Copyright Doesn’t Restrain Culture – Part II

“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.

Professional Creators

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 always built upon experiences and 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 in 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 books 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 are 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.

The Kids

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.

© 2015 – 2017, David Newhoff. All rights reserved.

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  • Great post as usual…

    If anyone was paying attention to the “Happy Birthday” case, one can clearly see exactly where corporate abuse enters the picture. The authors were dead, the collector of the monies (Warner-Chappell) was not paying out to an estate, and the copyright in question was over 100 years old. Where is the benefit in that?

    I feel copyright is way too long in general. A patent is 17 years. A copyright is the life of the author plus 75 years…an absurdly long time if you compare the public benefit of Blitzkrieg Bop to the portable defibrillator.

    The inventor of a life-saving machine gets 17 years to cash in, the Ramones (or more likely their publishers) may be collecting into the NEXT century. No one is a bigger fan, and I’m glad that their loved ones can collect something now that they’re all mostly gone…but it’s just too long.

    Things need to fall into Public Domain for many reasons, not the least of which is the ever harder, ever more complex, and more expensive process of licensing anything that is under copyright. Oftentimes you may pay for a license for a song, only to find out later that there is a foreign entity that owns a piece of the rights, and the person who sold you the license either misrepresented what they owned or were unaware that there were other entities out there with a share of the pie.

    By this time, your movie may be in the theaters…Uh-oh….what now?

    It all needs to be clearer, more concise, and more cleaned up…

    • I’m sorry, but there are just too many leaps of logic there for me to let it slip.

      Let’s start with the difference between patents and copyright. A patent is a monopoly grant on a process or invention that is in no way unique to the patent-holder. Because inventions hinge on the physical properties of our universe, it is quite conceivable that many people can come up with the same inventions quite independently of one another (examples abound throughout history – the steam engine, for example, has been known since ancient times).

      A patent grant forecloses the ability of an independent inventor to exploit his invention, simply because someone else cleared the paperwork first. It is an important incentive for inventors to attempt to make their inventions public (where first-mover costs may be prohibitive, as with pharmaceuticals – I’ve read that the cost of FDA approval for a new drug is in the $1 billion range), but patent protection granted against people who aren’t plainly ripping you off must necessarily be limited in time, if only to ensure that other inventors are free to develop ideas that may connect with patented matter.

      None of these considerations apply to copyright, because collisions are scarce and handled rather differently (a work that is shown to be independently created is considered non-infringing – copyright protection is not absolute, unlike patents). Moreover, the question of authorship and integrity of work (the moral rights) is perpetual. That Romeo and Juliet was written by Shakespeare is not a matter of debate, nor is the shape and extent of the work in question. It is also clear that Romeo and Juliet is not Pyramus and Thisbe nor is it West Side Story nor any other work exploring the same themes (which are not copyrightable in the first place). Works passing into the public domain enables two things, and two things only:

      1. Publishers unaffiliated with the author can make money off of public domain works without obtaining a license and paying the (now former) rights holder,

      2. Creators of derivative works can openly exploit the cultural capital of an existing work without permission or cost.

      Both are essentially equivalent to the original creator building a house and being told – after some time – that they have no further rights to it and that anyone who wants to can move in. The public domain for copyrighted works is a land-grab, pure and simple.

      Here we come to the fundamental issue that nobody seems to notice: there is no pre-existing public domain for copyrighted works. Works don’t exist until someone creates them – and when they are created, they exist in the private domain. It is perfectly possible (I’d even suggest that overwhelmingly common) for works to exist throughout their whole lifetime (that is: until all copies are destroyed) without ever entering public awareness. The issue of public domain does not even arise until a work is published (if ever).

      Compare and contrast this with:

      1. Real property (land) – here we begin with a public domain (nobody owns the land until some people show up and parcel it up) that is divvied up and held in perpetuity. I’ve yet to hear suggestions that land should revert to its natural public domain state after a limited time.

      2. Patents – here, as mentioned, the matter subject to exclusive rights is the exploitation of natural phenomena for a given purpose. This too begins its existence in the public domain – inventions are up for grabs for anyone who has the knowing – and reverts to the public domain after protection ends.

