Copyright harms Consumers as well as legitimate Developers, Publishers and Retailers
Many in the motion picture, recording, and publishing industries tell us that piracy harms the public as well as business. They tell us that when we access their work free of charge, authors and artists who create that work cannot make a living to support themselves and will thus make fewer, lower quality creative works. They advocate stronger copyright laws and further legal support for technology to restrict content use in order to protect those copyrights.
We at Story Luck disagree. At the heart of this argument is the assumption that artists and authors make money on a royalty system, where they don’t get paid to create a work, but instead get paid for each copy sold. We believe that stronger copyright laws don’t stimulate more, higher quality creative works, and in many cases stifle them. We think there are better ways than royalties for artist and authors to make a living, without resorting to crippling consumer’s first sale and fair use rights, commanding an artificial monopoly, or preventing others from building on their work for nearly a century after its creation.
Copyright does more harm than good. I’m going to talk about how copyright harms artists, musicians, and authors as well as consumers, and what we can do to make money without royalties. But first, I’m going to go over a how and why we got here.
A Brief History of Copyright
Before the invention of the printing press, copying any creative work was laborious, time consuming, error-prone process, so protection of copying rights was a non-issue. The transmission of knowledge and literature was often oral, and such works were typically considered a part of the public commons or the secret of a trade guild.
The invention of the printing press in 1470 and the rise in literacy that followed made it possible to spread ideas farther, more cheaply than had been possible before. Rulers were concerned by the new ability for people to make cheap copies of books; it allowed the spread of heretical and dissenting ideas. To help stop this, the government granted printing companies exclusive rights to produce copies of the books they registered, and gave Wardens the right to search any printing presses for illegal works, destroy presses printing them, and arrest those printing illegal works [](#evolution).
The system was unpopular. John Locke and John Milton both famously wrote against the state-granted monopolies of the publication companies of the time. It was not until 1710, with the passage of the Statue of Anne, that author’s were first given the rights to produce copies of their work.
### Origins in Britain: The Statue of Anne
The Statute of Anne was first legal establishment of modern copyrights. The purpose and guiding philosophy of copyright is clearly stated in the preamble:
> “Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing, Reprinting, and Publishing, or causing to be Printed, Reprinted, and Published Books, and other Writings, without the Consent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families: For Preventing therefore such Practices for the future, and for the Encouragement of Learned Men to Compose and Write useful Books”
The Statute gave authors exclusive rights to publish their work for 14 years after it was finished, and for another 14 if they renew when the first term expired. It includes several groundbreaking ideas:
- The author has the right to decide who publishes their work and when.
- Granting authors exclusive rights to their work encourages writers to create and publish.
- Creative works that are not protected by copyright belong to the public commons. Anyone is free to copy, use, and build upon them.
- Copyrights are granted to an author for only a short time, after which the work enters the public domain.
These four groundbreaking ideas have had a heavy influence on copyright law in Europe, the United States, and much of the world since.
### The US Copyright and Patent Clause and the Copyright Act of 1790
> To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
That is the full text of the Copyright Clause of the United States Constitution. The clause is explicit about it’s goals, the promotion of Science (then understood to include literature) and useful Arts. It’s explicit about the means it gives Congress for advancing those goals; Congress may grant Authors exclusive rights to their work. It’s also noteworthy what is missing: author’s aren’t given exclusive rights to their work so that they can support themselves and their families. They are given exclusive rights to their writings to promote progress, as a method of encouraging them to write.
American copyright is a explicitly trade-off between public goods. It is in the public interest to have free access to writings and inventions, so that we can learn from them and build on them. It is also in our interest for people to write and invent. We give up free access to writings and inventions on a temporary basis in order to encourage people to produce new works, so that they can profit from this temporary monopoly on their work.
This was enacted in federal law in 1790. The Copyright Act covered books, maps, and charts, and gave their creators a 14 year monopoly on their publication, which could be renewed once for another 14 years. The length of the rights have been extended several times since, to the life of the author plus 70 years today, or 95 years for a work produced for hire. But the next substantial change to US copyright law happened in 1976
### Copyright Act of 1976
In 1976, Congress passed a 900+ page update to copyright law. The Copyright Act of 1976 extended the term of exclusive rights, broadened copyrights to include literature, music, sound recordings, movies, theater, sculpture, dance, and graphic arts. It was later amended to include architecture. At the time copyright lasted 28 years, with another 28 year term granted if requested. The act changed the term to the life of the author plus 50 years.
