Copyright Doesn’t Restrain Culture – Part I

Among the premises commonly stated to argue that we must “rebalance copyright for the 21st century,” we find two widely spread and oft-repeated generalizations, both of which are false.  The first generalization is about access, which proposes to speak for the consumer and implies—or explicitly declares—that copyright acts as a barrier to the diffusion of cultural works.  The second generalization concerns the creation of new works and proposes that copyright acts as a barrier to derivative and new works, that it stops new creators from building upon existing works, which is inarguably an essential—even unavoidable—part of the creative process.

The fundamental problem with both of these generalizations is that neither the consumer’s nor the creator’s experiences, practices, or behaviors largely support the assertions being made.  Nevertheless digital-rights activists, pundits, and academics continue to repeat these messages as though they are common sensical, observable truths; and further, they tend to conflate the two interests—consumers and creators—despite the fact that these are generally separate subjects with regard to copyrighted works.  As such, I’m presenting the following as a two part-part essay. Part I will address the first generalization about consumers, and Part II will address the second generalization about creators building upon existing works. And, although I understand that it is very popular to say that “we are all creators now,” that there is no longer a line between creator and consumer, I believe this is also not true in the market overall. In Part II, I will address the hybrid consumer/creator, but for the sake of clarity, Part I concerns only those people who consume works and have no interest whatsoever in creating even so much as a minor mash-up. After all, this is almost certainly how we can describe the majority of the market we honestly call consumers.

Part I – Access and the Consumer

Statements made about copyright limiting access are typically—one might even say purposely—phrased in high-minded, aspirational tones.  They involve words like culture, enlightenment, democracy, information, and education.  The assumption is that copyright terms are so long, that prospective consumers of important and valuable works have difficulty gaining access to them—or at least difficulty relative to the speed of the Internet.  This paints a picture in which copyrights keep great works under lock and key, thus starving society of the many rich, cultural experiences to which we are the rightful heirs as stated in the intellectual property clause of the Constitution.

Of course, one of the simplest, initial answers to this charge is that the lion’s share—by a substantial margin—of the works that are pirated via the Internet, are mass-appeal media, which have been produced only very recently; this includes works like motion pictures or hit TV shows that have not yet been officially distributed by their producers.  So, even the most tamely-worded proposals to reduce copyright terms to roughly a decade on the grounds that this would be “more in synch with the 21st century,” are naive at best, and outright lies at worst.  Or as Robert Levine puts it (and I have quoted him on this before), “It doesn’t matter if copyright is Life plus 70 or Life pus 50 years, because on the Internet, copyright lasts about ten seconds.”

With regard to older works (classics), the reformer’s view, which says these belong in the public domain sooner, is actually more elitist than its proponents would like to believe.  It assumes the majority of the market actually cares to have access to these works, which is a typically liberal leap of faith that wants to lead even the most stubborn horses to water.  I know that sounds snobbish, but it’s quite the opposite.  I don’t think less of my neighbors because they don’t likely give a damn whether or not the entire oeuvres of Bergman or Fellini are available via legal streaming, but that they are eager to watch Game of Thrones, Sons of Anarchy, The Walking Dead, and sports.  To the contrary, they represent the real market, while it is only a handful of us oddballs who might choose to make an evening out of re-watching Fanny and Alexander.

So, to put this in exaggerated terms, it wouldn’t really matter to a very large portion of the market if the works they don’t care to access had perpetual copyrights or if the works they do care about had ten-year copyrights because most consumers want to access current works immediately, and they will acquire them—either legally or illegally—regardless of copyright terms. And because most of the works they do want are current, these are also widely available through legal means.  So, in this regard, it is dishonest when the voices who say, “You can’t stop piracy,” or “Piracy is a reaction to scarcity,” happen to be the same voices who say that copyright terms should be shorter.  One cannot argue in favor of both theft and shorter terms at the same time without sounding ridiculous.

Meanwhile, long copyright terms are probably the most effective mechanism by which to preserve classic works that at least some portion of the market does want to access, and in formats in which they prefer to experience them. Maintaining licensing regimes funds necessary restoration, remastering, fresh translation, publication, distribution, and other labors necessary to produce fresh editions of media that are desirable to the market for a large number of classic works. (Because if one is going to make an evening of an Ingmar Bergman film, one does not to watch some crappy digitization of it on YouTube.) Yet, nearly two years ago, the Duke University Center for the Study of the Public Domain released an article, devoid of any clear thesis, complaining rather strenuously that a list of great works, including Bergman’s The Seventh Seal, remained under copyright as of the start of 2014.

Naturally, I’m using Bergman as an example that could stand for any classic work of art or scholarship, and I wonder now, as I did in my rebuttal to that Duke post, what exactly does one want to do with The Seventh Seal other than to watch it? Which, by the way, is currently possible via Hulu, Amazon, or iTunes.  So, not only does the copyright barrier not exist for the consumer in this case, but the narrative that is constantly repeated, even by scholars we’re meant to take very seriously, tells a double-fiction—first, by implying that there are scores of disenfranchised people hungry to watch this classic film; and second, that those who do want to see it are unable to do so.  Yet, here I sit, three dollars and about four button clicks away from watching Max Von Sydow play chess with Death, if I want to.

Of course, any number of readers can produce the title of an obscure work that is either difficult or nearly impossible to find.  But this has always been a challenge for the true enthusiast of a particular genre or artist, and its singular nature is again its own rebuttal to the claims made by copyright reformers that “the public” is underserved by the current IP regime. A tiny minority cannot necessarily represent “the public,” and the legal system cannot wholly anticipate and serve every unique desire. But again, for the true enthusiast in pursuit of an obscure work, the most sustainable preservation mechanism is likely going to be one that is built on a foundation of licensing.  While random digitization by amateurs ripping DVDs, etc. may have the momentary appearance of “making works available,” it is a very poor—and entirely unreliable—form of preservation.  For instance, MGM’s long-term interests in its library of famous musicals is the mechanism that maintains the prints and quality reproductions of Singin’ in the Rain, not YouTube and certainly not Putlocker. But in any regard, the more niche the interest of the consumer, the more we are talking about such a small fragment of the consumer market that it seems irrelevant to any practical debate about copyright terms acting as a general barrier to access.