      There is no actual need for copyrighted works to pass into the public domain. Works with market value will be exploited even under perpetual copyright, because it makes perfect sense. Works devoid of market value will be forgotten even when in the public domain. The only thing the public domain changes is who gets to make (or save) the money. Arguments for the public domain with regards to copyrighted works all boil down to: “I shouldn’t have to pay for this”.

      There is, admittedly, one scenario where the public domain does make sense: with regards to works from long-dead authors for which the chain of ownership can no longer be reliably established.

      Your example of a licensor misrepresenting the situation to you is frankly not at all impressive – nor unique to copyright. It is a contractual issue that may arise whenever you acquire some manner of rights or permissions and should be safeguarded against in the contract itself (through warranties and indemnities). Whenever you deal with anyone, you are always exposed to some risks. You CYA and get on with it.

      • Moreover, the question of authorship and integrity of work (the moral rights) is perpetual.

        But it is legal in the US to sell “Romeo and Juliet” with your name as the author.

        I’ve yet to hear suggestions that land should revert to its natural public domain state after a limited time.

        Land is scarce and this makes it very different from a non-scarce unembodied intellectual creation. It is simply a completely flawed comparison, because property rights in scarce resources and copyright are justified differently.

        Arguments for the public domain with regards to copyrighted works all boil down to: “I shouldn’t have to pay for this”.

        No. The main argument is that copyright enforcement is an extremely frustrating and exasperating task. Compared to crimes against scarce property it is not localized or similarly confined. No act of intrusion is necessary. It can be done in the privacy of your home.

        If we have to care about pirating teenagers in Ulan Bator or a mysteriously named, encrypted 5 GB file (which may may contain a few thousand books) on a Russian web server, it should be damn obvious there has to be a time limit for the service “enforcing artificial scarcity”.

    • What’s the benefit of a long copyright? Ask the Great Ormond Street Hospital, which has received the profits from Peter Pan since 1937. Or the Red Cross, which was donated the jazz standard “Take Five” (featured on one of the biggest selling jazz albums of all time) by its composer. Or the NAACP, which owns the literary estate of Dorothy Parker (she bequeathed it to Martin Luther King, whose family donated it to the NAACP). I have no problem with the owners having to renew those copyrights, but those rights being sewn up haven’t prevented “Take Five” from being covered and even paid homage by other songs, and JM Barrie and Dorothy Parker biopics from being made.

      And yes, the Ramones have surviving families. Why shouldn’t they benefit from that work? (Not to mention that The Ramones are a classic example of the Long Tail, having sold more later in their careers)

      as Faza points out patents are an entirely different business model, in which a lot of money is made up front.

  • I’ve had this argument before, and your example of Sherlock Holmes brings to mind something I’ve noticed. Holmes being in public domain limbo *has* resulted in a few interesting derivative works, most notably The Seven Per Cent Solution. This is a high end example, though, as Holmesians tend to be literate people. However, this is dwarfed by the cheap editions of Holmes that flood the market. This is great for the consumer but not as great a deal for the creator as it sounds . In theory one could write a great Holmes pastiche, but it would have to compete with dirt cheap versions of the “real thing.” In the end, publishers – those Evil Corporations everybody hates – are the ones who benefit.

    • I think there will always be low-quality works–to be snobbish about it–that will flood the market when a famous work or character enters the public domain. And that’s fine or not, depending on how one chooses to value that activity; but these works are usually fast-burn, pulpy editions that hardly merit the kind of high-minded rhetoric used to extoll the virtues of the commons. Meanwhile, the quality examples lie The Seven Percent Solution came into existence in the 1970s, when Holmes was still fully protected by copyright. The character only entered the PD as of 2014.

      • Sorry, I wasn’t clear. The cheap works in this situation would be simply reprints of the original Holmes works, benefiting nobody but the cheap publishers.

      • No, I think you were clear, and I’m sorry if my response was not. And I agree with this point.

