Copyright has gotten completely out of control, serving the rich at the expense of the poor.
These days, it’s very easy to become a creator. Just send a brief memo to the boss, or take a photo. Automatically, you hold the copyright to these “creations,” and the associated rights last a long time, for 70 years after you die.
Suppose your selfie happens to be in the background of a shot in a blockbuster movie. You can sue for infringement of your copyright. Good? Well, not so much, because movie producers now take precautions to avoid incidental infringements, which means they avoid real-life backgrounds, because pictures, designs, videos and much else might be seen and make them legally liable.
It’s crazy and it keeps getting worse. Who benefits?
Back in the 1990s, I became interested in what’s called “intellectual property” (IP), which includes copyright, patents, trademarks and trade secrets. What’s involved in all of them is that something that can be used by many people at the same time, like an image or text, is subject to restrictions. If you write a few lines of doggerel, all your friends can read it and so can you. This is unlike a pair of shoes or a bicycle, which are forms of property that can’t be used by others when you’re using them.
The more I learn about IP, the more absurd it seems. And of all the forms of IP, copyright is the most absurd. These days, no effort is required to acquire copyright. You have it automatically, without registration, in every text you send to a friend and every photo you take. And why? What is the purpose of copyright?
Rationales
The most common justification is that authors, and creators more generally, deserve some return from their intellectual labour. On the other hand, the official justification, for example as spelled out in the US Constitution, is to stimulate the production of creative works for the good of all. The trouble is, in practice these days, copyright doesn’t achieve either of these ostensible purposes, and is more likely to work against them.
One way to appreciate this is by studying the history of IP. For this, you need go no further than a new book by David Bellos and Alexandre Montagu titled Who Owns This Sentence? A History of Copyrights and Wrongs.
This is one of the most entertaining and illuminating treatments I’ve seen. You might not think that stories about English publishers in the 1700s and US court cases in the 1800s would be of interest, but they tell an amazing story of struggles over copyright. Along the way, they also tell about patents, trademarks and trade secrets, but copyright is the focus, appropriately so because it is the most ridiculous form of IP.
Initially, in England, copyright was not about benefiting authors but rather protecting the profits of book printers. Given widespread acceptance of copyright today, this is hard to grasp. Authors were never the intended beneficiaries, but claiming that they were became a way to justify copyright.
Bellos and Montagu present a vivid account of what they call “copyright creep.” The protection started out covering just books, then engravings and later photographs and recordings. In many countries today, murals and graffiti can be copyrighted, so if you take a photo of one, you’ve infringed its copyright. Then there are business directories and computer programs.
David Bellos
Copyright creep also involved the spread of copyright to most of the world. In the 1800s, US copyright law only protected works by US authors, so US publishers freely printed novels by the likes of Charles Dickens and US theatre companies freely staged musicals by Gilbert and Sullivan. In the late 1900s, however, the US government realised the enormous profits to be obtained from IP and set about insisting that other governments, like China’s, introduce strict laws. Why? Because nearly all IP payments flow from the poor to the rich and from other countries to the US.
Alexandre Montagu
IP is basically a restraint on trade. “Copyright protection flows disproportionately to large enterprises more likely to use it to stifle innovation than to promote it.” (p. 288) It’s weird that IP has been imposed via trade agreements that, in the popular mind, are about free trade. Bellos and Montagu give several examples of periods when copyright protection was limited, generating bursts of creative activity.
One of the most significant examples of copyright creep was in 1909, when the US Congress passed a law that continues today and went further than merely permitting employers to hold the copyright of works produced by their employees. They became, legally, the authors:
“Today, the vast majority of commercially viable copyrights belong not to people, but to large, impersonal empires in the book, film, music and software fields — and in the mangled language of copyright law, these entities are now the authors of the works they distribute …” (p. 198)
Bellos and Montagu note that creators centuries ago depended on patrons, for example the princes who sponsored figures like Mozart. Then came a period where creators could potentially make a living from royalties from their work. But things have come full circle, and most of today’s creators — think writers, composers, computer programmers, scientists — are employees. Most of their income comes from their salaries, not returns from copyright, which are skimmed off by their patrons, namely their employers.
There is so much interesting material in Who Owns This Sentence? that it is hard to make a selection. One of my favourite chapters is “Misinformation campaigns,” in which the authors tell about the efforts by big corporations to convince consumers and school children about the importance of copyright, offering one falsehood or misleading statement after another. In recent years, there has been a flowering of efforts to counter “misinformation,” but I’ve never seen efforts to tackle IP misinformation. No prizes for guessing why.
Although Bellos and Montagu provide copious notes on their historical sources, they give little attention to criticisms of copyright by contemporary authors. I thought for example of Peter Drahos, who argues that IP should be relabelled “monopoly privilege” to better indicate its function, Debora Halbert, whose penetrating works show the dysfunctions of IP, especially copyright, and David Vaver, whose caustic commentaries on copyright rival those of Bellos and Montagu. Who Owns This Sentence? is a wonderfully revealing history but not so much a survey of anti-copyright research.
“Copyright is now the principal regulatory tool for industries of great size that are mostly located in the ‘old rich’ countries, chiefly Britain, the E.U. and the U.S. Yet it is either an irrelevance or just an irritation to the vast majority of creators working there or anywhere else. It generates trifling income for all but a handful among them, and it limits their recourse to the works of others in arbitrary, whimsical, and often unforeseeable ways.” (p. 331)
Alternative paths
In Bellos and Montagu’s history of copyright, they identify crucial points where powerful interests benefited and henceforth fiercely protected their flow of windfall gains. If a few court decisions or international agreements had been different, today’s copyright regime might be less irrational. This is a useful perspective, but it amounts to a suggestion for copyright reform, to make a bad system somewhat less bad. Bellos and Montagu perhaps prefer to be seen as cautious.
A more radical proposal is to abolish copyright altogether, at least in terms of making money from it. That would mean that creations would immediately enter the public domain, the commons.
How then would creators make a living? This begs the question, because the overwhelming majority of today’s creators have salaries; it is employers, who are not creators, who benefit from today’s creators, and from many other creators long dead. Nevertheless, continuing this line of thinking, an alternative is the widespread introduction of a Universal Basic Income, so everyone has enough to live. Creation could then be largely separated from financial gain. This would mean that novelists would write to express themselves and please others; programmers would write code to serve users; researchers would investigate drugs to serve human health; and so forth.
Bellos and Montagu point to one area of human endeavour that has always remained exempt from copyright: mathematics. Formulas like E=mc2 cannot be copyrighted, or patented for that matter, which allows their unhindered use for further scientific research. Imagine how constraining it would be if scientists had to pay royalties to Einstein’s estate every time they used one of his equations. Freedom from copyright can unleash creativity. Why not allow other domains to flourish in the same way?
How could a change towards a saner system come about? Bellos and Montagu discuss the free software movement, but there is much more going on, and many possibilities for action. On a personal level, the immediate possibility is direct action, namely using copyrighted works as a form of civil disobedience. If enough people challenge corporate owners, their powers dissipate. This is what occurred when US film producers took legal action against downloaders, generating a huge backlash.
More generally, given that IP serves the rich and hinders creativity and social benefit in many domains, opposing IP can be considered part of a challenge to economic inequality. Perhaps a way forward is for social movements to put opposing IP on their agenda. A good start would be wider awareness of the tortured history of copyright so well canvassed in Who Owns This Sentence?
Brian Martin
bmartin@uow.edu.au
Thanks to Kelly Gates and David Vaver for valuable comments.