile attempt to properly understand one artist’s incentive, let alone to then apply any half-baked conclusions to describe the motivations of all creators.
Copyright critics may hear artists say things like they’re “not in it for the money” or that even thinking about what might be done with a work after its completion can be detrimental to the creative process itself. But these utterances are not so black-and-white as they might seem, and their themes are too often taken out of context in order to further support a thesis that a disconnect exists between copyright and the incentive to produce.
For instance, when the creative worker says he or she is not expecting to make money, this is usually a half truth reflecting an understanding that any attempt to predict the alignment of the stars that must happen to make a work financially successful is an exercise in madness. This does not mean that most creators are not hopeful, sometimes rather desperately, that a work-in-progress will be at least modestly remunerative; it is merely a recognition that this outcome is nearly impossible to predict in most cases. A songwriter may write fifty songs in a year but cannot say for certain why seven of these might be recorded by various artists or why one song in particular makes the charts. Invariably, some of the rejected songs were the ones she thought were the best. So, the venture is always risky, and no creator possessing any common sense expects a promise that his or her work will be desired by the market. Nevertheless, out of the millions of creators who choose to engage in these ventures, often against the advice of friends and family, comes the diversity of works that collectively make life better for all of us.
Where the common critical view is faulty, I think, is its too-literal interpretation of the incentive/creation paradigm, a mistake easily made by salaried academics but not one made by artists, who are typically satisfied when any one work can generate enough compensation to more comfortably produce future works. Using a simple hypothetical, an author may produce volumes of un-marketable works, then perhaps a profitable but pedestrian work, and then one masterwork that will become timeless. But without his secured financial interest in that middle, profitable work, the probability that society will be the beneficiary of the masterwork is lowered. Of course, few stories follow this linear progression, but the point of this over-simple example is that when copyright provides at least a basis for economic stability for the artist, we enjoy a system in which the vast diversity of artists continue to take all of the risks, while society is solely the beneficiary of the most favored works produced without taking any risk. By inviting a model without copyright, we could well trade the diversity we now enjoy for a more limited number of works produced solely by creators who already have economic stability. It is perhaps not surprising that such an elitist outcome would be overlooked from the vantage point of relative security within academia, where pressure to produce certain original works does often exist, but without the kind of risks borne by the artist, who lives by the fruit of that labor alone.
This question of copyright’s relevance is, of course, one predicated on technology changing the marketplace. It is assumed (though not on the basis of any evidence) that digital tools for creation, and especially distribution, of works somehow obviates the need for authors to retain ownership of their copyrights in order to sell to the market through various licensing regimes. In this regard, the critic’s assumptions already contradict the original claimed examination of copyright as an incentive to create works because the only relevant change that has occurred is with regard to the distribution of works after they have been created. Yes, artists have many new digital tools for production, but nothing about the motivation to create or the labor that represents human transference of idea to rendering upon some medium has changed in any way that is relevant to examining copyright. Only the distribution of finished works has been changed by the Internet, and so the examination by critics really should not pursue the incentive to create question in the manner that appears to be the trend in academia.
Having said that, however, it is worth noting that copyright does provide incentives other than financial that are indeed relevant to authors, even if their intent might be to make work available for free without expectation of any revenue. And this is one way in which the highbrow copyright skeptic seems particularly cynical in failing to recognize that an anything-goes market most certainly can de-incentivize creators to produce or distribute works, if they must relinquish their power to control the manner in which their works are used.
Further, if it is true that a copyright-free future could shrink the pool of producers to those already financially secure (as predicted above), this suggests that all of the non-remunerative benefits of copyright might be of even greater value to those authors still willing and able to produce. And in the absence of those rights, we could easily see a reduction not only in the number of producers, but also in the number of works produced by that elite few. In a practical example, imagine the trustafarian artist working in the most altruistic manner, producing wonderful works solely to be experienced; he doesn’t care about money, but he does have to accept that McDonald’s can use his work to sell hamburgers, which betrays everything he is expressing. It is not farfetched to imagine the artist in this example will withhold works from public view, even if he continues to produce for his own pleasure.