  • “Protectionism” is seldom an incentive for true artists, content owners and others owners of intellectual property to create. Studies have indicated that there is an inverse relationship between stringer IPR regime and innovation (See the issue of Economist dated Aug 8,2015).Had the opposite been true, the knowledge economy in many Western developed nations would have reached it’s zenith.
    Plethora of artists “create” not for copyright royalties but for the sheer intellectual and artistic high that they derive out of their creation. Same holds true for many academics – who do not assert copyright protection over their writings. Hence, a longer copyright protection perpetuates nothing but “monopolization” of knowledge -which is an anathema to the “progress of science and useful arts”. [ My views are my own and they should be your’s too!]

    • Oh yeah the “No true scotsman” argument. Many artists that I know don’t not create they just don’t publish. We are guardians of about 200 canvasses by my wife’s ex. A friend of mine has umpteen tapes of her late husband’s songs, from back in the day he was a major folk artist, they will never be released. Photographers I know don’t publish work on the web. Writers don’t seek out publishers, or indeed self publish.

      The creative urge does not always result in an urge to make the works available. Indeed many ‘true artists’ refuse to have their work commercialized, and that includes having it used as click bait for advertisers and the likes of Google. Many ‘true artists’ are more concerned with how their work is presented than in money, and if the only way they can control how and where it is displayed is to not publish then that is a valid position.

    • Yep, plenty of people create for sheer pleasure – they’re called independently wealthy.

    • And again, you seem to be ignoring one of David’s key points – for many creators it’s not about royalties but the ability to say no when someone wants to co opt your work.

    • In further support of an anti-protectionism regime, read my recent blogpost at

      If someone wants to dig further into this issue, I don’t mind delving into demand- supply curves and all that fun stuff!

      • I appreciate your contribution, Seemantani, and also your kind compliment of the post. While I’ve stated in several posts that I don’t consider myself qualified in the complexities of the law to have a valid opinion about where terms should be–though I certainly have expert colleagues who could have a conversation about shorter terms–my concern is that the debate proceed from honest narratives.

        To that end, for instance, it is a false narrative to say that copyright terms as they stand are solely the work of lobbyists without any larger rationale, when in fact the most recent expansions have everything to do with maintaining parity with trading partners. If the debate centers on that rationale so be it, but so far, it tends not to be.

        The other big talking point with which I quarrel comes under the general topic of copyrights “stifling innovation.” My criticism to date is that all of the critics, pundits, and academics I’ve heard so far seem to make this assertion without defining innovation and/or without demonstrating any of the substantial stifling being done. With regard to the latter point, it seems to me IP is not only not stopping innovation among the biggest players (Google, Facebook, Apple), but that these companies are applying for patents at a very high rate. And, with regard to the former point, a rational debate about stifling cannot possibly treat all things new as necessarily innovative. Surely, somewhere within the brackets of fart-sound apps and driverless vehicles, we ought to be able to come up with a working definition of what it means to be productively innovative. And in the context of copyrights, I believe far too many business models have been called innovative that are really just new ways to cannibalize and devalue existing works, which does not seem like a foundation for progress.

  • seemantani: Sorry, I get used to anti-copyright zealots and I made an assumption :/

    • Not a problem. I am certainly not an anti- copyright zealot, however I do get bogged down by an “excessively protectionist regime”. Now you may question that who draws the line between “excessive” and “permissible”. Unfortunately, copyright laws and policy is often dictated by lobbyist, without due regard to average citizens.

      • I think that the average citizen wants that the photo they took of their kid at a party doesn’t get passed about as some anti-obesity campaign. That the photo they took on holiday doesn’t get used in some advertisement without compensation. That the music that their kid’s band recorded isn’t snaffled up to sell cars. That the book that they wrote in the evening and weekends doesn’t get turned into some Hollywood movie without compensation, etc, etc.

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  • In this rapid-remix market, we sometimes risk losing distinctions among unique voices until we end up with what Jaron Lanier calls “one book.”

    Lanier utterly failed to grasp the seriousness of situation when mass piracy started (see “Piracy Is Your Friend”), he (as a “technologist”) failed to see where Moore’s Law would take us. Now he says crazy stuff like “The NSA should pay people which it spies on” and believes society will collapse if the “information wants to be free”-crowd isn’t stopped. Not wars, not depletion of resources, not global warming, no, “free information” will doom us all.

