“Shorter copyright will encourage artists to keep on creating new work, will allow new art forms (such as mash-ups) and will stop big businesses from relying on large back-catalogues rather than investing in new content.” — The Pirate Party UK —
The above statement by the UK Pirate Party, which is not alone in advocating a ten-year copyright term, is consistent with the attitudes expressed by Internet-industry backed coalitions and various academics, who claim that copyright is in dire need of “rebalancing” for our digital times. In Part I of this essay, I tried to stick to refuting only the assertion that copyright has ceased to be appropriately distributive of existing works in the digital-age; arguing that it no more functions as a barrier to access for the consumer today than it did before the technological revolution. In Part II, I’ll try to stick to the matter of copyright as generative (i.e. as an incentive to create and distribute new works) because we are meant to glean from statements like the quote above that copyright has ceased to be generative in a way that is compatible with the 21st century market.
What is at least helpful about this otherwise naive statement is that it neatly presents three types of creators and three generalizations about each type. It includes an assumption about individual, professional artists; a statement about the value of amateur and new-media creators with an implicit reference to the creation of all derivative works; and it contains a rather rote attack on corporate rights holders, which make easy targets for critics who are ignorant of the interdependence of entities both large and small within the creative ecosystem. So, inasmuch as I want to find this kind of declaration dismissible, it does at least provide a valid organizing principle for addressing the subject.
The idea that a drastically reduced copyright term will “encourage artists to keep creating new work” is probably the most offensively flawed statement too-often made in favor of radical reduction of copyright terms. Because even a casual observation of artists—either contemporary or past—should reveal two basic facts about them: the first is that some artists are highly prolific while others will produce just one, or only a few, works of note; and the second is that all artist are by nature self-motivated to express all of the work they have within them as long as circumstances permit them to do so. This is part of what makes them artists in the first place, and it is presumptuous to believe that by recalibrating copyright terms, we would more effectively incentivize, for instance, a novelist to produce a fourth book as if she would otherwise rest on the laurels of her first three because she is so comfortably sustained by the length of her copyright terms.
Even to consider the incentive of copyright in this way is to completely misunderstand the motivation of the artist (or the scholar for that matter) to create works—to say nothing of misunderstanding the foundation of copyright. With its pretense toward humanism, this view treats the creator as though he is an orange and copyright a machine that, with the right settings, will more efficiently squeeze out the maximum available juice. (And where else would such an ugly, anti-human idea originate other than the coldly efficient, big-data crucible of Silicon Valley?) The artist creates because he has something to say, and he stops creating when he feels he’s said it and/or when life poses other obstacles to his work. Even if copyright terms were perpetual—and this is neither practical nor constitutional—it is both illogical and entirely rejected by historical evidence, to assume that an artist will stop creating simply because some initial body of work can sustain him financially. To the contrary, it is the dream of most artists to have the freedom to do nothing but produce new works, though only a minority are fortunate, talented, and popular enough to realize this dream.
So, even if consumers are morally comfortable with the idea of stripping the creator’s ownership interest in her labors a decade or so after publication (and I think this makes people sound a bit like jackals), the idea that these restrictions will foster an incentivizing pressure on her to keep producing is rejected both by history and by common sense. Because, the most likely circumstance in which the artist will produce a new—and potentially great—work is one in which previous work is still paying some consistent dividends through a regime of licensing built upon copyrights. Whether those dividends are modest or millions is commensurate with the popularity of the work(s) and, therefore, fair in market terms. So, the relative wealth or poverty of any particular artist is as irrelevant to the discussion of copyright as a generative mechanism as it is just simply nobody’s damn business.
In fact, it is just as rational to argue that in a paradigm with radically short copyright terms, that once an artist attains a level of financial comfort, his incentive to distribute new works could easily be diminished. Because the cynical assumption made by the statement above is that the artist only enforces his copyright interests for the sake of money. Yet, we have ample evidence that many artists—especially the ones who already have money—frequently care more about uses of their works for aesthetic, social, or political reasons rather than financial ones. As we saw with the issue of expanding compulsory licenses for musical works in remixes and sampling, several well-to-do artists came forth to say that no amount of money would be worth having their works relegated to a permissionless market in which they would be compelled to allow their music to become vehicles for potentially the most vile, hate-mongering speakers in society.
