Trying to Understand Copyright
When Mark Barrett of Ditchwalk recently mentioned that he’d been engaged in a conversation that declared copyright antiquated, he linked to my post about piracy. I was flattered, because I respect Mark’s posts on his site and his comments here, but a little flustered, because he saw what I was trying to do with my arguments about copyright before I did. And I wrote them. My post about piracy IS trying to hold as a central thesis that copyright is an outdated notion. Thanks, Mark, for pointing that out to me so succinctly. I’ve never been witty because I lack brevity.
Anyway, to get on with the post:
We want professional content, so we need new business models for artists that allow them to become professional without selling copies of their work, since new technology is proving that difficult, or, at least unsatisfactory while lacking uniformity. So we need new business models for artists. That’s one issue to solve. I’ve mentioned a few ideas for new business models before, here and here (bottom of post). Those barely tap the surface – I’m sure there are others. I’m not a businessman, so I’ve spent less time brainstorming ideas than I could have.
In fact, the few possible models I’ve presented I’ve listed for two real reasons: 1: I abhor the presentation of problems without the presentation of possible solutions. They already have a word for that and it’s called complaining. And 2: I didn’t want to just gloss over the business issue by simply saying it was someone else’s problem to figure out. I didn’t want to just say there were other possible models without suggesting some, if only to spark ideas or begin to move toward a solution.
However, in truth, the business aspect of copyright doesn’t particularly interest me. What interests me more are the social aspects of copyright – the idea of copyright itself. The definition of copyright, if you will – why copyright exists, what purpose it serves, what gives us the idea that speech, text, sounds, and visuals can be copyrighted, and why we might feel this way. I am absurdly interested in motivations and reasoning – I like to know what people believe, but more importantly, why people believe what they believe.
So that’s the goal of this post – to try to tease out some meaning, to try to put myself in the place of someone who not only believes that copyright is a necessity, but also that it is a right. After all, “right” is in the word itself, is it not?
(Side note – I’m sorry if the prose in this post tends a little toward a schoolmarmy lecture-voice. I’ve been reading Bertrand Russell lately and he always does that to me. Stuff you’re reading always bleeds into your writing style sideways, at least for awhile.)
So it seems to me that copyright, and the idea that copyright IS a right can be explained as a compilation of these ideas:
1. Humans have a right to benefit the fruits of their individual labor, both physical and mental.
2. People are motivated to protect the fruits of their labor from others, so as to not lose the fruits of their labor.
3. The idea of a thing is separate from the thing itself (which strikes me as channeling a little Plato, but he’s in there, so what do you want?). This notion makes patents and copyright possible. The design of a chair is separate from the physical representation of that design.
4. Individualism matters – people work to benefit themselves and if the many also benefit, then it’s win/win, but win (individual)/lose(many) is acceptable if win/win cannot be obtained. It is generally acceptable that lose/win is noble, but most are too selfish for this to be adopted across the board, not to mention it creates problems with sustainability.
5. Ideas are unique to individuals. Though they have influences, the key ingredient to any recipe is the chef, not the green beans, though better green beans help. It’s generally accepted (except by those wacky “the writer is dead” literary theorists) that the artist is the most important contributor to a work of art, without whom, the art would not exist.
6. Attribution is important. No one wants their great ideas to be attributed to someone else.
7. The first person to create something is the person who should benefit from it.
I feel like those are the seven major ideas that lead to the idea of copyright, but if I’ve missed anything else that you think is important, please let me know in the comments. I invite you to post. Let’s have a CONVERSATION.
With those seven ideas in mind, let’s take them and build copyright from them. If the idea is separate from the thing, then the idea is a thing someone can create, even if the thing is not created. Who creates the idea matters, and the person wants others to know s/he created the idea. Because people have a right to benefit from their labor, even mental labor, the creation of an idea is something that can be benefited from, as long as that person created it first. Finally, the creator has a right to protect others from profiting from the idea so s/he can maintain profit alone, or at the very least, reap the lion’s share.
Bam! Copyright.
I want to talk more about which of those seven concepts seems like a given that shouldn’t be a given, but first I want to wait a bit to see if anyone has anything to say. Specifically, I want to know if I’ve missed anything before moving forward. So please, pick apart my reasoning – let’s suss this thing out together.