    Why should we pay attention to this silly, confused person?

    • Perhaps there’s a distinction worth making between the gospel of Lanier and considering some of the observations he makes. I think he’s admitted to a measure of short-sightedness on his and his colleagues’ part. Regardless, his point about the “one book” from You Are Not a Gadget is not without merit, which is I cited it.

  • Part 2. I’ll try and condense this time. I know my lengthy essay writing can be a pain to go through.

    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.

    It sounds like this is more of an issue with libel than it is with copyright. I’m rather suspicious of the logic of libel in the first place – I feel it is the responsibility of the audience to get their facts right rather than the speaker to give a correct opinion. I come from the U.K. where our libel laws have historically been a disgrace – just look at how that monster Roman Polanski used them to sue Vanity Fair from France, and succeeded. Then again I can sort of grudgingly acknowledge through my teeth that false accusations that start lynch/vigilante mobs might be a bad thing (though, one wonders how the victim can sue after being murdered by the mob).

    In the case of copyright, if you assume that Aerosmith – one of the great rock n roll bands – are the kind of folk who’d actually endorse Donald Trump, as has been going round the news recently, it must be the folk who would actually believe such a thing who ought to be called out as idiots. Same with seeing a low-quality remix of Aerosmith songs and assuming Aerosmith took the time and effort to do it. It’s the idiocy of the audience that’s to be addressed.

    But even if it wasn’t, it’s easy to resolve with a legal disclaimer: “the following artist does not approve the following message”. We sort of have it with DVD commentary already: “the opinions of the commentators are their’s alone” etc. Plus, it should be noted that Trump used a blanket license for Aerosmith songs and the band had to instead rely on exceptions for their legal case. If you can sell your copyright, but still want to use your copyright for something, chances are that certain something has nothing to do with copyright. Which would tie in with what I’m saying about it better being in a libel legal sphere instead.

    …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.

    Same goes with this I’d say. No company would want to devalue itself and appear cheap by having to put such a “not endorsed by” disclaimer beside the art in question. If anything, it incentivises the company to find art which IS approved and gives the artist the ability to negotiate prices for endorsement, in order for the company to appear more valuable than competitors. Trademarks aren’t exactly worthless, remember.

    Nevertheless, by some miracle, literally millions of creators can simultaneously and independently produce new works while only very occasionally create conflicts of copyright.

    I wonder how much of this is down to copyright’s futility to enforce against more conflicts than it could, rather than down to the supposed success of the law itself. But such extra enforcement is not to be desired anyway. The works that could have existed had it not been for copyright’s small space of influence are still an issue. Nobody is allowed to retell and therefore make better Star Wars prequels on a grand scale, instead having to rely on homages and symbolism, which degrades the story considerably (and also causes “dilution” of what the story is recognised as within our culture, funnily enough). You can’t really accuse everyone else for trying to murder Star Wars by making better derivatives to substitute Lucas’ terrible prequels, which have arguably done the most murdering.

    On websites like deviantArt, the derivatives are clearly better than the originals on many occasions, and contribute a lot more to the original story. We’re smart enough to know not to confuse the derivatives as being approved of by the artist, so that’s not a problem either. Yet this website is not safe legally as it profits from the infringements of other people’s works, and must be shut down in the eyes of some. As if it can be stopped. And in the name of rights to fruits of labour! This is not the belief of a rational actor.

    People have the right to listen as well as to speak. And because assurance contracts allows both the original and the derivative to be rewarded with fruits for their labour, there doesn’t have to be any kind of conflict at all, and we can listen to all kinds of dialectical contrasts between story retellings to better understand the values of the original. The old saying about freedom of expression holds true: you contribute to the platform not by subtracting expression but by adding it. We would be free to pay for what we wanted whether it was original or derivative with assurance contracts, and no fruits have to be sacrificed for an unnecessary overlap of rights.