Also, despite the fact that many classic works of art and scholarship are either in the public domain or cheaply accessible, the promised enlightenment that is supposed to follow as a consequence often looks a bit like a fading 60-watt bulb. For instance, in a bizarre moment of afflatus in May 2013, anti-copyright’s would-be prodigal son Derek Khanna stated on Twitter that people should not read The Great Gatsby because it is not yet in the public domain.  This still elicits a Scooby-Do double-take to consider his logic, which advocates a specific illiteracy as a symbolic protest against copyright terms, despite the fact that this particular novel is so widely available that one is apt to trip over a discarded copy in a city park.

Nobody can justifiably argue that readers lack access to the works of Fitzgerald because of copyright terms. Meanwhile, I’m sure these works are available illegally right now, but that does not necessarily mean any more people are reading them than they were 20 years ago. In fact, Gatsby itself is probably being assigned to groaning high school students at this very moment, including at least several who will keep up the American tradition of taking their access for granted and dodge the reading altogether. And, for that matter, we seem to be witnessing a new phenomenon in American colleges whereby certain students are refusing to engage with various assigned classics because some theme, topic, or language offends their own special snowflakyness.  All of which is to say that I suspect that with every new work that might be made more available by “rebalanced copyright,” we may simultaneously see new social and cultural reasons for consumers to disenfranchise themselves from works anyway.

The reality is that we have more works legally and affordably available than at any time in history, plus an entire black-market that trades in making works available for free.  Yet, it is hard to find much evidence that this river of media has produced a more fertile society comprising a cultural literacy that extends beyond whatever is trending in any given moment.  Last week, my kid’s middle school had a Dress as a Movie Character Day, and so my daughter (because she’s my kid) went as Charlie Chaplin. By midday, at least twenty schoolmates asked who she was, and some thought she was Adolf Hitler. I find this extraordinary. With all the information that’s available right now—all of it entirely unaffected by copyright—how do middle-class American kids get to be 13-14 years old and not at least recognize an icon like Chaplin’s Little Tramp — to say nothing of knowing what Adolf Hitler looked like? These are hardly images of arcana.

In another example, my eldest in college, taking a required American civics class, reports that several of his fellow students had no idea Germany was recently divided East/West, and they had also never heard of the Cuban Missile Crisis.  How?  Are these not digital natives who have grown up with “the world of knowledge at their fingertips”?  It is preposterous to claim that their ignorance on these basics of general knowledge is because Google hasn’t been allowed to digitize enough content due to copyright constraints. So, can anyone rationally argue that accelerating the progress of works into the public domain has anything to do with a broader literacy?  If these kids are missing certain fundamentals, it’s because of other reasons—mediocre schools and family influence being the most likely—that have nothing whatsoever to do with copyrights.  Ironically enough, I think my generation may have acquired more cultural literacy just watching Looney-Tunes cartoons on one of a dozen TV networks than many a digital native has gained from all the “access” he supposedly has today. After all, our Bugs Bunny “scarcity” was a primer in world history, music, film history, Shakespeare, art history, literature—and in a certain Wile E. Coyote way, basic physics.

This is not to say, of course, that there isn’t literacy to be found in contemporary media. Writer Daniel Starkey offers a very frank article about growing up poor and committing petty larcenies in order to have some of the things the kids around him had.  Entitled Piracy Gave Me a Future, Starkey’s main thesis is that media piracy provided him with access to a literacy he might otherwise never have had.  He writes …

“Deus Ex was the first game I’d seen that listed its primary influences, which included philosophers like Hobbes, Voltaire, Locke. They were wealthy men, to be sure, but learning about their work set me on the path to learning about sociology, about history, about how much all media is one long chain of slightly modified ideas, with each new link adding a new twist or perspective. The game’s themes also spoke to some of the most personal concerns of my life, including economic class, injustice, about the disempowered fighting against a wealthy ruling class.”

And this is exactly the kind of anecdote the copyright “reformers” like to cite in order to prove the purpose of their agenda.  But I would counter this with two points.  The first—as I have already indicated—is that Starkey pirated works that were current and, therefore, would still be under copyright even with very short terms; and the second is that exceptional individuals like Mr. Starkey have throughout history found ways to educate themselves beyond the barriers of their circumstances. Those barriers are usually financial, cultural, or political while having very little to do with the specifics of intellectual property laws. After all, there are millions of kids whose parents bought them Deus Ex and who did not take from their gaming experiences the kind of life lessons that effected Starkey’s future. But it is the market of those millions of paying customers and the legal framework for development and distribution of the game that provides the foundation for producing Deus Ex in the first place. (It should be noted that Starkey’s article does not make any kind of mention regarding copyright reform; he is merely sharing his own introspection.)

The critics claim that copyright creates “artificial scarcity” in a time when technology demands abundance.  They say we live in a “read/write” culture today, but this is only a fragment of the larger picture because I think we also live in a “don’t read/burn” culture, in which whatever is viral (ergo profitable) continually overwrites the kind of fundamentals of cultural literacy referred to above.  One need only look at the state of our politics to see that my kids’ schoolmates aren’t the only ones who seem to have no knowledge of basic, historical facts and are living out Santayana’s axiom.  Yet, organizations like the Electronic Frontier Foundation like to draw circuitous lines from a creator’s enforcement of his copyrights toward a slippery slope into political censorship. This was in fact the crux of one statement after the Ninth Circuit Court ruling in Lenz v UMG.  As posted on the EFF site, attorney/activist Corynne McSherry says the following:

“The decision made by the appeals court today has ramifications far beyond Ms. Lenz’s rights to share her video with family and friends. We will all watch a lot of online video and analysis of presidential candidates in the months to come, and this ruling will help make sure that information remains uncensored.”