Earlier copyright gave holders exclusive rights to the production of copies of their work. The 1976 Act gave content producers exclusive rights to:
- reproduce (copy) the work into copies and phonorecords,
- create derivative works of the original work,
- distribute copies and phonorecords of the work to the public by sale, lease, or rental,
- perform the work publicly
- display the work publicly
The act is also the first to mention fair use rights. Fair use has a long history in commonwealth law and in court decisions, but this was the first US federal statute to mention it explicitly. It includes four factors judges are to consider when deciding whether a use of protected work counts as infringement or fair use:
- the purpose and character of the use (commercial or educational, transformative or reproductive)
- the nature of the copyrighted work (fictional or factual, the degree of creativity)
- the amount and substantiality of the portion of the original work used
- the effect of the use upon the market (or potential market) for the original work
Wired has [an excellent summary][wired fair use] of how these criteria can play out in a fair use defense. Wired also warns: “Courts ask an unofficial fifth question: Is the defendant a good guy or a bad guy?”
A _Time_ article [](#time) quotes Barbara Ringer, the U.S. Register of Copyrights, as saying the act was “a balanced compromise that comes down on the authors’ and creators’ side in almost every instance.”
### The Digital Millennium Copyright Act
In 1998 the United States passed the Digital Millennium Copyright Act. It’s most controversial aspect is its anti-circumvention provisions. The act, with some exemptions, makes it illegal to circumvent copyright protection mechanisms, the digital restrictions management (DRM) like CSS on DVDs. It requires analog video recorders to have Macrovision copy protection.
The DMCA also been interpreted to prohibit linking to infringing material in some cases or linking to software to circumvent DRM. It also limits the liability of content hosts whose users might upload or link to infringing materials, instead requiring that they take down the infringing content.
Copyright Does More Harm Than Good
In theory, copyright is a compromise between two public goods; we give up free access to creative work for a limited time so that authors and artists will create more work. Their exclusive rights act as an incentive to create, allowing them to offset the cost of creation and profit from their work.
Does it actually work? Certainly not in some markets where copyright applies. Possibly not in any.
One clear case is academic work. In academia, the incentive to create is academic esteem, which carries its own rewards in the form of citations, research funding, lab space and equipment grants, and professorship positions. For these reasons, Steven Shavell [argues that copyright law harms academic research and should be disposed of in academia][academic]. To the extent that academic research (often publicly funded) is kept from the general public, we lose a great deal. Researchers both inside and outside academia miss valuable research that they might be able to build on. Policy makers face a barrier to obtaining research that may be relevant to the issues of their day.
Much recent research has argued that copyright is unnecessary to promote creativity, and actually _harms_ innovation. Economics and legal researchers argue that [the lack of copyright in fashion has increased innovation rather than hindered it][fashion]. Economists Felix Oberholzer-Gee and Koleman Strumpf [find no drop in quantity or quality of music since Napster][music], despite widespread piracy. Eckhard Höffner, an economic historian, [claims that _lack of copyright_ explains the impressive German accomplishments in literature and science in the 19th century][germany], while England, with a strong copyright system, was relatively stagnant.
This is a small sampling of the work discussing the [Tragedy of the Anti-Commons][anti-commons] and copyright. [Free Culture][free-culture] by Lawrence Lessig offers a powerful argument against strong copyrights.
### Harm to Consumers
Copyright harms consumers. The most obvious harm is the loss of free access to our culture. We want to share and build on the works that permeate our culture, and we risk possibly ruinous lawsuits if we do this without permission.
But copyright harms consumers in more subtle ways as well, especially after the passage of the DMCA. To protect copyrights, content producers use DRM to limit how we can use the works we purchase, and the DMCA makes it illegal for us to circumvent this. This prevents many legitimate uses of a work covered by fair use and first sale rights, such as backing up a DVD or playing a legitimately purchased DVD on a foreign player. For a long time a user of a Free Software operating system like Linux could not watch a legitimately purchased DVD on their computer because the DVD player would have to circumvent the DVD’s DRM to play the movie.
The problem persists in other forms today. DRM makes it more difficult to adopt open formats. It makes it difficult for vendors of content reading and editing tools such as word processors or e-book readers to reverse engineer a competitor’s format so they can support it in their tool, because that involves circumventing DRM. This leads to less choice for consumers as fewer devices and programs are available to open their e-book library. This can be used to lock a consumer in to a content platform, since they can’t get their content in a form that they can take to another platform. It circumvents our first sale rights, and leaves us all worse off.
The problem is worse still when software is copyrighted and sold under restrictive licenses. If the software has some defect that the user would like to fix, they have no recourse but to go to the author of that software and ask them to fix it. De-compiling or disassembling the binaries could be seen as circumventing copy protection, which would make it illegal for the user to decompile, edit, and fix the copy of the software that they purchased, even when the fixes are only for their own personal use. Nor would it be legal to hire anyone but the original author or their authorized agent to do this on your behalf. This is a serious abridgment of your first sale rights.
### Harm to Creators
> “Genius is, among other things, the ability to transform common artistic property into something original and individual.” — EJ Kenney, introduction to Ovid’s _Metamorphoses_
Consider Kenney’s quote. One crucial ingredient to creative genius is a vibrant commons of artistic property for creators to draw from.
