Who’s Right? My Copyright Rant

Being a math­e­mati­cian at heart, I tend to return to first prin­ci­ples to resolve an issue.  To talk about the mod­ern mess that is copy­right and/or intel­lec­tu­al prop­er­ty, we’re going to con­sid­er the pur­vey­ors of this mess: cor­po­ra­tions.  Why is this the case?  The orig­i­nal foun­da­tions of copy­right: that it was a lim­it­ed monop­oly on pro­duc­ing a work — core to the lim­it­ed monop­oly was it’s expi­ra­tion — often in 7 to 10 years would ade­quate­ly encour­age authors to cre­ate works.  Indeed, peo­ple cre­at­ed works before copy­right, but copy­right was envi­sioned to cre­ate more works and a greater vari­ety of works.

In whose inter­est is the cur­rent copy­right act (com­mon­ly held to be the age of Micky Mouse plus 10 years)?  With copy­right last­ing more than 50 years past the death of the orig­i­nal author in most cas­es, who does this encour­age?  Can an author sell his work for more mon­ey?  Since these copy­right exten­sions are recent devel­op­ments, no.  Can a con­tem­po­rary author sell his work for more?  Not like­ly again.  90% or more of the rev­enue for a work occurs in the first year or two of it’s exis­tence.  The publisher’s offer will reflect this.

Plain­ly, mod­ern copy­right, no mat­ter how you cut it, is firm­ly across the line and ben­e­fit­ing the cor­po­ra­tions that own the vast major­i­ty of the world’s copy­rights.

The road to this, how­ev­er, is not a road of cre­ative works and lob­by­ing by authors, it’s the sto­ry of the cor­po­ra­tion.

The cor­po­ra­tion was orig­i­nal­ly con­ceived as a way to encour­age a larg­er num­ber of peo­ple to share a com­pa­ny — such that the pool of resources (large­ly mon­ey) would be that much larg­er and there­fore the com­pa­ny could under­take that much grander enter­pris­es.  The Dutch East India Com­pa­ny is often offered as the ear­li­est exam­ples, but com­pa­ny-like struc­tures exist­ed at least as far back as the Roman empire.  Cer­tain­ly cor­po­rate law has been suc­cess­ful in cre­at­ing enter­pris­es larg­er than a sin­gle per­son or fam­i­ly could build.

The prob­lem that has occurred, how­ev­er, is that com­pa­nies have dis­cov­ered that manip­u­lat­ing the world of pol­i­tics can have sig­nif­i­cant impact on their prof­it.

The prob­lem with this is that com­pa­nies aren’t peo­ple.  They have some of the attrib­ut­es of peo­ple — they pay tax­es (although dif­fer­ent­ly), they are respon­si­ble for their actions in a court of law (although dif­fer­ent­ly, again).  But com­pa­nies aren’t peo­ple.  They can­not be crim­i­nal­ly respon­si­ble.  They can­not exist with­out peo­ple in charge and most impor­tant­ly, they can­not vote.  We call that fran­chise or suf­frage.

Here­in lies my first major point here: Gov­ern­ment and the laws they cre­ate (includ­ing those regard­ing copy­right) serve the peo­ple.  To the extent that X vot­ers own a record com­pa­ny (and agree with it), they may express their views.  To the extent that artists live in Cana­da (my coun­try for this argu­ment), they also have fran­chise.  The record (or oth­er) com­pa­ny doesn’t have fran­chise.  The Amer­i­can (not my coun­try for this argu­ment) artist doesn’t have fran­chise (in Cana­da).  A com­pa­ny might argue that there may be reper­cus­sions (like they might take their media and go home) if we don’t enact cer­tain lim­i­ta­tions on our lib­er­ty — but I hon­est­ly want to chal­lenge them on this.  I strong­ly believe things won’t play out as they believe.

It is true that we bar­gain the respect of for­eign copy­right for the respect of our own copy­right abroad — and that is a sen­si­ble posi­tion for gov­ern­ment that respects their ser­vice to the peo­ple.  But it’s also true that beyond the pro­tec­tions we desire for our works, we need not con­tin­ue to bar­gain.  At this point we could veer of into the weeds of inter­na­tion­al diplo­ma­cy.  Maybe Amer­i­cans would give us less has­sles at the bor­der if we pil­lo­ried any­one caught with a video cam­era in a movie the­atre — but that argu­ment is just what it seems — an addi­tion­al bar­gain they might seek if they wish more pro­tec­tion.