    In short, derivative artists have rights too. They deserve credit for trying to revive art that’s been disgraced from within. And I never seem to hear about their rights to a living in quite the same determined way among copyright circles without being treated as unequal and second-rate. “Cat video fanatics” they’re often slandered as, as if the Photoshop geniuses on deviantArt spew nothing but stick-figure animations on YouTube. There’s a really upper-class, snobbish tone to it. And it needs to be confronted.

    • I feel it is the responsibility of the audience to get their facts right rather than the speaker to give a correct opinion.

      Falsehood flies, and the Truth comes limping after it; so that when Men come to be undeceiv’d, it is too late; the Jest is over, and the Tale has had its Effect – Jonathan Swift and similar by Pope, Jefferson, and others.

      No company would want to devalue itself and appear cheap by having to put such a “not endorsed by” disclaimer beside the art in question.

      What do you recall about Virgin Media? How about the Daily Hate Mail? Or Google, or Gawker, or Associated Press? How about McCain in 2008?

      • From a passerby

        The problem with the issue of association is that it’s a chicken and egg problem — in a regime where people expect that unauthorized use will get one sued, use carries the connotation of permission or endorsement. If there were no regime requiring permission, mere use would carry no such connotation.

        Of course, whether a creator may be affronted by mere use, rather than the impression of endorsement, is a slightly different issue.

      • Such falsehoods, if pushed to an inconvenient level, do not need copyright for rectification. They need truth.

        And the last time I looked, these corporations don’t seem to put the “not endorsed by” disclaimer beside each infringement or cultural “appropriation”. Yet people such as yourself have not succumbed to their “false consciousness” as you can evidently see through it – both of these terms are rather meaningless, the latter especially. Mass media doesn’t “brainwash” – I learned this ever since reading up on how Chomsky can be full of utter drivel.

        And in regards to the former, I thought this article in the New Statesman recently was very good:

      • No they don’t put a disclaimer next to it, they silently remove the infringement, hope that the copyright owner doesn’t or can’t afford to sue, blame it on an intern, and know that the general public won’t remember the details five minutes later.

        I also see through the shite spouted by ‘useful idiots’ that embolden the corporate thieves of culture. Effectively ‘The Commons’ has been as effectively enclosed as the commons were in the 17th through to 19th century. All we have missed is the evictions, but the resulting starvation is the same.

    • Thanks again, James. A few points:

      It’s important to separate compulsory licenses from public performance. Right now, compulsory license of music means an artist can perform or record a cover of any song that’s written without making substantial changes to it; and as long as he pays the licenses, the original creators cannot stop the new artist from creating the cover. The concern among artists to which I referred was about expanding compulsory licenses to compel an artist, for instance, to accept his work potentially being used to create a new work, like a promo video or commercial or new version of a song, that is anathema to the spirit of the original. So, white supremacists take Steve Wonder’s “Isn’t She Lovely” and turn it into something hideous, and Stevie would not be able to do anything about it, which has nothing to do with the public being confused as to what he endorses or libel.

      Public performance rights of existing recordings are different, and they are compulsory. If a presidential campaign pays the PRO license, the candidate can play the music he wants as takes the stage for a public appearance. I mentioned Neil Young as an example of the fact that, if certain people hate the candidate, they will tend to side with the artist even though the artist is probably wrong about his right to tell a candidate to stop using the music. Odds are Trump has the PRO licenses he needs, but his campaign clowns didn’t want to make fighting with Neil Young a story. (Not that it would be less substantive than anything else he says.) Nobody is confused that Aerosmith endorses Trump, I think, and they are generally confused about copyrights in these cases. As I say, I bring it up because even in confusion, people often side with the sentiments of copyright.

      So with regard to derivatives and the idea/expression dichotomy, again, I think we’re talking two separate issues. The point I was making in the quote you cited is that most creators just go about their business making things and don’t give much thought as to whether or not their work might infringe. And this works, not because of a lack of enforceability (though you could certainly argue that most artists could not and would not choose to be chronically litigious), but because the idea/expression dichotomy actually works. Star Wars is a good example because everything in the original film is basically taken from another movie — in some cases, actual compositions. But at the same time, nobody can argue that it’s not a unique expression. And it can be copyrighted as a complete film, and most of the components that make up the Star Wars universe can be, and are, individually copyrighted. So, it’s true the copyright holder owns the derivative rights to the entire franchise, and yes, he might make derivative works that suck, but they are his inventions to shepherd or screw up as he sees fit. And the viewing public has every right to love or hate the work produced but no right to claim the works are not his.

