I just got my ArtsJournal email summary of arts-related news in my inbox. And inside, they called a piece in the Valentines Day New York Times “The Copyright Problem.” They often link to articles with a phrase of their choosing rather than the author’s, so I quickly clicked over to see what the problem with copyright was. I then was treated to yet another dreary opinion piece about the glory of copyright encouraging “innovation” and the wasteland that would be left if it were reduced. The actual title of the article is the speculation, “Would the Bard Have Survived the Web?” Its supposition is that, no, he wouldn’t have.
At the end of the article, the NYT reveals its authors’ affiliations: “Scott Turow, a novelist, is the president of the Authors Guild. Paul Aiken is its executive director. James Shapiro, a member of the guild’s board, teaches Shakespeare at Columbia.” It is not surprising that the article is merely a boring rehash of a nearly empty assertion that “innovative” content creation depends on the ability to lock people out from experiencing it: “Those who paid could enter and see the play; those who didn’t, couldn’t.” They specifically dodge the wording “those who couldn’t pay, couldn’t,” but just because the Authors Guild doesn’t want to address the issue of inequality in the ability to pay for art doesn’t mean that it’s not relevant to the question of how laws should govern cultural distribution. As far as this piece is concerned, authors and paying customers are the only valid participants in culture.
The only treatment of any possible counterargument about copyright’s effectiveness as a public policy encouraging innovation dismisses all criticism as either “counterintuitive”: “Traffickers in stolen music movies and, increasingly, books… are abetted by a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It’s a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work.” Besides noting that The Authors Guild misses the point of those arguing that copyright has grown overpowered and overlooks every example cited in those arguments, I must make the point that copyright makes no such assurance. Plenty of authors, musicians, and playwrights who have been granted copyrights for their creations have not made money on it. Copyright only protects them against other people making money off the creation in some ways without their permission. It does not automatically create a public willing to pay for it.
If you have ever read one of these “law professors'” arguments, you can see that this piece absolutely mischaracterizes them and that centuries of progress are absolutely the core of the argument itself. Lawrence Lessig is probably the best known of the “law professors,” and his suggestions often hinge on using copyright to ensure both fair treatment of creators and reasonable access to work. It seems that the Authors Guild is probably not going to ever truly respond to a copyright-critical argument and never reference the arguments directly as long as it exists. They rely on generalization to the point of exclusion of important details. As you can see:
“Since the Enlightenment, Western societies have been lulled into a belief that progress is inevitable. It never has been. It’s the result of abiding by rules that were carefully constructed and practices that were begun by people living in the long shadow of the Dark Ages. We tamper with those rules at our peril.” Not surprisingly, the members of the Authors Guild make absolutely no mention of the tinkering the US government has done to copyright law, notably the extension of its term from 28 years (including voluntary extension) to 70 years past the death of the author. Not to mention that the whole point of this article seems to be the promotion of a law-tampering remedy: “the White House has pledged to propose a new law to address rampant piracy within the year.”
The ability of content creators to tap into existing work is not given any service. The example of Shakespeare is particularly a poor choice, because above almost every other playwright in English-speaking history, Shakespeare is known for adapting existing stories, characters, and other material for his own. (There are extended discussions about how authors borrow, “plagiarize,” and adapt existing content.. maybe see this.) Our definitions of plagiarism or “ripping off” often are carefully constructed to avoid castigating the sort of borrowing Shakespeare (and Disney) are associated with. Never mind the fact that it is precisely because Shakespeare’s plays are long out of copyright, so many theaters (including tight-budgeted high schools) can afford to put them on and so many publishing houses have made money selling print editions.
As always, in response to copyright maximalists determining that culture would be a wasteland without strong intellectual property protection, I point to the world of fashion. Garments are not copyrighted, but could you complain you don’t see innovation? Lady Gaga certainly finds some innovative minds making a living in the field.
…posting, at risk of this blog becoming solely a kneejerk reaction to over-generalized copyright maximalism…