Now, consider how fast—as the pundits like to remind us—our culture is moving thanks to the Internet, and recognize that not all re-use, remix, and redistribution is culturally positive. This is what I called in Part I the “don’t-read/burn” aspect of digital life, which overwrites information very quickly. In this rapid-remix market, we sometimes risk losing distinctions among unique voices until we end up with what Jaron Lanier calls “one book.” Copyright terms may seem unreasonably long to some—and I don’t really know what the ideal length should be—but it also happens to be the case that copyright boundaries help preserve uniqueness among voices and works, including the contexts in which they may be used; and these distinctions in themselves are actually generative for the larger community of professional creators. (This is emphasized in Joseph P. Fishman’s Harvard Law Review paper Creating Around Copyright.) So, in a paradigm with incredibly short copyright terms, if an author sees that, in less than a decade, her voice may be “remixed” into oblivion, or used by speakers she finds odious, or merely exploited to sell toothpaste, what incentive does she have for putting a new work into the world, especially if she does not need the money? Perhaps no incentive at all.
Building Upon Works
In Greek mythology, Mnemosyne (Memory) is the goddess mother of the nine Muses. And I’ve always loved this metaphor because of course neither artistic nor scholarly work is purely divine (or inexplicable) inspiration but is also always built upon experiences as well as what has already been expressed or discovered by other mortals . And the tension (i.e. balance) in copyright, I believe, is the same tension in the individual creator, who cannot always be sure whence an expression comes — either from his memory, in which he shares in the collective consciousness, or from his transcendent and inexplicable nature that makes his voice unmistakably his own. Because we do know when we’re listening to Jimi Hendrix play the national anthem, don’t we?
And because building upon what has come before is a well-established part of the creative process—because artists themselves throughout history admit to knowing how to steal—the argument is often made that modern copyright tips the scale too far toward a presumption of “originality,” supposedly resulting in a kind of intellectual land grab whereby a minority of creators and corporations now own and charge rents for too much of the fertile ground necessary for creative endeavor. Nevertheless, by some miracle, literally millions of creators can simultaneously and independently produce new works while only very occasionally create conflicts of copyright. And this is because copyright has proven to be remarkably elastic in its ability to grant ownership to a particular expression without preventing the creation of a vast number of adjacent, similar yet distinct, expressions.
Among professional creators—and not just wealthy ones—a system of licensing (and sometimes just asking permission) continues to support remixes, samples, remakes, and derivatives, while fair use doctrine still provides copyright exceptions for uses of works that have a wide variety of cultural and social benefits. The professional creator has a number of options within the context of copyright for building upon existing works to create new works, yet the reformers’ rhetoric on this aspect of the creative process would have us believe that volumes of existing works have been entombed and fossilized, untouchable by new creators.
On this subject, it should be noted how often the same, limited examples are cited. For some time, it was felt that Sherlock Holmes naturally “belonged to the commons.” And as of a decision in 2014, the character is now in the public domain while ten of Conan Doyle’s stories remain under copyright. But whether this is right and just on a philosophical level, this change does not mean the market will support any greater abundance of Holmes works than we have enjoyed to date. In filmed entertainment, for instance, a creator would have quite a challenge to compete with the current modernization starring Benedict Cumberbatch; and the production values on that series far outweigh whatever licensing deal was necessary to initiate the production. At the same time, consumers have enjoyed (or not) an ample supply of Holmes-inspired works, like the show House, which require no copyright obligation whatsoever. In short, creators have long been free to create all the clever detectives they can imagine, while only a very narrow definition of Holmes was actually protected. And we shall see if volumes of great works will now pour forth that could not have otherwise existed with the original source under copyright.
In this same vein, it would be interesting to look at the novels of Jane Austen, which have been in the public domain since before the 20th century, and to compare the modern works based on these book that would have had some copyright obligation against those works inspired by her novels that would have been non-infringing in any way. And then, it would be interesting to look at the total number works that the public seemed to enjoy and want to keep extant. I may be wrong, but my hypotheses would be that market forces and quality of work are primary factors, and that terms of copyright have very little to do with the success of various Austen and Austen-inspired new works.