Aside from the specific rebuttal we might make to McSherry’s assertion that a rights holder can use DMCA to effectively censor a candidate or criticism of a candidate—because she can only be referring to very specific and rather unlikely circumstances—her larger point would be laughable if it were not so depressing.  Have the hyperbolists at EFF not noticed that our digital-age, 140-character politics have become more reminiscent of the volatile, populist, and naive 19th century than anything akin to the revolutionary promise of a more progressive 21st? Remix isn’t just some fun thing the kids do with a song and some video clips, as Mr. Lessig would tell us, remix is also what’s happening to truth, to science, and to journalism that’s trying to stay relevant in a world moving faster than the speed of real investigation. So, it seems to me that we could hardly detect censorship in a public debate so utterly devoid of facts, reason, statesmanship, or even solid reportage in many cases. Yet, the EFF would have us believe that it will be some musician taking a video off YouTube that will in some way harm our political process. If anything, it may be the musician who’s the only one making any sense.

This is not to say that social and intellectual progress is not being made in many areas, or that digital technology does not play a significant role in that progress—only that copyright terms (or patent regimes for that matter) are not acting as a barrier to that progress. For all the anti-IP rhetoric, these regimes are probably as generative as they have ever been, and I sincerely doubt there is any measurable evidence to prove that the copyright system is holistically out of synch with the 21st century and the digital market.  It’s just one of those things that sounds true and may even look true on the surface, but probably isn’t true if we really study the matter carefully.  If anything, the present reveals that the general consumer has ample (legal) access to more works than he can realistically experience.  At the same time, there are myriad social reasons why consumers do not access any number of works of art or scholarship, and it seems hardly reasonable to blame the rights of the artists and scholars for that.

In Part II, I’ll address the assertion that contemporary copyright is out of synch by acting as a barrier to the creation of new works.

© 2015, David Newhoff. All rights reserved.

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25 comments

  • Bunk!!!

    Anyone who has benefitted from access to works produced prior to 1923 trivially grasps the societal harm done by ridiculously expansive copyrights.

    Or just think about the impact if shakespeare were copyrighted ?
    Write “hoist by your own petard” or any of the myriads of turns of phrase we get from shakespeare and get sued.

    There is a mass of works from confuscious, through Milton, Dante, Homer, that are our culture.

    Recent Copyright changes have barred those things written since 1923 from acheiving the same pervasive influence on culture. Maybe an individual can verbally reference these – but write them and your toast.
    And what “fair use” we have is being further whittled away, by copyright rent seekers.

    Our founders thought that 14 years, with a one time 14 year renewal that required positive action was sufficient, That was in an era where writing took years, publishing took years and profiting took years.
    Today 95% of the economic gain of most works occurs in the first 18 months after publication.

    Only a few things have economic value that last for decades – those things that have enduring value are those that have become a part of our culture. Which makes any continued economic gain from them obvious rent seeking.

    Creators need to be able to profit from their works. But copyright and patent rent seekers attempt to confuse us by equating intellectual creations with real property. As absolutely critically important intellectual creations are to our society they are not real property. They share few if any attributes with dirt, cars, or appliances.
    When ideas are shared their value grows, when real property is shared its value is divided.

    We may need copyright, patent and trademark laws. But they need rational limits. Ones that reflect the nature of the creative process, and do not try to impose and artificial framework for real property that has entirely difference characteristics and attributes.

    Contrary to the authors assertion there are plenty of studies that show that the net societal economic gain from extended copyrights and patents is negative. That terminating copyrights and patents sooner rather than later improves the creative process and makes all of us wealthier.

    • dhlil —

      Thanks for commenting, but by my count, you’ve made eight or nine assertions, each of which implies a whole conversation, which is not to say that I’m hoping you’ll write a 4,000 word comment supporting each statement. But I don’t really know how to respond to your list of complaints other than to say that some of your statements (e.g. about Shakespeare) are just untrue, and others (e.g. the framers’ original terms) are probably un-researched. I’ll stand by my assertion that copyright isn’t a barrier to access at all, and if you want to claim the contrary is true, you have to at least back that up with either measurable or anecdotal evidence. But, as a reminder, this post is strictly about access and not about economics or derivative works; and it’s compartmentalized like that on purpose.

    • “. That terminating copyrights and patents sooner rather than later improves the creative process and makes all of us wealthier.”

      If by “all of us” you mean Google, Amazon and Facebook, you might be right. The rest of us, not so much. As for profit coming in the first year of publication, that’s pretty much the opposite of Chris Anderson’s Long Tail theory.

      And a single quotation like “hoist on your own petard” has always been considered fair use.

    • Shakespeare and Milton are dead and have been for 400 and fewer years and are no longer individual members of the creative class. Florence and The Machine are alive and well and hope to earn a reasonable living with their creative minds as participants of the creative class. When you sing along to Ship to Wreck keep in mind it is a donation of the creative mind, but fair payment allows this creativity to endure.

  • I find this quite interesting as a current student in library science. All of my teachers complain about copyright law standing in the way of libraries and their digitization preservation projects. For example, a recent visit to the Int. Tennis Hall of Fame revealed there are thousands of photos that they would like to digitize and put into online exhibits but they don’t have the time or money to track down and clear copyrights. Thus, access to the photographic history of the sport for an international audience is blocked.

    I understand that maybe the Google Books project is unnecessary in its scope and reach, but their Cultural Institute feels like it has great value in bringing the world’s art to an audience who may never get to the Louvre or The Met.

    Thoughts on this?

    • Why is it Google who should profit from the works, and not the actual people whose blood and sweat tears created it. Think on that for a minute, because that’s what you are advocating — intentional or not.