In fact, as reported by Gabe Friedman for The Atlantic, graffiti artist David Anasagasti filed a copyright infringement suit against American Eagle Outfitters for featuring his work in their ad campaign. Graffiti is certainly a medium that represents a permission-free spirit and is a public expression offered without expectation of compensation; but Anasagasti’s suit, right or wrong, and regardless of the ruling, makes the point about copyright’s incentive in this context. We could argue ad nauseum about the legal merits of his case, but the fact that the artist cares is what matters. Deprive any kind of artist control, particularly to fend off commercial interests, and he/she may well decide to deprive us of future works.
Once we shift attention to the matter of distribution in the digital age and the opportunities and threats faced by creators, we tend to hear less theory from academia and more from corporate interests with a financial stake in an Internet that rejects most regulations, including copyright. The academics, it seems, tend to focus on legal theory — the intent of the framers; distinctions between property rights and natural rights; the question of copyright’s function as an incentive, and so on. But the question that should be asked is the role of copyright as incentive for the distribution of works, with an honest look at the very complex manner in which sustainable distribution systems feed the cycle of new production. As I say, this is usually when the conversation tends to transition from legal theory to market practices, and in that regard, we can look at data.
While it’s true that there is no one solution for all creators and all media, the general premise that is skeptical of copyright in the digital age appears to be based on a few assumptions that have almost entirely failed to manifest in the digital age. And despite evidence to the contrary, these assumptions continue to fuel predictions of a brighter future for creators, fiddling as Rome burns. The foundational assumption is that the author of a work can sell directly to enough real fans through the nearly free distribution platform of the Internet (with free tools graciously offered by various tech companies) that she can bypass licensing regimes with traditional distributor entities. Without the need for this kind of licensing, the author no longer “needs” copyright in order to engage in newly-available, one-to-one transactions with customers. Moreover, the author keeps nearly 100% of all proceeds rather than a percentage of the distributing entity’s revenue, and this hypothetical premise is expected to offset any losses resulting from unauthorized acquisition of the works. In essence, the argument boils down to this: That while the Internet fosters threats (e.g. piracy & lower prices), it also creates opportunities (e.g. self distribution & greater percentage back to authors) that are predicted to be more potent than both the threats and the pre-digital models. The problem is that none of these hypothetical benefits for creators are becoming manifest at any scale that we can take seriously as a basis for questioning the catalytic role of copyright in presumptively “outdated” models.
While we do hear occasional examples of digital-age opportunities proving to be somewhat successful models for specific creators, the reason we continue to encounter the same handful of anecdotes repeated in editorials, blogs, and even testimony before Congress, is that these stories are dramatically outnumbered by the millions of examples in which both artists and consumers are facing a loss of works to due to threats posed by the digital age. This may seem counter-intuitive because to look at the market right now, there are more works available than ever, but this expansion may be temporary because we are still in a transitional period, enjoying the bounty of the moment, while not seriously considering the other side of the threshold if certain threats are not properly addressed.
Medium by medium, one has to look at threats and opportunities differently, and this conversation unavoidably includes the subjective assessment of “public benefit,” leading to the interesting but futile debate over what constitutes works of value (i.e. what we hope survives or fails). Nevertheless, it seems reasonable to predict that if the vast majority of creative producers, including those whose work supports authors, are overwhelmed by threats, then the net result over time will be a reduction in the volume of works of value by the broadest, sensible definition of the term. Copyright alone is not the answer to the many forces at play affecting all workers throughout the middle class; but weakening copyright for the creative sector has at least an aggravating — if not outright destructive — effect when combined with those other economic pressures in the same way that, say, stripping collective bargaining rights exacerbates the woes of another kind of labor force. So, intellectual discourse within the comforts of academia are all well and good, but pollyanna assessments of almost any industry sector right now do reek of elitism, blind to the realities of those who depend on the rights in question.