      You can argue that unofficial derivatives may be better, and I may even personally agree with you (or many people may agree with you), but copyright should be agnostic with regard to taste or high art v low art, etc. The derivative right belongs to the rights holder, and I do believe that’s as it should be, even if the right holder destroys his own franchise. On the other hand, I know that Lucas had to step in early on because someone had created an early derivative involving a love story between Luke and Leia. You can see how this interrupts the story he intended to tell, and nobody has the right to derail the process involving both a creative and financial investment.

      I admit to a certain bias inasmuch as I don’t care much about endless variations on Star Wars or other franchises because it becomes rather tedious and repetitive; but beyond my personal bias, I do think culture is best served when creators are inspired by other works but must stop short of remixing the same popular elements over and over. It’s the creator who says, “I can’t use Star Wars” and then works around that to create something new who most likely adds something of great value. After all, the story is that Lucas created Star Wars because he couldn’t get a license to make Flash Gordon. It’s not so much a question of taste (I’m not even much of a Star Wars fan), but if Lucas had devoted his energy to asserting his “right” to do Flash on the Internet, perhaps there would be no Star Wars.

  • “…which has nothing to do with the public being confused as to what he endorses or libel.”

    Well perhaps it should. I agree with your legal analysis, but I believe the cause should be fought on expanding anti-libel rights rather than going through more copyright circles only to overcomplicate things further, so that the Stevie Wonder situation makes more sense in regards to slander. With added disclaimer and trademark regulation to boost this, too. Otherwise folk like Cindy Lee Garcia will fall into the trap thinking reformation of copyright can protect her from slander (not that it matters, the fascist thugs who threatened her knew fine well he words were dubbed in – folk like that are beyond reason literally because of their faith, and are a threat to civilisation, which is the bigger picture).

    If you’re worried about “Isn’t She Lovely?” being blasphemed by white supremacists, which is more towards what you’re getting at I think, all I can say is that trying to stop blasphemy has had a historical record of being unsuccessful. I choose this word deliberately because a significant difference between us is I don’t believe art is sacred. Nothing is sacred.

    “And this works, not because of a lack of enforceability (though you could certainly argue that most artists could not and would not choose to be chronically litigious), but because the idea/expression dichotomy actually works.”

    Well we could go back and forth about this, but ultimately I think that if artists are struggling by exhaustively sending DMCAs to many sites only having to repeat the struggle the next day and still not suitably reducing piracy (and that’s just the piracy they know about), there’s more credit to my conclusion than it seems that copyright is not doable in the first instance, since we’re not even factoring in derivative infringements at this point. And though my legal knowledge of this is limited, I’d place a safe bet that DMCAs are easier to file and conclude than lawsuits, so I can’t imagine what it’d be like without that DMCA. Even a small-claims court system would be a nightmare for artists and court officials alike. The “I am Spartacus” effect of piracy is the cause of this exhaustion: you can’t get everybody, you can’t even get over the first hurdle, and you end up giving up. Focusing the lawsuits on the “big fish” of big pirate sites ignores the root problem: the people who use these sites and give them traffic in the first place, who will forever remain undeterred. As long as those people exist as demand, someone will end up supplying. Because it is they who truly make piracy happen and bring the pirate sites into existence, not the other way around. It is bottom-up, not top-down.

    So I guess I don’t have to fear about many real-world idea/expression trip-ups for this reason. I don’t think anybody can draw those lines on subjective territory anyway, but it is besides the point in the end, until we can resolve the much more major conundrum above which I don’t believe we can.