    • Thanks, shellteak. I am aware that libraries have specific concerns and face particular barriers, and my sense is that the copyright proponents understand the challenges. While I am not an attorney and cannot comment with legal authority on any particular project like this one, I am hopeful that accommodations might be made in any proposed legislative revision to support the efforts of libraries. How exactly that happens without giving Google & Co. free reign to just monetize anything and everything is another matter.

      As for the photo project itself, I’m a little bit skeptical about the complaint because it seems to me that making a scholarly attempt to at least identify who some of the photographers were is relevant to the enterprise itself. In a digital or pre-digital context, I would think a researcher, archivist, historian, or librarian would want to try to learn some of this information regardless of any copyright concerns. In this regard, how is this project different from similar endeavors for which funds are often raised or grants sought, etc.? Is this just about a handful of small libraries that want to put some photos online, or does a larger institution have a notion of doing a thorough job of turning these photos into a more complete project? I would think funds could be raised in the tennis world to do something great with these works, and the rights research may not even be the biggest challenge. And depending on what the real goals are, has anyone actually asked a copyright attorney? There may be thousands of photos at the Hall of Fame, but is the desire to really scan all of them and just put them online without any scholarship or research? Even that has a cost, but I can’t imagine that a raw dispersion of thousands of images would be as socially valuable as identifying the best 200 and doing some actual research about them.

      As for Google’s Cultural Institute, I’m naturally sympathetic to the idea that the world can visit museums they might otherwise never see, though I don’t believe for a moment that Google does anything for altruistic reasons. This initiative is too new, and I haven’t really looked at it enough to comment on it.

    • The problem is that it’s still for profit, just not by the people who actually produced the work.

      Why *shouldnt* a photographer be compensated?

  • What I see here are cherry picked dismissals and “scare quotes”. To my mind that doesn’t actually make a coherent argument. And no amount of ad hominem attacks on those who disagree with you will back those up.

    You’ve also conveniently lumped everyone in as a consumer and conveniently avoided that the whole point of creating a commons is so that we can inspire *creators*. (Like Walt Disney, and many others.)

    Let’s, as an example, dive your point about which works are rescued and which aren’t. They reality the fact that numerous works are being forgotten/lost because they remain in copyright, keeping those who want to rescue them from being ab;e to monetize their restoration for a small but passionate fan base.

    And “What exactly does one want to do with The Seventh Seal other than to watch it?” once again ignores the fact that what people want to do with older works is engage with them as art.
    To answer your question directly people want to:
    • Remake it
    • Remix it
    • Sample it
    • Edit it
    • Recontextualize it
    • Turn it into a novel
    • Make it a mini-series
    • Whatever it is that the work inspires them to do.

    The fact that you think you have your finger on the pulse of the creative urge and yet get it so spectacularly wrong basically undermines your entire argument, IMO.

    Beyond that, public domain works can be rediscovered in a way copyrighted works never can. The rebirth of “It’s a Wonderful Life” as Christmas classic in the 80s is just one of thousands of examples of the power of a commons to effect the cultural conversation.

    Of course massively popular works will continue to be restored/remixed/reborn because they are popular, whether they are in or out of copyright. Meanwhile, real popular works that could have real cultural value are being lost because there is no incentive (financial or cultural) to protect and promote them.

    • “You’ve also conveniently lumped everyone in as a consumer and conveniently avoided that the whole point of creating a commons is so that we can inspire *creators*. (Like Walt Disney, and many others.)”

      I guess you missed the part of this essay where I very clearly stated that in Part I, I am addressing only consumers who have no interest in functioning as creators of any kind. In Part II, I’ll address the creation of new or derivative works, which I’m sure you also won’t like; but I think I was clear about compartmentalizing the subjects and why. Hence, your comment about The Seventh Seal actually belongs in that topic, but my short answer to your list of uses is that all of those things are possible with the work still under copyright, though some of them would require permission.

      Your assertion regarding preservation and restoration seems to be that some works under copyright are being allowed to disappear because they are both under copyright and lack sufficient popularity to warrant reinvestment in fresh distribution. This may be true in some cases, but if it is, the copyright reform crowd tends not to mention these works very often. Which works? Which media? Which audiences? It’s easy to make the generalization you’re making, but specifics get much more complicated; and you may find that copyright isn’t the real barrier. And I honestly have no idea what you’re talking about with regard to It’s a Wonderful Life. Do you mean the brief period when people thought it was in the public domain? So what? In what way did that mistaken assumption change the relevance of that film? It’s been a Christmas classic since long before the 80s and still is. And it’s widely available if anyone who wants to see it.

    • Funny you mention It’s A Wonderful Life: when colorization was new, Frank Capra wanted to supervise the process. However, since it was (believed to be) in the public domain the colorization people told him to take a hike:

      https://en.m.wikipedia.org/wiki/It%27s_a_wonderful_life

      As for your Seventh Seal example, I would hope that most authors could come up with something more transformative than a novelization

  • Pingback: Copyright Doesn't Restrain Culture - Part II - The Illusion of MoreThe Illusion of More

  • I’ll split my response into two parts as well.

    “Or as Robert Levine puts it (and I have quoted him on this before), “It doesn’t matter if copyright is Life plus 70 or Life pus 50 years, because on the Internet, copyright lasts about ten seconds.” ”

    This is actually quite a good statement. My copyright abolitionism doesn’t much care about the debates over copyright length precisely because any enforcement of infringements whatsoever is futile. (If artists are paid in the here and now, it is not to the credit of copyright law that they are paid, since the option of pirating is undoubtably open – it is a situation where people “do the right thing when nobody is looking”, and this was the case even before the internet). And the legal cases of infringement we do see on the news are purely anecdotal in the face of the tsunami of piracy that actually occurs. Millionaire criminal pirates probably WANT folk like Kim Dotcom to be arrested so that they can eat away at the new gap in the black market. Rather like the drug dealers who forever long for competition to be shot down – and we all know how much of a farce that other “war” is.