Remix and the Consumer/Creator
The new market that supposedly demands substantial reform to copyright is one in which the contemporary audience no longer comprises passive consumers of works but rather active fans, who want to engage with media by touching it, remixing elements into mash-ups, fan-fictions, memes, satirical videos, etc. While these activities are abundant and can contribute to our collective culture in various poignant and amusing ways, I suspect the the majority of consumers—even the digital natives—are still generally of the old-school, passive variety and that it’s probably an exaggeration to describe the “new consumer” as one who is constantly engaged in remix. Additionally, while there are indeed millions of UGC expressions uploaded every day, only a fraction of these are actually viewed by more than a handful of people, so the extent to which the massive volume of remixes and mash-ups is contributing to our culture may also be somewhat exaggerated by the copyright reform crowd.
It seems more accurate to say that these new forms of expression represent a combination of both amateur and new-media, professional works; and so it is false to portray all of these derivative forms of expression as non-commercial. For instance, I just watched one of Anthony Vincent’s videos—appropriately Halloween themed—in which he sings “Thriller” in the style of 20 different famous artists. Vincent has done several of these videos; he’s freakishly good at the impersonations; the recording and mix sound professional; and I certainly hope he’s sharing in the ad revenue generated by the millions of hits he deservedly gets for his work.
But the reason I bring up this example—and there are many like it—is that the song “Thriller” is almost certainly covered by broad license agreements that YouTube entered into in 2013 so that a large library of popular musical works may be used on the platform to distribute User Generated Content. This is just one example of a new licensing model that conforms to the contours of the new market without requiring any change whatsoever to copyright law. And all parties are well served in this case. The music rights holders share in the revenue on the new platform; YouTube’s interests are preserved along with its advertisers; Mr. Vincent gets to turn his talent into a fresh, marketable expression without any cost or burden to seek a license on his own; and the public gets to enjoy and share his videos.
Regarding works like movie mash-ups, the licensing becomes a little more tricky due to issues like the right of publicity for actors, who can theoretically sue a studio for considerable damages under existing labor contracts, if they feel the studio hasn’t done its job to stop a misuse of their likenesses. Nevertheless, many of the major filmed-entertainment studios have shown that they understand the social, and even marketing value of the mash-up, and new licensing models continue to emerge in order to foster these works—again requiring no change to copyright law.
When it comes to purely amateur, non-commercial (site-owner monetization notwithstanding) expressions—like our kids playing around with media and sharing it with their friends via YouTube—even if some reform to copyright were necessary for this purpose, it is unlikely that length of terms would be the correct area of focus. As with passive media consumption, many (if not most) of these expressions tend to use contemporary works that would be under copyright, even with much shorter terms; so the claim in the pirate party quote that shorter terms would help foster or sustain these amateur expressions is either purposely or carelessly misleading. It is also not necessary to broaden fair use doctrine to accommodate these expressions. Despite the fact that non-commercial users, like Ms. Lenz with her dancing baby video, become the poster-children for reform, the reality is that amateur users are not typically on the radar of major rights holders. The filmed-entertainment studios’ primary focus, for instance, is to remove full versions of their movies and TV shows from platforms like YouTube, and this has nothing to do with new creative works one way or another.
Where a conflict is most likely to occur with various amateur expressions is actually with an individual or independent creator, who simply does not want a work used in a particular way. But just as copyright has functioned in a pre-digital context, these are case-by-case circumstances that do not inherently demand overhaul of the legal framework simply because there is now a larger volume of uses that can be publicly distributed. In fact, I suspect most artists don’t necessarily mind—and often rather enjoy—these amateur expressions themselves, even if they might technically infringe; but the artist may very much mind a site owner hijacking their revenue, which is what ends up happening with a platform like YouTube for music. At the same time, when a high-profile use manifests that an artist finds offensive—like Donald Trump using Neil Young’s “Rockin’ in the Free World”—at least a portion of the general public tends to show support for the wishes of the artist, even when the artist might be technically wrong about his application of copyright.