Indeed, our culture is built upon the reimagining of the works that came before. Disney is the perfect example. Think of the classics of your childhood: _Snow White and the Seven Dwarfs_, _Pinocchio_, _Cinderella_, _Alice in Wonderland_, _Peter Pan_, _Sleeping Beauty_, _Robin Hood_, _The Little Mermaid_, and _Alladin_ were just some of Disney’s hit movies that retold popular stories in the public domain. But it will be decades at least before anyone can retell the story of _Lady and the Tramp_ without getting permission from Disney first.
Comics are another great example where common artistic property plays a critical part in the creation of our culture. Much of comic culture reimagines or recombines characters in new ways. But most of those characters are still under copyright. If you want to write your own Batman comic, today you have to ask DC comics for permission and accept their terms. Creators won’t be free to use Batman any way they want until 2034. If copyright terms were the same today as when Batman was first published, it would have entered the public domain in 1997.
Two of comics’ most celebrated authors have critically acclaimed works that make essential use of characters in the public domain to tell their stories. Alan Moore’s _League of Extraordinary Gentlemen_ and _Lost Girls_ draw on a wide range of literary characters, reimagine them, and put them in entirely novel circumstances. And in both books, there is no way the original copyright holders would have approved of these uses. Neil Gaiman’s _Sandman_ draws on an array of mythic characters so vast that, were most of them not in the public domain, it would be impossible to secure the rights to use them.
I end this with two quotes on the harm to creators done by overly strong copyright:
> “It could be well into the 22nd century before we get Star Wars prequels worthy of the name.” — [Alex Tabarrok][feudalism]
> “We are the first generation to deny our own culture to ourselves. Almost no work created during your lifetime will, without conscious action by its creator, become available for you to reproduce or build upon.” — [Duke University’s Center for the Study of the Public Domain][public domain]
Alternative Business Models for the Arts
We think that legal reform of copyright is necessary. But until copyright is legalised, we think the only ethical path a creator has is to place their work in the [creative commons][cc]. But allowing your audience to freely distribute your work makes royalties a poor model for supporting your work.
Artists supported themselves for centuries before the invention of copyrights. I see three vehicles for supporting creative endeavours that have worked well in the past and continue to work well today: get a day job, create something that is naturally scarce, and work for commission.
### Leverage Scarcity: Live Performance and Merchandise
I’m starting with the most obvious approach: produce something that cannot be reproduced cheaply. This can be large detailed prints of your work, a t-shirt, or a live event like a concert or a reading. These are all inherently scarce, so people will naturally pay for them if they’re interested in what you do.
_Story Luck_ does this by charging for our shows, selling t-shirts and other merchandise. We may podcast our show for free (as in freedom, it’s all CC), but we believe listening to a podcast is no substitute for actually being there.
### Be Poor, Get a Day Job
Next is the least glamorous but the most important. Get yourself a day job.
If you’re a writer, illustrator, musician, or painter, you are doing something people do for fun. Without getting paid. Unless you are a genius in your medium, why expect anyone to pay you to do whatever you want?
But if you are any of those, you may have a skill that is in demand. Visual artists who can use their skill for graphic design can do web design or corporate design and advertising work. Several musicians make a living composing on commission for film and advertising. Programmers who work for business contribute to open source projects in their free time. All of the people who work on _Story Luck_ have other jobs. Dan and Noah work in education. The rest of us are writers, programmers, designers, social media marketers, and accountants.
### Get Paid to Create, Not Distribute: Commission and Patronage
But if you are fantastically talented, you can distribute your work for free and people will pay you to make it. Rich folks will pay you to do whatever you want, just to make it exist.
And you don’t even have to be free, nor do your patrons have to be rich. [Kickstarter](http://www.kickstarter.com) is a great place to raise the funds to pursue your artistic interests. If your idea is cool enough and you can describe it well enough to the internet, people will give you the money to make it happen.
_Story Luck_ offers Chicago several unique story related events every year. [We’re using Kickstarter][ks] to help us pull this off, and without it we would have to scale back some of our ambitions for public games and secret story swaps.
How to Help
There are plenty of ways you can help. Please, by all means, fund the arts through crowdsourcing sites like Kickstarter. Go to shows, by merchandise. Put your work in the creative commons. Even pay for copies of people’s work.
But perhaps the simplest way you can help is to stop spreading the meme that authors and artists need strong copyrights to support their work. It is simply false.
-Adam C. Baker
This essay is in the public domain. All rights relinquished.
<a name=”evolution”></a> Robinson, A.J.K (1991). “The Evolution of Copyright, 1476–1776”. _Cambrian Law Review_ (University of Wales Press) 22 (1). ISSN 0084-8328.
<a name=”time”></a> _Righting Copyright_, Time, Nov. 1, 1976, at 92.
[wired fair use]: http://www.wired.com/wired/archive/11.11/start.html?pg=13
[public domain]: http://web.law.duke.edu/cspd/publicdomainday