    ” “You can’t stop piracy,” or “Piracy is a reaction to scarcity,” ”

    I’d prefer to say that piracy is a reaction to failed attempts at scarcity. There is a reason why the Federal Reserve does not hold a JPEG dollar as legal tender. There is also a reason why the copyrighted – and therefore scarce in theory – pieces of paper called Monopoly money is used as a metaphor to ridicule and insult a politician’s financial policy. It is not something even Ron Paul would advocate in his blitheringly stupid world of replacing the nation’s dollar with privately competing currencies.

    Thankfully I don’t have to believe in such a doomed attempt to solve the free-rider problem for artists. I have assurance contracts for that, and I can defend the rights of artists – and derivative artists – better than copyright advocates as a result. “You, the audience, must collectively pay me $1,000,000 before I’ll do this project – the profit I make is my business only”. Functioning market right there, without the books and books and books of copyright framework containing a hopless number of contradictions. Occam’s Razor is the superior virtue here. You could even call assurance contracts a “paywall”. Enforceable, workable, even Lockean. With all the protection of property (strictly speaking, the protection of labour where the money is the fruit), and with no need to draw ridiculous lines on free expression by self-appointed “un”corruptable censors who think the slippery slope of censorship doesn’t apply to them in an arena that is by definition riddled with artistic subjectivity. If it weren’t workable, tickets for gigs, subscriptions for monthly content, pre-orders and Kickstarter/Patreon (only still in their infancy!) would not be possible, as these too are assurance contracts.

    “Meanwhile, long copyright terms are probably the most effective mechanism by which to preserve classic works that at least some portion of the market does want to access, and in formats in which they prefer to experience them. Maintaining licensing regimes funds necessary restoration, remastering, fresh translation, publication, distribution, and other labors necessary to produce fresh editions of media that are desirable to the market for a large number of classic works. (Because if one is going to make an evening of an Ingmar Bergman film, one does not to watch some crappy digitization of it on YouTube.) Yet, nearly two years ago, the Duke University Center for the Study of the Public Domain released an article, devoid of any clear thesis, complaining rather strenuously that a list of great works, including Bergman’s The Seventh Seal, remained under copyright as of the start of 2014.”

    That incentive for additional work can be met through assurance contracts too.

    I should also add, with this lens you don’t see any overlap of the rights to fruits of labour. If I worked to build a car and my friend also worked to build a car, exhibiting the same elbow grease but in separate rooms, we’d both still reap fruits. But if I worked on a comic and my friend also worked on a derivative of the same comic, exhibiting the same elbow grease but still in different rooms, one of us according to copyright advocates has to sacrifice their fruits. This is what I mean by “overlap”. Thankfully, with assurance contracts this doesn’t have to happen: we can both ask for collective payments from our respective audiences before the work is released even to a single person, and we can both get paid what we ask for. No manufactured overlap needed – both original copies and remastered copies get their fruits. Intellectual property is all in the mind, after all.

    If you insist, trademarks can be used to clarify who was the original artist and who was the derivative artist for each of those respective comics in the above example. I myself would probably insist, actually. Trademarks are a form of artificial scarcity that is able to work and is morally fine, because the consumer does not like to be subject to fraud in the same way they might want to pirate, making it more practically enforceable as well. And it is these trademarks that allow for added value, quality assurance, rights of “identity” and “endorsement” using official seals of approval given to the artist, rights against defamation, rights against plagiarism and a few others. No copyright needed. I do get rather annoyed at the way copyright hijacks these things as if they could not be discussed outside such a sphere.

    “All of which is to say that I suspect that with every new work that might be made more available by “rebalanced copyright,” we may simultaneously see new social and cultural reasons for consumers to disenfranchise themselves from works anyway.”

    This is a bit of an irrelevant point. This stupid mentality in universities right now has nothing to do with copyright. “Culture’s going down the toilet anyway, so why bother with changing copyright?” seems to be trying to make the best the enemy of the good, and attempting to change the subject.

    “Last week, my kid’s middle school had a Dress as a Movie Character Day recently, and so my daughter (because she’s my kid) went as Charlie Chaplin.”

    It’s funny you should say. I recently went to MCM Expo here in Glasgow, and there were countless cosplayers of all kinds of superheroes everywhere to be seen. In other words, MCM Expo was deliberately mass-profiting off of the infringements of other people’s creative works via users that it was supposedly not responsible for. It must be stopped.

    “So, can anyone rationally argue that accelerating the progress of works into the public domain has anything to do with a broader literacy?”

    I can certainly argue that the ability of a copyright holder, who may or may not be the artist, to restrict the translation of works is a deadly thing regardless of whether that ability gets used or not. I am entitled to invoke Tolkien: “don’t tempt me Frodo, I dare not take it, not even to do good”. Since you mentioned Hitler in a way that would not prompt an accusation of Godwin’s Law, let me do the same. It is certainly true that he did not want copies of his book Mein Kampf to be translated into English, for fear that would educate the Land of the Free to the evils of German National Socialism. The story is told by former U.S. Senator Alan Cranston: http://globetrotter.berkeley.edu/people/Cranston/cranston-con2.html . What hits me hard here is when he says “we did wake up a lot of Americans to the Nazi threat”, at a time when quite a few movements of the U.S. were reluctant to intervene in the Anschluss and Sudetenland takeover, and even the Spanish Civil War, after just coming out of a very truely pointless war in Europe 20 years before. Translations are a moral necessity here whether the artist likes it or not, precisely because of the need to resist “prior restraint” – the assumption that somebody is in a position to make these calls. The whole point about freedom of expression is that nobody can appoint an uncorruptable censor, so when copyright advocates de facto appoint THEMSELVES it is much more laughable. But to answer your previous thought, the word “deadly” about copyright is only an exaggeration on the grounds that it didn’t do a damn thing to stop the circulation of the English translation against the author’s wishes, and a good thing too. Freedom of expression (and not the other half of the false dichotomy “freedom of ideas”, for this very reason) after all is not just the right of nasty speakers to express themselves, but the right of everyone to LISTEN. Whine about the alternative of warning about Mein Kampf as literary criticism instead of infringement all you like, you can’t really study somebody’s mind if you have to hear second hand quotations (that themselves were chosen through self-appointed prior-restraining cherry-picking) all because you speak the wrong language, and you can’t really know thy enemy as a result.