The point is that, overall, it appears that both the amateur and the amateur-turned-pro, who are creating derivative expressions on new platforms seem to be coexisting with current copyright fairly well. There will always be exceptions, but these exceptions do not demand radical reform or justify chronic vilifying of rights holders, which is unnecessarily divisive. And that brings us to…
Corporate Creator/Rights Holders
Before responding to the criticism of this class of rights holder in the pirate party statement, I wanted to refer back to the example of Anthony Vincent and YouTube’s broad licensing agreement with the major music rights holders. Because it turns out to be rather handy for both new creators like Mr. Vincent and for his audience, that such a large catalog of works can be licensed all at once through negotiation among a limited group of entities. If the rights were held only by the original authors of each work, this would be considerably more cumbersome. Of course, I recognize that a similar result could be achieved by stripping rights altogether from creators and/or drastically limiting terms, but that “solution” circles back to the discussion about possibly harming the incentive to create and disseminate new works, all for the sake of cannibalizing existing works.
Of course, cannibalizing older works is kind of what the pirate party statement accuses the corporate rights holders of doing, and this is a fairly common criticism, even among people who don’t give copyright more than casual attention. As addressed in Part I, major rights holders of large libraries may seem like hoarders to some, but the financial incentive supported by their ownership rights also makes them rather good stewards of these materials, which can be costly to maintain, as is the case with classic motion pictures.
Still, the accusation here—just like the one lobbed at the individual artist—is that the corporate creator would invest in a greater volume of new works if it were not able to rely for so many years upon the profitable redistribution of its legacy catalog. Of course, this assumption doesn’t make any sense for two reasons that should be obvious: the first is that any company, whether it produces automobiles or TV shows or winter coats, must continue to provide fresh offerings if it is to remain relevant in its market at all; and the second is that the revenue derived from large catalogs provides part of the funding to invest in new works.
Presently, one might accuse the major film studios of narrowing their big-screen offerings—namely to tent-pole, franchise products—but this industry response to market changes has nothing to do with the present copyright regime, except of course, for the way in which piracy has played a role. Meanwhile the explosion of some great works being produced for the medium we historically call TV are all backed and produced by corporate creators of various sizes, including the majors. The volume and quality of these works, which represent a new golden age of the small screen, belies the claim that corporate rights holders are sitting on their fat catalogs rather than producing anything new. At the same time, the primary force stifling traditional investment in an even more diverse range of products is the increased risk incurred by the tech-fueled devaluation of all creative works in all media.
The expectation that media should be free or unrealistically cheap, the willingness of consumers to insist upon this by simply taking what they want, and Web enterprises (both legal and illegal) capitalizing on the free-media feeding frenzy, has far more to do with investors’ flight to safety than anything related copyrights as a barrier. Naturally, film studios, record labels, and publishers are going to back more safe, big-franchise types of works now that projects, which might previously have been modestly profitable, are more likely to lose money in a market of devaluation. And because this is just one result of 15 years worth of circumventing copyright, it is hypocritical to the blame this legal framework for any dearth of traditional investment in riskier projects. Instead, I see artists all the time, who easily would have been backed by a label, studio, or publisher 10-15 years ago, but who are now crowd-funding new work. People may see this as exclusively progressive, though the results are actually mixed for both the creators and the works. But in any case, the copyright status quo is not the catalyst to these market changes, while circumventing copyright has absolutely been catalytic.
Finally, it is absurd, in this context, for the word corporate to be used exclusively as a pejorative, or as shorthand to mean only the big movie studios, publishers, and record labels. As I have pointed out many times, a vast number of works are produced by small groups of venture partners that are all incorporated. Nearly all filmed-entertainment is produced by independent production companies that are co-dependent with multiple entities, including the big studios. YouTube and Amazon and the advertisers that make Web 2.0 function at all are big corporations. So, what are we really talking about here?
The bottom line is that society wants creators to have careers because they are most likely to produce their best works in markets and systems in which they are able to make careers out of their labors. In this sense, every creator, or group of creators, is a small business in need of some type of investment, and this invariably leads to some level of corporate involvement, all of which is built on a foundation of ownership in intellectual property. No matter how models and markets may evolve, to suggest that this foundation for creative industry is now—because we are in the digital 21st century—suddenly a wall barring growth of creative industry is such a radical assertion that its proponents should be held to a very high standard of proof. Or they could stop saying it because it just isn’t true.