We also have inter­na­tion­al stan­dards for copy­right.  Many of these stan­dards have been deeply influ­enced by non-gov­ern­men­tal (ie: non-peo­ple) orga­ni­za­tions.  Recent­ly some of these orga­ni­za­tions have been suc­cess­ful­ly lob­bied in the inter­ests of peo­ple — and we’ll come back to this point.

There isn’t some moral or fun­da­men­tal right to copy­right.  It is not a human need.  It is pos­si­ble to live a healthy, hap­py and pro­duc­tive life with­out copy­right. Recent his­to­ry of the inter­net has even shown that humans have strong incen­tive to share media.  One inter­est­ing lit­tle study showed that peo­ple share media with­out expec­ta­tion of any gain what­so­ev­er. Music and sto­ries have strong effects on our per­son­al and col­lec­tive psy­che.  Our com­pul­sion to share music and stores appears to be dri­ven by a deep seat­ed need to have shared expe­ri­ences with our peers.

Cur­rent copy­right also ignores the con­tri­bu­tion the user plays in media.  Like my blog, a song or a sto­ry is a “tree falling in the for­est” prob­lem if it isn’t shared at all.  The val­ue of a media prop­er­ty increas­es in pro­por­tion to the num­ber of peo­ple that enjoy it. This is a net­work effect but most inter­est­ing­ly, it’s not some­thing that can be bought or trad­ed — it is tru­ly the peo­ple that cre­ate the val­ue in the media prop­er­ty.  Where is that val­ue respect­ed in copy­right?  We’ll come back to that.

While doing some research for this arti­cle, I came across sev­er­al posts that talked about the fact that we out­source the locat­ing of valu­able media to the major labels.  They do the leg­work to find the artists we want and in return we should buy their CDs and DVDs.  This is an inter­est­ing argu­ment but it is also shut­down by peer to peer cul­ture.  In one sense, peer to peer shar­ing mit­i­gates the chance of buy­ing stuff you don’t like — a sort of try before you buy.  The same stud­ies that show that peo­ple are will­ing to search for their own artists (and even enjoy this search — even though it’s poten­tial­ly more cost­ly than the major media com­pa­nies — it’s also more per­son­al and more accu­rate) show that peer to peer users who share music buy more (much more) music than non peer to peer users.

Let’s bring this all back around and make a point.  Because copy­right is a lim­it­ed right cre­at­ed only to encour­age artists (and not large com­pa­nies); and because com­pa­nies have no fun­da­men­tal right to argue their case on this issue; and because sub­stan­tial por­tions of the val­ue of a work accrue from the users of that work; and because most of the real rev­enue for a work occurs in the first few years — we should be gen­er­al­ly look­ing at less copy­right than more.  We should be look­ing at a 7 to 10 year max­i­mum copy­right and greater excep­tions regard­ing fair use.

Peo­ple cre­ate with­out incen­tive.  The inter­net is proof pos­i­tive enough of that.  Our only ques­tion is: “What is the min­i­mum extra incen­tive that pro­duces the max­i­mum amount of addi­tion­al media.”  If, in our dif­fer­ent world, a movie would only earn mon­ey for 7 to 10 years, would movie com­pa­nies still make movies?  I have a hard time believ­ing any­one who says they wouldn’t.  Movies are declared a suc­cess for a flop with­in 3 days of release.

It might mean that a movie stu­dio that sits on a prop­er­ty too long would be out­smart­ed by a faster mov­ing com­peti­tor — but I hard­ly regard that as a down­side.

All over the world, intel­lec­tu­al prop­er­ty law of all kinds has been in the news. Large inter­ests have been work­ing hard to secret­ly press through treaties like ACTA. These agree­ments and treaties have been draft­ed in secret to bypass nor­mal inter­na­tion­al bod­ies that have pub­lic scruti­ny. It’s not enough to desire copy­right reform or react to new leg­is­la­tion from your gov­ern­ment — due to the slimy “do what­ev­er it takes” nature of the mega media indus­try we all need to be a lit­tle proac­tive.

I high­ly rec­om­mend that in addi­tion to my blog, you fol­low Michael Geist’s blog.  I linked to his posts on ACTA above and I’ll prob­a­bly be tak­ing some future post ideas from his blog, too.  What­ev­er you think of his views, Michael has been encour­ag­ing a fair and open dis­cus­sion of intel­lec­tu­al prop­er­ty laws in Cana­da.  This is a vital­ly impor­tant func­tion since few of the par­tic­i­pants seem to be able to act like adults in pub­lic.  Seri­ous­ly: some the most shame­ful recent moments in Cana­di­an pol­i­tics have been relat­ed to intel­lec­tu­al prop­er­ty reform.

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