    “But what if the motives of the artist are pure” I hear you say, “not all artists are Hitler” well thanks for clarifying. Let us then take an example of how intentions can start off pure, but quickly turn sour. Take Paramont Pictures. Only at the end of last year Sony Entertainment suffered a direct assault on their freedom of expression by North Korean persons who had nothing better to do with their time. The reaction was not quite as schadenfreude as initially seemed – many showed solidarity with Sony by encouraging them to man up, release The Interview and not give in to threats. Sometimes politely, sometimes not so. As the cinemas were waiting for the movie to be or be not delivered to them, only to find it unlikely, one cinema decided to display Team America World Police in its place. A noble “fuck you” substitution, most thought. There would have been parties, protests, and a lot of under-the-radar North Koreans potentially waiting to pick up said signals and start a much needed revolution. I did indeed see such hype on Twitter, which would have multiplied upon the event itself. And what did the copyright owners of Team America, Paramount Pictures, do? They banned it. Not because they suddenly loved the Kims, but because they were afraid they would be next. If this were the Prophet Mohammed, who is arguably under formidable de facto copyright protection at this moment (and will still nonetheless fail), the fury from human rights and free expression groups would be rather loud. But the main point is that a movie producer can sure as hell start with noble sentiment, but let it rot at a moment’s notice. It must not be allowed to happen because these moments are revolutionarily crucial. “I dare not take it” indeed. On that rare occasion, copyright stops being futile and starts being dangerous.

    You must also honestly ask yourself the following question: if the ideology of copyright were around during the Reformation, and the Catholic Church claimed a moral copyright against the upcoming Protestant rebels who were attempting their own derivatives and translations of the holy book, would it have been moral to claim such a copyright? There are some who to this day insist the Bible must not be translated into English, and that the Koran must forever remain in Arabic. Why does the moral disgust of such a proposition dissipate the moment we consider the hypothetical case of these books obtaining copyright status and the prevention of derivatives or translations? Or indeed the derivatives of the copyrighted characters, into something like Life of Brian? Because we all know the pious would damn well push such bans forward. And fail.

    And this is not to mention the dissidents of the Soviet Union who were using fax machines to circulate pirated literature among themselves. You can be certain today that, despite the rampant DVD piracy in China that doesn’t even depend on the internet (good luck stopping that), the Chinese state will not tolerate the piracy of literature that challenges their liberation army – and you can bet anything you’ve got that useful idiots will line up to defend such clampdowns in the name of copyright. See http://www.itnews.com.au/news/microsoft-boosted-by-chinese-piracy-clampdown-78034 for instance: we can’t have software unapproved by the Chinese state and therefore unhacked and unbugged by the Chinese state to proliferate too easily now can we? Unless you’re in the mood to suddenly start trusting Silicon Valley.

    It’s a damn well good thing that such copyright enforcements via all the force theocracy could muster would have fallen flat. If I’m sounding hyperbolic with examples, good. Because it hammers home the point that copyright’s futility should be a virtue. Copyright is not only not possible, it is also not desirable. It is deeply pleasing that such a horrid notion is like attempting to circulate Monopoly money as legal tender. So to conclude on the original quote, you can rest assured that lack of protection accelerates literacy, and on quite a crucial scale too.

    “Exceptional individuals like Mr. Starkey have throughout history found ways to educate themselves beyond the barriers of their circumstances.”

    By grabbing a pirated Deus Ex. In other words, copyright is incapable of doing its job, as I’ve been saying. “Why must I pay for this art? Because the law will really hurt me if I don’t.” – The day I hear an audience say that and really believe it is the day I’ll reconsider. Until then, I’ll delight in “because it’s the right thing to do” as a big plus for us on the abolition side.

    • I can certainly argue that the ability of a copyright holder, who may or may not be the artist, to restrict the translation of works is a deadly thing regardless of whether that ability gets used or not.

      Exceptional cases make a for poor argument. In the case of MK no one would read that, in whatever language, unless compelled. In any case nothing stops the quoting of relevant bits for illustrative purposes and criticism, regardless of translation. OTOH I’ve had translated OOC works where one would have wished that the dead author or estate still had the ability to restrict such awful translations from ever reaching the bookshops. In the case of MK you’d have had this:

      • “In the case of MK no one would read that, in whatever language, unless compelled.”

        Are you so sure? Propaganda is not just for choir, it’s for the non-believers to study too. If the English translation is forbidden from me, it restricts my ability to be educated about the mindset of Nazism, and to do something about it. There is no way to study it without experiencing it in some way. And ignorance of these things is not an option. Copyright is anti-dialectical for this reason. Anti-fascists have a right to study-thy-enemy.

        “In any case nothing stops the quoting of relevant bits for illustrative purposes and criticism, regardless of translation.”

        The motives of those doing the quoting and criticising certainy present an obstacle. You have to rely on them not to cherry/nit-pick, and not to quote out of context to misrepresent the actual message (some artist “identity” protection, by the way…). You are also putting your trust in someone who thinks they know what is the most important thing about the book to quote even if their motives are pure, whereas those who speak English are not entitled to judge for themselves by scanning it with their own independent minds. Those speaking the wrong language would be nonethewiser. For one thing, it would inhibit historians of other countries to study this stuff as primary sources – they’d instead have to depend on the not so reliable secondary echo chambers of the crowd.