December 27th, 2009 at 1:22 pm
Your approach here is one I tend to favor myself: start from the ground up as a defense against faulty premises that may have been baked into the original arguments. The problem, of course, is that this doesn’t prevent you from falling into your own faulty premises, or from getting bogged down in tangled little logical snags that miss the big picture. (Not that you did any of that above.)
On the subject of copyright, I think a good deal of analysis can be dispensed with because all arguments lead to the same nexus of thought and commerce. The question is whether thoughts can be or should be owned. Yet even on this point I think the debate starts not with an analysis of the concepts involved, but rather from considering what happens if there is no copyright law.
For example, imagine the following:
1) You write a seriously great/entertaining book.
2) You have six dollars in the bank.
3) There is no copyright law.
As soon as you publish your book so that others can read it, here’s what will happen:
1) Someone with very deep pockets will take your book and sell it themselves. They may add content, cut content, or leave it the same, but they will be able to market their version of your book in ways that you cannot. They will know who to cut deals with and they will be able to exploit pre-existing relationships. You will be able to do none of this.
2) Because they have lots of money and you have no money, they will drive massive sales, and you will sell little or no copies of your book.
3) Because you have no exclusive right to the content you created, you cannot sue or in any way compete against the deep-pocketed company.
From this point of view, copyright is a critical right that creators can use not simply to exploit their own content, but to keep from being blown out of the marketplace by rich competitors. Without copyright law — and I think this is probably the most important thing that can be said — there is no reason for producers, distributors or publishers to come to the bargaining table at all.
I can see no counter-argument to this. I can see no benefit to the individual creator from abolishing copyright law. I can only see the rich getting richer and the poor getting poorer — and for my money we’ve institutionalized enough such inequity in our laws already.
Protecting the right to copyright individual expressions protects the individual. I am unwilling to entertain any suggestion that we do away with this protection.
December 28th, 2009 at 2:30 pm
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December 28th, 2009 at 4:09 pm
I’m sort of coming into this sideways, as I have not spent a lot of time online over the holidays (my office was six feet deep in daughters, wrapping paper, and things I wasn’t allowed to see), but I’d like to address the “other business models” issue (on the fly, as it were, with no real prep time, so we’ll see how I do). Also, you’re going to abhor me, because I seem to be pointing at the problem with no idea of the solution, but this is a problem I’ve been squinting at for a while with no idea what the solution is.
I believe it is undeniable that a good part of the current upheaval in the area of copyright law is related to the changing technology of our time. Well, there’s another side to that coin. As I have pointed out on my own blog from time to time, there was an era when a storyteller was a person who regaled crowds of people wherever they were to be found, be it the fireside, the tavern, or the crossroads. Copyright consisted mostly of the difficulty of copying a true storyteller. The talent was as crucial to the pirated copy as to the original, and a talented person is more likely to want to serve their own muse than to steal the works of another. Herr Gutenberg and his fancy-dancy machine put an end to that need.
I submit that it is entirely possible that the concept of copyright law arose as a specific answer to a specific problem created by a specific technology, that the artists of the time could not have continued to make a living doing what they were doing, and that movable type could have killed off content production as a way of life, or as a form of art.
I further submit that the technological drives of our time could simply need a revolutionary answer of their own. Ok, here’s the part you get to abhor: I have no idea what that answer might be. But I’d like to point out that storytellers survived the invention of the press, and we will survive this, too.
December 28th, 2009 at 4:31 pm
Levi, your conclusion is one I believe I’m also approaching. The more and more I look at it, a hybrid system that applies copyright to physical printing and another system for digital copies (for only text, mind, not video games and films) is the method that could help alleviate some of the problems. I plan to expand on this in “Copyright Bout ’09: Round Two” – a planned post that will try to brainstorm some ideas on what a hybrid system could look like. That post should be up soon, within a day or two. Round One is already up.
December 28th, 2009 at 9:58 pm
I might consume content for free, but I wouldn’t pay someone to steal content for me. Is this hypothetical Mr. Deep Pockets stealing the material without anybody noticing? It’s possible to act illegally, wrongly, and pay for it, but I prefer to only do one at a time. The problem isn’t that someone else will make a ton of money without copyright, but that the artist would make none.