    • And I should also add that I think this unenforcability was prominent before the internet too. Unlike most on my side of the spectrum I don’t depend on the internet for my copyright abolition, though it is a bit of a bonus. Ever since I read up on Dickens’ travels across the Atlantic to confront piracy (which if I remember correctly he himself believed he wouldn’t be able to stop, he just wanted to investigate and debate), I’ve felt that there’s something deeply and tragically wrong with this philosophy. Overtime I’ve got better metaphors to describe what I’m on about – Monopoly money for example – and they revolve around this innate feeling that it’s a bad idea to even try and watch over the planet for what kind of copying folk can do behind closed doors.

      I also read about the history of one of America’s finest, immortal pieces of art – the Statue of Liberty – and read about how it was partially paid for by what we might now call “crowdfunding” : . And I started to realise what assurance contracts might do if more freedom of assembly was cast. And as more communication is opened with more technology, more freedom of assembly will correlate. We’re starting to see it now, and I have a suspicion that it might be the true revolutionary way forward.

    • “Well we could go back and forth about this, but ultimately I think that if artists are struggling by exhaustively sending DMCAs to many sites only having to repeat the struggle the next day and still not suitably reducing piracy (and that’s just the piracy they know about), there’s more credit to my conclusion than it seems that copyright is not doable in the first instance, since we’re not even factoring in derivative infringements at this point.”

      THIS is your argument?
      Seems to me your ‘people aren’t following the speed limits, let’s do away with them’
      argument has more to do with the impotent pre-broadband DMCA law than copyright…

      • My main argument is Monopoly money, or the Federal Reserve having faith in JPEG dollars. The fact that nearly everybody would break the “copyrights” in those instances for their own gain would actually be a good argument for doing away with the JPEG bit of the law.

        There are such things as laws that are useless because they demand competency levels from the state that are impossible. It would be silly to pretend otherwise. See anti-drug laws, anti-prostitution laws, anti-gambling laws, prohibition laws, etc. It’s a dirty secret that laws are only good if the people are willing to follow them. Order creates law, not the other way around. Only a minority of people speed in open view, which is what makes it enforcable. But many more do all the above, and in ways that would require severe privacy-infringing policies from the state to seriously tackle.

        Here, when it comes to copyright, you don’t (mostly) even have police, you have lawyers. Slow, sluggish, underpowered lawyers. And you have to watch over the entire planet for theft of property in hundreds of languages (and their derivatives) – something unique to property protection. Plus, you have to assume that states will take your side in copyright cases – clearly one glance at China tells you this is utopian, frankly.

        And if you acknowledge that education is needed to tell folk to pay for art and give it value (which I do), you acknowledge that this plus assurance contracts and trademarks are sufficient on their own without copyright.

        Who’s really going to stand here and say it is possible to punish (and deter from doing again!!) at least 50% or even 20% of the millions of infringers on the planet? It really has become a matter beyond the shallow reward/punishment vision of morality whether we like it or not.

        “We’re just not trying it hard enough” isn’t enough of an argument.

      • Actually we have laws that can be enforced given the will. Indeed China is a case in point, they are increasingly gathering the political will to enforce copyright, and other forms of IP law. Why? Because they are developing IP of their own and are starting to want other states to honour their IP. Also because much of their business is in the manufacture of designs from other countries that don’t want their IP ripped off. In many manufacturing facilities you can’t get a usb drive through the gates. The Chinese home grown film industry is languishing because of rampant copyright abuse. The state is moving against it.

        One answer would be to take the sites that facilitate copyright infringement offline, disconnect them from the internet.

      • Why do you sound like OJ’s lawyer? “If the glove don’t fit, you must acquit”.

        ..” if you acknowledge that education is needed to tell folk to pay for art and give it value (which I do), you acknowledge that this plus assurance contracts and trademarks are sufficient on their own without copyright.”

        No. No no no.
        Your giant leaps of congruent thought are jarring to the senses. One does not correlate to the other.
        Your statement is no different than saying “the sky is blue, so everyone’s favorite color is blue.” It’s a stupid nonsensical argument.

        “My main argument is Monopoly money, or the Federal Reserve having faith in JPEG dollars. ”

        I just don’t know what to do with that statement..

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