        There is another baffling issue about the enforcement of copyright I’d like to ask: if copyright extends to your right to protection around the world on a moral level, how do you know your work is being pirated if you cannot read the language it is being pirated in? Such extraordinary utopian mindsets don’t seem to think this far ahead, and one wonders that maybe the only reason Dickens crossed the Atlantic to confront piracy in America as opposed to anywhere else was because he knew it was happening in another English-speaking country.

        “OTOH I’ve had translated OOC works where one would have wished that the dead author or estate still had the ability to restrict such awful translations from ever reaching the bookshops”

        I for one would like to know on what grounds we can trust the translations authorised by the copyright owner to be accurate in the first place. It is unlikely they would know the language, and would have to put their trust in a middleman translator. And if a better translator were to come along and improve the metaphors and imagery spectacularly, there’d be nothing he could do to do so, at the artist’s whim. In China, you can bet some films only get approved as long as mistranslations censor anything sensitive. Any unauthorised but more accurate competing version would have to be put down according to copyright and the Chinese state, in the name of “preserving the original message” – the exact opposite of it’s intended outcome.

        But even if you have a problem with bad translations even of public domain works, or of any derivative works, I have a magic solution – don’t buy it. If you’ve got such a problem with it, nobody is forcing you to engage with it, but don’t let that stop the right of others to compare and contrast the many variations there to discuss the best and worst things about the art in question. Trademarks are available to make consumers aware of bad and trusted brands of translations and derivatives.

        I should also add that I think consumers and audiences of art have a bit more self-respect about these things than copyright folk realise. Nobody seriously looks at the Brony phenomenon and concludes that was the original intended message of the artist. But if we must insist on clarification, trademarks do that job for us without copyright. People are smart enough to figure these things out for themselves, and fears of art being unjustly “recoded” in society are exaggerated. For one thing, art critics can “recode” just as easily by using fair use to quote out of context, so it’s a non-sequitur.

        Take Christopher Tolkien, who raises some issues about The Lord Of The Rings movies, saying they didn’t capture the mythology of the original story correctly, and feels the movies were more marketed towards 12 year-olds. Now, what does this mean? It means copyright can be used AGAINST an artist’s original message, and be “recoded”. Yet copyright is meant to be the defence against it! See Cindy Lee Garcia for an even more laughable example.

      • MK is/was boring to an extreme. I managed to get through Marx’s DC but not MK. In any case there was enough known about Nazism and Fascism by the mid 1930s to mobilize people against it.

        https://www.youtube.com/watch?t=64&v=ozndljflUgU

        Let me tell it it wasn’t because they’d read a translation of MK.

        You have to rely on them not to cherry/nit-pick, and not to quote out of context to misrepresent the actual message… they know what is the most important thing about the book to quote even if their motives are pure … by scanning it with their own independent minds.

        Of course there are bound to be people, with some excuse or other, to justify in the face of reality sitting on the fence:

        Oh if only I could read MK in English I’d be able to tell whether pogroms, marking people out for arrest and deportation based on their background, or political views is a good or bad thing. I just don’t know, it is so hard to decide.

      • Similarly you didn’t need to know how to read Spanish to know how to respond to this:
        http://www.soundclick.com/bands/page_songInfo.cfm?bandID=1167343&songID=10552614&showPlayer=true

      • Whilst I think on it China has precious little in the way of Copyright enforcement, so whatever one’s beef might be about censorship in China, copyright isn’t the either the driving factor, nor the excuse.

        I have a magic solution – don’t buy it.

        I have that solution to those that use the excuse that the music and films they consume are crap “don’t buy it” and don’t by other stuff from the same outlet. The point though was that “real artist” creators don’t usually sanction poor quality distribution of their works. There are enough examples of musicians warning their fans about crap re-releases of their back catalog.

        Trademarks are available to make consumers aware of bad and trusted brands of translations and derivatives.

        Trademarks do not do that. If someone wants a fashion item, they almost certainly don’t care that the one they are buying at the flea market for $50 instead of $500 is poor quality so long as it looks the part. People buy rhinestones and paste ‘Cartier’ jewelry for a few dollars rather than spending $100,000.

      • Funny you should mention the International Brigades. After having trying to defend Spain himself, George Orwell reviewed Mein Kampf and was able to deduce from it that Hitler would break the Molotov-Ribbentrop pact. http://www.openculture.com/2014/08/george-orwell-reviews-mein-kampf-1940.html I am sure the Nazis would have disapproved of his “immorality” in coming to this conclusion without their permission. Language barriers are to be enforced, after all.

        And I have to say that I find your assumption that anti-fascists did not want to understand the heart of the enemy at its core rather far-fetched. I mean, if it comes to non anti-facists in the present, and we take the example of Islamofascistic jihad, I guess you could say there are many content with assuming it is motivated by United States foreign policy and not wanting to study further, when in actual fact it is motivated by a belief in a supernatural dictatorship that demands war on all non-believers. I guess translations into English of these death cult scripts are never going to sway such fools who want to bury their heads in the sand about this, I concede that. But all the more reason to carry out the translations and make them loud and clear, lest we rewrite history and keep future generations, who will be in a better position to know better, in ignorance.

        “…in China, copyright isn’t the either the driving factor, nor the excuse.”

        Quite right. It is no excuse nor driving factor. But tell it to Microsoft.

        “The point though was that “real artist” creators don’t usually sanction poor quality distribution of their works.”

        Sure. And it is ultimately the consumer’s responsiblity to decide these things for themselves. We can only meet them half-way.

        “People buy rhinestones and paste ‘Cartier’ jewelry for a few dollars rather than spending $100,000.”

        But yet the $100,000 jewellery still sells nonetheless. So a £10 movie with an official seal of approval most certainly will too.

      • I’m pretty sure that the Nazi would have much to disapproved of Orwell for, translating the odd passage into English would have been the least of it. But in any case why would you be listening to Eric Blair on the subject, I thought you weren’t happy with taking the word of government propagandists.

    • James, thanks for your thoughts, of course. Your comment is nearly as long as the post and raises several issues that would require a few thousand words in response. I don’t have that time, but perhaps somebody else here will. It seems to me, though, that you want to use copyright and censorship interchangeably in many of your examples, which I do not think is reasonable. And I have to say that my reference to children not knowing the difference between a likeness of Hitler and Chaplin is not a proof of Godwin’s Law, which really refers to how quickly someone will invoke Hitler in a heated online debate or argument, usually about politics.

      Interesting also that you bring up translation in light of my recent post about Shakespeare. The OSF project is an instance in which English is being translated into English, creating mutant works that are being called “modernized Shakespeare.” That these plays may make the plots slightly more accessible to some audiences is entirely irrelevant to experiencing Shakespeare. Imagine if The Who came on stage and, instead of playing the rock opera Tommy, they simply told the audience the story. Conversely, Hitler’s wishes were about as irrelevant as they were psychotic. America certainly did not jump into the war because our citizens all read his book and said, “We gotta get this guy.” I’ll have to read the Cranston piece, but Roosevelt was already predisposed to join the fight, and Pearl Harbor was the catalyst that rallied the population.

  • “James, thanks for your thoughts, of course. Your comment is nearly as long as the post and raises several issues that would require a few thousand words in response. I don’t have that time, but perhaps somebody else here will”

    Thank you. I hope despite the length it contributed something worthwhile.

    ” It seems to me, though, that you want to use copyright and censorship interchangeably in many of your examples, which I do not think is reasonable.”

    Well either copyright selectively restricts expressions (not ideas) and makes expression less free than it would have been, or it does not. It is not correct to say that the idea/expression relationship is one-to-many. It can only be one-to-one, lest we say that the slippery slope somehow doesn’t apply to us. We would quite rightly protest if a state claimed it wouldn’t fall into corruption after saying “sure, you can criticise us, just don’t criticise us in cartoon form – we’ll draw the lines so that your right to expression is still preserved”. We don’t talk about “freedom of ideas”, we talk about “freedom of expression” when the liberty comes up precisely because it protects how to express something as well as what is being expressed. That’s why the dichotomy is a false one.

    Some say copyright is “actually pro free expression, not anti, because it brings about the existence of art that wouldn’t have been possible otherwise” on the grounds that copyright “only protects the symphonies, not the notes” – I contest this with assurance contracts, which grant the power to protect symphonies and more derivative symphonies on top of that without the assumption of copyright, but the initial premise is a narrow one. A word is a “symphony” of letters. A sentence is a “symphony” of words. A paragraph is a “symphony” of sentences. You’re going to have to work harder than that to draw your lines. But of course we can absolutely trust objective line-drawing over a subjective matter, making us the exception to the historical rule, can’t we?

    “And I have to say that my reference to children not knowing the difference between a likeness of Hitler and Chaplin is not a proof of Godwin’s Law, which really refers to how quickly someone will invoke Hitler in a heated online debate or argument, usually about politics. ”

    That’s what I said. I said it didn’t prompt Godwin’s Law.

    “Interesting also that you bring up translation in light of my recent post about Shakespeare. The OSF project is an instance in which English is being translated into English, creating mutant works that are being called “modernized Shakespeare.” That these plays may make the plots slightly more accessible to some audiences is entirely irrelevant to experiencing Shakespeare. Imagine if The Who came on stage and, instead of playing the rock opera Tommy, they simply told the audience the story. ”

    This can be clarified with trademarks, not copyright. If thin-skinned infantilised university students for example wanted a triggerless account of the American Civil War, it just needs to come with a product-description label: “The following work is abridged as a failed attempt to stop giving offense, and the original has been changed”. Or something to that effect. The point would be put forward that it isn’t the original. You can’t really stop folk like these misrepresenting works through selective quotations and hyper-offense taking. Copyright is rather useless against it. You can’t control what people think of your work.

    “Conversely, Hitler’s wishes were about as irrelevant as they were psychotic. America certainly did not jump into the war because our citizens all read his book and said, “We gotta get this guy.” I’ll have to read the Cranston piece, but Roosevelt was already predisposed to join the fight, and Pearl Harbor was the catalyst that rallied the population.”

    The dialectic is still important. Knowledge of what is false is just as important as knowledge of what is true. The fact that it is a struggle to make folk wake up and smell the fascism doesn’t change that.

  • David, the post makes an informative read though I must confess that many contentions raised are beyond my comprehension. Having said that, do you have any statistical or empirical evidence for backing your statement that – “So, to put this in exaggerated terms, it wouldn’t really matter to a very large portion of the market if the works they don’t care to access had perpetual copyrights or if the works they do care about had ten-year copyrights because most consumers want to access current works immediately, and they will acquire them—either legally or illegally—regardless of copyright term”.

    i will appreciate your insight into this. Thank you.

    • Thanks, Seemantani.

      That statement is supported by measurement of both the legal and illegal market — at least for pop culture works like music, TV, and movies. The most popular shows, for instance, are also generally the record breakers on pirate sites. Standard industry data like ratings, box office sales, and paid rentals/downloads tell us what’s most popular in the legal market, and we have general reporting and formal studies telling us what’s popular on pirate sites. And the titles are generally the same.

      I don’t think this is a new phenomenon; people generally want what’s current — the most recent episode, the latest installment, etc. And with piracy, of course, we see pre-release viewing that is consistent with this general need to have the latest product ASAP. Game of Thrones is apparently the record-breaker for pirated shows to date, so even if that show had ten-year copyrights, what difference would it make when the whole series is just a few years old?

      As stated, the example is an exaggeration to make a point, but it stands to reason that if some work in which few people have any interest that it wouldn’t really matter if the copyrights never expired.

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